ML20205R766

NRC Staff Supplemental Response to 881025 Aslab Order.* Appeal from Board 881012 Memorandum & Order Will Not Lie at Present Time,But Must Abide Event of Future Developments.W/ Certificate of Svc

ML20205R766
Person / Time
Site:	Seabrook
Issue date:	11/04/1988
From:	Berry G NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#488-7457 OL-1, NUDOCS 8811100123
Download: ML20205R766 (10)

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7f6'1 COLKETED UWC UNITED STATES OF AMERICA

'88 N0'l -8 P h :58 NUCLEAR REGULATORY COMMISSION

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DEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF 50-444 OL-01

• NEW HAMPSHIRE, g al. On-site Emergency Planning and Safety Issues (Seabrook Station, Units 1 and 2) l NRC STAFF SUPPLEMENTAL RESPONSE TO OCTOBER 25, 1988 APPEAL BOARD ORDER 1

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i . .i l Gregory Alan Berry Counsel for NRC Staff

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION I BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF 50-444 OL-01 On-site Emergency Planning

- NEWHAMPSHIRE,etal.

and Safety Issues (SeabrookStation, Units 1and2) l NRC STAFF SUPPLEMENTAL RESPONSE TO OCTOBER 25, 1988 APPEAL BOARD ORDEP.

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Gregory Alan Berry i l Counsel for NRC Staff i November 4, 1988 l  ;

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UNITED ST ATES OF AMERIC A NUCLEAR REGUL ATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BO ARD In the Mat.ter of )

Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY JF 50-444 OL-01 N E'4 H A M PS H IR E , e_t al,. On-site Emergency Planning

) and Safety Issues (Seabrook Station, Units 1 and 2) )

NRC STAFF SUPPLEMENTAL RESPONSE TO OCTOBER 95, 1988 APPEAL BOARD ORDER ,

In its October 25, 1988 arder, the Appeal Board stated that

"[s]pecifically, [it] wish[ed] to obtain the position of those parties respecting whether an appeal from the Licensing Board's October 12, 1988 memorandum and order will lie at this time or, instead, must abide the event of further developments." October 25, 1988 Order at 1. On November 1,1988, the NRC Staff filed its response II in which it set forth the reasons for its conclusion that the Licensing Board's October 12, 1988 is not imediately appealable. On November 2, 1988, the Appeal Board

( requested the Staff to supplement its response and address certain statements made by the Massachusetts Attorney General in a letter l

I addressed to the Appeal Board Chairman. See Letter To Chairman Rosenthal

... from Stephen A. Jonas, Esq. at 1 (October 21,1988). In that letter, the Attorney General's counsel states that there is some "uncertainty" as to I

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1/ See NRC Staff Response To October 25, 1988 Appeal Board Order TTovember 1, 1988), originally miscaptioned as "NRC Staff Response To October 8, 1980 Appeal Bosrd Order (November 1, 1988).

whether the October 12 Order is "appealable at this time." M. After noting correctly that the effect of the Comission's decision in CLI-88-08 2/ Is to remove the Attorney General's alert notification system contention as a low power issue and make it exclusively a full power issue, the Attorney General's counsel continues:

. Because a partial initial decision has already issued for low-power, an argurrent can be made that the October 12 order of the on-site Licensing Board is imediately appealable. On the

- other hand, the appeal may be viewed as premature until a decision issues on a full-power license. l l

Id.

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Although the Attorney General says that "an argunent can be'made that i the October 12 order . . . is immediately appealable," M., inexplicably he neglects to make it. 3/ The reasons undergirding such an argument are not apparent to the Staff. Indeed, it was and is clear to the Staff that such an argument has no tenable basis in light of the Comission's l

1 decision in CLI-88-08.

In that decision, the Comission lays to rest any question as to l whether the Attorney General's alert notification system contention can l

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2/ Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-88-08, 27 B C (October 7,1988),

3/ It is well settled that a party is obligated to explain its position so that opposing parties are not forced to guess the reasons, if any, which support its arpuments. See e. . _ Carolina Power and Light Com)any (Shearon Harris Nuclear PTant LAB-843, 24 NRC 200, 204 (1936);

802, 80F Id.(1986);

, ALAB-852, Clevela_nd 24 NRC Electric 532, 537 Company [1986);

Trerry (Id.

Nuclear , ALAB-856, Power 24 NRC i Plant, Units 1 and 2), ALAB-831, 24 NRC 64, 69 (1986); Pennsylvania Power and Light Company (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-693,16 N'RC 952, 956-57 (1982). In each of the cited esses laymen were criticized by the Appeal Board for failing to set (F0OTNOTE CONTINUED ON NEXT PAGE)

have any bearing on the issuance of a low power license for the Seabrook Station. O In CLI-88-08, the Commission vacated ALAB-883 to the extent it held that an adequate alert notification system is a prerequisite to the issuance of a low power license. CLI-88-08, supra, slip op. at 2. 5/

14 is the Commission's decision which severs the connection between contentions relatirg to alert notification systems and the authorization of low power operation. The Attorney General's contention -- which relates solely to the adequaev of Applicants' pubife alert notification system -- simply is irrelevant to the question whether a 1cw power license can or should be issued. The only portion of the proceedin:) to which such a contention could have any relevance is that portion dealing wit' the remaining full power issues. In view of these circumstances, it cannot be argued seriously that some unidentified partial initial decision relating to low power issues makes the Licensing Board's October 12 Order (F0OTNOTE CONTINUED FROM PREVIOUS PAGE forth their arguments with precision. The Attorney General's failure to detail the argument he says "can be made" has left the Staff in the position of having to guess what it might be.

4) The Attorney General provides no citation to the partial initial decision to which he refers. The Staff presumes that the Attorney General Board onisAugust referring 8, to the menorandum 1988. See Memorandum order andissued Order by(the Re Low Licensing Power Authorization) (August 8,198TT- In that order, the Licensing Board

. ruled that renanded NECNP Contention I.B.2 was not relevant.to low power operations and thus posed no bar to the issuance of the low power license for the Seabrook Station. ld.at8.

d 5 / The vacating of ALAB-OP3 followed from the Comission's adoption of certain amendments to 10 C.F.R. I 50.47(b) which, inter alia, "discontinu[ed] the practice of reviewing offsite public notification systems as part of the applicants' onsite plan which needed to be in place before low power testing began." CLI-88-08, supra slip op, at 2.

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appealable at this time. The Commission's decision in CLI-88-08 has rendered irrelevant the matters addressed in the October 12 Order to low power operation. In other words, it is the Consnission's decision, not the Licensing Board's October 12 Order, which removes the Attorney General's alert notification contention as a consideration in determining whether low power operation should be authorized.

Moreover, it is worth repeating that the October 12 Order is not final for purposes of appellate review. As the Staff pointed out in its November 1, 1988 response, the October 12 Order does not dispose of a a

"major segnent" of the case pending before the "on-site" Licensing Board.

Nor does the order teminate the Attorney General's right to participate in the proceedings before the on-site Licensing Board. As the Acting Chairman of the Licensing Board Panel made clear on the same date the October 12 Order was issued, the Attorney General's alert notification system contention still pends before the on-site Licensing Board as a full power issue. See Notice of Clarification at I (October 12,1988).

A decision on the merits of the Attorney General's contention, has yet to issue. Should the Attorney General prevail on its contention an appeal of the October 12 Order would not be necessary. This is e primary reason why interlocutory appeals are disfavored. On the other hand, should the on-site Licensing Board issue a decision resolving the Attorney General's contention favorably to Applicants, that detemination may be appealed. In his appeal n' that decision, the Attorney General may challenge the validity of the October 12 Order of the Licensing Board.

Accordingly, for the reasons stated in this response and in the its response filed en November 1, 1988, the Staff's view on the question posed

by the Appeal Board and the Attorney General's notice of appeal and l accompanying letter is that an appeal from the Licensing Board's October 12, 1988 menorendum and order will not lie at this time but, instead, must abide the event of further developments.

Re el ully submitte I Gregor,y A9 r M f-Counselff u

NRC 5 fi

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Dated at Rockville, Maryland ,

this 4th day of November 1988 e

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D0DEiEO th h? C UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'83 NOV -8 P4 :59 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD

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E In the Matter of i fI[ck S " r Docket Nos. 50-443 OL401 E PUBLIC SERVICE COMPANY OF 50-444 OL-01 NEW HAMPSHIRE, e_t a_1 On-site Emergency Planning and Safety Issues

. (Seabrook Station, Units 1 and 2)

,' CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF SUPPLFMENTAL RESPONSE TO OCTOBER 25, 1988 APPEAL BOARD ORDER in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commissfon's internal nail system, this 4th day of November 1988.

Sheldon J. Wolfe, Esq. Chaiman* H. J. Flynn, Esq.

Administrative Judge Assistant General Counsel Atomic Safety and Licensing Board Federal Emergency Management U.S. Nuclear Regulatory Comission Agency Washington, DC 20555 500 C Street, S.W.

Washington, DC 20472 Dr. Jerry Harbour

• Administrative Judge Calvin A. Canney Atomic Safety and Licensing Board City Hall U.S. Nuclear Regulatory Comission 126 Daniel Street Washington, DC 20555 Portsmouth, NH 03801 Dr. Emeth A. Luebke Robert Carrigg, Chaiman Administrative Judge Board of Selectmen 4515 Willard Avenue Town Office Chevy Chase, Maryland 20815 Atlantic Avenue North Hampton, NH 03870 Philip Ahren, Esq.

Assistant Attorney General Judith H. Mizner, Esq.

Office of the Attorney General Silverglate, Gertner, Baker, Fine, & Good State House Station Augusta ME 04333 88 Board Street Boston, MA 02110 Thomas G. Dignac. Jr., Esq.

Robert K. Gad, III, Esq. J. P. Nadeau Ropes & Gray Board of Selectmen 225 Franklin Street 10 Central Street Boston, MA 02110 Rye, NH 03870 1

Carol S. Sneider, Esq. R. Scott Hill-Whilton, Esq.

Assistant Attorney General Lagoulis, Clark, Hill-Whilton Office of the Attorney General & McGuire One Ashburton Place, 19th Floor 79 State Street Boston, MA 02108 Newburyport, MA 01950 George Dana Bisbee, Esq. Allen Lcmpert Assistant Attorney General Civil Defense Director Office of the Attorney General Town of Brentwood

, 25 Capitol Street 20 Franklin Concord, NH 03301 Exeter, NH 03833

. Diane Curran, Esq. William Annstrong Harmon & Weiss Civil Defense Director 2001 S Street, NW Town of Exeter Suite 430 10 Front Street Washington, DC 20009 Exeter, NH 03833 Robert A. Backus Esq. Gary W. Holmes, Esq.

Backus, Meyer & Solomon Holmes & Ellis 116 Lowell Street 47 Winnacunnet Road ifanchester, NH 03106 'rfanpton, NH 83842 Paul McEachern, Esq. Atomic Safety and Licensing Matthew T. Brock, Esq. Appeal Panel (8)*

Shaines & licEachern U.S. Nuclear Regulatory Comission 25 Maplewood Avenue Washington, DC 20555 P.O. Box 360 Portsnouth, NH 03801 Atomic Safety and Licensing Board Panel (1)*

Charles P. Graham, Esq. 'J . S . Nuclear Regulatory Comission McKay, Murphy & Grahan Washington, DC 20555 100 Main Street Amesbury, MA 01913 Docketing and Service Section*

Office of the Secretary Sandra Gavutis, Chairman 11 . S . Nuclear Regulatory Comission Board of Selectnen Washington, DC 20555 RFD #1, Box 1154 Kensington, NH 03827 Peter J. Matthews, Mayor City Hall William S. Lord Newburyport, MN 09150 ,

?> Board of Selectnen Town Hall - Friend Street Ashod N. Amfrian, Esq.

Amesbury, MA 01913 Town Counsel for Merrimac 376 Main Street Sheldon J. Wolfe, Esq. Haverhill, MA 08130 Adninistrative Judge 1110 Wimbledon Drivo McLean, VA 22101

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Mrs. Anne E. Goodman, Chairman Michael Santosuosso, Chairman Board of Selectmen Board of Selectmen 13-15 Newmarket Road South Hampton, NH 03827 Durham, NH 03824 Hon. Gordon J. Humphrey United States Senate 531 Hart Senate Office Building Washington, DC 20510 bh GregoryAlaf Berry Counsel for f RC St 1 ff a

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