ML20207K843

Memorandum & Order.* Intervenors 861222 Joint Petition for Appointment of Administrative Judge & Request for Hearing Denied.Petition Non Sequitur,W/O Foundation or Precedent. Served on 870105

ML20207K843
Person / Time
Site:	Seabrook
Issue date:	12/31/1986
From:	Cotter B NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:	AMESBURY, MA, HAMPTON, NH, MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE
References
CON-#187-2090 87-546-02-MISC., 87-546-2-MISC., OL, NUDOCS 8701090538
Download: ML20207K843 (6)

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o 2096 00LKETED UNITED STATES OF AMERICA UMc NUCLEAR REGULATORY C0fEISSION Before the '87 JAN -5 A10 :49 Chief Administrative Judge gn Atomic Safety and Licensing Board Panel poc: m ~

tw y SERVED JAN 0 5 39g7 In the Matter of Docket Nos. 50-443-0L 50-444-0L PUBLIC SERVICE COMPANY OF (Off-site Emergency Planning)

NEW HAMPSHIRE, ET AL.

ASLBP No. 87-546-02 Misc.

(Seabrook Station, Units 1 )

and 2) December 31, 1986 MEMORANDUM AND ORDER 1

In a pleading dated December 22, 1986, several parties to.the captioned proceeding filed "Intervenors' Joint Petition for Appointment of Administrative Judge and Request for Hearing" (the Joint Petition).

The Joint Petition was captioned as filed before both the Comission itself and the Atomic Safety and Licensing Board in the captioned proceeding, and by its terms appeared to require the Comission to act if the Board did.not act by December 29, 1986. On December 24, 1986, the Comission directed the Joint Petition "to the Chief Ad.ninistrative 1

The parties include Intervenors Comonwealth of Massachusetts, Town of Hampton, Seacoast Anti-Pollution League, Town of Amesbury, and the New England Coalition on Nuclear Pollution.

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8701070538 861231 PCR ADOCK 05000443 0 PDR g

e Judge of the Comission's Atomic Safety and Licensing Board Panel,"

pursuant to 10 CFR 2.772 (1986).2 The Joint Petition was filed in response to Applicants' December i

18, 1986 petition for an exception or waiver to reduce the emergency planning zone for the Seabrook station from ten miles to one mile. The Joint Petition states that the reduction would eliminate the Comonwealth of Massachusetts and 15 New Hampshire towns from emergency planning, and thus the waiver raises

... extraordinary issues which will likely establish significant i precedent for all nuclear power plants nationwide on the scope and substances of emergency planning.

Joint Petition, at page 2. The Joint Petition then requests that the Comission appoint " Chief Administrative Law Judge Paul Cotter"3 to hear 4

1 2

! Section 2.772 provides in pertinent part:

When briefs, motions or other papers listed herein are submitted to the Comission itself, as opposed to officers who have been delegated authority to act for the Comission, the Secretary or the Assistant Secretary are authorized to: -

l (j) Refer to the Atomic Safety and Licensing Board Panel ...

requests for hearings not falling under 5 2.104 of this part, where j

the requester is entitled to further proceedings ... .

3The correct title of the head of the Atomic Safety and Licensing Board Panel is Chief Admini,strative Judge, not Chief Administrative Law (FootnoteContinued)

s. ~

Applicants' request for a reduction in the Seabroot emergency planning zone. Intervenors offer no precedent or rationale for such an extraordinary appointment.

By filing simultaneously before the Licensing Board and the Commission, Intervenors have attempted to dictate a deadline for Commission response in complete disregard of the agency's rules soverning motions practice. See 10 CFR 2.730 (1986). The sole justification offered for this action appears to be that the complexity of the issues raised by Applicants' motion will overtax Intervenors' litigation resources if they are required to proceed concurrently with hearings on the New Hampshire emergency response plan. That is precisely the type of problem that the Licensing Board appointed in the Seabrook proceeding not only is fully capable of handling, but also is in by far the best position to consider. Intervenors' unorthodox 4

(FootnoteContinued)

Judge. The principal statutory authority underlying the Chief Administrative Judge is the Atomic Energy Act. The Chief Administrative Judge acts in an administrative capacity as head of the Atomic Safety and Licensing Board Panel and in an adjudicatory capacity as one of the three members of an Atomic Safety and Licensing Board appointed from the

! Panel. In contrast, an Administrative Law Judge is appointed pursuant to the Administrative Procedure Act and implementing regulations.

Within the Nuclear Regulatory Commission, only an Administrative Law 1 Judge (as distinguished from an Administrative Judge) is authorized to sit alone in certain kinds of formal proceedings, for example, antitrust, to render a decision. Compare 42U.S.C.52241(1982)with5 U.S.C.$3105(1982).

pleading has served only to delay resolution of their concerns, wasting scme of their scarce resources--and ours. ,

In addition, petitions such as Applicants' are expressly contemplated by Section 2.758 of the Commission's Rules of Practice.

Intervenors', Joint Petition alleges nothing to suggest that the procedures established by that section will be inadequate to protect their interests, and, in fact, the regulations provide significant procedural safeguards for parties in Intervenors' position. If the Licensing Board finds that Applicants have made a prima facie showing that a regulation should be waived or an exception granted, the issue will be certified to the Commission for a final determination. If the Licensing Board does not so find, then "... the presiding officer may not further consider the matter." 10CFR2.758(c)(1986).

Intervenors' argument that because " applicants' petition raises extraordinary issues which will likely establish significant precedents

... it is only reasonable for the Commission to appoint the Chief Administrative Judge to personally undertake review of all issues" is a non sequitur without foundation or precedent. As an administrator, the Chief Administrative Judge is responsible for the day-to-day management of the Panel as an adjudicatory governmental entity. In his judicial capacity as a member of the Panel, the Chief Administrative Judge is merely one among equals. Whether issues be termed important, novel or even earthshaking, the Chief Administrative Judge is no more and no less l l

l 1

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qualified to hear them than any other member of the Panel. Thus, Intervenors' characterization of the issues raised by Applicants' petition as " extraordinary" affords no grounds for replacement of the presiding Licensing Board with the Chief Administrative Judge, or with another Board for that matter.

More importantly, however, Section 181 of the Atomic Energy Act (42 U.S.C. 9 2231) requires that Comission proceedings be conducted in accordance with the provisions of the Administrative Procedure Act (5 U.S.C. 9 551, el seq.), except that under Section 191 of the Act (42 U.S.C. 5 2241), three-member licensing boards may preside in lieu of a single administrative law judge. The use of a single administrative judge in formal adjudicatory proceedings is not specifically authorized by the Comission's rules of practice or the Administrative Procedure Act. Seegenerally,10CFRPart2(1986). Thus, because the Chief Administrative Judge is not, in this instance, an Administrative Law Judge (who is authorized to hear certain matters sitting alone), it is not clear that the Comission could appoint the Chief Administrative Judge to preside in the proceeding requested by the Joint Petition under any circumstances.

To the extent the Comission's Order may have included referral of a request for stay of the proceeding to the Chief Administrative Judge, it must be denied. The Chief Administrative Judge has no authority to rule on a motion for stay of the Seabrook proceedings, or for that h e-

matter on any motion in any case in which he or she is not a member of the presiding atomic safety and licensing board. Intervenors cite no provision of the Atomic Energy Act or NRC regulations that would permit the Comission to grant such jurisdiction to the Chief Administrative Judge even if it chose to do so, and there is nothing in the language of the December 24, 1986 Order to suggest any such intent on the Comission's part.

Accordingly, it is this 31st day of December, 1986, ORDERED That Intervenors' Joint Petition for Appointment of Administrative Judge and Request for Hearing is denied, without prejudice to Intervenors' right to file with the presiding Atomic Safety and Licensing Board an appropriate response to Applicants' petitioli. ,

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'fft B. Paul Cotter, Jr,//

C}

Chief Administratw6 Judge l

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