ML20236D975

Memorandum & Order (Denying Motion to Admit late-filed Contention & to Reopen Record).* Served on 871027

ML20236D975
Person / Time
Site:	Seabrook
Issue date:	10/26/1987
From:	Harbour J, Luebke E, Wolfe S Atomic Safety and Licensing Board Panel
To:	HAMPTON, NH, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE
References
CON-#487-4683 88-558-01-OLR, 88-558-1-OLR, OL-1-R, NUDOCS 8710290012
Download: ML20236D975 (5)

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A g623 DOCKETED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ..

'87 OCT 27 NO:06

. ATOMIC SAFETY AND LICENSING BOARD Before Administrative. Judges: OFFICE Oi 5ECEGAf5?.-

Sheldon J. Wolfe, Chairman DOCKEigCg.jERVid.

Emeth A. Luebke Jerry Harbour BERVED OCT 2 71987

) Docket' Nos. 50-443-OL-1-R In the Matter of 50-444-0L-1-R PUBLIC SERVICE COMPANY (On-SiteEmergencyPlanning 0F NEW HAMPSHIRE,'ett a_1,. andSafetyIssues)

(ASLBP No. 88-558-01-0LR)

(SeabrookStation, Units 1and2) )

- ) October 26, 1987 MEMORANDUM AND ORDER (Denying Motion To Admit late-Filed Contention  !

And To Reopen The Record)

MEMORANDUM I. Background On October 3, 1986, the evidentiary record was closed in this I

proceeding and, on March 25, 1987, in its partial initial decision (LBP-87-10, 25 NRC 177), this Board resolved the outstanding on-site I

emergency planning and safety issues and authorized issuance of a license to operate Seabrook Station, Unit 1, up to 5% of rated power.

On April 3,1987, Seacoast Anti-Pollution League was the first of the appellant interveners to file a notice of appeal pursuant to 10 C.F.R. 1

$2.762(a). The Commonwealth of Massachusetts (Mass.), Seacoast

' Anti-Pollution League (SAPL) and New England Coalition on Nuclear 87i0290012 PDR ADOCK O O h43 PDR y

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Pollution (NECNP) filed briefs in support of their appeals, but the Town of Hampton (TH) did not.

On September 21, 1987, a motion to admit late-filed contention and reopen the record was filed. Therein, it was asserted that the City of Newburyport, Massachusetts had almost completed the removal of six of the eight city-owned alert and notification sirens located within the city, that these sirens were the only means to provide early notification and clear instruction to the population of that city located within the plume exposure pathway EPZ for the Seabrook Station, and that, as a result, the Applicants have not complied with 10 C.F.R. 550.47(b)(5) and Part 50, Appendix E, SIV(D)(1) and (3). The movants requested that a late-filed contention to this effect be admitted, that the record be reopened, and that an order be issued amending the Partial Initial Decision so as to deny the authorization to issue a license to operate up to 5% of rated power until Applicants have demonstrated compliance with 550.47(b)(5). Movants argued that they had satisfied the standards in 10 C.F.R. 92.734 for reopening the record and had satisfied the standards in 10 C.F.R. 62.714(a)(1) for late-filed contentions.

The motion was signed by the Assiatant Attorney General of the Commonwealth of Massachusetts, who had noticed his appearance for the Commonwealth on the same date. The Assistant Attorney General signed also as the authorized representative of SAPL, NECNP and TH. On October 1 and October 9, 1987, the Applicants and the Staff respectively filed opposing responses.

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. Ten days after the filing of the instant motion, on October 1, j 1987, the Appeal Board affirmed the partial initial decision in part and reversed and remanded in part. ALAB-875, 26 NRC _. In its decision, the Appeal Board ordered that, on remand, this Licensing Board should admit for litigation two NECNP con (entions which had been rejected in 1982 as issues in controversy.1 The Appeal Board also ordered in substance that, with respect to one component arising out of a NECNP contention which we had decided in our partial initial decision, we should either point to anything in the record that would provide any additional support for our conclusion that RG58 cable was environmentally qualified or, in the absence of such support, we should reopen the record for further exploration of the question whether the l

RG59 cable test results could serve as the foundation for the environmental qualification of the untested RG58 cable.2 II. Discussion Insofar as SAPL, NECNP and TH are concerned, we deny the motion at the threshold because they are not properly represented before this 1 NECNP Contention I.V. was captioned "In Service Inspection of Steam Generator Tubes"; NECNP Contention IV was captioned " Blockage of Coolant Flow to Safety-Related Systems and Components by Buildup of l Biological Organisms".

2 In an Order of October 16, 1987 (unpublished), we admitted the two NECNP contentions as issues in controversy. In a memorandum to the Appeal Board on the same date (unpublished), we discussed our reasons as supported by J.e record and determined not to reopen the record on the issue ci the environmental qualification of the RG58 cable.

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. Boardh The Conunonwealth's Assistant Attorney General, who signed the Emotion' as.th'e authorized representative for SAPL, NECNP and TH, failed to comply with 92.713 of the Commission's Rules of Practice in ignoring.

both the requirement that he file a written Notice of Appearance and the requirement that he state' the basep 'of his authority to act on behalf of i

1 these three parties. _However, since Mass. is properly represented, and assuming arguendo that these three other parties are properly

. represented,'we have proceeded to consider the motion. l A tribunal, whether it be judicial or administrative, always has-

, the authority to rule upon a jurisdictional issue. Kansas Gas and

' Electric Company;(Wolf Creek Generating Station, Unit No.1), ALAB-321, 3NRCL293,298-(1976), aff'd.,CLI-77-1,5NRC1(1977). Under NRC case law, once a Licensing Board has issued a partial or final decision upon all of the issues before it and a notice.of appeal is _ filed, it no longer has jurisdiction. Jurisdiction to rule on a motion to reopen, filed after the notice of appeal has been submitted, rests with the Appeal Board.3 Georgia Power Company, et al. (Vogtle Electric l Generating Plant, Units 1 and 2), ALAB-859, 25 NRC 23, 27 (1987); l Metropolitan Edison Company et ah (Three Mile Island Nuclear Station, I

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As stated previously in Part I, su ra, the Licensing Board's partial initial decision of Marc ,1987(LBP-87-10,25NRC177) resolved all the on-site emergency planning and safety issues before it and authorized issuance of an operating license up to 5%

of rated power. On April 3,1987, SAPL was the first of the appellant interveners to file a notice of appeal pursuant to 10

- C.F.R.92.762(a).

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l Unit No.1)' ALAB-699,16 NRC 1324,1327 (1982). - Accordingly, we agree

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a with the. Applicants and the Staff that we are without jurisdiction to -

l entertain the motion to reopen the record. Further, we agree that the-

' Appeal Board's remanding of certain issues to this Board in ALAB-875  ;

does not confer jurisdiction on us,to entertain the motion because, on i

remand, a licensing board only has jurisdiction over the specific issues j remanded to it. Carolina Power and Light Company (Shearon Harris f NuclearPowerPlant, Units 1-4)ALAB-526,9NRC122,124n.3(1979).

Finally, since we are without jurisdiction to entertain the motion to i

reopen, we do not have to reach and decide whether movants have L satisfied the $$2.714(a)(1) and'2.734 standards and whether we should issue an order amending our Partial Initial Decision.

ORDER For the foregoing reasons, the instant motion is denied.

THE ATOMIC SAFETY AND LICENSING BOARD Jerry Har7bour 1

ADMINISTRATIVE JUDGE

d. i Emmeth A. Luebke ADMINISTRATIVE JUDGE h*

Sheldon J. WoUe, Chairrflan i ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland this 26th day of October, 1987, f l

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