ML20196F731

Memorandum & Order.* Atty General of Commonwealth of Ma Appeal from Licensing Board 881012 Memorandum & Order Dismissed as Premature.Served on 881201

ML20196F731
Person / Time
Site:	Seabrook
Issue date:	12/01/1988
From:	Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:	MASSACHUSETTS, COMMONWEALTH OF
References
CON-#488-7598 ALAB-883, ALAB-906, OL-1, NUDOCS 8812140087
Download: ML20196F731 (8)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

,28 002 -1 P 4 :02 ATOMIC SAFETY ~AND LICENSING APPEAL BOARD Administrative Judges: '

Alan S. Rosenthal, Chairman December 1, 1988 i Howard A. Wilber (ALAB-906) ,

) SERVE 0 DEC -11988 In the Matter of )

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, PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL-1 NEW IIAMPSilIRE, et al. ) 50-444-OL-1 [

) t (Seabrook Station, Units 1 ) (Onsite Emergency Planning and 2) ) and Safety Issues)

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e Stephen A. Jonas, Boston, Massachusetts, for intervenor James M. Shannon, Attorney General of Massachusetts.

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Thomas G. Dignan, Jr. , George H. Lewald, Kathryn A.

I Selleck, Jeffrey P._ Trout, and Jay Bradford Smith, ,

] Boston, Massachusetts, for the applicants

! Public Service Company of New Hampshire, et al.  ;

j j Gregory alan Berry for the Nuclear Regulatory Commission staff.

MEMORANDUM AND ORDER i 1. Last February, in ALAB-883, we granted the motion I

of the intervonor Attorney General of Massachusotts to  !

L reopen the record and to admit two additional contentions in  ;

the onsite omorgoney planning and safety issues phase of l this operating 11censo proceeding involving the Seabrook j

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f nuclear facility.2 The contentions related to the adequacy [

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I 27 NRC 43. [

2 The motion was filed with us, rather thsn with the l (Footnoto Continued) l 4 .

GG12140007 001201 i PDR ADOCK 05000443 O PDR [ +

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of the applicants' arrangements for providing "early notification and clear instruction" to persons located within the Massachusetts portion of the Seabrook plume exposure pathway emergency planning zone (EPZ) in the event of a radiological emergency at the facility.3 As a basis for the contentions, the Attorney General pointed to the removal of the fixed-position emergency notification sirens that were to serve that purpose within the Massachusetts part of the EPZ.

For reasons that were developed in ALAB-883, we concluded that, under then-existing Commission emergency planning regulations, the public notification issue would have to be resolved by the Licensing Board prior to the authorization of low-power operation of the Scabrook facility (i.e., operation at levels up to five percent of rated power) . Thereafter, however, the Commission amended thoce regulations to permit such operation in advance of the resolution of any issues pertaining to the sufficiency of (Footnote Continued)

Licensing Board, because a partial initial decision disposing of all issues presented to it in that phase of the proceeding had already been rendered. See id. at 45 n.1.

On the basis of our grant of the Attorney General's motion, we romanded the cause to the Licensing Board for litigation of the newly admitted contentions. Id. at 55.

See 10 CFR 50.47 (b) (5) .

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i i offsite public notification systems.4 on the strength of i 1

i I) ' the amendment, on October 7 the Commission vacated so much j of ALAB-883 as had determined that an adequate system for J

prompt public notification in the event cd an accident was a prerequisite to low-power operation.5 In taking this action, the Commission expressly left it to the Licensing Board Panel Chairman (i.e., the Chief a

Administrative Judge of that Panel) to decide whether the

! public notification issue should remain with the Licensing 1

Board concerned with onsite emergency planning matters or,

, instead, should be transferred to the differently constituted Licensing Board having jurisdiction over all other emergency planning issues, including those concerned with the Massachusetts offsite emergency response plan.6 i

(The question arose because, in general, the former Board 1

was concerned with matters requiring resolution prior to lt i low-power operation, while those matters relating to l full-power operation alone were within the domain of the I

latter Board.) on Octnber 12, the Acting Chief l

f Administrative Judge issued a Notice of Clarification to the i

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See 53 Fed. Reg. 36,955 (1988).

5 See CLI-88-8, 28 NRC _,_ (1988).

6 Id. at (slip opinion at 3).

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t effect that the so-called "onsite" Board would continue to preside over the public notification matter.

On the same day, that Board issued a memorandum and j order addressed to the motion of the Attorney reneral to add  !

I certain new bases to an amended contention on the public notification system for Massachusetts that the Licensing l Board had admitted earlier.8 The Board denied the motion on the grounds that (1) in actuality the Attorney General was  !

I endeavoring to ra d <e new issues; and (2) there was j

! insufficient justification to permit the introduction of i ach issues through the vehicle of late-filed contentions.' I i

On October 21, the Attorney General filed a notice of l appeal from this disporttion of his motion. Accompanying the notice was a letter raising a question whether, in the  ;

l particular circumstances of the case, the appeal was properly taken et *hin time or, rather, had to abide the }

event of a decision on the entitlement of the applicants to [

a full-power license for Seabrook.10 We then solicited the l

i See 53 Fed. Reg. 40,804 (1988).  !

8 See Manorandum and Order (October 12, 1988)

(unpublished); Memorandum and Order (June 2, 1988)

(unpublished) .

' See Memorandum and Order (October 12, 1988) at 3-9.

10 See Letter from Stephen A. Jonas to Alan S.

1 Rcsenthal (October 21, 1988),

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b views of the interested parties on this question.11 F,ach of ,

tr-m -- the ..ttorney General, the applicants, snd the NRC staff -- har previded us with the same answers the appeal i is premature. For the reasons that folfow, we agree.  !

2. As we have often had occasion to observe, the Commission's Rules of Practice contain a general proscription against interlocutory appeals.12 And that the f Licensing Board's October 12 memorandum and order is wholly interlocutory in character is beyond dispute. It decided nothing other than that the Attorney General's amended contention is not now open to the assignment of the additional bases that that intervenor would append to it.

ThT cc,itention itself, with the bases previously assigned l

for it, still awaits Licensing Board disposition on the merits. i I

i In suggesting that the October 12 memorandum and order

'onetheless might be appealable at this time, the Attorney ,

4 General's letter acccmpanying his notice of appeal alluded l I

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f II See Order (October 25, 1988) (uo)ublished). j 12 10 CFR 2.730 (f) ; Houston Lightilig and Power Co.

(Allens Creek Nuclear Generating Station, Unit No. 1), t ALAB-625, 13 NRC 13, 15 (1981); Public, Service Co. of Oklaho.ra (Black Fox Station, Units 1 *'d 2), ALAB-370, 5 NRC  ;

! 131 (1977), and cases there cited. 'ns single exception to ,

j the general proscription is found i- b CFR 2.714a and, i Lecausa applicable solely to the gres:' or denial of 1

intervention petitions, is of no present relevance.

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6 to the previous issuanco by the samt (i.e., the onsite)

Licensing Board of a partial initial decislen authorizing low-power operation.13 In his most recent filing, however, the Attorney General appears 1.iplicitly to acknowledge that such a consideration cannot serve tc attach some degree of finality to what manifestly is an interlocutory order. 4 Such an acknowledgment is necessary. For, as the staff correctly observes, an authorization of low-power operation has no possible bearing upon the treatment of a public notification contention that, as matters currently stand, is relevant only to full-power operation.15

3. We need not now decide whether, assuming that he is dissatisfied with the onsite Licensing Board's eventual resolution of his amended public notification contention on the merits, the Attorney General will be entitled to appeal 13 The Attorney General does not specifically identify the decision he has in mind. The Licensing Board's most recent prcncuncer;ent on the subject of low-power operation is its August 8, ,938 memorandum and order, LbP-88-20, 28 NRC 161. In that issuance, the Board concluded that it was not necessary to resolve prior to such operation a pending question pertaining to the environmental qualification of certain coaxial cab'4 used in the Seabrook facility. See ALAB-891, 27 NRC 341 (1988). Earlier this week, we affirmed that conclusion. See ALAB-904, 28 NRC (November 29, 1988).

See Massachusetts Attorney General's Response to October 25, 1988 Appeal Board Order (November 8, 1968).

See NRC Staff Supplemental Response to October 25, 1998 Appeal Board Order (November 4, 1988) at 3.

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that resolution immediately, even if other issues are still f pending before that Board or the offsite Licensing Board.

The answer to that question, should it come te the fore, obviously will hinge upon whether such resolution can ,

reasonably be regarded as disposing of "a major segment of j the case" and, thus, as satisfying the Davis-Besse test of "finality" for appeal purposes.1 That inquiry is best left for such later date when and if it would no longer be simply conjectural. Suffice it to say at this juncture that,  ;

should the occasion arise, the Attorney General might be sell-advised to follow the same course of filing a precautionary notice of appeal as was done in this instance.

The Attorney Central's appeal from the Licensing Board's October 12, 1988 memorandum and order is dismissed j 8

as prenature.

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l 16 At present, the onsite Board still has before it the  !

issue of the environmental qualification of the coaxial  ;

cable. See supra note 13. For its part, the offsite board  ;

is considering a wide variety of issues pertaining to the New Hampshire and Massachusetts emergency response plans. (

17 See Toledo Edison Co. (Davis-Besse Nuclear Power Station), ALAB-30'0, 2 NRC 757, 758 (1975).

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18 This Board does have the discretion to undertake the interlocutory review of Licensing Board orders in the exercise of its directed certification authority. See 10 l CFR 2. 718 (i) , 2. 785 (b) (1) ; ALAB-271, 1 NRC 478, 482-83 (1975). As a general rule, however, that authority will be  !

(Footnote Conti Jed) [

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It is so ORDERED.  ;

FOR THE APPEAL BOARD i

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bh f C. J4n Sh'oemaker l Secretary to the ,

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(rootnote continued) invoked only if the ruling in question "either (1) threaten [s] the party adversely affected by it with inmediate and serious irreparable impact which, as a ,

practical n.atter, could not be alloviated by a later appeal [

or (2) affect (s) the basic structure of the proceeding in a  ;

pervasive or unusual manner." Public Service Co, of Indiana  !

(Marble Hill Nuclear Generating Station, Units l'and. 2), (

ALAB-405, 5 NRC 1190, 1192 (1977). We are satisfied, and no ,

party suggests otherwise, tht.t r.eithe.r of these tests is met  !

here.  ;

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