ML20247F686

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 Portion of Contention.Served on 890525

ML20247F686
Person / Time
Site:	Seabrook
Issue date:	05/24/1989
From:	Tompkins B NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:	MASSACHUSETTS, COMMONWEALTH OF, Atomic Safety and Licensing Board Panel
Shared Package
ML20247F665	List: ML20247F661 ML20247F686
References
ALAB-916, OL, NUDOCS 8905300139
Download: ML20247F686 (9)

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CCCKETED UTC i '89 MAY 25 P2 :04 i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Oft:

ATOMIC SAFETY AND LICENSING APPEAL BOARD"#

Administrative Judges:

Alan S. Rosenthal, Chairman May 24, 1989' Thomas S. Moore (ALAB-916)

Howard A. Wilber I

) SERVED MAY 251989 In the Matter of )

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

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

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John Traficonte, 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, Massachusetts, for the applicants Public Service Company of New Hampshire, et al.

Sherwin E. Turk for the Nuclear Regulatory Commission.

MEMORANDUM AND ORDER Before us is the May 23, 1989, motion of the intervenor Attorney General of Massachusetts seeking directed certification (i.e., interlocutory review under 10 CFR

2. 718 (i) l) 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 1 See Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-271, 1 NRC 478, 482-83 (1975).

8905300139 89052D PDR ADGCK 05000443 \

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lack of jurisdiction over the subject matter a portion of a l I

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 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 disclosed 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 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 '

filed by the Attorney General with the Commission on May 22, 1989. See Tr. 22,178-79. On behalf of other interveners as well as himself, the Attorney General has asked the Commission in that motion to reconsider its denial in CLI-89-08, 29 NRC (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.

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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.. 'l In expunging Bcsis 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 3

Tr. 22,220-21.

4 See Tr. 22,190.

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Commission's Rules of Practice,5 we exercise most sparing our discretionary authority to embark upon such review.

Specifically, we observed more than a decade ago that la]lmost 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 later appeal or (2) affected the basic structure of the groceeding in a pervasive or unusual manner.

We need not decide whether, as the Attorney General maintains, 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) goes 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]

5 See 10 CFR 2.730 (f) .

6 Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2)7~ALAB-405, 5 NRC 1190, 1192 (1977) (footnote omitted).

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the'offsite board [and had) repeatedly turned down contentions which would go onsite."

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 before 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 I Tr. 22,182. See also Tr. 22,191 ("We have never l consciously taken jurisdiction over matters that we felt  ;

E arguably would have been [for] the Onsite Board"). i 8

See Long Island Lighting Co. (Shoreham Nuclear Power Station,' Unit 1), ALAB-902, 28 NRC 423, Commission review declined, CLI-88-ll, 28 NRC 603 (1988).

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- 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 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 limited jurisdiction (sometimes referred to for convenience as the "onsite" Board), exists to hear and resolve issues related to " safety and onsite i emergency planning issues." Notice of t

Reconstitution of Board (September 9, 1985)4 See Unpublished Order (Instructions. Re Submissions) ,.

dated October 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 "offsite 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, l

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

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onsite Board.' ]

There is no room for serious doubt that, at least in the absence of contrary directions from the Commission, the

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

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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 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 proceeding 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.II While acknowledging that the 10 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. (Bailly Generating Station, Nuclear 1), ALAB-619, 12 NRC 578, 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 Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167, 170-71 (1976).

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

(Footnote Continued)

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8 "onsite" Board's current jurisdiction is so limited, the staff tells us, in effect,,that both Licensing Boards had lost jurisdiction over the issue raised by contention MAG L

EX-19 at the time the contention was filed. The staff does not elaborate on this thesis and we do not find any foundation:for it. In September, there 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 I 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.

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

12 See 53 Fed. Reg. 36,955 (1988) (codified in 10 CFR t 50.47(d)).

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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 Boarde demonstrates that that belief is simply wrong. On the date the contention was 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

_ la > -J h nd Barbara A. Tompkins'

_w Secretary to the Appeal Board l

l 13 See 54 Fed. Reg. 2009 (1989); 53 Fed. Reg. 40,804 (1988); 52 Fed. Reg. 35,820 (1987); 52 Fed. Reg. 2966 (1987); 50 Fed. Reg. 37,608 (1985); 47 Fed. Reg. 38,656 (1982); 46 Fed. Reg. 59,667 (1981). '

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