ML20247F797
| ML20247F797 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/23/1989 |
| From: | Traficonte J MASSACHUSETTS, COMMONWEALTH OF |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#289-8666 CLI-89-08, CLI-89-8, OL, NUDOCS 8905300179 | |
| Download: ML20247F797 (13) | |
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UNITED' STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
~89 MAY 25 P3 :55 ATOMIC SAFETY AND LICENSING. APPEAL BOARD N
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Before.the Administrative Judges: }ll, _
E AlanLS. Rosenthal, Chairman
_ Thomas S. Moore Howard A. Wilber
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In the Matter of'
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Docket Nos. 50-443-OL
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50-444-OL PUB'LIC SERVICE-COMPANY
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OF NEW HAMPSHIRE,._E_T _AL.
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(Seabrook. Station, Units l'and 2)
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'May 23, 1989 b
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MOTION lOF THE ATTORNEY GENERAL OF MASSACHUSETTS FOR DIRECTED CERTIFICATION OF THE MAY 22, 1989 ORDER OF De
.THE LICENSING' BOARD GRANTING THE APPLICANTS' ORAL in
. MOTION TO RECONSIDER THE ADMISSIBILITY'OF MAG-EX.19 BA3IS D-AND' REJECTING THAT CONTENTION FOR LACK OF.
JURISDICTION OVER-THE ISSUES RAISED THEREIN PROCEDURAL CONTEXT 1
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On'May 22,~1989, the Attorney General of Massachusetts i
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(" Mass AG") on behalf of himself as well as other interveners i'
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filed a motion with the Commission seeking reconsideration of
- CLI-89-08 which had denied the interveners' request for a stay of the issuance of a low power license pending appeal.
In
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i support of.his motion for reconsideration the Mass AG argued
'that an-issue material and relevant to the issuance of a low power license as determined by the Commission and codified at ADOCK05000443e[
8905300179 890523 PDR G
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'4 10 CFR 50.47(d)(5) was presently being contested in the full power proceeding and that in light of this fact the Ccmmission should stay the issuance of the low power license until it could make all the necessary findings required by 10 CFR 50.57(a) and (c).
As is described in detail in the motion for reconsideration, the issue of the adequacy as revealed by the June 1988 exercise of an offsite aspect of the Applicants' onsite plan (the onsite capacity to adequately assess the actual and potential offsite consequences of a radiological accident) had been raised in the full power procesding as an issue material and relevant to the issuance of a full power license.
This selfsame issue is also material and relevant to the issuance of a low power license.
Cf,. 50.47(b)(9) with 50.47(d)(5).
Upon receipt of this motion on May 22, 1989, the Applicants brought an oral motion before the full power Licensing Board seeking to have that Board reconsider its December 15, 1988 order admitting the relevant contention.
Notwithstanding the fact that the Applicants presented no argument not put before the Board and rejected in December, that discovery on the
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i contention had proceeded for some months and that testimony had j
i been prefiled by the Mass AG, the Applicants and the NRC Staff l
l in accordance with the Board's scheduling orders, on May 22 the Board ruled after argument that it had no jurisdiction over the issue and granted the Applicants' motion to reconsider the admissibility of the contention and basis in the full power proceeding.
The Mass AG indicated that the consequences of i
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this action could be to effectively moot the issues presented by the Interveners' May 22 motion for reconsideration to the Commission regarding a contested issue material and relevant to I
low power.
In these circumstances the Mass AG requested that the Board refer the issue of its jurisdiction over the disputed j
matter to the Appeal Board.
The Licensing Board refused to do so.
In light of these circumstances the Mass AG is seeking immediate interlocutory review by the Appeal Board of the May 22 order of the Licensing Board dismissing the relevant contention from the full power proceeding.
In addition, l
because of the imminence of low power operation in the absence of a contested issue material and relevant to that licensing activity, the Mass AG requests that this Appeal Board immediately stay the effect of the dismissal of the relevant contention pending its determination on the merits of the Mass AG's request for directed certification.
STANDARDS FOR DIRECTED CERTIFICATION The standard to be applied to a request for interlocutory relief is that the petitioner establish that the ruling: (1) threatens the party adversely affected by it with immediate and serious irreparable impact which can not be remedied by a later j
l appeal, or (2) affects the basic structure of the proceeding in a pervasive or unusual manner.
Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),
ALAB-405, 5 NRC 1190, 1192 (1977).
The ruling by the offsite ____--_2
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- Board, although ostensibly a determination not to admit a contantion for lack of jurisdiction, will have an immediate and setious impact on the rights of the Mass AG to have all 4dmitted contentions that are material and relevant to the issuance of a low power license decided on the merits prior to i
the issuance of any such license.
A later appeal may well set right the lower Board's jurisdictional error with regard to the Mass AG's right to litigate the disputed issue prior to full power operation but this same right will be irrevocably denied as to low power in light of the circumstances.
Moreover, for a similar reason the dismissal of this offsite issue at this juncture and under these circumstances will have an unusual or pervasive impact on the basic structure of the proceeding because it will effectively deny any hearing on an admitted issue material and relevant to a low power license prior to the 3
issuance of that license.
For these reasons, this Board should grant; interlocutory review, i
l THE LOWER BOARD ERRED AS A MATTER OF LAW Essentially, the lower Board, correcting for what it perceived to be an " injustice" visited upon the Applicants by z
i its December ruling admitting the relevant offsite issue into
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l the full power proceeding, attempted to refashion its l
jurisdictional grant so that the Mass AG simply could not be correct in his assertions that an issue material and relevant 1
to the issuance of a low power license had been admitted for _
b litigation in the full power proceeding.
The Board accomplished this by redefining its jurisdiction as limited to those iss"as (even if they are offsite issues) that are not material to a low power license.
Thus, with this new self-proclaimed jurisdictional identity, the lower Board could assert that if the Mass AG is right (that the relevant issue is material and relevant to a low power license) then the Board i
must have erred in admitting the contention in the first instance.
In fact, the legal error here is transparent: a comparison of 50.47(b)(9) with 50.47(d)(5) makes clear that the identical issue is material and relevant to the issuance of both a low power and a fu11' power license.
In this case the Mass AG brought a challenge in the full power proceeding to the adequacy of the onsite plan's methods and systems for assessing i
the offsite dose consequences of an accident.
Although challenging the adequacy of the onsite plan as implemented during the June 1988 exercise, the contention was focussed on the offsite aspects of that exercise performance.
As the October 12, 1988 Notice of Clarification (concerning jurisdiction] attached as Exhibit 1 makes clear, the Smith Board had and has jurisdiction over all " proceedings pertaining to offaite' emergency planning".
Moreover, as the January 10, 1989 Notice of Reconstitution of Board attached as Exhibit 2 indicates, the "onsite" Board had jurisdiction over " safety and onsite emergency planning issues."
(Emphasis supplied.)
Obviously, as 50.47(d) makes clear, there are offsite aspects to onsite emergency plans and the Smith Board had appropriately L_______
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identified these offsite aspects as within its jurisdiction back in December when it admitted MAG EX-19.
In a series of specific rulings in the context of discovery disputes arising out of this specific contention / basis, the Smith Board reiterated and refined its determination of its own 9trisdiction..
(Constraints of time have prever.ted record citation to these rulings.)
Now having discovered that such issues are also material to the issuance of a low power license the Board has reversed field for no apparent reason other than to avoid in any way further delay in the issuance of low power license even if that license can not be issued in the present procedural posture as a matter of law.
For all of the reasons set forth above the Mass AG requests that this Appeal Board grant its request for interlocutory review and set aside the Licensing Board's May 22, 1989 Order thereby reinstating MAG EX-19 Basis D as a contested issue in the full power proceeding.
COMMONWEALTH OF MASSACHUSETTS JAMES M. SHANNON ATTORNEY GENERAL kA d
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n Trafic4hte
.ief, Nuclear Safety Unit epartment of the Attorney General I
One Ashburton Place l
Boston, MA 02108-1698 l
(617) 727-2200 l
DATED:
May 23, 1989 _ -
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e UNITED STATES OF AMERICA NUCLEAR REGULATORY'COMISSION PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE ET AL.
Seabrook Station, Units 1 and 2 3 OCT 12 P5:28.
Onsite Emergency Planning and Safety Issues)
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t]y 50 0
.".h t 88 (DocketNos.50-443-OL-1and50-444-OL-1) pYg /p'F/T IDWED OCT 131985
[ASLBPNo. 88-558-01-OLR]
m NOTICE OF CLARIFICATION r.
This is to clarify that in view of the Conuission's amendment to 10 C.F.R. I 50.47, 53 Fed. Reg. 36955 (September 23, 1988), aM the Commission's Order dated October 7,1988 regarding same (Wb88-08), the onsite Licensing Board, comprised of Sheldon J. Wolfe, Chainnan; Jerry Harbour; and Emmeth A. 'Luebke, has jurisdiction over and shall consider and decide the now full-power notification ' issue -- i.e., the Amended Contention On Notification System For Massachusetts (and t.ortain bases) admitted in the or. site Board's Memorendum and Order of June 2,1988 (unpublished).
The Board comprised of Ivan W. Smith, Chairman; Jerry Harbour; and Gustave A. Linenberger, Jr., and its newly added Alternate Members, John H Frye, III and James H. Carpenter, will continue to preside in all other proceedings pertainir.g to offsite emergency planning for the Seabrook Station, which are being heard under Docket Nos. 50-443-OL and 50-444-0t. (Offsite Emergency Planning).
EXHIBIT 1 M'
Tobert M. Lazo Acting Chief Administrative Judge Atomic Safety and Licensing Board Panel Issued at Bethesda, Maryland, this 12th day of October 1988.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY C0m !SSION
'89 JAN 12 A9 :26 PUBLIC SERVICE CO. OF NEW HAMPSHIRE. ET AL.,,
Seabrook 5tation, Units 1'and 2
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(Offsite Emergency Planning)
Docket Nos. 50-443-OL and 50-444-OL 5ERVED JAN 121989
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I NOTICE OF RECONSTITUTION OF BOARD
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Pursuant to the authority contained in 10 C.F.R. I 2.721 the Atomic Safety and Licensing Board for Public Service Company of New Hampshire, et al. (Seabrook Station, Units 1 and 2) (Offsite Emergency Planning),DocketNos. 50-443-0L and 50-444-OL, is hereby reconstituted by appointing Administrative Judge Richard F. Cole in place of Administrative Judge Gustave A. Linenberger, Jr.; and Administrative Judge Jerry R. Kline in place of Administrative Judge Jerry Harbour.
i Because of the press of other Licensing Pane'l obligations, Judges 7
.Lirienberger and Harbour are no longer able to serve on this Licensing Boardc.
Administrative Judge James H. Carpenter will continue to serve as a designathd Alternate Member of the Licensing Board. Because of a schedule conflict, Administrative Judge John H Frye, III, is no longer available.to serve as an Alternate Member af the Licensing Board.
EXIIIBIT 2 ~
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> As reconstituted, the Board is comprised of the following Administrative Judges:
Ivan W. Smith, Chairman Richard F. Cole, Member Jerry R. Kline, Member 4
James H. Carpenter, Alternate Mcter All correspondence, documents and other material shall be filed with the Board in accardance with 10 C.F.R. I 2.701 (1980). The addresses of the new Board members are:
Administrative Judge Richard F. Cole, Member Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission Washington, D.C.
20555 Administrative Judge Jerry R. Kline, Member Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission Washington. 0.C.
20555 Administrative Judge James H. Carpenter, A' ternate Member Atomic Safety and Licensing Bot.d U.S. Nuclear Regulatory Cosmission Washington, D.C.
20555 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 emergency plannin,g issues." Notice of Reconstitution of Board (September 9,1985).
See i
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.. 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.
i The instant Board (sometimes referred to for convenience as
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"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.
53 46 Fed. Reg. 51,330(1981).
Thus,, the Licensing Boaro reconstituted herewith has general
' jurisdiction over all matters pertaining now or in the fussre to the j
application for a Ifeense to operate Units 1 and 2 of the Seabrook Station ~ not othemise expressly assigned to the onsite Board.
B. Paul Gotter, QfK.
Chief Administrative Judge Atomic Safety and Licensing Board Panel Dated at Bethesde Maryland, this 10th day of January 1989.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'89 MAY 25 P3:55 ATOMIC SAFETY AND LICENSING APPEAL BOARD O f o..
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DUCHi irh ;.
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In the Matter of
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Docket Nos. 50-443-OL ~
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50-444-OL PUBLIC SERVICE COMPANY
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OF NEW HAMPSHIRE, ET AL.
)
)
(Seabrook Station, Units 1 and 2)
)
May 23, 1989 i
CERTIFICATE OF SERVICE I, John Traficonte, hereby certify that on May 23, 1989, I made service of the within MOTION OF THE ATTORNEY GENERAL OF MASSACHUSETTS FOR DIRECTED CERTIFICATION OF THE MAY 22, 1989 ORDER OF THE LICENSING BOARD GRANTING THE APPLICANTS' ORAL' MOTION TO RECONSIDER THE ADMISSIBILITY OF MAG-EX 19 BASIS D AND REJECTING THAT CONTENTION FOR LACK OF JURISDICTION OVER THE ISSUES RAISED THEREIN by first class mail, telefax as indicated by
(*),
and in hand as indicated by (**)
to:
- Ivan W.
Smith, Chairman
- Kenneth A. McCollom Atomic Safety & Licensing Board 1107 W.
Knapp St.
U.S. Nuclear Regulatory Commission Stillwater, OK 74075 East West Towers Building 4350 East West Highway Bethesda, MD-20814
- Dr. Richard F". Cole
- Robert R.
Pierce, Esq.
Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S.
Nuclear Regulatory Commission U.S.
Nuclear Regulatory Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 Docketing and Service
- Thomas G. Dignan, Jr.
U.S.
Nuclear Regulatory Commission Ropes & Gray Washington, DC 20555 One International Place Boston, MA 02110
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- Sherwin E. ~ Turk, Eng.
Richard Donovan U.S. Nuclear Regulatory Commission FEMA Region 10
' Office of the General Counsel 130 228th Streat, S.W.
11555 Rockville Pike, 15th Floor Federal Regional Center i
Rockville, MD 20852 Botheil, WA 98021-9796 i
- H., Joseph Flynn, Esq..
- Atomic Safety & Licensing
-)
i Assistant General Counsel Appeal Board Office of General Counsel U.S. Nuclear Regulatory Commission' q
Federal Emargency Management Washington, DC 20555 Agency 500 C Street', S.W.
Washington,: DC 20472
- Robert A. Backus, Esq.
Atomic Safety & Licensing Board-Backus, Meyer &'Sclomon U.S. Nuclear Regulatory. Commission i
116 Lowell Street Washington, DC 20555 P.O. Box 516 Manchester, NH 03106
~i
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- Jane Doughty Dianne curran, Esq.
Seacoast Anti-Pollution League Harmon,. Curran & Towsley p
Five Market Street Suite 430 l
3 Portsmouth, NH _03801 2001 S Street, N.W.
l 1
Washington, DC 20008 i
m
. Barbara St. Andre, Esq.
Judith Mizner, Esq.
.Kopelman:& Paige P.C.
79 State Street r
- 77. Franklin Street Second Floor Boston,LMA.'02110 Newburyport, MA 01950 1
-Charles P. Graham, Esq.
R. Scott Hill-Whilton, Esq.
Murphy &. Graham Lagoulis, Hill-Whilton & Rotondi 33 Low' Street 79' State. Street Newburyport, MA '01950 Newburyport, MA 01950 Ashod N. Amirian, Esq.
Senator Gordon J.
Humphrey
,145 South' Main Street U.S. Senate
.P.O.
Box 38-Washington, DC 20510 Bradford, MA 01835 (Attn:
Tom Burack)
Senator Gordon'J. Humphrey-John P.
Arnold, Attorney General One' Eagle Square, Suite 507 Office of the' Attorney General Concord, NH 03301 25 Capitol Street' i
-(Attn:i Herb Boynton)
Concord, NH 03301
'Phillip Ahrens, Esq.
William S. Lord Assistant Attorney General Board of Selectmen Department of the Attorney General Town Hall - Friend Street
' Augusta, ME 04333 Amesbury, MA 01913 1._-__ -_ __ ___ _ _ - - _ _
a 4-
- Sherwin E. Turk, Esq..
Richard Donovan U.S. Nuclear Regulatory Commission FEMA Region 10 Office of the General Counsel 130 228th Street, S.W.
11555 Rockville Pike, 15th Floor Federal Regional Center Rockville, MD-20852 Botnell, WA 98021-9796
- H.. Joseph Flynn, Esq.
- Atomic Safety & Licensing Assistant General Counsel Appeal Board Office of General Counsel U.S. Nuclear Regulatory Commission l
Federal Emergency Management Washington, DC 20555 Agency-l 50C C Street, S.W.
Washington, DC 20472 Robert A.
Backus, Esq.
Atomic Safety & Licensing Board Backus, Meyer & Solomon U. S., Nuclear Regulatory Commission 116 Lowell Street Washington, DC 20555 P.O. Box 516 Manchester, NH 03106
- Jane Doughty Dianne Curran, Esq.
Seacoast Anti-Pollution League Harmon, Curran & Towsley Five Market Street Suite 430 Portsmouth, NH '03801 2001 S Street, N.W.
Washington, DC 20008 Barbara St. Andre, Esq.
Judith Mizner, Esq.
Kopelman & Paige, P.C.
79 State Street 77 Franklin Street Second Floor Boston, MA 02110 Newburyport, MA 01950 Charles P. Graham, Esq.
R. Scott Hill-Whiltsn, Esq.
Murphy & Graham Lagoulis, Hill-Whilton & Rotondi 33 Low Street 79 State Street Newburyport, MA 01950 Newburyport, MA 01950 Ashod N. Amirian, Esq.
Senator Gordon J.
Humphrey 145 South Main Street U.S. Senate P.O.
Box 38 Washington, DC 20510 Bradford, MA 01835 (Attn:
Tom Burack)
Senator-Gordon J. Humphrey John P.
Arnold, Attorney General One Eagle Square, Suite 507 Office of the Attorney General Concord, NH 03301 25 Capitol Street (Attn:
Herb Boynton)
Concord, NH 03301 Phillip Ahrens, Esq..
William S. Lord Assistant Attorney General Board of Selectmen Department of the Attorney General Town Hall - Friend Street Augusta, ME 04333 Amesbury, MA 01913 l ____1_______
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- Alan S. Rosenthal, Chairman
- Thomas S. Moore Atomic Safety & Licensing Atomic Safety &'Licens'ing
.. Appeal Board Appeal Board U.S. Nuclear Regulatory Commission U.S.
Nuclear Regulatory Commission L
Washington,~DC 10555 Washington, IX:
10555
- Howard A. Wilber Atomic' Safety =&
Licensing y
Appeal Board U.S. Nuclear Regulatory Commission
-Washington,.DC. 10555 I
Respectfully submitted, JAMES M.
SHANNON ATTORNEY GENERAL fdhb/
J n Traficonte C ief,. Nuclear Safety Unit epartment of the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200 Dated:
May 23, 1989 f
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