ML20247F250

Memorandum & Order.* Grants Commonwealth of Ma Directed Certification,Reverses Board 890522 Oral Ruling Expunging Portion of Contention Mag EX-19 & Remands Cause to Board to Reinstate Contention.W/Certificate of Svc.Served on 890524

ML20247F250
Person / Time
Site:	Seabrook
Issue date:	05/24/1989
From:	Thompkins B NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:	MASSACHUSETTS, COMMONWEALTH OF, Atomic Safety and Licensing Board Panel
References
CON-#289-8652 OL, NUDOCS 8905300032
Download: ML20247F250 (13)

Text

-___ -_-

- , , a

1. 55 s

. .Fji_ *ja

~ UNITED STATES OF AMERICA ""

NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judoes:~

QFN . -

uGCKf i mo e,, ,ng, .,,, in 1 Alan S. Rosenthal, Chairman May24,1$$f Thomas S. Moore Howard A. Wilber SERVED MAY 2 4198

)

In the Matter of )

)

PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL NEW HAMPSHIRE, et al. ) 50-444-OL

)

(Seabrook Station, Units 1 ) (Offsite Emergency and 2) ) Planning Issues)

)

MEMORANDUM AND ORDER Before us is the May 2 3 ','

• 1 9 8 9 , motion of the intervenor Attorney General of Massachusetts seeking directed certification (i.e., interlocutory review under 10 CFR 2.718(i) ) of a May 22, 1989, oral ruling of the Licensing Board in this operating license proceeding involving the Seabrook nuclear power facility. That ruling " expunged" for lack of jurisdiction over the subject matter a portion of a previously admitted contention (MAG EX-19) proffered by the Attorney General. Because of the apparent necessity for a prompt decision on the motion, we directed that the responses of the applicants and the NRC staff be in our 1

See Public Service Co. of New Hampshire (Seabrook. i Station, Units 1 and 2) , ALAB-271,1 NRC 478, 482-83 (1975). '

8905300032 090524 PDR ADOCK 05000443 0 PDR 0 7/

i 2

hands by 9:00 a.m. this morning.2 Upon consideration of the motion and the responses, we conclude that interlocutory review is warranted and that the challenged ruling is erroneous. Accordingly, we grant directed certification and reverse the ruling.

A.

Insofar as here relevant, contention MAG EX-19 asserts (in Basis D) that the June 1988 exercise of emergency response plans for the Seabrook facility disclo ed that the computer model utilized to develop protective action recommendations (PARS) contained fundamental flaws.

This contention was submitted by the Attorney General on September 21, 1988, in accordance with a schedule promulgated by the Licensing Board assigned to consider "offsite emergency planning issues." In an unpublished December 15, 1988, memorandum and order, the Board admitted, inter alia, that portion of the contention.

2 See May 23, 1989, order (unpublished). The need for expedition rested on the fact that the applicants' request for the ruling in question was prompted by a pending motion 1989.by See filed the Tr.

Attorney General with the Commission on May 22, 22,178-79.

well as himself, the AttorneyOn General behalf has of other asked interveners the as Commission CLI-89-08, 29 in NRCthat motion to reconsider its denial in (May 18, 1989), of intervenor motions seeking a stay of the issuance to the applicants of a license authorizing low-power testing of Seabrook. In calling for reconsideration of CLI-89-08, the Attorney General explicitly relied upon the pendency of the now expunged portion of his contention MAG EX-19.

li 3

In expunging Basis D for the contention in-its oral' ruling now under: attack, the Licensing Board (through its Chairman) explained that it;was without jurisdiction to-consider that Basis. This conclusion stemmed from.the insistence of the Attorney General that a precondition to-low power operation is an acceptable computer model for PARS generation.

According to the-Board; it lacks the

' jurisdiction to entertain so-called " low power" issues.3 Apparently, the Board believes that such issues come within the exclusive province of the separate Licensing Board that had been established some time ago to consider safety and onsite emergency planning issues.4 B.

The directed certification motion at hand would have us review the conclusion of the Board below respecting the outer bounds of its jurisdiction. The first question we must address is whether the standard for interlocutory review of Licensing Board action is here satisfied. Given the proscription against interlocutory appeals found in the Commission's Rules of Practice, we exercise most sparing our discretionary authority to embark upon such review.

Specifically, we observed more than a decade ago that 3

Tr. 22,220-21.

4 See Tr. 22,190.

5 See 10 CFR 2.730 (f) .

_ _ _ _ _ _ _ - . _ - - _ _ _ _ ---- ---- ~ -------- - -

mM--'y? -

---

]-

e f

4

[a]1most without exception in recent times, we have undertaken discretionary interlocutory review only where the ruling below either (1) . threatened the. party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a i

, 1ater appeal or (2) affected the basic structure of the

{

i manner.groceeding in a pervasive or unusual.

e We need not. decide whether, as the Attorney General maintains c his motion satisfies the first prong of this test. For, be that as it may, we are persuaded that the challenged ruling "affects the basic structure of the Proceeding" in a " pervasive" manner. Surely, a Licensing Board determination as to what type of issues are before it to consider and decide (as opposed to being before some other Licensing Board assigned to the same proceeding) goer to the " basic structure" of the proceeding. And that this Licensing Board's view of its jurisdictional boundaries has been pervasive in effect is reflected by the recollection of its Chairman that the Board was "always aware that [it was] .

the offeite board [and hadI repeatedly turned down contentions which would go onsite."7 6

Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977) (footnote omitted).

7 Tr. 22,182. See also Tr. 22,191 ("We have never consciously taken jurisdiction over matters that we felt arguably would have been [for) the Onsite Board").

J l

I w___-________- - _ _ _ _ __-_ -_

5 C.

We now turn to the merits of the ruling below. It is settled, of course, that a licensing board must confine itself to those matters with respect to which it has been given authority to act.

In circumstances where, as here, there is more than one board assigned to consider aspects of a particular licensing proceeding, this means that each must be careful not to invade the territory that has been carved out for another. This consideration led us last year to reverse an action taken by one licensing board in the Shoreham operating license proceeding to the extent that that action materially affected the disposition of issues pending befcre a second board in that proceeding.8 For these reasons, the Licensing Board in the proceeding at bar correctly focused on the question of the scope of its jurisdiction vis a vis that of the so-called "onsite" Board. Unfortunately, however, it came up with the wrong answer. This is apparent from a notice issued last January 10 by the Chief Administrative Judge of the Licensing Board Panel.

The primary purpose of that notice was to advise the parties of certain changes in the composition of the Licensing Board assigned to offsite emergency planning i

)

l 0

See Lona Island Lighting Co. (Shoreham Nuclear Power Ftation, Unit 1), ALAB-902, 28 NRC 423, Commission review declined, CL1-88-11, 28 NRC 603 (1988).

L-_____._________._____._____ _ _ _ _ . _

6 matters (i.e., the Board that issued the ruling at' hand).

But the notice went on to address specifically the matter of that Board's jurisdiction:

At present, a separate Licensing Board of limitsd jurisdiction (sometimes referred to fs; convenience as the "onsite" Board), exists to hear and resolve issues related to " safety and onsite emergency planning issues." Notice of Reconstitution of Board (September 9, 1985). See Unpublished dated OctoberOrder (Instructions Re Submissions),

7, 1985. In view of the existence of two Licensing Boards in this proceeding, the jurisdiction of each Board should be stated clearly.

The instant Board (sometimes referred to for convenience as the "offuite Board"), as reconstituted herein, stands in the shoes of the original Licensing Board. constituted November 30, 1981 in response to the October 19, 1981 notice of hearing. See 46 Fed. Reg. 51,330 (1981).

Thus, the Licensing Board reconstituted herewith has general Jurisdiction over all matters pertaining now or in the future to the application for a license to operate Units 1 and 2 of the Seabrook Station not otherwise expressly assigned to the onsite Board.'

There is no room for serious doubt that, at least in the absence of contrary directions from the Commission, the Chief Administrative Judge of the Licensing Board Panel is empowered both (1) to establish two or more licensing boards to hear and decide discrete portions of a licensing proceeding; and (2) to determine which portions will be I

Notice of Reconstitution of Board, 54 Fed. Reg. 2009 (1989) (emphasis supplied).

7 i

considered by one board as distinguished from another.10 Thus, the allocation of jurisdiction set forth in the January notice was well within the Chief Judge's authority and, as such, is entitled to full respect This being so, the pivotal consideration is whether the substance of contention MAG EX-19 has been " expressly assigned" to the "onsite" Board.

Our review of the annals of the proceedings indicates that that Board has a single issue remaining for its determination: the adequacy, from the standpoint of full-power operation, of the applicants' arrangements for public notification in Massachusetts of a radiological emergency.11 While acknowledging that the "onsite" Board's current jurisdiction is so limited, the O

See, generally, 10 CFR 2.704, 2.721. Needless to say, that power must be exercised within the confines of the totality of issues that are properly before one Board or another as a result of the notice of hearing or some Commission directive. See Northern Indiana Public Service Co.

558, (Bailly Generating Station, Nuclear 1) , ALAB-619, 12 NRC 565 (1980); commonwealth Edison Co. (Carroll County Site), ALAB-601, 12 NRC 18, 24 (1980); Portland General Electric Co. (Trojan Nuclear Plant) , ALAB-534, 9 NRC 287, 289 n.6 (1979); Public Service Co. of Indiana (Marble Hill Nuclear 167, 170-71 Generating (1976), Station, Units 1 and 2) , ALAB-316, 3 NRC f

See CLI-88-08, 28 NRC 419 (1988); 53 Fed. Reg.

40,804 (1988); 54 Fed. Reg. 6463 (1989) (the publication of a notice of reconstitution of the "onsite" Board that specifically refers in its caption to the " notification ,

j system" and carries the implication that this is the only issue now before that Board).

)

_ _ _ _ _ _ _ _ - - - - - - - ^ ' - - - - ~ - - - ' ' ' ' __ _..___._.__--------J

g.

(- ,

8 staff tells us, in effect, that both Licensing Boards had lost jurisdiction over the issue raised by contention MAG EX-19 at the time the contention was filed. The staff does not elaborate on this thesis and we de not find any foundation for it. In September, chere clearly was room to advance a low-power issue before some Licensing Board and the authority of such Board to act on MAG EX-19 was not subsequently withdrawn.

Moreover, also contrary to the staff's seeming belief, once MAG EX-19 had been admitted to this operating license proceeding by the Board with general jurisdiction, it was not necessary for the Attorney General to file the identical contention a second time before another Licensing Board merely because the subject of the contention had both full and low power ramifications by reason of the Commission's regulations.12 Any other conclusion would occasion the dual litigation of the same issue with possibly inconsistent results.

For their part, the applicants maintain that the "offsite" Board lacked " plenary" jurisdiction over MAG EX-19 when it admitted the contention. Our tracing of the jurisdiction of the Licensing Boards demonstrates that that belief is simply wrong. On the date the contention was 12 See 53 Fed. Reg. 36,955 (1988) (codified in 10 CFR 50.47(d)).

9 admitted, the "offsite" Board stood in the shoes of the-original Board.13 For the foregoing reasons, directed certification is granted;.the Licensing Board's May 22, 1989, oral ruling expunging a portion of contention MAG EX-19 is reversed; and.

the cause is remanded to the Licensing Board with instructions to reinstate that portion of the contention.

It is so ORDERED.

FOR THE APPEAL BOARD el o -- a 4 rr y, -

J Barbara A. Tompkins Secretary to the Appeal Board 13 See 54 Fed. Reg. 2009 (1989); 53 Fed. Reg. 40,804 (1988); 52 Fed. Reg. 35,820 (1987); 52 Fed. Reg. 2966 l

(1987); 50 Fed. Reg. 37,608 (1985); 47 Fed. Reg. 38,656 (1982); 46 Fed. Reg. 59,667 (1981).

. +

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISS10N  !

l I

In the Matter of I I f PUBLIC SERVICE COMPANY OF NEW l l

HAMPSHIRE. ET AL. Docket No.(s) 50-443/444-OL 1 1

(Seabrook Station. Units i and 2) i i 1 I i l

CERTIFICATE OF SERVICE

-t I hereby certify that cooles of the forecoino AB MEMORANDUM AND ORDER '

have been served upon the followino persons by U.S. sail, first class. except as otherwise noted and in accordance with the reautrements of 10 CFR 8ec. 2.712.

Administrative Judae Administrative Judae Alan S. Rosenthal. Chairman Thomas S. Moore Atoalc Safety and Licensino Appeal Atomic Safety and Licensino Appeal Board Board U.S. Nuclear Reculatory Commission U.S. Nuclear Reculatory Commission Washington. DC 20555 Washincton. DC 20555 Administrative Judae Howard A. Wilber Administrative Law Judae Atomic Safety and Licansing Appeal Ivan W. Smith. Chairman Board Atomic Safety and Licensino Board U.S. Nuclear Reculatory Commission U.S. Nuclear Raoulatory Consission Washincton, DC 20555 Washington. DC 20555 ,

Administrative Judas Administrative Judae Richard F. Cole Kenneth A. McColles Atomic Safety and Licensino Board Atomic Safety and Licensino Board U.S. Nuclear Reculatory Commission U.S. Nuclear Reculatory Commission Washinoton. DC 20555 Washington. DC 20555 Administrative Judae Robert R. Pierce. Esquire James H. Carcenter Atomic Safety and Licensino Board Alternate Technical Member U.S. Nuclear Raoulatory Commission Atomic Safety,and Licensino Board Washincton. DC 20555 U.S. Nuclear Reculatory Cosmission Washington. DC 20555 Edwin J. Reis. Esc. Lisa B. Clark Office of the General Counsel Attornev U.S. Nuclear Regulatory Coseission Office of the General Counsel Washinoton, DC 20555 U.S. Nuclear Reculatory Cossission Washington DC 20555 I

4 0 I

L_ _- - - -

@ocket Noo(s)50-443/444-OL AB MEMORANDUM AND ORDER Diane Curran. Esc.

Harmen. Curran & Tousley Thomas G. Dianan Jr. Esc.

Rooms & Bray 2001 S Street. N.W. , Suite 430 Washington, DC 20009 One International Place Boston, MA 02110 Robert A. Backus. Esc. Paul Mcitchern. Esc.

Backus. Meyer & Solomon Shaines & McEachern 116 Lowell Street 25 Maplewood Avenue. P.O. Box 360 Manchester. NH 03106 Portsmouth. NH 03801 Gary W. Holmes. Esc.

Holmes & Ells Judith H. Mitner 47 Winnacunnet Road Silverolate Gernter. Baker. Fine.

Good and Mitzner Hamoton. NH 03B42 88 Broad Street Boston. MA 02110 Charles P. Graham. Esc. Jane Doherty McKay. Murphy and Graham Seacoast Anti-Pollution League 100 Main Street 5 Market Street Asesbury, MA 01913 Portsmouth NH 03801 Leonard Kopelman. Eso.

Ashed N. Amirian. Esc. Kopelman and Patos. P.C.

376 Main Street 77 Franklin Street Haverhill. MA 01830 Boston. MA 02110 Georos W. Watson. Esc.

Edward A. Thomas Federal Emergency Management Agency Federal Energency Manacement Agency 500 C Street. S.W. 442 J.W. McCormack (PDCH)

Washinoton. DC 20472 Boston, MA 02109 Georos D. Bisbee. Esc. Suzanne Breiseth Assistant Attorney General Board of Selectmen Office of the Attorney General Town of Hampton Falls 25 Capitol Street Drinkwater Road Concord. NH 03301 Hampton Falls, NH 03B44 l

____________w_m--------" - - - - - -

Docket No.(s)50-443/444-OL >

eB MEMORANDUM AND ORDER John Traficonte. Esc.

Chief. Nuclear Safety Unit Peter J. Brann. Esc.

Assistant Attorney General Office of the Attornev General Office of the Attorney General One Ashburton Place. 19th Floor State House Station. #6 Boston. MA 0210B Augusta. ME 04333 The Honorable Edward J. Markey. Chairasn Richard A. Hamoe. Esc.

ATTN: Linda Correia Hampe & McNichclas j

Subcommittee on Energy Conservation and 35 Pleasant Street Power Concord. NH 03301 House Cosaittee on Eneroy and Commerce Washington. DC 20515 J. P. Nadeau Allen Lampert Board of Selectmen Civil Defense Director 10 Central Street Town of Brentwood Rye. NH 03B70 l 20 Franklin Street Exeter. NH 03933 William Armstrono Sandra Gavutis. Chairman Civil Defense Director Board of Selectmen Town of Exeter RFD #1 Box 1154 10 Front Street Kensincton. NH 03027 Exeter. NH 03833 Calvin A. Cannev Anne Goodman. Chairman City Manaaer City Hall Board of Selectmen 13-15 Newmarket Road 126 Daniel Street Durham. NH 03824 Portsmouth. NH 03801 i Willias S. Lord Peter J. Matthews Board of Selectmen Mayor of Newburycort Town Hall - Friend Street City Hall Amesbury. MA 01913 Newburyport. MA 01950 R. Scott Hi!!-Whilton.Escuire Michael Santosuosso. Chairman Board of Selectmen Laccells. Hill-Whilton & McGuire 79 State Street South Hampton, NH 03E27 Newburyport.. MA 01950

-___..___-.-._--_.-__-__---___.______--_---_____A

_e

. :. )

Docket No.(s)50-443/444-OL AB MEMORANDUM AND ORDER Stanley W. Knowles. Chairman Norman C. Katner Board of Selectmen Superintendent of Schools P.O. Box 710' North Haeoton. NH 03862 School Administrative Unit No. 21 Atuani Drive Haecton. NH 03842 Sandra F.,Mitchell The Honorable

. Civil Defense Director Gordon J. Huechrey Town of Kensinaten ATTNi Janet Colt Box 10. RR1 United States Senate East Kinoston. NH 03827 Washincton. DC 20510 Dated at Rockville. Md. this 24 day of.May 1989 Office of the Secretary of the Cosatssion ee

_ _ _ _ _ _ _ _ _ _ _ _ - - - - . . _ - - _ - - - - - - - - - -