ML20151X380

Certificate of Question to Appeal Board.* ASLB Requests Further Guidance Re Authority to Proceed Into Merits of FEMA Position.Served on 880429

ML20151X380
Person / Time
Site:	Seabrook
Issue date:	04/28/1988
From:	Smith I Atomic Safety and Licensing Board Panel
To:
References
CON-#288-6185 82-471-02-OL, OL, NUDOCS 8805040136
Download: ML20151X380 (3)

Text

[9NS occnuco USNRC 6i T8 MH 29 A8:45 gFFICE CT st;: Lifa r it"musikn UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Ivan W. Smith, Chairman Gustave A. Linenberger, Jr.

Dr. Jerry Harbour SERVED APR 291988

)

' In the Matter of ) Docket Nos. 50-443-OL

) 50-444-OL pUBLIC SERVICE COMPANY OF ) (ASLBP No. 82-471-02-OL)

NEW HAMPSHIRE, el gl. ) (Offsite Emergency

) Planning)

(Seabrook Station, )

Units 1 and 2) )

) .. A pt.*i l 2 8 , 1988 CERTIFICATION OF QUBJTION TO APPEAL BOARD The Appeal Board's memorandum of April 27, 1988 lifted in part the previous suspension of the evidentiary hearing scheduled to begin on May 2. The Licensing Board was authorized to proceed, but the hearing was not to include,

- pendin6 further order of the Appeal Board, ". . . the receipt of evidence from witnesses on behalf of FEHA."

The parties to the proceeding were informed that the Appeal Board's action (presumably the action of continuing the suspension of any hearing receiving evidence from witnesses on behalf of FEMA) was "...without prejudice to the entitlement of each party to seek such additional relief 8805040136 080428 1/

PDR ADOCK 05000443 $O O PDR

. 2-from the Licensing Board with respect to the upcoming evidentiary hearing as might be thought warranted."

The Licensing Board understands the restriction against

"...the receipt of evidence from witnesses on behalf of FEMA" to mean that we may not require Intervenors or any party to confront witnesses who are presenting FEMA's position in the proceeding until the Appeal Board considers Intervenors' April 22 motion for directed certification.

This understanding is based in part upon Intervenors' avowed 1

need for further discovery before being required to cross-examine the FEMA panel whose prefiled written testimony was served. ..

The Licensing Board however is not confident that it understands the reach of its authority to entertain requests for additional relief. There is pending before the Licensing Board the Intervenors' April 14 application for subpoenas requiring certain named FEMA employees to attend the hearing. The Intervenors stated in the motion for directed certification that they intend to subpoena still others as a part of the Intervenors' direct case. Id.

at 30. The Board itself has a need for additional evidence from FEMA witnesses to satisfy ius own concerns about the quality of the evidence already submitted and proposed to be submitted by FEMA. We assume that the Appeal Board's order would not prohibit the compelled attendance of named FEMA employees if the purpose of their attendance is to testify, not on 'oehalf of FEMA, but say, as on cross-examination by

- e.

Intervenors, or perhaps as Board witnesses. However, we are not free from doubt on that score given the Appeal Board's strong action in suspending the aspect of the hearing pertaining to witnesses appearing on behalf of FEMA.

Therefore, pursuant to 10 C.F.R. 2.718 (1), the Licensing Board requests that it be given further guidance concerning its authority to proceed into the serits of FEMA's position.

FOR THE ATOMIC SAFETY AND LICENSING BOARD

/

4

'Ivan W. ~SmithT, Chairman

ADMINISTRATIVE LAW JUDGE Bethesda, Maryland April 28, 1987 l

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