ML20235W179

NRC Staff Response to Atty General Jm Shannon,Seacoast Anti- Pollution League,New England Coalition on Nuclear Power & Town of Hampton Motion to Admit Late Filed Contention & Reopen Record.* Certificate of Svc Encl

ML20235W179
Person / Time
Site:	Seabrook
Issue date:	10/09/1987
From:	Berry G NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#487-4595 OL-1, NUDOCS 8710160036
Download: ML20235W179 (10)

Text

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g gg j4 pj j$-

BEFORE THE ATOMIC SAFETY AND LICENSING 408iRD .5ECRei.vy t l

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lIn the Matter of )

) . Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF ) 50-444 OL-01

. NEW HAMPSHIRE, et al.

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) On-site Emergency Planning and Safety issues

) i (Seabrook' Station, Units 1 and 2) )

R NRC STAFF RESPONSE TO ATTORNEY GENERAL JAMES' M. SHANNON, SEACOAST ANTI-POLLUTION LEAGUE, NEW ENGLAND COALITION ON NUCLEAR POWER AND TOWN OF HAMPTON MOTION TO ADMIT LATE-FILED CONTENTION AND REOPEN THE RECORD INTRODUCTION On March 3, 1987, the Attorney General of the Commonwealth of Massachusetts (" Attorney General") filed -- on behalf of himself and the Seacoat Anti-Pollution League (SAPL), the New England Coalition on i Nuclear Power (NECNP), and the Town of Hampton (TOH), collectively j

" Joint. Interveners" -- a " Motion to Admit Late-Filed Contention and  !

l Reopen the Record (" Motion") in which he requests the Board to reopen the on-site emergency planning phase of . this ' proceeding and admit a late-filed ' contention which alleges that " Applicants have failed to comply with the provisions of 10 C.F.R. 9 50.47(b)(5) and Part .50, Appendix E, )

6 IV(D)(1) . and (3), because no means have been established to provide early notification and clear instruction to the populace of the City of

- Newburyport, Massachusetts." i d,. at 4-5. As explained below , the instant ~ motion should be dismissed because the Board is without -

Jurisdiction to consider it. I 8710160036 871009 PDR ADOCK 05000443 '

DESIGNATED ORIGIlmi)

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BACKGROUND The asserted basis for the late-flied contention which Joint

Interveners request the Board to reopen the record to consider is that by September 25, .1987, six of . the eight sirens situated in the City of l

-Newburyport which Applicants' planned to use to notify the populace in the event of an - emergency have been removed at the direction of the  !

Mayor of Newburyport in order to comply with an ordinance passed- by i the Newburyport City Council on ~ June 30, 1986. See Motion at 5. Joint Interveners further claim that because "[nlo other means have been provided to notify the public in Newburyport in- the event of an I emergency," Applicants. have failed to comply with 10 C.F.R. 1 9 50.147(d)(5), as it must to receive a low-power operating license. M. j This matter arises in connection with the proceeding held to consider on-site emergency planning and safety issues relating to the Seabrook The evidentiary record in that proceeding was closed in October I Station.

i 1906 and the Board issued a Partial initial Decision (PID) resolving the j issues favorably to Applicants on March 25, 1987. See Public Service Company g New Hampshire (Seabrook Station , Units 1 and 2),

LBP-87-10, 25 NRC 177 (1987). That decision was appealed by the Joint Interveners pursuant to 10 C.F.R. 6 2.762 and on October 1,1987, ten days after tt'e filing of the instant motion, was affirmed in part and 1

reversed and remanded in part by the Appeal Board. See Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-875, t

26 NRC (October 1,1987) .

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.c DISCUSSION I'

1. . Jurisdiction .

' A'.ilcensing board is -a tribunal of limited Jurisdiction; the scopk of its authority . is restricted to the matters sal:E forth in the ' Nuilce of, ' 2 Hearing. creating ~ lt.

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Commonwealth Edison hanz (Zlon Statio'n, Units f./

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-l O 1 and 2), ALAB-616,12 NPC 419, 426 (1980).- It is equally settled that once - a licensing board issues' an finitial decision resolving the Issues. d committed to it for rerdution' and an appeal -is take[ (or the time for ..

filing, an appeal has expired), jurisdiction over .t'he proceeding passes '

from the licensing _ board to the Appeal Board.' E3., Metropolitan Edison i

' Company (Three Mlle Island Nuclear Station, Unit 1), NLMS-699,16 NRC

. 'I' 1324, 1327. (1982); Philadelphia Electric Company (Limer'ick Generating t.;

Station, Units ' 1 and 2 ), . LBP-83-25, 17 NRC 681 ( 1983 )'. ' A board, of

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course, necessarily spossesses the authority to determine in ,the first I t instance whether a ' matter presented to it is withfn .' t(es scopel of its Kansas Gas and Electric Company (Wolf Creek ' Generating

. jurisdiction.-

Station , Unit 1), ALAB-321, 3 NRC 293; 298 .(1976), aff'd , CLI-77-1, j 7~~ v 5 NRC 1 (1977). As explainedjbelcs,' the motion ,to reopen the record

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filed by the Joint Interveners is beyond this board's Jur sdictioni to

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The decision In Metropolitan Edison Companh (Three Mile Island Nuclear-Station, Unit 1), ALAB-699,16 'NRC 1324 (1982) is dispositive of ,

the threshhold legal question presented here: whether the licensing board  !

I has jurisdletion to entertain a motion to reopen the record after the filing of an appeal of its initial decision. That case involved a special proceeding convened to determine' whether Unit 1 of the Three Mile Island

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nuclear facility should be restarted. O r, July 27, 1982, the licensing board issued its concluding initial decision. Sg LBP-82-86, 16 NRC at 1191. Exceptions to the partial initial decisions were timely flied, s

ALAB-699, 16 NRC at 1325. On September 3, 1982, more than a month

'y after the filing of exceptions to the concluding initial decision, petitioner moved to reopen the record to present evidence recently obtained by it bearing on the issue of possible cheating on radiological work permit examinations. 16 NRC at 1191. This issue had been resolved by the licensing board !n its concluding initial decision. ,l d , in declining to

, entertainf the motion to reopen, the licensing board observed:

"[J) jurisdiction of the presiding officer continues until the Commission's final decision. But the identity of the presiding officer changes as the proceeding moves up the appellate ladder  !

either as to an entire initial decision or as to partial issues.

7 Section 2.718(j), limiting the power of the presiding officer to reopen a record to anytime prior to the initial docision, adequately describes when the jurisdiction, thus the identity of (

the cognizant presiding officer, changes from licensing board to j appeal board.

l1 LBP-82-86, 16 NRC at 1193. The licensing board therefore concluded l that jurisdiction over the motion rested exclusively with the Appeal f Board. M. The Appeal Board agreed stating: 4 i

s We agree with the Licensing Board's ruling that it no longer I has jurisdiction over the Aamodt motion to reopen. As the l Board noted, the Commission's Rules do not directly answer the i question of when jurisdiction passes, for purposes of a m6 tion to l reopen, from a licensing to an appeal board. Several l provisions, however, are pertinent.

10 C.F.R. 6 2.717(c) states that a licensing board's l " jurisdiction in each proceeding will terminato upon the I expiration of the period within which the Commission may direct that the record be certified to it for final decision,' or when the Commission renders a final decision . . . whichever is earliest."

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A 0 A' l 10 ffF.C ' 6 2.760(a), a licensing board's initial lQ3 Pursuant to decision in a licensing proceeding becomes final agency- action, l

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within 45 days ' of its issuance, unicss exceptions have beer / j timely filed , or 'the Commission or the appeal board as itri delegate ' certifies the record to it for subsequent review and final decision. t Finally, 10 C.F.R. 5 2.718(J) authorizes a r licensing boaM to "(r]eopen a proceeding for the reception of further eviderlce at any time prior to initial decision." Taken -

together, .thesj . provisions imply that a licensing board is empiwered to reopen a proceeding at least- until the issuance of B%l 'deci. coni ;but no later than either the filing of exceptions or th'e'expirjtibit- fo The period during which the Gmmissl5n or an appeal inard din exercise its right to review the record ~

r TppTied he,6.~TIie ~Riiles thus subest thatlhe Licensing Board's

. jurisdiction to ;respen this proceeding lapsed, at the latest, when

/acxceptions toyi4 last partial initial decision were filed.

16 ~NRC at 1326-27 (emphasis added) (footnotes and citations omitted). In  !

vl'ew of these consideration, the Appeal Board stated: i 1

' We therefore hold that jurisdiction to rule on a motion to reopen filed after exceptions have been taken -- like that in the

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instant case -- rests with the appeal board rather than the licenstrig board.

1 M. Pet 1327 (footnote omitted).  ;

,is Appf(ing the rule enunciated by the Appeal Board in Three Mlle N

Isladd, the Board must decline to entertain Joint \slntervenor's motion to

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recpen. The initial decision issued by the Board in LBP-87-10 on March I 25, 1987 disposed of all issues admitted for litigation in the on-sito '

ifemergency planning and safety issues phase of this proceeding. See 25 NRC at 215-16. That decision was appealed by each of the Joint Interveners. M Consequently, the Board's jurisdiction over this

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'-1/ Attorney James M. Shannor's Brief in Support Of' Appeal Of

, Partial Initial Decision Authorizing issuance Of .k Low-Power Operating License (May 7, 1987); Seacoast Anti-Pollution League's Brief in Support Of Appeal Of Partial Initial Decision Authorizing (FOOTNOTE CONTINUED ON NEXT PAGE) ,

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proceeding lapsed on April 3, 1987, the date the first notice of appeal was filed. U This conclusion is not altered by the Appeal Board's subsequent  !

remand to the Board in ALAB-875. None of the matters remanded to the

- Board involved ' the adequacy of Applicant's emergency alert siren T systems. See ALAB-875, slip op. at 48 (remanded matters involve

- environmental qualification of RG-58 coaxial cable and contentions concerning " Inservice inspection of steam generator tubes" and

" accumulation of acquatic organisms and other foreign matter in cooling systems") . In fact, the Appeal Board expressly retained jurisdiction over the alert siren systems as a direct result of other late-filed contentions submitted by the Attorney General and SAPL. ,ld. , slip op. at 43. A licensing board's Jurisdiction in a remanded proceeding embraces only those issues which have been remanded to it. Carolina Power and Light '

Company (Shearon Harris Nuclear Power Plant, Units 1-4), A LA B-526, 9 NRC 122,124 n.3 (1979). Thus, the remand by the Appeal Board does a-not operate to reinvest the Board with jurisdiction over the Joint (FOOTNOTE CONTINUEF. FROM PREVIOUS PAGE)

Issuance Of License To Operate Seabrook Station Unit 1 Up To 5% Of Rated Power (May 4, 1987); New England Coalition On Nuclear Power's B rief in Support Of Appeal Of Partial Initial Decision Authorizing issuance Of A License To Operate At Low-Power (May 8, 1987). The Town of Hampton did not file an appeal brief. See ALAB-875, slip op, at 2, n.2.

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See Notice of Appeal filed by Seacoast Anti-Pollution League

( AprlTT, 1987) . The Commission's rules have been simplified to eliminate the requirement that a party identify those portions of an initial decision for which " exceptions" were taken; all that is now required is simply the filing of a notice of appeal. See 10 C.F.R. 62.762(a).

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,L N Intervenor's instant motlort to reopen the record to consider their late-filed emergency alert siren contention.

2. The Merits Of The instant Motion in view of the foregoing discussion, it is clear that Joint Intervenor's motion to reopen the record to admit their late-filed contention should be dismissed. Consequently, it is unnecessary for the Staff to discuss whether the instant motion meets the standards set forth in 10 C.F.R 9 2.734 governing motions to reopen or whether a balancing of the five factors listed in 10 C.F.R. 9 2.714(a)(1) weigh in favor of j admitting the late-filed contention.

CONCLUSION For the reasons stated herein, the Motion to Late-Filed Contention  !

And Reopen the Record filed by .loint Interveners should be dismissed.

slbectfully submittedq h

Gregor lar

% 24 berry ,

Counse or 3RC Staff j l

Dated at Bethesda, Maryland this 9th day of October 1987 l

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w UNITED STATES OF AMERICA -

NUCLEAR REGULATORY COMMISSION W E7, 14 P3 36 BEFORE THE ATOMIC SAFETY AND LICENSING BMhSgig' MANCH l

l In the Matter of )

Docket Nos. 50-443 OL-01

)

PUBLIC SERVICE COMPANY OF ) 50-444 OL-01 NEW HAMPSHIRE, et al. ) On-site Emergency Planning

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

CERTIFICATE OF SERVICE 1 hereby certify that copies of "NRC STAFF RESPONSE TO ATTORNEY GENERAL JAMES M. SHANNON, SEACOAST ANTI-POLLUTION LEAGUE, NEW ENGLAND COALITION ON NUCLEAR POWEP. AND TOWN OF HAMPTON MOTION TO ADMIT LATE-FILED CONTENTION AND REOPEN THE RECORD" 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 Commission's internal mall system, this 9th day of October 1987:

Sheldon J. Wolfe, Esq. , Chairman

• Dr. Emmeth A. Luebke' Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Dr. Jerry Harbour Ms. Carol Sneider, Esq.

Administrative Judge Assistant Attorney General Atomic Safety and Licensing Board Office of the Attorney General U.S. Nuclear Regulatory Commission One Ashburton Place,19th Floor Washington, DC 20555 Boston, MA 02108 Beverly Hollingworth Richard A. Hampe, Esq.

209 Winnacunnet Road New Hampshire Civil Defense Agency Hampton, NH 03842 107 Pleasant Street Concord, NH 03301 Sandra Cavutis, Chairman Calvin A. Canney, City Manager Board of Selectmen City Hall RFD 1 Box 1154 126 Daniel Street Kensington, NH 03827 Portsmouth, NH 03801

3< ' Stephen E. Merilli- Paul McEachern, Esq.

Attorney. General Matthew T. Brock, Esq.

George Dana Bisbee Shatnes & McEachern -

, Assistant Attorney General .

25 Maplewood Avenue Office of the Attorney General . P.O.. Box 360 25 Capitol Street Portsmouth, NH 03801 Concord,. NH 03301 Roberta C. Pevear

-Angle Machiros, Chairman State Representative Board of Selectmen Town of Hampton Falls  :

25 High Road- Drinkwater Road i Newbury, MA .09150 Hampton Falls, NH 03844 Allen Lampert Mr. Robert J. Harrison Civil Defense Director President and Chief Executive Officer Town of Brentwood Public Service Co. of New Hampshire 20 Franklin Street P.O. Box 330 Exeter, Nil 03833 Manchester, NH 03105 Charles P. Graham, Esq. Robert A. Backus, Esq.

. McKay, Murphy and Graham Backus, Meyer s' Solomon 100 Main Street 116 Lowell Street Amesbury, MA 01913 Manchester, NH 03106 Diane Curran, Esq. Philip Ahren, Esq.

Harmon & Weiss Assistant Attorney' General 2001 S Street, NW Office of the Attorney General Suite 430 , State House Station #6 Washington, DC 20009 Augusta, ME 04333 1 Edward A. Thomas Thomas G. Dignan Jr., Esq.

Federal Emergency Management Agency Ropes & Gray 442 ').W. McCormack (POCH) 225 Franklin Street Ooston, MA 02109 Boston, MA 02110 H.J. Flynn, Esq. William Armstrong Assistant General Counsel Civil Defense Director Federal Emergency Management Agency Town of Exeter 500 C Street, SW 10 Front Street Washington, DC 20472 Exeter, NH 03833 Atomic' Safety and Licensing Atomic Safety and Licensing Appeal Panel

• Board

• U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 l

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, - Jane Doughty .

Docketing and Service Section*

Seacoast Anti-Pollution League Office of the Secretary )

. 5 Market Street U.S. Nuclear Regulatory Commission l Portsmouth, NH 03801 Washington, DC 20555 '

Maynard L. Young, Chairman William S. Lord Board of Selectmen Board of Selectmen 10 Central Road Town Hall - Friend Street South Hampton, NH 03287 Amesbury, MA 01913 l

.t Michael Santosuosso, Chairman Peter J. Matthews, Mayor Board of Selectmen City Hall South Hampton, NH 03287 Newburyport, MN 09150 1 Mr. Robert Carrigg, Chairman Judith H. Mizner, Esq. ,

Board of Selectmen Silverglate, Gertner, Baker Town Office Fine and Good

_ Atlantic Avenue 88 Broad Street North Hampton, NH 03862 Boston, MA 02110 R. K Gad lit , Esq. Mrs. Anne E. Goodman, Chairman Ropes & Gray Board of Selectmen 225 Franklin Street 13-15 Newmarket Road Boston, MN 02110 Durham, NH 03824 Cary W. Holmes, Esq.

Holmes & Ellis 47 Winnacunnet Road Hampton, NH 03842 ,

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Gregory 7f an Betry Counsel fly NRCJStaff i

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