ML20247L121
| ML20247L121 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/23/1989 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#289-8672 OL, NUDOCS 8906020091 | |
| Download: ML20247L121 (7) | |
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C'OL ME T E D U:NPC
'89 MY 26 P4 :ll' May 23, 1989 UNITEDSTAYbS[OFAMERICA NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING APPEAL BOARD 9
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In the Matter of
)
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PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443-OL NEW RAMPSHIRE, et al.
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50-444-OL
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(Seabrook Station, Units 1 and 2)
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(Off-site Emergency
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Planning Issues)
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-APPLICANTS' RESPONSE TO 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 1
ADMISSIBILITY OF MAG-EX19, BASIS D. AND l
REJECTING THAT CONTENTION FOR LACK OF i
JURISDICTION OVER THE_ ISSUES RAISED THEREIN j
Under date of May 23, 1989, the Attorney General of The Commonwealth of Massachusetts'(MAG) has filed a document l
entitled " Motion of the Attorney General of Massachusetts for Directed Certification of the May 22, 1989 Ordret of the Licensing Board Granting the Applicants' Oral Motion to Reconsider the Admissibility of MAG-EX19 Basis D and Rejecting that Contention for Lack of Jurisdiction over the TCDAPRES.NH 8906020091 890526 PDR ADOCK 05000443 3
pf8
,G PDR a
M Issues' Raised.Therein."
_(MAG's Filing)
In anticipation of MAG's' Filing, Applicants, on the morning of May 23, 1989, sent to the Appeal Board an anticipatory answer thereto.1 (Applicants'LFirst Answer)
In that answer Applicants' pointed out that-the motion, of necessity, would have to be one for directed certification,2 and 'gave arguments aus to why, in Applicants' view, directed certification was inappropriate.3-In addition, Applicants argued that insofar as the anticipated-filing would. seek a stay, a proper. analysis of the factors enumerated in 10 CFR $ 2.788 (e) dictated denial of the stay.4 Applicants hereby incorporate herein by reference the arguments made in the Applicants' First Answer and described above without1further discussion'except to note the following: In fact, MAG's Filing does not even address the' stay standards set out in 10 CFR l'2.788.
Thus MAG's' request for.a stay (articulated on p. 3 of his filing, but not otherwise discussed) should be denied out of hand.
In an Order issued May 23, 1989, the Applicants and-Staff were directed to address the question of "whether the 1
Applicants' answer to the Motion of the Attorney General of The Commonwealth of Massachusetts for a stay of a l
Licensing Board order Expunging Basis D of Contention MAG-EX19 (May 23, 1989).
(hereafter cited " Ann. First Ans.".
2 Agg. First ADE. at 3-4.
3 Agg. First Ang. at 4-5.
4 Agg. First Ang.
5-7. '-
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Licensing Board's' ruling was correct in light of the last paragraph of the January 10, 1989 Notice of Reconstitution of Board.
.?"
That paragraph reads as follows:
"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.
Egg 46 Fed. Reg.
51,330 (1981).
Thus, the Licensing Board reconstituted herewith has general jurisdiction over all matters certainino 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."
(Emphasis added.)
The portion of the order set forth with emphasis, we believe, is dispositive of the question.
The "offsite" Board did not have plenary jurisdiction when it admitted MAG-EX19; and only acquired plenary jurisdiction for matters pertaining "now or in the future."
Thus, if it admitted a low power contention when it admitted MAG-EX19, it exceeded its jurisdiction.
The action of reconstitution cannot retroactively cure a past-jurisdictional defect.
More importantly, as of the time.the Eoard was reconstituted, if one were to assert a contention which would affect los power testing, the procedural posture of the case would have required a motion to file a late filed contention and to re-open the record.
This was never done.
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-CONCLUSION The relief sought should be denied.
Respectfully submitted,
% 6 mas G.
gnan, Jr.
George H. Lewald Kathryn A. Selleck Jeffrey P. Trout Jay Bradford Smith Geoffrey C.
Cook William Parker Ropes & Gray One International Place Boston, MA 02110-2624 (617) 951-7000 Counsel for Applicants i
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uni CERTIFICATE OF SERVICE I, Thomas G. Dignan, Jr., one of the attorneys forI6hemy 26 P4 32 Applicants herein, hereby certify that on May 23, 1989, I made service of the within document by depositing copiesrn thereof with Federal Express, prepaid, for delivery to {pr,i m F
where indicated, by depositing in the United States mail, first class postage paid, addressed to):
Alan S.
Rosenthal, Chairman Howard A. Wilber Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Appeal Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 Thomas S. Moore Mr. Richard R.
Donovan Atomic Safety and Licensing Federal Emergency Management Appeal Panel Agency U.S.
Nuclear Regulatory Federal Regional Center Commission 130 228th Street, S.W.
l East West Towers Building Bothell, Washington 98021-9796 4350 East West Highway Bethesda, MD 20814 Administrative Judge Ivan W.
H. Joseph Flynn, Esquire Smith, Chairman, Atomic Safety Office of General Counsel and Licensing Board Federal Emergency Management U.S. Nuclear Regulatory Agency Commission 500 C Street, S.W.
East West Towers Building Washington, DC 20472 4350 East West Highway Bethesda, MD 20814 Administrative Judge Richard F. Cole Gary W. Holmes, Esquire Atomic Safety and Licensing Board Holmes & Ells U.S. Nuclear Regulatory Commission 47 Winnacunnet Road East West Towers Building Hampton, NH 03842 4350 East West Highway Bethesda, MD 20814 Administrative Judge Kenneth A.
Judith H. Mizner, Esquire i
l McCollom 79 State Street, 2nd Floor 1107 West Knapp Street Newburyport, MA 01950 Stillwater, OK 74075 l
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L John P. Arnold, Esquire Robert R.
Pierce, Esquire Attorney General.
Atomic Safety and Licensing George Dana Bisbee, Esquire Board i
Assistant Attorney General U.S. Nuclear Regulatory.
l Office of the Attorney General Commission i
H25 Capitol Street East West Towers Building.
Concord, NH 03301-6397 4350 East West Highway Bethesda, MD 20814 Sherwin.E. Turk, Esquire Diane Curran, Esquire Office of General Counsel Ancrea C..Ferster, Esquire.
U.S. Nuclear Regulatory.
Harmon, Curran & Tousley Commission Suite 430 One White Flint North, 15th F1.
2001 S Street, N.W.
j 11555 Rockville Pike Washington, DC 20009 i
Rockville, MD 20852 Adjudicatory File Robert A. Backus, Esquire Atomic Safety and Licensing 116 Lowell Street Board Panel Docket-(2 copies)
P.O.
Box 516 U.S. Nuclear Regulatory Manchester, NH 03105 Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814
- Atomic Safety and Licensing Mr. J.
P. Nadeau Appeal Board Selectman's Office U.S. Nuclear Regulatory 10 Central Road Commission Rye, NH 03870 Washington, DC 20555 Philip Ahrens, Esquire John Traficonte, Esquire Assistant Attorney General Assistant Attorney General Department of the Attorney Department of the Attorney General General i
Augusta, ME 04333 One Ashburton Place, 19th Flr.
Boston, MA 02108 i
Paul'McEachern, Esquire Mr. Calvin A. Canney
'Shaines E McEachern City Manager 25 Maplewood Avenue City Hall P.O.
Box 360 126 Daniel Street
.Portsmouth, NH 03801 Portsmouth, NH 03801 Mrs. Sandra Gavutis R. Scott Hill-Whilton, Esquire Chairman, Board of Selectmen Lagoulis, Hill-Whilton &
RFD 1 - Box 1154 Rotondi Route.107 79 State Street Kensington, NH 03827 Newburyport, MA 01950 1 l
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- Senator Gordon J. Humphrey Leonard Kopelman, Esquire U.S.
Senate Kopelman & Paige, P.C.
Washington, DC 20510 77 Franklin Street (Attn:
Tom Burack)
Boston, MA 02110
- Senator Gordon J. Humphrey Mr. William S.
Lord One Eagle Square, Suite 507 Board of Selectmen Concord, NH 03301 Town Hall - Friend Street (Attn:
Herb Boynton)
Amesbury, MA 01913 Mr. Thomas F. Powers, III Charles P. Graham, Esquire Town Manager Murphy and Graham Town of Exeter 33 Low Street
- 10. Front Street Newburyport, MA 01950 Exeter, NH 03833 Ashod N. Amirian, Esquire Richard A. Hampe, Esquire 145 South Main Street Hampe and McNicholas-P.O.
Box 38 35 Pleasant Street Bradford, MA 01835 Concord, NH 03301 W
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Thomas G.
Di(Man, Jr.
'(*= Ordinary U.S. First Class Mail.)
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