ML20247Q647

NRC Staff Response to Aslab Memorandum & Order of 890710.* Board Decision LBP-89-17 Should Be Deemed to Have Disposed of Major Segment of Case & Appealable Per 10CFR2.762.W/ Certificate of Svc

ML20247Q647
Person / Time
Site:	Seabrook
Issue date:	07/25/1989
From:	Berry G NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#389-8956 LBP-89-17, OL, NUDOCS 8908070215
Download: ML20247Q647 (14)

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UNITED STATES OF AMERICA ,

NUCLEAR REGULATORY COMMISSION 89 JUL,26 A9 :42 BEFORE THE-ATOMIC SAFETY AND LICENSING APPEAL BOARD; .

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Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF 50-444 OL

• NEW HAMPSHIRE, el al. On-site Emergency Planning

) and Safety Issues (Seabrook Station, Units 1 and 2) )

NRC STAFF RESPONSE TO APPEAL BOARD MEMORANDUM AND ORDER OF JULY 10, 1989 Gregory A. Berry Counsel for NRC Staff July 25, 1989 8908070215 890725 PDR ADOCK 05000443 G PDR q Y

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l 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.

) On-site Emergency Planning

) and Safety Issues (Seabrook Station, Units 1 and 2) )

l NRC STAFF RESPONSE TO APPEAL BOARD MEMORANDUM AND ORDER OF JULY 10, 1989 Gregory A. Berry Counsel for NRC Staff July 25, 1989 t.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD, In the Matter of )

) Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF ) 50-444 OL-01 NEW HAMPSHIRE, et al.

) On-site Emergency Planning 3

) and Safety Issues i

! (Seabrook Station, Units I and 2) )

)

NRC STAFF RESPONSE TO APPEAL BOARD MEMORANDUM AND ORDER OF JULY 10, 1989 INTRODUCTION s

In a Memorandum and Order issued June 23, 1989, the Licercsing Board )

resolved in Applicants' favor all remaining issues related to the Massachusetts Attorney General's alert notification system contention.

See Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-89-17, 29 NRC , slip op, at 31 (June 23, 1989). II Captioned

" Final Initial Decision," the Licensing Board's memorandum order concludes with the Board's notation that it disposes of "a discrete and major segment of the full power operating license proceeding" and directed any party seeking to appeal the decision to file a notice of appeal within 10 days. Id. On July 6,1989, the Massachusetts Attorney General filed a

. timely notice of appeal in accordance with 10 C.F.R. s 2.762.

On July 10, 1989, the Appeal Board issued a memorandum order requesting the parties' views on the question whether the Licensing a

1/ All other issues raised by the Massachusetts Attorney General's contention either were withdrawn by him or resolved favorably to Applicants via summary disposition. See Public Service Company of New Ham] shire (Seabrook Station, Units 1 and 2), LBP-89-09, 29 NRC 271 (1939).

Board's decision in LBP-89-17 "is interlocutory and, thus, is not subject to an appeal at this time." Memorandum and Order at 1 (footnote omitted).

For the reasons set forth in this response, the Licensing Board's order should be considered " final" for purposes of appellate review and, accordingly, the Massachusetts Attorney General's appeal from that order should lie at this time.

DISCUSSION As the Appeal Board has observed, the Comission does not apply a hard and fast rule in determin$ng whether an order is " final" for purposes of appellate review:

The test of " finality" for appeal purposes before this agency (as in the courts) is essentially a practical one. As a general matter, a licensing board's action is final for appellate purposes'where it either disposes of a major segment of the case or terminates a party's right to participate; rulings which do neither are interlocutory.

Toledo Edison Company (Davis-Besse Nuclear Power Station, Units 1 and 2),

ALAB-300, 2 NRC 752, 758 (1975) (foetnctes omitted); accord, e.g. Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),

ALAB-894, 27 NRC 632, 636-37 (1988) ("Although 10 C.F.R. 9 2.762 speaks in

. terms of appeals from " initial decisions," we long ago determined that phrasology was not to be taken to literally."); see also Jd_ , ALAB-906, 28 NRC 615, 618-19 (1988) (suggesting that a determination was " final" was best left for a time when the facts surrounding the issuance of the order l could be examined). The Licensing Board's decision in LBP-89-17 did not dismiss the Massachusetts Attorney General from the full power phase of this operating license proceeding or otherwise restrict his ability to participate. Consequently, the order cannot be deemed to satisfy the second prong of the Davis-Besse finality test cited above. Accordingly,

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there is no right to an appeal from the order at this time unless it

" disposes of a major segment of the case." Id. Although recognizing that i I

a plausible argument may be made in support of the opposing' viewpoint, the Staff believes that the order disposes of a major segment of the case.

l The Commission's jurisprudence does not establish a bright line test for determining whether a licensing board order disposes of a major segment of the case. Instead, this determination apparently is to be made on a case by case basis giving due regard to the totality of the circumstances. Compare e.g. Seabrook, supra, ALAB-894, 27 NRC at 637, with, y , ALAB-906, 28 NRC at 618-19.

In ALAB-894, intervenor NECNP sought to appeal an order of the on-site Licensing Board dismissing two contentions on a single subject that had been remanded to the on-site Licensing Board by the Appeal Board.

The dismissal of these contentions did not terminate the proceeding before the on-site Licensing Board as it was still considering other contentions remanded by the Appeal Board as the result of other 6ppeals. The Appeal Board rejected arguments that the appeal was premature under 10 C.F.R. 6 2.762. It recognized that "[hlad the dismissal of Lthese twol content' ions taken place at an early stage of this phase of the proceeding, when there remained many additional safety or onsite emergency planning issues" it might have found the order not a " final" one for purposes of appeal. M. , 27 NRC at 636. However, it concluded that because interveaor's contentions were the subject of a remand proceeding, "the context of the dismissal of the two contentions . . . is significantly different" and the appeal would lie. I_d. at 636-37. As the Appeal Board stated:

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. Ini these. circumstances, we. encounter no great difficulty in i3' concluding . . . that the Licensing Board's dismissal of the

< two remanded contentions in the May 12 order can and should be

-deemed to have disposed of a ' major seament' of what remained of the onsite emergency ~ planning and safety issues phase of the proceeding and, 'as such, . to meet the Davis-Besse test of

'ic finality.

' ~ A .d-894, . 27 L NRC at 637 The Appeal Board then observed that this conclusion -- i.e., the order involved was final and thus immediately appealable -- was buttressed "by the consideration that there is no apparent, good, or practical reason to defer to some undetermined later day" its ' resolution of intervenor's claims. M. This consideration was particularly strong i r. light of the fact that the issues raised by intervenor's : appeal "ha[d] nothing whatever to do with any other matter still pending" before the on-site Licensing Board and that the proceeding had already been protracted. Id.

The context of the order involved here is similar to the one which y the Appeal Board confronted in ALAB-894. First, like the order involved in ALAB-894, the order involved here grows out of the remanded proceeding 3 o"dered by the Appeal Board. See Public Service Company of New Harpshire (Seabrook Station, Units 1 and 2), ALAB-883, 27 NRC 43 (1988); see also .

l y.',ALAB-875,26NRC251(1987). Second, the Licensing Board's decision j 1

in LBP-89-17 disposed of the last of the issues remanded to the on-site l

I Licensing Board by the Appeal Board in a series of decisions. See ALAB-875, 26 NRC 251 (1987); ALAB-883, 27 NRC 243 (1988); ALAB-891, 27 NRC 341 (1988). Third, the issues resolved by the on-site Licensing Board in l LBP-89-17 (i.e., alert notification systems) are unrelated to any of the emergency planning issues pending before the off-site Licensing Board.

Fourth, this proceeding .has been protracted. In these circumstances.

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"tnere 'is no apparent, good, or practical reason to defer to some undetermined future day" the' Appeal- Board's consideration of the Massachusetts Attorney General!s claim that the Licensing Board's disposition of his' alert notification contention was erroneous. U In Public Service Company of New Hampshire (Seabrook Station, Units 1 a and 2), ALAB-906, 28 NRC at 618-19 (1988), the Appeal Board dismissed a 2/ . A different- conclusion was reached by the Staff with respect to the

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, appealability as a matter of right of LBP-89-10, the off-site Licensing Board's ruling denying intervenor's request to refer its petition for waiver of the Commission's financial qualification rules to the Commission under 10 C.F.R. 5 2.758(b). See NRC Staff Motion To Strike Interveners' Notices of Appeal, at IT(April 17, 1989);

Staff Brief In' Support of LBP-89-10, at 5 (May 30, 1989). The Rules of Practice bar interlocutory appeals of licensing board rulings. 10 C.F.R. 5 2.730(f). The denial of the petition for waiver was a

" ruling" that could not be considered a " final" decision appealable as a matter of right under 10 C.F.R. 5 2.762. A ruling which precludes the ' litigation of' one or more contentions is not immediately appealable unless the petition for intervention is denied as a whole, 10 C.F.R. 6 2.714a; Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-873, 26 NRC 154, 155.(1987), or unless extraordinary circumstances are present.

.Seabrook, supra, ALAB-894, 27 NRC at 636-37. The decision in j ALAB-894 was not apposite with respect to the waiver petition because the board's ruling on the petition did not arise in connection with a f remand proceeding and did not dispose of a "' major segment' of what remained" of the off-site emergency planning issues pending before it. id. at 637. Although the issue raised by the waiver petition was noT related to any other issue pending before the Board, nothing

, in ALAB-894 indicates that this circumstance is sufficient in itself j to transform an otherwise interlocutory ruling into one that is final i for purposes for appellate review. See I_d_,

The Staff also argued initially that review of LBP-89-10 should not be granted as a matter of discretion but subsequently withdrew its objection to discretionary review by the Appeal Board. Since the Staff concludes that LBP-89-17 Gould be considered " final" and thus appealable, it does not address discretionary review in this pleading.

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k protective notice of appeal filed by the Massachusetts Attorney General from the on-site Licensing Board's denial of his motion to supplement his alert notification system contention with additional bases. In holding that the order was " wholly interlocutory in character," the Appeal Board stated the order in question " decided nothina other than that the Attorney

. General's amended contention is not now open to the assignment of the

. additional bases that the intervenor would append to it." 28 NRC at 618.

The Licensing Board's decision in LBP-89-17, for which review is sought in I 4 this appeal on the other hand, did not simply relate to matters of procedure; rather, that decision addressed the merits of the Attorney General's alert notification contention and resolved all of the material '

issues raised by it favorably to Applicants. LBP-89-17, 29 NRC , slip op. at 1-31.

The Appeal Board in ALAB-906, did not decide whether the Attorney General would be entitled to appeal immediately the on-site Licensing Board's decision on the merits of his alert notification contention if other issues were pending before one or the other licensing boards. 28 NRC at 619. As the Appeal Board suggested, the answer to that question j would depend upon whether that decision could be deemed to have disposed )

of a major segment of the case. M . For the reasons discussed above, the Licensing Board's decision in LBP-89-17 can and should reasonably be regarded as disposing of a major segment of the case and, thus, satisfying the Davis-Besse test of finality for purposes of appellate review. This conclusion is aided by the consideration that there is no apparent, good,

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J or: practical reason to defer review of the Licensing Board's decision for 1

at least an addjtional- seven months. 3_/

L Still another recent case involving- the Seabrook facility and the question of whether a lower board decision is ripe for appellate review is Public Service Company of New Hampshire (Seabrook Station, 'Jnits i and 2),

. ALAB-917, 29 NRC. (June 16.- 1989), whtre the Appeal . Board oismissed a protective notice of appeal filed by the Massachusetts Attorney General from certain findings respecting the issue of " returning commuters" made by.the off-site Licensing Board in a partial initial decision. The Appeal l

Board dismissed the appeal "on the sole ground that it is premature."

Id., slip op. at-14. (emphasis in original).

The Appeal Board's decision did not turn on whether the licensing board's order disposed of a major segment of the case. O In a nutshell, the " compelling reason why no part of the returning commuter issue is as yet ripe for appeal" is that, at least for appellate purposes, the "returring commuter" issue is a single issue that is not properly severable.- Id.. slip op, at 13. The on-site ,

. Licensing Board's decision in LBP-87-17, however, is distinguishable from j ALAB-917. l 3/ The off-site Licensing Board has informed the Commission that it does not anticipate issuing a decision on the emergency planning issues pending before it before November 30, 1989. Assuming the parties submit their briefs within the time periods specified in the Rules of Practice, the issues raised by that appeal will not be ready for the Appeal Board's decision until sometime in February 1990.

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4/ See 29 NRC , slip op. at 12 ("It is not clear to what extent the

' major segment of the case' test comes into play in instances where, as here, a licensing board renders an initial decision that disposes of a wide variety of issues with a retention of jurisdiction over a portion of one of those issues.")

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In contrast to the returning commuter issue, the issue involved here -- the adequacy of Applicants' clert notification system -- does not share a common basis with any other contention pending before either of the licensing boards and is unrelated to any pending emergency planning issue. For this reason, the Appeal Board should find that the Licensing

- Board's decision in LBP-89-17 properly is severable from the emergency i planning issues pending before the off-site Licensing Board and, in view of the other considerations discussed above, ripe for appellate review.

CONCLUSION For the reasons stated herein, the Licensing Board's decision in LBP-89-17 should be deemed to have disposed of a major segment of the case and thus appealable as of right under 10 C.F.R. 9 2.762 of the Commission's regulations.

Re etfully sub itted, Mregory Counsel Be erhk NRC: Staff l

Dated at Rockville, Maryland this 25th day of July 1989

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ~

~89 JR 26 A9 :42 -

BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD

.In'the' Matter of. ) W ,

1 Docket Nos. 50-443 01 h! d@ N N "

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PUBLIC SERVICE COMPANY OF ) 50-444 OL-01 f .NEW HAMPSHIRE, et al.

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On-site Emergency Planning and Safety Issues (Seabrook Station Units 1 and M )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO APPEAL BOARD MEMORANDUM AND ORDER OF JULY 10, 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, as indicated by double asterisks, by express mail,. this 25th day. of July 1989:

' Alan S. Rosenthal, Esq. Peter B. t' loch, Chairman Administrative Judge. Administrative Judge Atomic Safety and Licensing Appeal Atomic Saftty and Licensing Board Board U.S. Nuclear Regulatory Commission

. 'U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Dr. Jerry Harbour

• G.' Paul Bollwerk, III, Chairman Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Appeal U.S. Nuclear Regulatory Commission Board .

Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Dr. Emmeth A. Luebke Administrative Judge Howard A. Wilber* 4515 Willard Avenue Administrative Judge Chevy Chase, MD 20815 Atomic-Safety and Licensing Appeal

,. - Board Thomas G. Dignan, Jr., Esq.**

.U.S. Nuclear Regulatory Commission Robert K. Gad, III, Esq.

Washington, DC 20555 Ropes & Gray One International Place H. J. Flynn, Esq. Boston, MA 02110 Assistane General Counsel Federal Emergency Management Agency Ms. Elizabeth Weinhold 500 C Street, S.W. 3 Godfrey Avenue Washington, DC 20472 Hampton, NH 03842

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g^ s ' Philip Ahrens, Esq. , _

Judith H. Mizner,LEsq.

l-W l Assistant-. Attorney General .

79 State Street t 3 0ffice of. the' Attorney General . Newburyport, MA 01950

State House Station

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Augusta,..ME' 04333 . Robert Carrigg, Chairman .I

' Board of Selectmen.

7  ; Stephen A.?Jonas, Esq.**'. ,

. Town Office  ;

' Assistant Attorney. General Atlantic Avenue j

.0ffice of the Attorney General . North Hampton, NH 03862-J0ne Ashburton Place,19th Floor >

..  ; Boston, MA 02108i William S. Lord Board of Selectmen

.Geoffrey Huntington, Esq. , Town Hall - Friend Street x .-Assistant Attorney General ~ Amesbury, MA 01913

. 0ffice of.the Attorney General i

.. 25 Capitol Street' Mrs. Anne E. Goodman, Chairman j

• LConcord, NH 03301- Board of Selectmen {

13-15 Newmarket Road j Diane Curran, Esq. Durham,'NH 03824 1 Harmon', Curran & Tousley i

'2001'S Street, NW . Hon. Gordon J. Humphrey SuiteE430.- United States Senate

• Washington, DC 20009 531 Hart Senate Office Building ,

Washington, DC 20510 Calvin'A. Canney City Hall

. Peter J. Matthews, Mayor

? 126 Daniel Street City Hall Portsmouth, NH 03801 Newburyport,- MN 01950 Allen.Lampert Michael Santosuosso, Chairman Civil Defense Director- Board of Selectmen Town of Brentwood South Hampton, NH 03827 ,

20 Franklin Exeter, NH 03833 Ashod N. Amirian, Esq. {

Town Counsel for Merrimac I

.William Armstrong 145 South Main Street Civil Defense Director P.O. Box 38 4 Town ~of Exeter Bradford, MA 01835 J

, 10 Front Street '

Exeter, NH 03833 Robert A. Backus, Esq.

Backus, Meyer & Solomon Gary W. Holmes, Esq. 116 Lowell Street Holmes & Ellis Manchester, NH 03106

'47 Winnacunnet Road Hampton, NH 03842 Paul McEachern, Esq.

Shaines & McEachern J. P. Na'deau 25 Maplewood Avenue Board of Selectmen P.O. Box 360 10 Central Street Portsmouth, NH 03801 Rye, NH 03870 h _ _-

- Charles P. Graham, Esq. .At'omic Safety and Licensing.

McKay, Murphy-& Graham Appeal Panel (6)*

100 Main Street . U.S. Nuclear Regulatory Commission

- Amesbury, MA 01913 . Washington, DC 20555

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Sandra Gavutis, Chairman Atomic Safety and Licensing Board Board of Selectmen Panel (1)*-

' RFD fl, Box 1154 U.S. Nuclear Regulatory Commission Kensington, NH 03827 Washington, DC 20555

. R. Scott Hill-Whilton, Esq. Docketing and Service Section*

Lagoulis, Clark, Hill-Whilton Office of the Secretary

& McGuire U.S. Nuclear Regulatory Commission 79 State Street Washington, DC 20555

. Newburyport, MA 01950 Barbara'J. Saint Andre Esq. Samuel J. Chilk Kopelman & Paige, P.C. Office of the Secretary

- 77 Franklin Street U.S. Nuclear Regulatory Commission-Boston, MA 02110 Washington, DC 20555 A A

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Gregc'rjr Alat Ebrry

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