ML20155C608
| ML20155C608 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 06/06/1988 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#288-6466 OL-1, NUDOCS 8806140267 | |
| Download: ML20155C608 (8) | |
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fb DOCKETED uwRC June 6, 1988 UNITED STATES OF AMERICA'88 Jl.N 10 A8:17 NUCLEAR REGULATORY COMMISSION CbC b before the y :.W ATOMIC SAFETY AND LICENSING APPEAL BOARD
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In the Matter of
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PUBLIC SERVICE COMPANY
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Docket Nos. 50-443-OL-1 OF NEW HAMPSHIRE, EI AL.
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50-444-OL-1
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(Seabrook Station, Units 1
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(Onsite Emergency and 2)
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Planning and Safety
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Issues)
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APPLICANTS' RESPONSE TO NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S MOTION FOR CLARIFICATION OR, IN THE ALTERNATIVE, MOTION FOR LEAVE TO FILE A NOTICE OF APPEAL OUT OF TIME Under date of June 1, 1988, New England Coalition on Nuclear Pollution (NECNP), has filed a motion "Ear Clarification or, in the Alterative, Motion for Leave to Pile a Notice of ADoeal out of Time."
The thrust of the motion is to keep alive NECNP's right to appeal to this Appeal Board the issue of whether the Licensing Board erred back on March 18, 1988 in holding that NECNP's then extant Co.cention IV did not encompass within it the issue of so-called "microbiologically induced corrosion" (MIC).
The filing of the motion was apparently triggered by this Appeal Board's statement in ALAB-892 issued on May 24, 1988:
"The Coalition repeats the statement in its papers below that its appeal (as to MIC) will be filed 'at the appropriate time.'
(citation)
We have not been asked for guidance, and we do not here 8806140267 880606
{DR ADOCK 05000443 I:>Sois
provide it, with respect to whether an appeal must have been taken from the (Licensing) Board's March 18 Memorandum and Order, or must be taken from the May 12 Memorandum and Order, or can await subsequent events.
On this score, the time for the filina of a notice of acoeal from the May 12 order has not vet exoired (see 10 CFR 2.762) and, thus, an acoeal from that order is still possible as of this writina."1 Despite the pointed hint set forth above with emphasis, NECNP waited until June 1, 1988 to file the motion at bar.
For the reasons set forth below, the Applicants believe that the motion should be denied.
ARGUMENT The question of whether to extend a time limit for appeal after the tire limit set forth in the regulations has passed is addressed to the sound discretion of the Appeal Board.
This is so cecause for some eight years, the rule has been that while time limits on appeals are strictly enforced as a general policy, they are not jurisdictional.
Nuclear Encineerina Co. (Sheffield Illinois Low Level Radioactive Waste Disposal Site), ALAB-606, 12 NRC 156, 160 (1980).
Contrary 6.o the assertions in the NECNP Motion, the "clock" does not begin to run on appellate rights only when a document entitled "Initial Decision" or "Partial Initial Decision" issues.
See Motion at 3-5.
Rather, the rule, as 1Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-892, __ NRC Slip Op. at 6, n.12 (May 24, 1988).
Emphasis added.
2
laid down in ALAB-3002, and quoted without ellipses:
"The test of ' finality' for appeal purposes before the agency as in the courts is essentially a oractical one.
As a general matter, a licensing board's action is final for appellate purposes where it either disposes of at least a major segment of the case or terminates a party's right to participate, rulings which do neither are interlocutory."3 We are aware of no case on all fours with the one at bar.
At first glance, one might argue that NECNP is in no different position than it would be had a contention been excluded at the outset of a proceeding and therefore it has the right to appeal that exclusion upon the issuance of a later initial decision, and therefore until another decision authorizing low power comes down, there was nothing to appeal.
This is not the case though.
Here, the Licensing Board did not exclude a contention; rather it held that an admitted contention did not encompass an issue which NECNP argued it did.
Concededly, NECNP did not have to appeal the discovery ruling which made the Board's view known.
- However, on May 12, 1988, the Licensing Board dismissed as moot the contention itself which was the subject of interpretation.
With that dismissal, there is nothing left to interpret.
In an operating license proceeding, the breadth of the i
jurisdiction of the adjudicatory tribunals is defined by the 2 Toledo Edison Co. (Davis-Besse Nuclear Power Station),
ALAB-3 00, 2 NRC 752, 758 (1975).
3Id.
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extant contentions.
When a contention is dismissed, jurisdiction over issues enconpassed within the contention ceases to exist unless it is kept alive by a proper appeal to a higher tribunal within the agency.
Thus, the decision of the Licensing Board dismissing as moot the contention was "final" in all practical senses one can divine insofar as the MIC issue was concerned.
It shotJd have been appealed than and there.
The forgoing analysis gains further support by virtue of the fact that the MIC issue was allegedly encompassed within a contention which had been sent to the Licensing Board by virtue of a remand by this Board.
It is settled that when a Licensing Board receives a case back on remand it has jurisdiction only over issues remanded to it.4 Three matters were remanded to the Licensing Board by this Appeal Board arising out of the Partial Initial Decision on Onsite Matters.
The Licensing Board decision of May 12, 1988 disposed of two of the matters.
A fourth matter, which arises out of a late-filed contention made well after the Partial Initial Decision, also remains.
In short the May 12, 1988 decision of the Licensing Board in a very real sense "dispos [ed) of at least a major segment of the case" before the Licensing Board.
In every sense of the word it is final.
4 Carolina Power & Licht Co. (Shearon Harris Nuclear Power Plant, Units 1-4), ALAB-526, 9 NRC 122, 124 (1979);
Portland General Electric Co. (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289-90 n.6 (1979).
4
Having established the appealability of the May 12, 1988 order, the issue now becomes a question of whether this Appeal Board should relieve NECNP of the consequences of the failure to bring a timely appeal, as a matter of discretion.
We submit, no such relief should be granted.
The Appeal Board's remarks certainly put NECNP on notice of the problem.5 At no time that we are aware of did anyone acquiesce in the procedure that NECNP apparently believed was available to it.
The Applicants will be prejudiced by yet another issue remaining open in this matter.
CONCLUSION The motion should be denied in its entirety.
Respectfully submitted, Y/
- dRW Thomas'G. Pignan, Jr.
George H.
Lewald Deborah S.
Steenland Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 j
Counsel for ADolicants SWe note that NECNP does not argue that it did not have knowledge of the Appeal Board's statement on appealability until too late to meet the filing deadline contemplated by the regulations.
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CERTIFICATE Or' SERVICE I,
Thomas G.
Dignan, Jr.,
one of the attorneys for the Applicants herein, hereby certify that on June 6, 1988, I made service of the within document by depositing copies thereof with Federal Express, prepaid, for delivery to (or where indicated, by depositing in the United States mail, first class, postage paid, addressed to):
Alan S.
Rosenthal, Chairman Howard A. Wilber Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Appeal Panel U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission.
East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Beuhesda, MD 20814 Thomas S.
Moore Mr. Ed Thomas Atomic Safety and Licensing FEMA, Region I Appeal Panel 442 John W. McCormack Post U.S.
Nuclear Regulatory Office and Court House Commission Post Office Square East West Towers Building Boston, MA 02109 4350 East West Highway Bethesda, MD 20814 Administrative Judge Sheldon J.
Robert Carrigg, Chairman We'fe, Esquire, Chairman Board of Selectmen Atoa.) Safety and Licensing Town Office Board Panel Atlantic Avenue U.S. Nuclear Regulatory North Hampton, NH 03862 Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814 Administrative Judge Emmeth A.
Diane Curran, Esquire Luebke Andrea C.
Ferster, Esquire 4515 Willard Avenue Harmon & Weise Chevy Chase, MD 20815 Suite 430 2001 S Street, N.W.
Washington, DC 20009 Dr. Jerry Harbour Stephen E. Merrill, Esquire Atomic Safety and Licensing Attorney General Board Panel George Dana Bisbee, Esquire U.S. Nuclear Regulatory Assistant Attorney General Commission Office of the Attorney General i
East West Towers Building 25 Capitol Street 4350 East West Highway Concord, NH 03301-6397 Bethesda, MD 20814 i
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Adjudicatory File Atomic Safety and Licensing Sherwin E. Turk, Esquire Board Panel Docket (2 copies)
Office of General Counsel U.G.
Nuclear Regulatory U.S.
Nuclear Pegulatory Commission Commission East West Towers Building One White Flint North, 15th Fl.
4350 East West Highway 11555 Rockville Pike Bethesda, MD 20814 Rockville, MD 20852
- Atcmic Safety and Licensing Robert A.
Backus, Esquire Appeal Board Panel Backus, Meyer & Solomon U.S.
Nuclear Regulatory 116 Lowell Street Commission P.O.
Box 516 Washington, DC 20555 Manchester, NH 03105 Philip Ahrens, Esquire Mr. J.
P.
Nadeau Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central Road General Rye, NH 03870 Augusta, ME 04333 Paul McEachern, Esquire Carol S.
Sneider, Esquire Matthew T.
Brock, Esquire Assistant Attorney General Shaines & McEachern Department of the Attorney 25 Maplewood Avenue General P.O.
Box 360 One Ashburton Place, 19th Flr.
Portsmouth, NH 03801 Boston, MA 02108 Mrs. Sandra Gavutis Mr. Calvin A.
Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall Route 107 126 Daniel Street Kensington, NH 03827 Portsmouth, NH 03801
- Senator Gordon J. Humphrey R.
Scott Hill-Whilton, Esquire U.S.
Senate Lagoulis, Clark, Hill-Washington, DC 20510 Whilton & McGuire (Attn:
Tom Burack) 79 State Street Newburyport, MA 01950
- Senator Gordon J. Humphrey Mr. Peter S. Matthews One Eagle Square, Suite 507 Mayor Concord, NH 03301 City Hall (Attn:
Herb Boynton)
Newburyport, MA 01950 l
Mr. Thomas F.
Powers, III Mr. William S.
Lord Town Manager Board of Selectmen 1
Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833
-2 1
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H. Joseph Flynn, Esquire Brentwood Board of Selectmen Office of General Counsel RFD Dalton Road Federal Emergency Management Brentwood, NH 03833 Agency 500 C Street, S.W.
Washington, DC 20472 Gary W. Hol mes, Esquire Richard A.
Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03841 Concord, NH 03301 Judith H. Mizner, Esquire Charles P. Graham, Esquire 79 State Street, 2nd Floor Murphy and Graham Newburyport, MA 01950 33 Low Street Newburyport, MA 01950
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(*=U.S. First Class Mail.)
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