ML20205C460

Memorandum & Order Soliciting Views of Parties by 860822 as to Whether Challenges to ASLB Rulings on Admissibility of Contentions on State of Nh Emergency Plan Should Be Made at Present.Served on 860811

ML20205C460
Person / Time
Site:	Seabrook
Issue date:	08/11/1986
From:	Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:
References
CON-#386-277 OL, NUDOCS 8608120331
Download: ML20205C460 (6)

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DOLMETED JSNRC UNITED STATES OF AMERICA J NUCLEAR REGULATORY COMMISSIO g g ATOMIC SAFETY AND LICENSING APPEAL BOARD OFFICE OF bun sur Administrative Judges: , 00CKEig A Epvict, Alan S. Rosenthal, Chairman August 11, 1986 Gary J. Edles Howard A. Wilber SERVED AUG//1986

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In the Matter of )

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PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL NEW HAMPSHIRE,- ET AL.

) 50-444-OL

) (Offsite Emergency Planning)

(Seabrook Station, Units 1 )

and 2) ) -

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MEMORANDUM AND ORDER The Licensing Board recently issued two orders in which it ruled on the admissibility of approximately 100 contentions filed by the parties in the offsite emergency planning phase of this operating license proceeding.1 It accepted for litigation in whole or in part roughly one-third of the contentions, rejecting the remainder.

Based on the sheer number of contentions involved and our experience in licensing proceedings, it is reasonable to assume that many of these rulings will be appealed. The rulings are interlocutory, however, and, under 10 CFR 1

Licensing Board Memorandum and Order (Ruling on Contentions and Establishing Date and Location for Hearing)

(April 29, 1986) (unpublished) , Licensing Board Memorandum and Order (Ruling on Late-filed Contentions of Seacoast Anti-Pollution League) (May 21, 1986) (unpublished).

kDkOIjjjCK31 860s11 -

Il G 05000443 PDR

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2 2.730 (f) , are not generally appealable until the end of this 1 I

phase of the proceeding.2 We nonetheless have authority under 10 CFR 2.718 (i) to i direct the certification of interlocutory rulings for immediate appellate review.3 Owing in large part to a need to concentrate our limited resources on our usual appellats workload, we have traditionally been chary in the singling out of specific interlocutory rulings for appellate examination during the pendency of the trial proceeding in which the r"'.ing was made.4 Customarily, we employ our directed certification authority only where a licensing board ruling either threatens the party adversely affected by it with immediate and serious irreparable impact that, as a practical matter, could not be alleviated by a later appeal, or affects the basic structure of the proceeding in a pervasive or unusual manner.5 See Northern States Power Co. (Tyrone Energy Park, Unit 1), ALAB-492, 8 NRC 251 (1978).

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

4 Id. at 483.

5 n.17 and accompanying See ALAB-838, 22 NRC ,

text (June 25, 1986), (citing FubTIc Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2) ,

ALAB-405, 5 NRC 1190, 1192 (1977)).

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l Neither test is ordinarily satisfied where a licensing board simply admits or rejects particular issues for  ;

litigation in a case.6 Usually, the fact that such issues f are considered at the end of the proceeding rather than earlier does not irreparably prejudice the interest of any party, affect the proceeding in a pervasive or unusual way, or result in undue delay contrary to the public interest.

This may not be true, however, in the unique circumstances of this' case.

Earlier this year, hearings on the State of New Hampshire's emergency plan were scheduled to begin on August 4, 1986.7 On June 30, however, the Federal Emergency Management Agency (FEMA) requested that hearings on the plan be postponed until October 20, 1986, to allow it time for review of recent revisions to the plan. On July 11, 1986, the Licensing Board rescinded the hearing schedule without any indication of when the hearings now will commence.9 Moreover, there is even greater uncertainty regarding the 6

Id. at (slip opinion at 9).

Licensing Board Memorandum and Order (April 29, 1986)

(unpublished) at 101.

8 Motion by the Federal Emergency Management Agency for Continuation of Hearing on Emergency Planning Contentions (June 30, 1986).

9 Licensing Board Order (July 11, 1986) (unpublished).

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hearing schedule for the emergency plan of the Commonwealth

of Massachusetts. As far as we know, that plan has not yet 4

even been submitted to FEMA for review.

On the other hand, Unit 1 of the Seabrook facility appears to be close to, or ready for, fuel loading and low power testing. On June 5, 1986, the NRC staff indicated

! that construction of the plant was last reported by the applicants to be 98% completed, and that the plant would be

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ready for fuel loading by June 30.10 But even if the plant is ready, fuel loading and low power testing cannot commence without a favorable Licensing Board decl_sion on the contested safety and onsite emergency planning issues.

Recently, the Board ordered additional hearings on those .

issues, to be held sometime between September 29 and October 10.11 Thus, a Licensing Board decision on them might well issue near the end of this year. Assuming a favorable decision and satisfactory low power testing, the plant could be ready for operational testing above five percent of rated power before the offsite emergency planning phase of the case is completed.

j 10 Systematic Assessment of Licensee Performance  :

Inspection Report 50-443/86-99 (June 5, 1986) at 3, attached l to Letter to Licensing Board from Sherwin E. Turk (June 20, l 1986). j 11 Memorandum and Order of July. 25, 1986, (unpublished) at 12.

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Given the uncertainty over when hearings on offsite emergency planning issues will commence, an early interlocutory appellate decision on what issues should be litigated as part of those hearings would appear to be l consistent with the public interest. If issues have been l admitted that should not be heard, we can prevent the delay resulting from unnecessary litigation. Similarly, if the 4

Board erred in excluding issues, we can avoid the uncertainty -- and ultimately gre ter delay -- associated l

with a potentially defective record by reviewing the Board's determination now. Apart from the advantage of avoiding delay in the ultimate resolution of the offsite emergency planning issues, our present workload is such that we are in the position to accommodate such appeals without adversely  ;

affecting our other responsibilities. And the hiatus in hearings would seem to provide time for the preparation of 4 briefs by the parties.12 i

12 This should not be taken, however,.as an invitation to the parties to challenge every Board ruling. Proceedings

' on appeal are intended to focus on significant matters, not every colorable claim of error. Long Island Lic hting Co.

(Shoreham Nuclear Power Station, Unit 1), ALAB-E 27, . 23 NRC 9, 11 (1986). Thus, if we decide to pursue the course outlined, we expect the parties to exercise considerable judgment in what they appeal. Further, lest it not be obvious, this special procedure would provide the only opportunity to challenge Licensing Board rulings on the admission or rejection of the contentions covered by the April and May orders; a party would be precluded from (Footnote Continued) 1

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We recognize that there may be considerations that militate against pursuing this course of action. Therefore, before proceeding further, we solicit the views of the parties as to whether we should direct that any challenges to the Licensing Board's rulings on the admissibility of contentions on the New Hampshire emergency plan be made at this time. Responses from each party to this memorandum and order shall be filed (i.e., mailed) by August 22, 1986.

9 It is so ORDERED.

FOR THE APPEAL BOARD L.0 W _. N C. Jeg Shoemaker Secremry to the Appeal Board (Footnote Continued) contesting such rulings at the conclusion of this proceeding. In this connection, it should not be assumed that we would allow briefing the appeals on contention admissibility at this point to result in twice the total number of pages for appellate briefs. In a case of this magnitude, we would be inclined to expand the overall page limit somewhat if all issues were considered at the end.

But, if we decide to consider challenges to the Board's rulings on the admissibility of contentions now, we naturally will take that factor into account in establishing page limitations both for briefs filed now and for those to be filed once the Licensing Board issues its initial decision.

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