ML20245A648
| ML20245A648 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 06/16/1989 |
| From: | Thompkins B NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | MASSACHUSETTS, COMMONWEALTH OF, PUBLIC SERVICE CO. OF NEW HAMPSHIRE |
| References | |
| CON-#289-8776 ALAB-917, OL, NUDOCS 8906220104 | |
| Download: ML20245A648 (18) | |
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UNITED STATES OF AMERICA Me NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOAi@ JJN 16 P2 :05 Administrative Judges: Op g.. , , ; .
00Cri w .. ! n (t Alan S. Rosenthal, Chairman June 16lP1989 Thomas S. Moore (ALAB-917) !
Howard A. Wilber 1
) IERVED JUN 161989 l In the Matter of ) i
) !
PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL i NEW HAMPSHIRE, et~ ~ ~ ~
al. ) 50-444-OL i
) (Offsite Emergency (Seabrook Station, Units 1 ) Planning Issues) and 2) ) l
) ;
1 Allan R. Fierce, Boston, Massachusetts, for the intervenor Attorney General of Massachusetts.
Thomas G. Dignan, Jr., George H. Lewald, Kathryn A.
Selleck, Jeffrey P. Trout, Jay Bradford Smith, Geoffrey C. Cook, and William Parker, Boston, i Massachusetts, for the applicants Public Service Company of New Hampshire, et al:
1 Edwin J. Reis for the Nuclear Regulatory Commission staff.
MEMORANDUM AND ORDER A. On December 30, 1988, the Licensing Board rendered a partial initial decision concerned with the State of New Hampshire's radiological emergency response plan for the portions of the Seabrook facility's plume exposure pathway emergency planning zone (EPZ) located within that state.
8906220104 090616 PDR ADDCK05000g3 o
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2 Among the issues considered in that decision was that of
" returning commuters," i.e., the impact on the applicants' ]
evacuation time estimates (ETEs) for the EPZ of those j commuters whose vehicle trips to their homes located within I
the EPZ would occur simultaneously with the evacuation trips of other individuals.2 Although'apparently making findings 1 i
on some aspects of the issue, the Board retained 1 jurisdiction over at least a portion of it. _In the Board's words in paragraph 9.60 of the decision:
The Board believes that the om'ission of the l commuter trips to home will not have a large effect on theETEs. Perhaps the answer lies somewhere in-the record and we simply haven't l found.it. It is extremely unlikely that adding the commuter trips to home will influence a protective action. Nevertheless the New Hampshire 1 decisionmakers are entitled to the most accurate j ETE reasonably achievable. Therefore-the Board- ;
retains jurisdiction over this. aspect of the l proceeding so that ye may return to'the parties ]
for further advice.
This retention of jurisdiction was later repeated in paragraph 9.130 (2) in terms of the "subissue" whether " trips ;
by returning commuters within the EPZ to their homes in the EPZ are properly accounted for in the evacuation time analysis."4 l
2
. at 783-89.
3 M. at 789.
4 d
I_d,. at 804.
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p l' On May 5,:the' Licensing Board. filed an unpublished memorandum and. order addressed toL(but not disposing of) the returning commuter issue..-In'the. introductory paragraphk,
-the Board reiterated its' statement.'in paragraph 9.130(2)l.of
.the December'30 decision:to'the effect,that~ jurisdiction was. .I
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retained over thoseiaspects of.the ETEs pertaining to .
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'whether the estimates properly accounted for " trips by ,
returning commuters within the EPZ'to their homes:in the' EPZ." .At a later.-' point, it referred to its retention'of jurisdiction as extending to:"only the narrow problem of 1
commuters starting within the'EPZ for homes also'within the EPZ." ..
Although the Attorney General..of. Massachusetts '(along.
~
with other interveners) has pending an appeal from the December 30 decision, the brief on his. appeal (in common.
with the briefs of the other interveners) says nothing of significance on the returning: commuter issue. Once the May 5 order surfaced, however, the Attorney General submitted a notice of appeal that was said to be from "those. aspects" of the December 30 decision " pertain [ing) to the impact of ,
returning commuters on the evacuation time estimates" over -
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5 Memorandum and Order (May'5, 1989), at 1. !
6 d at 7.
Id. .
4 which jurisdiction had not been retained.7 In an accompanying statement, the Attorney General explained why he believed that no returning commuter matter was as yet 1
ripe for appellate consideration, with the consequence that <
the notice of appeal had been filed solely as a
" precautionary measure to protect [his] appellate rights."8 According to the Attorney General, a " fair' reading" of _
the December 30 decision indicated that the Licensing Board had retained jurisdiction in that decision over the entire issue of the impact of the returning commuters on the ETEs, not just limited aspects of the issue.8 Thus, as the f I
Attorney General- sees it, the May 5 order contains the first announcement of the Licensing Board's intention to. restrict its retention of jurisdiction so as not to consider further j
"the impact on ETEs of the large number of commuters whose trips home start outside the EPZ and who will interact with evacuating traffic as they travel home in directions opposite to and across, as well as with, the evacuation
'I Notice of Appeal of Commonwealth of Massachusetts.
Attorney General James M. Shannon (May 16,~1989).
8 Massachusetts Attorney General's Statement Regarding Prematureness of Accompanying Notice of Appeal (May 16, 1989) [hereaf ter " Attorney General's Ctatement] at 1.
9 I d at 3.
Id.
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' traffic."10 In this circumstance, the Attorney General goes on to assert, finality:for appellate purposes could_not have attached to_any portion of the Licensing Board's_ disposition of the returning commuter issue in advance of the May 5 order.
The' Attorney General further maintains, however, that, so long as any aspect of the returning commuter issue remains for Licensing Board consideration, no. portion of it can be' deemed to have achieved finality and,. consequently, be ripe for an appeal.11 On this score, our attention is directed to our reiteration last year.in this proceeding of the settled principle that
"[t]he test of ' finality' for appeal purposes before this. agency (as in the courts) is essentially a practical 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 partic{ gate; rulings which do neither are interlocutory".
10 Id. at 4 (emphasis in the original).
11 Id. at 4-6.
ALAB-894, 27 NRC 632, 636 (1988) (quoting Toledo Edison Co. (Davis-Besse Nuclear Power Station) ALAB-300, 2 NRC 752, 758 (1975) (footnotes omitted)).
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'In the Attorney General's view,.the disposition of a part, I
but not all, of the returning commuter issue cannot be 1 4
deemed the disposition of "a major segment of the case."13 1 1
In a May 24 order, we called for the views of the applicants and the NRC staff regarding the Attorney i l
General's thesis that the notice of appeal is premature.
The applicants' three-page response comes down.to this: the _
notice of appeal was not premature but, rather, was j
" extremely late" and, as such, should be struck.14 This is because, we are told, the.Lic6nsing Board made it clear in ,
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the December 30 decision that it was retaining jurisdiction over only the portion of the returning commuter issue concerned with commuters commencing their homoward trip from within the EPZ. For this proposition, the applicants rely 1 l
upon paragraph 9.130 (2) , quoted supra p. 2, as well as upon 1 l
the Board's earlier discussion.in paragraphs 9.52 and 9.53 i of the decision.15 Consequently, the applicants maintain, i any challenge to the Board's disposition of the portions of the issue over which jurisdiction was not so retained had to s
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We discuss the Attorney General's position in greater detail below, infra pp. 9-10 I4 Applicants' Motion to Strike Notice of Appeal and Response to Appeal Board Order of May 23 [ sic), 1989 (May 30, 1989) at 2, 4.
5 See 28 NRC at 787-88.
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.i be included in the appeal taken by.the Attorney General from j the December:30 decision and could not be advanced several months later through a new notice'of appeal.
Fo,r its part, the staff agrees with the applicants.(for essentially the reasons assigned by them) that the Attorney General is too' late in his. endeavor to raise at this-juncture the-Licensing-Board's. disposition of-that portion' -
of the returning commuter issue. concerned with commuter trips commencing outside the EPZ. ' The staff further observes (and presumably the applicants do not: disagree) that any appeal regarding the. matter of trips'by returning commuters within the EPZ must await the Board's decision on that matter in accordance with its-retention of' jurisdiction over it.
B. 1. There is considerable merit to the Attorney Generals insistence that the May 5 memorandum and. order was the first indication that the Licensing Board had not retained jurisdiction over the entire returning commuter issue (rather than just that portion relating to commuters returning to homes in the EPZ from within the EPZ). To begin with, the first reference to the retention of l jurisd.iction in paragraph 9.60 of the December 30 decision, l
16 See NRC Staff Response to Appeal Board Order of May
[24), 1989 and Applicants' Motion to Strike ~ Notice of Appeal (June 2,1989) [hereafter " Staff Response").
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when read in light of the Licensing Board's preceding i
discussion, lends-substantia 1Lcredence'to the Attorney i General's position. Moreover, the reference;in paragraphL 9.130 (2) .of the decision to the retention of jurisdiction 1
overLthe "subissue" respecting " trips by returning commuters- ]
within the EPZ to their homes in the EPZ" does not necessarily aid the applicants and staff. ~As the' Attorney -
j General observes in his' opposition to the applicants' motion- ]
to strike the appeal,'that statem'nt'might reasonably be e
read'as applying to, inter alia, the within-EPZ portion of.
commuter trips' originating outside of.the EPZ. It was not until the recei'pt of the May 51 order, with its unambiguous. ;
J notation that jurisdiction had been retained only.with' respect to the " narrow problem of commuters starting within the EPZ for homes also within the EPZ," ' that,the Attorney
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For example, in paragraph 9.51 the Licensing Board )
identifies and discusses the problem of commuters moving-across the flow of evacuating traffic.. But in its findings-the Board does not resolve this matter,-thereby leaving the impression that the matter is one of the unresolved returning commuter issues the Board is leaving open in paragraph.9.60.
See Massachusetts Attorney General's OppositionLto l Applicants' Motion to Strike Notice of Appealu(June 12, 1989) at 5-6. In our view, contrary to'the applicants' claim, such:a reading'was not rendered impermissible by the discussion in paragraphs 9.52 and.9.53 of the December 30 decision.
19 See supra p.3 (emphasis supplied).
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General was placed on sufficient notice'that such a reading was not' intended-by the Board.
- 2. Even were the' applicants and staff on firmer footing in their reliance upon paragraph 9.130(2) of the December 30 decision, it would not perforce follow that'the Attorney General was obligated to present his' arguments respecting the non-retained portion of the returning _
commuters issue as part of his pending appeal from the December 30 decision. The Attorney General's papers confront us with the' claim that, in all events, no portion of the issue should be deemed ripe for appellate consideration until every portion of it has been decided below. As we have seen, his belief on that score is founded in good measure upon the well-established test respecting finality for appeal purposes. In this-connection, the i i
Attorney General notes that, in its totality, the returning i 1
commuters issue arose from a single basis offered in support of ETE contentions of the interveners Town of Hampton and !
Seacoast Anti-Pollution League. His argument then proceeds: )
However one draws the precise line between what is and what is not a " major segment" of a case, a ruling which disposes of part but not all of a single basis is not at all close to that line.
Such a ruling cannot reasonably be described as having disposed of a major segment of a' case.
Furthermore, the Mass AG asserts that beyond the generic' argument that a part of a single basis does not constitute a " major segment," there is an issue-specific reason why.the " returning-commuters" issue should not be' appealed in piecemeal fashion. The " returning commuters" issue does not break down neatly into clear-cut
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sub-issues.. Returning commuters whose trips home-originate both within and:without the EPE can and-do travel with, against, and across;the' flow of.
both-New Hampshire ~and Massachusetts evacuees traveling. outbound on the. key. evacuation routes.
l The effects of' returning. commuter, traffic'on.
evacuation-' traffic, and=vice versa,'are
, interactive, ' and: these interactive .[el ffects ~
I cannot bezassessed without running.the computer:
I' modelt (that generated' the ETEs) in a way that .
L :assessesithese interactions on ETEs.c:The. Board's decision to. divide commuters-into two groups ---
those whoseitrips' start within the EPE;and thoseL whose trips start outside the EPE!-- and;then to -
retain jurisdiction of only oneLofSthe two groups ~
(inside starters) makes' little' practical: sense for the purposes;of:assessingoimpact on ETEs. 'At?the-j very.least, theifaint1 distinction:between these groups:cannot be said:to give rise:to.a "majorg t segment"wggnthe'BoardLdisposesofonebutnot-
-the other This line of: reasoning may well:have flaws. . If so ,1 however,:they have not been identified by either the. ,
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i applicants or the staff. While not at'all hesitant.tol point out what they deemed to be the error-in'the Attorney.
J General's' assertion that the now-apparent? limited, nature of l the retention of jurisdiction was not iisclosed in the-December 30 decision, neither.of those-parties ~has; offered one word in response to his argument that,'for" appeal !
purposes, the returning commuter issueLshould not be .
bifurcated.21
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2 Attorney General's ' Statement 'at 5-6f (emphasis . in ' the -
original).
21 Despite the fact thatLa total ~of seven lawyers .
-(Footnote Continued) ;
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t i 11 -j When a party totally fails to come to' grips.with pivotal and manifestly nonfrivolous. arguments advanced by1an j t
adversary, a permissible inference arises'that that party <
l recognizes the force of.the' arguments. We are tempted here
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- to adopt that: inference'and, without further discussion,'to :
accept the Attorney General's prematurity thesis. Even in the absence of assistance from the litigants before us, ..
however, we have some responsibility for looking i
independently at questions put before:us.that have l jurisdictional overtones. Thus, albeit.without thelbenefit' i
of the viewsfof the applicantstand, staff, we have' undertaken i
such an' examination of the matter of finality. That-examination persuades us that,Lalthoughlsome' facets of his (Footnote Continued) , _
3 seemingly were. involved in the preparation of its three-page response (see the listing of counsel at the outset .of this opinion), the applicants simply ignore the Attorney- ,
General's claim in that regard. The mostithat'the~ staff. "
offers is a characterization of the reach of the claim that is not sufficiently precise. 'According.to'the staff, the :
Attorney General is contending merely that the LicensingL j Board erred by dividing:the returning commuter-issue-into j two parts and that,.because this was done in the December 30 i decision, the assertion of error had to be included in the !
earlier and timely appeal from that decision. See Staff Response at 4. But the quotation from the Attorney ;
l General's filing set forth in-the text' plainly shows that .
his claim is not so restricted. While the' Attorney General-does believe that the division makes "little practical-sense," his. principal point is that,-even if divided,.the returning commuters issue "should not be appealed in piecemeal fashion." See supra p. 9. The staff, like the applicants, is silent on that point.
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e 12 analysis may be in doubt, the Attorney General's ultimate i
conclusion is sound. j It is not clear to what extent the " major segment of 1 the cas.e" test comes into play in instances where, as here, a licensing board renders an initial decision that' disposes of a wide variety of issues with a retention of jurisdiction over a portion of one of those issues. We can, however, - J leave that question for another day. For, irrespective of j how it might be resolved, there is another compelling reason why no part of the returning commuter issue is as yet ripe l
for appeal. In a nutshell, we are in agreement with the Attorney General that in no circumstances would it have made I sense for him to have included a portion of the issue in the 1
l briefing of his appeal of the December 30 decision, leaving i the balance of the issue for our scrutiny at such time as the Licensing Board acts in fulfillment of its retained jurisdiction.
To reach that conclusion we need not and do not now decide whether the Licensing Board justifiably has divided the returning commuter issue into segments for the purpose of its own consideration of the issue. Be that as it may, i j it cannot be gainsaid that the line of separation between l the two segments is at best thin indeed. For one thing, as the Attorney General observes, the entire issue is rooted in one basis assigned in support of the ETE contentions of two I
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of the interveners.22 More important, it is; difficult to-perceive a significant difference, from the' standpoint of the potential impact upon ETEs, between a commuter trip originating just outside the EPZland one having a nearby.
origin barely within the boundary. 'This is particularly so j
if both commuters employ essentially the same-routes to
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reach ultimate destinations in the same general area within- -
the EPZ.
Given these considerations, and notwithstanding'the -
Licensing Board's disparate approach to'the= litigation and.
disposition of it, we are not prepared'to take on the returning commuiter issue piecemeal.23 ' In ourijudgment, this j is a single issue that,.at least for appellate purposes, is not properly severable. Rather, it warrants examination by.
us in its entirety following the development of a full-evidentiary record that covers all commuter trips terminating within the EPZ, ir2 espective of whether a ;
1 particular trip commenced inside or outside of'that zone.
]
In the course of that examination, we will be in a much !
better position to determine whether the Licensing Board's 22 See supra p. 9.
23 In this connection, no matter how we resolved the question of the message conveyed by the December 30 decision, either at one time or piecemeal at different times we nevertheless would have been called upon to examine the whole issue.
t 14 bifurcation of the issue for trial and decision was justified and, if not, whether prejudice to the interveners resulted therefrom.
In sum, the Attorney General is right. The .Tecently filed protective notice of appeal is premature in that no part of the returning commuter issue is appropriately l subject to appeal until the whole issue has been decided by -
the Licensing Board.
The applicants' motion to strike the Attorney General's May 16, 1989, notice of appeal as too late is denied. The notice of appeal is dismissed on the sole ground that it is premature.24 It is so ORDERED.
l FOR THE APPEAL BOARD
, L &h, ed ~
Barbara A. Tompkins j Secretary to the j Appeal Board )
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24 In light of this disposition of the matter, the Attorney General's motion for an extension of the time in 1 which to file the brief in support of his protective appeal is denied as moot.
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O UN11ED $7 AVES OF AMERICA ,
3 NUCLEAR RESULATCRY COMMISSION ]
In the Matter of 1 I
PUBLIC SERVICE COMPANY OF NEW l Docket No.(s) 50-443/a44-OL HAMPSHIRE. ET AL. 1 (Seabrook Station. Units 1 and 21 1 I
I CERTIFICA1E OF SERVICE I hereby certify that costes of the forecoino AB M&D (ALAB-917) 6/16/B9 have been served upon the followino persons by U.S. sail, first class. except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
Administrative Judoe Administrative Judce Alan S. Rosenthal. Chairman Thomas S. Moore Atomic Safety and Licensino Appeal Atomic Safety and Licensino Appeal Board Board U.S. Nuclear Reculatory Commission U.S. Nuclear Reculatory Commission Washinnten. DC 20555 Washincton. DC 20555 Administrative Judor Heward A. Wilber Administrative Law Judoe j Atomic Safety and Licensino Acceal Ivan W. Smith. Chairman Board Atomic Safety and Licensino Board -
U.S. Nuclear Reculatory Commission U.S. Nuclear Reculatory Commission Washinoton. DC 20555 Washincton. DC 20555 Administrative Judce Administrative Judce Richard F. Cole Kenneth A. McCollem ,
Atomic Safety and Licensino Board Atomic Safety and Licensino Ecard 'j U.S. Nuclear Reoulatory Commission U.S. Nuclear Reculatory Commission Washincton. DC 20555 Washincton. DC 20555 Administrative Judce Robert R. Pierce. Escuire James H. Carpenter !
Atomic Safety and Licensino Board Alternate Technical Member l U.S. Nuclear Reculatory Commission Atomic Safety and Licensino Board l Washincton. DC 20555 U.S. Nuclear Reculatory Commissicn i Washincton. DC 20555 l 1
Edwin J. Reis. Esc. Lisa B. Clark Office of the Seneral Counsel Attorney U.S. Nuclear Reculatory Commission Office of the General Counsel Washincton. DC 20555 U.S. Nuclear Reculatory Commission Washincton. DC 20555 I
l Docket No.(s)C0-443/44a-OL AB MhD (ALAB-917) 6/16/69 ,
l Diane Curran. Esc. Thcess 6. Dionan. Jr.. Esc.
l Hareen. Curran & Tousley Ropes k Grav 2001 5 Street. N.W.. Suite 430 One Internations) Place Washincton. DC 20009 Boston. MA 02110 i
Robert A. Backas. Esc. Paul McEachern. Esc.
Backus. Maver & Scicson Shaines k McEachern 116 Lowell Street 25 Maplewood Avenue. P.O. Bor 360 ,
I Manchester. NH 03106 Portsmouth. NH 03601 Gary W. Holmes. Esc. Judith H. Mirner Holmes k Ells Silverclate. Gernter. Baker. Fine.
47 Winnacunnet Road Boco and Mitzner l Hatoten. NH 03B42 68 Broad Street Boston. MA 02110 Charles P. Graham. Esc. Jane Dcherty McKav. Murphy and Braham - Eescoast Anti-Pollution Lescut ,
100 Main Street 5 Market Street l Asesbury. MA 01913 Pcrtsmouth. NH 03001 Leonard Kopelman. Eso.
Ashed N. Amirian. Esc. Kccelsan and Paice. P.C. .
376 Main Street 77 Franklin Street h Haverhill. MA 01530 Ecsten. MA 02110 f 1
l Secree W. Watsen. Esc. Edward A. Thomas I I
Federal Eternancy Manacesent Acency Federal Esercancy Manacement Acency I 500 C Street. 6.W.
442 J.W. McCormack (PDCH)
Washincton. DC 20472 Besten. MA 02109 l l
Secret D. Bisbee. Esc. Paul A. Fritzsche. Esc. '
Assistant Attornev Esnaral Office of the Public Advocate Office of the Attornev 6eneral State House Station 112 25 Capitol Street Aucusta. ME 04333 l Concord. NH 03301 w_-_-_______
- -*.ket No.(sl90-443/444-OL s it'.,40 (ALAB-917) 6/16/09 l
l i Suzanne Breiseth John Traficente. Esc.
Board of Selectmen Chief. Nuclear Safety Unit Town of Hampton Falls Office of the Attorney Genersi Drinkwat~r e Road One Ashburton Place. 19th Floor Hampton Falls. NH 03044 Boston. MA 02100 The Honorable Peter J. Brann. Esc. Edward J. Markey. Chairman Assistant Attorney General ATTN Linda Correia Office of the Attorney General Subcommittee on Eneroy Conservation and State House Station. #6 Power Auousta. ME 04333 House Committee on Energy and Commerce Washincton. DC 20515 _
Richard A. Hampe. Esc. J. P. Nadeau Hampe & McNicholas Board of Selectmen 35 Pleasant Street 10 Central Street Concord NH 03301 Rye, NH 03870 Allen Lamcart William Armstreno Civil Defense Director -
Civil Defense Director Town of Brentwood Town of Exeter 20 Franklin Street 10 Front Street Exeter. NH 03933 Exeter. NH 03833 Sandra Savutis. Chairman Calvin A. Cannev Board of Selectmen City Manacer RFD #1 Box 1154 City Hall Kensinoton. NH 03827 126 Daniel Street Portsmouth. NH 03601 l
l Anne Goodman. Chairman William S. Lord Board of Selectmen Board of Selectmen 13-15 Newmarket Road Town Hall - Friend Street Durham. NH 03624 Asesbury. MA 01913 Peter J. Matthews Mayor of Newburvoort Michael Santosuosso. Chairman City Hall Board of Selectmen Newburvoort. MA 01950 Scuth Hampton. NH 03027
o Docket No.(s)90-443/444-OL AB MLO (ALAB-917) 6/16/B9 s R. Scott Hill-Whilton.Escuire Stanley W. Knowles. Chairman Laoculis. Hill-Whilton & McGuire Board of Selectmen .
l 79 State Street P.O. Box 710 Newburyport.. MA 01950 North Hampton. NH 03862 1
1 Norman C. Katner Sandra F. Mitchell 1 Superintendent of Schools Civil Defense Director l School Administrative Unit No. 21 Town of Kensincton J Alumni Drive Box 10. RR1 Hampton. NH 03B42 East Kinoston. NH 03627 3 i
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John F. Doherty Beverly Hollinowerth 1 1616 P Btreet. N.W. 209 Winnacunnet Road {
Washincton. DC 20036 Hamoton. NH 03842 i The Honorable The Honorable Bordon J. Humchrev . Nicholas Marvoules ATTN: Janet Coit ATTN Michael Greenstein United States Senate 70 Washincton Street Washincton. DC 20510 Salem. MA 01970 Dated at Rockville. Md. this 16 day of June 1989 Office of the Secretary of the Commission l
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