ML20245J172

NRC Staff Memorandum in Response to Aslab Order of 890424.* Charge That NRC Filing Lacked Candor in Failing to Cite Two Cases W/O Merit.Board Has No Authority to Award Costs from NRC to Intervenor in Proceeding.W/Certificate of Svc

ML20245J172
Person / Time
Site:	Seabrook
Issue date:	04/28/1989
From:	Reis E NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#289-8543 LBP-89-10, OL, NUDOCS 8905040025
Download: ML20245J172 (12)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 89 M'l -1 P4 :26 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL: BOARD In the Matter of

• Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF 50-444 OL NEWHAMPSHIRE,etal. ) Off-site Emergency Planning

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(Seabrook Station, Units 1 and 2) )

NRC STAFF MEMORANDUM IN RESPONSE TO APPEAL BOARD ORDER OF APRIL 24, 1989 Edwin J. Reis i Deputy Assistant General Counsel Reactor Licensing Branch April 28, 1989 HP1888R8?88lip o pso-7 l

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF 50-444 OL NEW HAMPSHIRE, et al. ) Off-site Emergency Planning l-(Seabrook Station, Units-1 and 2)

NRC STAFF MEMORANDUM IN RESPONSE TO APPEAL BOARD ORDER OF APRIL 24, 1989 Edwin J. Reis

. Deputy Assistant General Counsel Reactor Licensing Branch April 28, 1989 i

I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l

BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD i

In the Matter of )

' Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF l 50-444 OL NEW HAMPSHIRE, et al. ) Off-site Emergency Planning

)

(Seabrook Station, Units I and 2) )

NRC STAFF MEMORANDUM IN RESPONSE TO APPEAL BOARD ORDER OF APRIL 24, 1989 TNTRODUCTTON By order of April 24, 1989, this Board directed the NRC Staff to respond to interveners' motion to assess costs against the Staff by May 3, 1989, and to address the Appeal Board's authority to grant that relief as well as the merits of interveners' claim that the Staff motion to strike the notices of appeal from LBP-89-10 lacked candor in failing to mention earlier action by this Board in considering financial qualification issues. The interveners' motion is without merit and should be denied.

The Staff will first address whether the cases cited by the interveners were germane to the Staff's motion to strike the notices of appeal and then whether this Board may award costs against the Staff.

DISCUSSION

. A. The Cases Cited Are Not Germane To Whether The Subject Appeal May Be Taken At This Time The interveners have accused the NRC Staff of not being candid in failing to cite ALAB-860, 25 NRC 63 (1987) and ALAB-895, 28 NRC 7 (1988),

in the Staff's motion to strike the subject appeal of April 17, 1989. In its motion, the Staff had moved to strike the appeal of the Seabrook l

off-site Licensing Board decision LBP-89-10 as not being then permitted under 10 C.F.R. f 2.714(a) or 5 2.762, as the order sought to be appealed was not a final order disposing of a proceeding or an order dismissing an intervenor from a proceeding. Staff Motion at 3-5. The Staff further pointed out that even if the discretionary authority to review interlocutory orders were to be considered, review should not be granted as the order did not threaten a party with immediate harm which could not i

be alleviated upon later appeal nor did it affect the basic structure of the proceeding. Staff Motion at 5-7. M In ALAB-860, which interveners maintain the Staff should have cited, the Appeal Board denied a motion for directed certification and interlocutory review of the offsite emergency planning licensing board's scheduling order concerning consideration of a petition for a waiver under 10 C.F.R,. I 2.758(b), of the 10-mile plume Emergency Planning Zone rule set out in 10 C.F.R. 6 50.47(c)(2). As ALAB-860 dealt only with a motion for directed certification, it had nothing to do with whether an appeal would lie as of right under 10 C.F.R. Q 2.762, of a denial of a motion to certify a question of whether a regulation should be waived to the Commission. In fact, ALAB-860 serves to educate parties to NRC  !

proceedings, as it should have educated interveners, that discretionary l

-1/ The interveners seem to be arguing that a denial of immeditte appeal would foreclose the from again raising financial qualification .

issues. See Objections to Staff Motion, etc. at 2, 4 n.2. The l

. interveners may raise these issues upon appeal of the offsite Licensing Board's decision if it is against them. Until that decision is rendered, full power operation may not be authorized and the interveners cannot be harmed by failing to obtain review of the denial of admission of the contentions at this time rather than later.

interlocutory Appeal Board review might be sought of orders germane to petitions to waive regulations. The interveners did not seek review by that course in this instance. ALAB-860 which granted interlocutory review as a matter of discretion is not inconsistent with the Staff's position that an appeal would not lie from an order that neither disposes of a 2

major segment of a proceeding _/ or terminates an intervenor's right to participate in a proceeding. No need appeared to cite ALAB-860.

In ALAB-895, which interveners also claim should have been cited, the Appeal Board did consider, by why of a notice of appeal, a Seabrook onsite Licensing Board's denial of a petition to certify the question of a waiver of the Commission's financial qualification rules to the Commission.

However, the appeal was there proper as the record in the onsite proceeding had been closed and the Appeal Board had not yet remanded any issue to the Licensing Board. See LBP-87-10, 25 NRC 177, 216-17 (1987);

ALAB-875, 26 NRC 251, 275-76 (1987). 3/ Here the financial qualification 2/

The order which in essence rejected contentions on financial qualifications was not a " major segment" of the proceeding. See NRC Staff Motion at 4-5. This Board recently dealt with the definition of a " major segment of a proceeding" subject to appeal under 10 C.F.R. 5 2.762 in this proceeding. In ALAB-894, 27 NRC 632, 636-37 (1988),

it pointed out that where many issues remain to be litigated, disposal of an issue will not ordinarily be considered the disposal of a major 1 segment of a case. Id. Here, very many issues are still pending before the offsite Licensing Board which refused to certify the financial qualification contentions to the Commission, and it is not i a major segment of that proceeding. j 3/ The failure to consider the issue of the propriety of that appeal, where no party raised an objection, would not be guiding as to whether this the appeal should be dismissed where a party objects.

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contention was offered in the context of the offsite emergency planning proceeding to the offsite Board which still has general jurisdiction over offsite issues. SI It might have been well for the Staff to mention ALAB-895 in a general history of the financial qualification issues in this proceeding, but the appeal of the a final order involved in ALAB-895 is not germane to whether interlocutory review of an order was proper in thesubjectproceeding.El Nothing is inconsistent between the Appeal Board's consideration of the appeal of the onsite Board's final order in the onsite proceeding in ALAB-895, and the Staff objecting to the consideration of an interlocutory order in this segment of the proceeding where many issues remain to be litigated. There was no " lack of candor,"

as interveners charge, which led the Staff not to mention cases it did not believe germane to the motion to strike the appeal. 6_/

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-4/ Limited issues concerning the New Hampshire offsite emergency plan are upon appeal, but the Board below retains jurisdiction over other offsite emergency planning issues.

-5/ Similarily, it might have been well for the interveners to have cited the Commission's determination upon review of ALAB-895, in CLI-88-10, 28 NRC 573, 599-600 (1988), holding that no cause exists to waive tha -

financial qualification rule in regard to full power operation, a matter which they again seek to raise through this appeal. ,

-6/ Cf. Tennesse Valley Authority, (Hartsville Nuclear Plant, Units IA, lli, 2A and 28), ALAB-409, 5 NRC 1391,1396-97 (1977).

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B. The Appeal Board Does Not Have Authority To Assess Costs Against The Staff In A Licensing Proceeding Interveners' motion for costs, is predicted upon an unseemly surmise as to why the Staff did not earlier file its motion to strike. 7/ -

Although no factual basis is given by interveners for these baseless )

assertions, it was the press of other business which delayed the Staff in ,

filing this pleading until it crossed in the mail with the Seascoast Anti-Pollution League's brief on appeal. 8/ Thus, no factual basis exists for the motion for costs.

Moreover, the Appeal Board cannot award costs from the Staff to an intervenor in an MC adjudicatory proceeding considering the grant of a i license. El Section 502 of the Energy and Water Development l

-7/ The interveners' speculation on the bases for the Staff's actions is false. The Staff took no action to foreclose interveners of their right to appeal the denial for the admisssion of the contentions at an appropriate time, but instead provided a vehicle for interveners to respond to arguments at this time that the present appeal is improper. The Staff's only motivation was to obtain an early determination of the propriety of the appeal at this time. Had the -

Staff not put forward its arguments concerning the Interlocutory nature of the appeal in a seperate motion to strike, but in its brief in opposition to the appeal, the interveners would have had no right to file a reply to these arguments.

8/ This work in the Seabrook proceeding alone included, among other matters, separate responses to the appeals of LBP-89-32, 28 NRC 667 I (1988); LBP-89-03, 29 NRC 51 (1989); LBP-89-04, 29 NRC 62 (1989) and LBP-89-08, 29 NRC (slip op. February 16,1989); response to a second motion to reconsider SLI-88-10, 28 NRC 573 (1988); preparation {

and hearings on the emergency plan for Massachusetts communities; preparation for reopened onsite hearings on mobile sire contentions; preparation for hearings on exercise of Seabrook emergency plans; and review of the financial commitments submitted by applicant pursuant to CLI-88-10. Preparation of the Staff's motion to strike was i commenced within a week of the receipt of the Notices of Appeal, but i its completion and filing was delayed due to the need to respond to  !

matters having regulatory or board imposed deadlines for response.  ;

9/ Interveners motion is notably lacking in the citation of any authority to support an award of costs.

Appropriations Act of 1989, Pub. L. 100-371, 100 Stat. , particularly states:

None of the funds in this Act shall be used to pay the expenses of, or otherwise compensate, parties intervening in regulatory or adjudicatory proceedings funded in this Act.

In Business and Professional People For The Public Interest v. NRC, 793 F.2d 1366 (D.C. Cir. 1986), the court upheld a determination that the same language in section 502 of the Energy and Water Development Appropriations Act, Pub. L.97-887, 95 Stat. 1135, 1148 (1981), prohibited the payment of fees or expenses of interveners in NRC license granting proceedings. See also 62 Comp. Gen. 692(1983)(B-208637). Thus, as a matter of law, no NRC appropriated costs may be awarded to interveners from the NRC Staff in this adjudicatory proceeding involving the licensing of the Seabrook facility. E CONCLUSION The charge that the Staff's filing lacked candor in failing to cite two cases is without merit as the Staff did not believe and does not believe those case are apposite. Further, this Board has no authority to

-10/ Cf. Union of Concerned Scientists v. NRC, 440 F.2d 957, rehearin,g Te~nied, 859 F.2d 237 (1988), where the court awarded costs to a participant in an NRC rulemaking proceeding, in contrast to an license granting proceeding, under the Equal Access to Justice Act (EAJA), 5 U.S.C. 6 504. Ilnder that Act adjudications "for the purposes of granting or renewing a license" are specifically excluded from the definition of an " adversary adjudication" for which costs may be awarded. The Commission's proposed rules under the EAJA similarily exclude any delegation of authority to its adjudicatory boards to award costs in a proceeding to grant a license. See Proposed Rule 10 C.F.R. @ 2.1000, 46 Fed. Reg. 53189 (October 28, 1981). See also "NRC Staff Brief Concerning The Applicability of the Equal Access To Justice Act," April 25, 1988, In The Matter Of Advanced Medical Systems, Inc., Docket No. 30-16055-SP.

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award costs from the WRC Staff to an intervenor in an adjudicatory preceeding considering the grant of it license. The interveners' motion for costs must be denied.

Respectfully submitted, h

Edwin . Reis

. Deputy Assistant General Counsel Reactor Licensing Branch Dated at Rockville, Maryland this 28th day of April 1989

R~"W UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'89 MY -1 P4 :26 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

)

Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF ) 50-444 OL NEW HAMPSHIRE, et al. ) Off-site Emergency Planning (Seabrook Station, Units 1 and 2 )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF MEMORANDUM IN RESPONSE TO APPEAL BOARD ORDER OF APRIL 24, 1989" 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 mail system, this 28th day of April 1989.

Ivan W. Smith, Chairman (2)* H. J. Flynn, Esq, Administrative Judge Assistant General Counsel Atomic Safety and Licensing Board Federal Emergency Management U.S. Nuclear Regulatory Commission Agency Washington, DC 20555 500 C Street, SW Washington, DC 20472 Richard F. Cole

• Administrative Judge Calvin A. Canney i Atomic Safety and Licensing Board City Hall U.S. Nuclear Regulatory Commission 126 Daniel Street Washington, DC 20555 Portsmouth, NH 03801 Kenneth A. McCollom John Traficonte, Esq.

Administrative Judge Assistant Attorney General 1107 West Knapp Street Office of the Attorney General Stillwater, OK 74075 One Ashburton Place,19th Floor Boston, MA 02108 James H. Carpenter, Alternate

• Administrative Judge Geoffrey Huntington, Esq.

Atomic Safety & Licensing Branch Assistant Attorney General U.S. Nuclear Regulatory Commission Office of the Attorney General Washington, DC 20555 25 Capitol Street Concord, NH 03301 Philip Ahrens, Esq.

Assistant Attorney General Diane Curran, Esq.

Office of the Attorney General Harmon, Curran & Tousley State House Station 2001 S Street, NW l Augusta, ME 04333 Suite 430 '

Washington, DC 20009 4

Robert'A. Backus, Esq.- Peter J. Matthews, Mayor-Backus, Meyer & Solomon City Hall

~116 Lowell-Street Newburyport, MA 01950 Manchester, NH 03106 Mrs. Anne E. Goodman, Chainnan

' Paul McEachern Esq.: Board of Selectmen Shaines & McEachern 13-15 Newmarket Road 25 Maplewood Avenue. Durham, NH 03824 P.O.. Box 360 Portsmouth, NH 03801 Hon. Gordon J. Humphrey '.

, United States Senate Charles P. Graham, Esq. 531 Hart Senate Office Building McKay, Murphy & Graham: Washington. DC: 20510 100 Main Street Amesbury, MA 01913 Barbara J. Saint Andre, Esq..

Kopelman & Paige, P.C.

Sandra.Gavutis, Chairman 77. Franklin Street Board of Selectmen Boston, MA 02110

-RFD #1,' Box 1154 Kensington, NH 03827 Michael Santosuosso, Chairman Board of Selectmen William S. Lord South Hampton, NH 03827 Board of Selectmen

. Town Hall - Friend Street Ashod N. Amirian, Esq.

~Amesbury, MA 01913 Town Counsel for Merrima:

145 South Main Street.

R.: Scott Hill-Whilton, Esq. P.O. Box 38 Lagoulis, Clark, Hill-Whilton Bradford, MA 01835

& McGuire 79 State Street Richard R. Donovan Newburyport, MA 01950 Federal Regional Center Federal Emergency Management Agency Allen Lampert 130 228th Street, S.W.

Civil- Defense Director Bothell, Washington 98021-9796

- Town of Brentwood

20 Franklin Robert R. Pierce, Esq.*-

Exeter, NH 03833 Atomic Safety and Licensing Board Panel William Armstrong U.S. Nuclear Regulatory Commission Civil Defense Director Washington, D.C. 20555 Town of Exeter

. 10 Front Street Thomas G. Dignan, Jr., Esq.

Exeter, NH' 03833 Robert K. Gad, III, Esq.

Ropes & Gray Gary W. Holmes, Esq. One International Place Holmes & Ellis Boston, MA 02110 47 Winnacunnet Road Hampton, NH 03842 l l 1

g ..

l f j; J. P. Ncdeau Ms. Suzanne Breiseth Board of Selectmen Board of Selectmen

[ Town of Hampton Falls o

10 Central Street Rye, NH 03870 Drinkwater Road Hampton Falls, NH 03844 Judith H. Mizner, Esq.

79 State Street Atomic-Safety and Licensing Newburyport, MA 01950 Board (1)*

_. U.S. Nuclear Regulatory Commission Robert Carrigg . Washington, DC 20555 Board of Selectmen

. Town Office Atomic Safety and Licensing Atlantic Avenue Appeal Panel (8)*

North Hampton, NH 03862 U.S. Nuclear Regulatory Commission Washington, DC 20555 Ms. Elizabeth Weinhold 3 Godfrey Avenue Docketing and Service Section*

Hampton, NH 03842 Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 Edwin J. is Deputy ssistant General Counsel Reac or Licensing Branch

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