ML19332D543

Intervenors Motion for Reconsideration of Commission 891116 Order.* Commission Should Reconsider Order & Immediately Revoke License Authorization or Otherwise Discontinue Legal Effectiveness Triggering.W/Certificate of Svc

ML19332D543
Person / Time
Site:	Seabrook
Issue date:	11/17/1989
From:	Traficonte J MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE
To:	NRC COMMISSION (OCM)
References
CON-#489-9466 ALAB-924, LBP-88-32, LBP-89-32, OL, NUDOCS 8912040117
Download: ML19332D543 (16)

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c Abp UNITED STATES OF AMERICA f] t h, N, i NUCLEAR REGULATORY COMMISSION q. 8Sg A, 'b g

,, Before the Commission '

. gg Kenneth M. Carr, Chairman Thomas M. Roberts, Commissioner ~ ,

Kenneth C. Rogers, Commissioner i James R. Curtiss, Commissioner (

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In the Matter of ) Docket Nos. 50-443-OL

) 50-444-OL .

PUBLIC SERVICE COMPANY ) (Off-Site EP) l OF NEW HAMPSHIRE, E T M ,. ) .

) l (Seabrook Station, Units 1 and 2) ) November 17, 1989

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P INTERVENORS' MOTION FOR RECONSIDERATION I OF COMMISSION'S NOVEMBER 16 ORDER -

The Massachusetts Attorney General, the New England .

Coalitjon on Nuclear Pollution and the Seacoast Anti-Pollution League (the "Intervenors") hereby move for reconsideration of the Commission's Order dated November 16, 1989 in and by which the Commission: 1) asserted jurisdiction over the Intervenors' ,

November 13 Motion to Revoke the Licensing Board's November 13 license authorizationM for Seabrook; 2) asserted jurisdiction 1/ LBP-89-32, although dated November 9, 1989 at page 571, was  ;

not docketed until the morning of November 13, 1989. The  !

service date (the date mailed by Docketing and Service, l Consolidated Edison Co. of N.Y. (Indian Point), 5 NRC 1425, <

1428 (1977)), was November 11, 1989, as is clear from the J Federal Express receipt which also states that delivery was not j to be made in hand to counsel until the morning of November 13, 1989.

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over all stay applications of LBP-89-32 and set a schedule for their filing; 3) set November 27, 1989 as the filing deadline for " comments" pursuant to the Commission's immediate effectiveness review process, 10 CFR G2.764 (f) (2) (li) ; and 4) i permitted to continue in effect an unlawful authorization by 1

its Licensing Board of a full-power license for Seabrook.2/ .

In support of this motion, Intervenors state as follows:  !

1. On November 7, 1989 the Appeal Board reversed .

LBP-88-32 in four particulars finding, inter alia, that: 1)

Intervenors were entitled to a hearing on an issue regarding the adequacy of the Special Needs Survey which the lower Board had dealt with on summary disposition, and 2) that the NHRERP was not an approvable plan at present under 50.47(a) (1) and 50.47(b) without concrete steps being taken by planners, viz, establishing implementing procedures for sheltering the beach '

j 2/ The November 13 license authorization " continues in effect"

although an automatic stay of actual license issuance is in place pursuant to 52.764. For example, pursuant to 2.760 the

(: Licensing Board's " initial decision" authorizing the license becomes a final decision after 45 days from November 13, 1989.

Moreover, the authorization " continues in effect" in the sense l that it triggers the non-merits immediate effectiveness review process pursuant to which Intervenors are to file "brief comments" by November 27, 1989. It also " continues in effect" to the extent that in the event the Appeal Board were to issue a further decision on review of LBP-88-32 (the NHRERP decision) which reversed additional portions of that decision, the

" license authorization" would formally persist notwithstanding that reversal until expressly revoked.

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.. I population. On remand, the Appeal Board directed the Licensing  !

I Board to provide appropriate " additional proceedings" (ALAB-924 l at 19) as necessary; for example, by providing the hearing that had been wrongfully denied. Moreover, the Board was directed i

to judge the adequacy of the corrective actions taken by j planners with respect to sheltering in light of Intervenors 1

responses to those actions and then proceed to judge whether- ]

the NHRERP as amended was an approvable plan.2/ ALAB-924 at 68-69. Further, because the judgment that the Special Needs Survey was adequate was reversed and remanded for further hearings, the Appeal Board did not reach the issue on review whether transportation resources (drivers and vehicles) were adequate as required by the regulations. Idx at 19-20. ,

Nonetheless, because the Licensing Board's decision that these t

resources are adequate was predicated on a need estimate based on the challenged survey and the finuing of the adequacy of that survey was reversed, mutatis mutandis, the finding by the .

Board as to the' adequacy of transportation resources was also reversed. Indeed, the Appeal Board directed the Licensing Board to consider this issue anew after the issues surrounding the " survey's methodology has been aired." Id at 20. ,

i 2/ It is apparently necessary to note and indeed emphasize that Commission regulations require that an " adequate plan" be in place before a license can be lawfully issued. 10 CFR 50.47 (a) (1) .

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2. In the face (indeed in the teeth) of ALAB-924, the Licensing Board issued LBP-h'9-32,S/ on November 13, 1989, approving the utility plan for Massachusetts and authorizing (

l issuance of a full-power license. The Board provided no findings i or reasons supporting its license issuance in light of the l

reversal of LBP-88-32. Moreover, the Board authorized license J issuance without even addressing outstanding Intervenor contentions challenging the scope of the September onsite exercise and the recent loss of an EBS-capacity supporting the utility plan. The Board in the course of ruling on utility plan contentions also reaffirmed its New Hampshire decision concerning the nature of the legal standard applicable to emergency planning even though the Appeal Board in ALAB-922 characterized the law as uncertain on this pivotal issue and certified the question to the Commission. Finally, and perhaps most astoundingly, the Board in i

two particulars as applied to the utility plan simply repeated the very legal errors it had committed in LBP-88-32 as held by the Appeal Board in ALAB-924, thus ignoring the doctrines of stare decisis and the law of the case.EI L

1/ Intervenors note that the Licensing Board's New Hampshire decision was LBP-88-32 and that its Massachusetts decision is LBP-89-32.

5/ The Licensing Board stated at 113.9(569) that it had read ALAB-924 carefully. Perhaps so, but it apparently felt under no obligation to apply the legal lessons learned from such a careful reading to its own decision. Of course, to do so would have taken more than the 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> between November 7 and November 9 and would have delayed the " license authorization."

Indeed, had the Licensing Board simply obeyed stare decisis it

, could n21 have found the utility plan in compliance with L 50. 4 7 (c) (1) and could not have authorized the license.

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3. In response to this decision -- clearly violating as '

it does the Administrative Procedure Act, the Atomic Energy r Act, constitutional rights to due process and basic norms of appellate procedure -- Intervenors filed that same day a Motion '

to Revoke the License Authorization. After the Appeal Board issued an Order on November 14, holding Intervenors' motion in abeyance pending the Licensing Board's " explanation" of its licensing action, the Commission on November 16 issued an Order asserting jurisdiction over that motion and otherwise setting a ,

schedule for stays and comments pursuant to its immediate ,

effectiveness review.

4. The Commission should reconsider its order and immediately revoke the license authorization or otherwise discontinue its legal effectiveness triggering as it does stay applications and immediate effectiveness comments.

l a. The events of the week of November 13, 1989 in the-Seabrook licensing proceeding as set forth above have produced the appearance in the eyes of the Intervenors and the public that adjudication before this agency is a sham and that the Licensing Board has acted in bad faith. To protect the l credibility of this agency's adjudicatory capacity,5/ the I

Commission should revoke the license authorization at least until such time; L 5/ Indeed, as the NRC is aware, public response to any nuclear L emergency, in part, will reflect the then-current level of l

overall credibility of this agency. Because the events of this l week directly and significantly damage that credibility, they also impact on public safety.

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1) as the Licensing Board has issued its

" explanation"; and -

2) at least some merits review of such an *

" explanation" has taken place in light of the circumstances f

surrounding the Licensing Board's action and ALAB-924's reversal of LBP-88-32; and

3) the Commission has issued its answer on the merits to the certified question which is pivotal to any Seabrook licensing decision; and

4) the Commission's answer to the certified question can be applied by the Appeal Board on the merits to its review of the NHRERP record which remains before the Appeal Board 1/ and also applied by the Licensing Board to its utility plan decision; and

5) the Licensing Board has conformed its utility plan decision to the doctrines of stare decisis and law of the case and judged the utility plan in accordance with the law announced by the Appeal Board in ALAB-924; and

6) the Licensing Board has ruled on the admissibility

• of those contentions not even addressed by the Licensing Board.

2/ ALAB-922 noted that the Appeal Board was retaining jurisdiction over those aspects of Intervenors' appeal of LBP-88-32 for which it believed it needed guidance as to the legal question it certified. Those aspects of the NHRERP appeal and record are not now before the Commission. Moreover, obviously, those aspects of the appeal are distinct from the issues addressed in ALAB-924 since the Appeal Board issued ALAB-924 before the Commission answered the certified question. Finally, as noted below, even those aspects of the NHRERP record and appeal decided in ALAB-924 are not now before

'the Commission.

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b. The Court of Appeals for the District of Columbia  :

has stated that it would presume agency bad faith if the agency before final agency decision on a licensing action were to i

apply its motion to reopen the record standard to issues

material to that licensing action which Intervenors had had no earlier opportunity to litigate. Mothers for Peace v. HEQ, 751 i

F.2d 1287, 1312, 1316-1317. Egg UCS v. NRC, 735 F.2d 1437.

The Licensing Board here acted in a manner even more overtly '

hostile to Intervenors' hearing rights under the AEA. Without even deciding the admissibility of Intervenors' outstanding  ;

contentions challenging the scope of the September exercise, '

the Board took licensing action. Obviously, since the only -

avenue open to Intervenors to secure their rights to a hearing prior to licensing on the September onsite exerciseE / was to timely file contentions, those rights have been denied by the Licensing Board's failure to even address the admissibility of those contentions.E/ If applying a motion to reopen the record standard to these contentions in these circumstances supports a judicial presumption of bad faith, the Licensing Board's failure to apply ADY standard thereby denying Intervenors their rights to a hearing without so much as 1/ Again, it is apparently necessary to note that the Commission has stated that the September 1989 exercise was litigable and that NRC law recognizes scope challenges to exercises. Egg ALAB-900.

2/ Indeed, the Board's actions constitute a dg facto exemption from the onsite exercise required under the regulations even though the Commission denied such an exemption da iure in September 1989.

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Any decision on admissibility at all before licensing action obviously mandates the conclusion that that Board has acted in bad faith.1E/

5. Intervenors' present injury in light of the November ,

16 Order is real, immediate and irreparable, r

a. The Commission has set November 27, 1989 as the l date on which Intervenors are to file their comments on >

immediate effectiveness. The standards for immediate effectiveness include whether there are significant policy '

issues that should be addressed on appeal before the agency prior to license issuance. Obviously, Intervenors are unable to comment on the merits of the Licensing Board's " explanation" ,

by November 27 when there is no assurance that it will even issue by that date. Further, Intervenors are unable to comment on the Commission's answer to the certified question and what its impact on licensing should and will be when that answer is applied by the Appeal Board to its continuing review of LBP-88-32 and its.not-yet-initiated review of LBP-89-32. Since the Intervenors and the Appeal Board share the view that the standard against which to measure the emergency plans at l

Seabrook is a (if not the) central question raised by any l licensing action it is particularly ironic that Intervenors are given absolutely no opportunity to comment on the Commission's I

answer to this question in the immediate effectiveness process. I l

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12/ This is doubly true in light of the fact that Intervenors I repeatedly argued to the Licensing Board that it is bound by federal law in this regard.

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4 Moreover, Intervenors are also unable to comment on the not-yet-issued decision admitting or denying outstanding contentions.  ;

b. The Commission's November 16 Order improperly treats the Intervenors' November 13 motion to revoke the

[ license authorization as a stay application. As discussed above, Intervenors seek an immediate declaration that the license authorization of November 13 is void because it is predicated on a legal decision which: 1) violated the ,

Administrative Procedure Act; 2) denied Intervenors' hearing rights under the Atomic Energy Act and may be presumed, ,

therefore, to have issued in bad faith; 3) issued from a Board without jurisdiction on remand to simply reutter its judgment in LBP-88-32 which had been reversed; 4) issued in direct contradiction of the doctrines of stare dreisis and law of the case which also limit the jurisdiction of inferior courts to contravene their superior adjudicatory bodies; and 5) reasserted and reapplied a legal standard for emergency plans which had been determined to be " uncertain" by the Appeal Board and certified to this Commission. These legal defects require ,

an immediate merits-based determination that the license authorization presently effective is void. By asserting jurisdiction over this motion and treating it as a request for a " stay", the Commission has irreparably dainaged Intervenors' litigative position on this issue.

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l 1). The legal standards for a stay are different and higher than the legal standards applied to'the motion as presented;

2) By displacing the Appeal Board, the Commission, which itself does not have at present any cortion of the NHRERP record or appeal (except the certified question) before it, has made'any merits determination of Intervenors' motion impossible thereby necessitating a more discretionary non-merits standard of review. To the extent that Intervenors' motion is based on a merits determination of the present adequacy of the NHRERP in light of ALAB-924 and the reversal of LBP-88-32 by the Appeal Board, these issues are not now before the commission in any merits posture. Indeed, the alleged lack of jurisdiction in the Licensing Board to issue this license authorization in light of the reversal by the Appeal Board in ALAB-924 is part of the " merits" of both the ongoing NHRERP review (because the Licensing Board as a matter of law violated the directives of  !

the Appeal- Board on remand) and the review of LBP-89-32

(because the license was wrongfully issued only in that decision.)11/ The commission has not taken jurisdiction over the merits of either of these decisions. Thus, not only are i

Intervenors irreparably harmed because the commission appears 11/ No notice of appeal of LBP-89-32 has yet been filed. The Intervenors' November 13 motion to the Appeal Board was filed pursuant to that Board's appellate jurisdiction over LBP-88-32 to the extent the Licensing Board's license authorization is based, as it had to be, on its reuttering its NHRERP judgment t

in LBP-89-32 when it authorized license issuance.

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inclined to treat Intervenors' November 13 Motion as a stay application which it'is not but, indeed, the present posture of this case limits any Commission decision on Intervenors' Motion to a non-merits review which prevents the very ruling on the merits which Intervenors firmly believe the law demands.12/

3) The. procedural confusion at the heart of the >

Commission's November 16 Order is also clear in light of the regulation cited as support for its power to take stay applications pursuant to 2.788 away frem the Appeal Board.12I Whatever its powers may be as described in the cited regulation P

12/ Put another way, the Commission has confused a non-merits review (whether pursuant to its immediate effectiveness rule or to a 2.788 stay application) with merits determinations on appeal which require as their predicate jurisdiction over those i merits. Intervenors' November 13 Motion is entwined with the  :

merits determinations on appeal made by the Appeal Board regarding LBP-88-32. Indeed, in part, the Motion requires j merits jurisdiction over the NHRERP record and appeal in order to be justly decided. By displacing the Appeal Board on this l' motion without taking jurisdiction over those merits, the

, Commission has put Intervenors in a non-merits stay posture and )

denied them their right to a full appeal of LBP-88-32 and <

LBP-89-32 2D tha merits.

l 11/ In point of fact, 2. 764 (f) (2) (iv) has nothing to do with stays pursuant to $2.788. Intervenors, indeed, have found no i support for the proposition that the commission is simply free ]

to alter the clear provisions of 2.788 which provide Intervenors a right to file a stay application to the Appeal Board in the first instance. Obviously, if the Commission were to take EMA sconte review of the merits of LBP-88-32 and LBP-89-32 thereby displacing the Appeal Board's merits

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jurisdiction, then altering $2.788 would have some rational basis. As it is, to the extent that the Commission's logic is J that because Intervenors' November 13 Motion is viewed as a {

stay application and the Commission takes jurisdiction over i that Motion, therefore it 3hould take jurisdiction over all stay applications filed pursuant to 92.788, the tail is wagging the dog. Indeed, it is not even the dog's tail since the l L November 13 Motion is not a stav application.

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upon' issuance of an immediate effectiveness decision to issue a stay and direct the Appeal Board to addresu certain merits, the l

commission is not-free to deny Intervenors their rights to procedural due process which in these (complex) circumstances means the right to a full anneal 2D thA merits with regard to all issues that are part of a merits determination. Here, this means that Intervenors have a right to a merits determination of their November 13 Motion either by the Appeal Board, or by the Commission if and only if the Commission were to take ,

jurisdiction at this point over an appeal of the merits of LBP-88-32 and LBP-89-32. The Commission simply can not reach down and take jurisdiction over a merits cortion of an appeal at the same time not taking jurisdiction over the actual merits of that portion and thereby review that portion in a non-merits stay posture. Such a unique procedure permanently eliminates a part of the merits review before the agency which Intervenors are entitled to.1SI 11/ Were the Commission to rule on the November 13 Motion in a stay posture, it may well find an inadequate showing on irreparable harm and deny the motion notwithstanding Intervenors' showing on reasonable likelihood of success. But how could the " merits" of the motion then be decided at any point in the future by the Commission or the Appeal Board? The i

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" merits" are predicated on the charge that the Licensing Board had no jurisdiction in light of ALAB-924 to reutter its NHRERP

. judgment in LBP-89-32. Not only does the denial of the motion in a stay posture moot this issue, but it thereby denies Intervenors' rights to a full acoeal of LBP-38-32 w~nich includes the Appeal Board's determination RD thg merits whether LBP-89-32 exceeded the Licensing Board's arthGrity in light of ALAB-924.

The Commission could only make tais determination by displacing the Appeal Board on the merits and ruling on the merits.

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[ 4) The license authorization was unlawful on its face.

Indeed, as a matter of law the license could not legally issue in the form and in the circumstances that it did on '

November 13, 1989. Intervenors should not be forced to seek relief from this Comnission in the form of a stay in light of the patent legal defects in the license authorization which the >

Commission has sanctioned at least to the extent that its ,

issuance has now limited the relief Intervenors are able to seek. Indeed, because the nature of the relief now available to Intervenors permits.the Commission under law to deny that relief (because of its discretionary and higher character) and thereby permits issuance of this unlawful license, Intervenors are irreparably harmed by the November 16 Order because it permanently alters the standard for intra-agency review up to -

the point at which a license would issue, i In light of the immediate injury suffered by Intervenors by the November 16 Order, Intervenors request a ruling on this L

motion for reconsideration as soon as possible so that, if '

necessary they may act to fully protect their rights, l

COMMONWEALTH OF MASSACHUSETTS JAMES M. SHANNON ATTORNEY GENERAL

/uded hn Traficdnte sistant Attorney General hief, Nuclear Safety Unit Department of the Attorney General One Ashburton Place l Boston, MA 02108-1698 (617) 727-2200 DATED: November 17, 1989

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'i Sj p UNITED STATES OF AMERICA $

h NUCLEAR REGUIATORY COMMISSION O pO kj ' K-1 Before the Commission: ' , ,, 88pg r e 2 ,

Kenneth M. Carr, Chairman

• Thomas M. Roberts, Commissioner Kenneth C. Rogers, Commissioner k' #' '

tP  ;

, James R. Curtiss, Commissioner 1 ) ,

In the Matter of Docket Nos. 50-443-OL

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) 50-444-OL PUBLIC SERVICE COMPANY ) (Emergency Planning Issues)

OF NEW HAMPSHIRE, ET AL. )

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(Seabrook Station, Units 1 and 2) ) November 17, 1989 .

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CERTIFICATE OF SERVICE I,. John Traficonte, hereby certify that on November 17, 1989, i I made service of the within INTERVENORS' MOTION FOR RECONSIDERATION OF COMMISSION'S NOVEMBER 16 ORDER by First Class Mail, and by telefax as indicated by (*) to the following parties:

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 l-

• Docketing and Service

• Thomas G. Dignan, Jr.

U.S. Nuclear Regulatory Commission Ropes & Gray Washington, DC 20555 One International Place l

t Boston, MA 02110

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• Marjorie Nordlinger, Esq. Paul McEachern, Esq. l U.S. Nuclear Regulatory Commission Shaines & McEachern Office of the General Counsel 25 Maplewood Avenue '

11555 Rockville Pike, 15th Floor P.O. Box 360  !

Rockville, MD 20852 Portsmouth, NH 03801 H. Joseph Flynn, Esq. Atomic Safety & Licensing ,

Assistant General Counsel Appeal Board Office of General Counsel U.S. Nuclear Regulatory Commission Federal Emergency Management Washington, DC 20555 Agency 500 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, Curren & Towsley Five Market Street Suite 430 Portsmouth, NH 03801 2001 S Street, N.W.

Washington, DC 20008 Barbara St. Andre, Esq. Judith Mizner, Esq.

Kope. nan & Paige, P.C. 79 State Street 77 Franklin Street Second Floor Boston, MA 02110 Newburyport, MA 01950 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 (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

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G. Paul Bollwerk, III, Chairman Alan S. Rosenthal Atomic Safety & Licensing Atomic Safety & Licensing Appeal Board Appeal 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 Howard A. Wilber *Kenneth M. Carr Atomic Safety & Licensing Chairman Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 11555 Rockville Pike East West Towers Building Rockville, MD 20852 4350 East West Highway Bethesda, MD 20814

• Thomas M. Roberts, Commissioner *Kenneth C. Rogers, Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852 Rockville, MD 20852

• James R. Curtiss, Commissioner U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, MD 20852 Respectfully submitted, JAMES M. SHANNON ATTORNEY GENERAL f kV n Traficonte  ;

istant Attorney General I lef, Public Protection Bureau i

Department of the Attorney General One Ashburton Place Boston, MA 02108

! (617) 727-2200 i

Dated: November 17, 1989 i

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