ML20012F680
| ML20012F680 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 04/11/1990 |
| From: | Traficonte J MASSACHUSETTS, COMMONWEALTH OF |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#290-10240 LBP-89-32, LBP-89-33, OL, NUDOCS 9004200085 | |
| Download: ML20012F680 (16) | |
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UNITED STATES OF AMERICA E 4 NUCLEAR REGULATORY COMMISSI i L
S' e, i ATOMIC SAFETY AND LICENSING APPEAL g- g i Before Administrative Judges:
G. Paul Bollwerk III, Chairman Alan S. Rosenthal Howard A. Wilber i
) i In the Matter of ) Docket Nos. 50-443-OL
) 50-444-OL PU9 TIC SERVICE COMPANY )
)
(Seabrook Station, Units 1 and 2) ) April 11, 1990
)
INTERVENORS' MOTION FOR IMMEDIATE STAY ~
OR CESSATION OF FURTHER APPEAL BOARD REVIEW OF LBP-89-32, LEP-89-33 AND RELATED RULINGS The Massachusetts Attorney General (" Mass AG") acting a's Lead Intervenor and on behalf of all Intervenors who have petitioned for review of the Licensing Board's November 9 licensing decision, LBP-89-32, as well as related decisions and rulings -
moves for an immediate stay or cessation of all further appellate review by this Appeal Board of those lower Board decisions and rulings.1/ As grounds for this motion, the Mass AG states as follows:
L 1/ Cessation of appellate review is sought regarding all issues briefed or otherwise raised on appeal of LBP-89-32 and related rulings by all parties. In short, Intervenors seek a stay regarding all issues that might be argued before this Board at oral argument presently scheduled for April 18, 1990.
9004200005 900411 A PDR ADOCK OS000443 g PDR
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- 1. " Final licensing action" has now occurred in the ;
Seabrook licensing proceeding. The Mass AG has timely filed a i petition for review with the Coo.rt of Appeals. By this means I the Mass AG will seek judicia), review of intermediate, interlocutory and otherwise non-final decisions and rulings ,
made reviewable as a result of the NRC's " final licensing action." 5 USC 5704 (second sentence). Thus, the underlying '
adjudication and net the Commission's March 1, 1990 immediate ,
1 effectiveness decision is now before the Court. ,
- a. Because of the peculiar and perhaps unique characteristics of the NRC's decisional scheme, the -
interlocutory or intermediate decisions now judicially :
reviewable appear to include the November 9 licensing authorization itself. The Commission successfully argued to I the Court of Appeals in response to the Mass AG's petition for review of that ostensibly " final" November 9 licensing action, that judicial review must await the Commission's non-adjudicatory "immediate effectiveness" decision. Of course, that decision is a non-merits, policy-based discretionary decision the focus of which is the propriety of lifting a regulatory stay in light of the present posture of !
the adjudicatory proceeding. As such, that decision itself is very likelv not iudicially reviewable at all. 5 USC $701(a) (2) l (actions " committed to agency discretion by law" not judicially {
1 reviewable). It is hard to imagine judicial review of an l
agency decision the gravamen of which is to make a policy decision as to when the agency's adjudicatory and appellate l process is sufficient to allow the lifting of a regulatory l
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stay. That kind of agency decision certainly appears to be unreviewable. Such an analysis is further supported by the obvious fact that once the policy decision is made and the regulatory stay lifted judicial review in obtainable as to that very same adjudicatory process now made " final" by the Commission's non-adjudicatory decision. 5 USC $704 (second sentence).
- b. Even if judicial review of the "immediate effectiveness" decision is not precluded by 5 USC $701(a)(2),
the Court of Appeals has jurisdiction under 42 USC $2239(b) only over a final order entered in a licensing proceeding involving a hearing. The "immediate effectiveness" decision is a non-merits, non-adjudicatory decision which may have the ;
result of making an earlier adjudicatory decision " entered in the proceeding" " final" but which itself is surely not the type of decision over which the Court of Appeals has been given I l
jurisdiction by USC 52239(b).
- c. Finally, assuming these substantial barriers to any judicial review of the immediate effectiveness decision i itself are overcome, the purely discretionary nature of that !
decision makes such review rather pointless. The nature of the "immediate effectiveness" decision is closely akin to a " stay" j i
determination. Although as a quasi-stay decision the immediate effectiveness decision is not standardless (as it would be if it were a matter of pure discretion) and 10 CFR 52.764 does set out guidelines for the Commission's decision against which a court in theory at least could review a particular "immediate effectiveness" decision, because that decision -- like all stay ij
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decisions -- is a non-merits non-binding decision,A/ standing alone there is actually no point in judicial review of that decision. Since the effect of the decision is the issuance of c
a license based on the posture of the underlying adjudicatory ;
proceeding it is indirect and secondhand for a Court to address itself to the rather epiphenomenal question whether the Commission erred in its assessment that the underlying adjudication did indeed support license authorization and issuance. Rather than answer this academic question, the Court should simply advance directly to the claims that the underlying adjudication was in error. Analytically, judicial ,
review of the immediate effectiveness decision (instead of review of the underlying adjudicatory proceeding which it
" finalizes") would be just as irrational as appellate review of a trial court's denial of a stay after an adjudication in lieu of direct review over the merits of that adjudication. Indeed, a petition for review of such a stay decision normally will not I i
lie.
1/ Just how confused this agency appears to be about its own regulatory scheme and the role of judicial review is clear from the fact that to the Court the commission's representatives have asserted that it is the immediate effectiveness decision !
that is the " final NRC action issuing the Seabrook operating '
license" and therefore should be the focus of judicial review.
Respondents' March 12 Opposition to Petitioners' March 7 >
Dispositive Motion at 14 n.10. At virtually the same time, the NRC Staff has argued to the Licensing Board that:
It would be legal error for this Licensing Board to predicate its decision on the Intervenors' motion to reopen the record on statements made by the Commission in the course of its "immediate effectiveness" review of LBP-39-32.
NRC Staff's April 5 Response to FEMA Request at 2.
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- 2. In light of this analysis, this Board should understand that Intervenors seek judicial review at this tineof the underlying adjudicatory proceeding made final and reviewable by the Commission's "immediate effectiveness" decision.1/ This fact is clear from review of Intervonors' April 9 docketing statement filed with the Court and supplied to this Board. Thus, Intervenors now seek judicial review over precisely those issues which they had earlier briefed to this Board. As a result, some resolution of the issue of appropriate appellate jurisdiction la now necessary as between the Court and this Appeal Board.
- a. First, every Intervenor effort at obtaining further intra-agency appellate review after November 9, 1989 was expressly identified as protective in nature. In the circumstances of this case, this means that Intervenors believed (as they still do) that the November 9 license authorization is null and void and revocable. After failing to obtain timely revocation from this Appeal Board and the Commission, Intervenors filed a Petition for Review (Docket No.
89-1743) with the Court on December 4, 1989 and sought mandatory revocation as part of that review.S/ Because the af Because the commission resolved disputed and open adjudicatory issues in its non-adjudicatory decision in flagrant violation of its own regulations, the Intervenors will also seek review of this aspect of the commission's immediate effectiveness decision itself, if Intervenors filed an Emergency Petition for Mandatory Relief (Docket No. 89-1770) on December 22, 1989 and sought to consolidate it with Docket 89-1743 as part of their effort to obtain review of the November 9 licensing action. j l
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I l Intervenors viewed the November 9 licensing action as " final" l ar.d judicially reviewable they filed protective intra-aaency {
l j petitions for review to preserve their intra-agency appellate rights at such time as the November 9 license authorization was revoked by the Court (or the Commission). M
- b. Thus, Intervenors have never affirmatively chosen I
further intra-agency review in lieu of judicial review. This i is particularly true after the commission's March 1 "immediate f
effectiveness" decision after which point the Intervenors have I taken great pains to expressly and repeatedly state their view !
i that intra-agency appellate processes have no further !
l jurisdictional foundation.
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- c. Nonetheless, it is obviously Intervenors' f
earlier-filed protective notices of appeal and timely filed j briefsU to this Board which continue, as it were, to push the intra-agency appellate process along. One alternative in these circumstances would for the Intervenors to " withdraw" !
their earlier filed intra-agency appeals. Yet unilateral l
" withdrawal" runs the risk of having the commission's ;
i y If the November 9 license authorization is revoked as !
unlawful, LBP-89-32 will be a non-licensing partial initial i decision not subject to judicial review (because not a final i licensing action) but subject to further intra-agency appellate ;
review. '
y Againt everything filed after November 9 was protective in ,
nature ahd nothina was filed after March 1, 1990 except an April 2, 1990 pleading by the Mass AG responding to baseless ;
and contumacious attacks on the integrity of the attorneys for :
the Mass AG.
e 1 representatives and the Applicants argue to the court when these withdrawn issues are presented to it by the Intervenors 1 I
that the Intervenors' of firmative withdrawal is a form of waiver of their claims.2/ In these circumstances, l Intervenors prudentally can not unilaterally withdraw their j claims of error.I/ l
- d. Yet, absent a withdrawal or this Board's i determination that the Mass AG's analysis of the procedural l situation is correct, further intra-agency appellate process in l response to Intervenors' earlier-filed appeals runs the risk of l
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2/ In the present posture, Intervenors would have to a affirmatively withdraw. The option of never seeking i intra-agency appellate review in the first place on certain !
issues and instead going directly to court la no longer !
available. It should also be noted that a waiver argument is l
, distinct from an argument concerning " exhaustion of ;
administrative remedies." The latter argument no doubt will be i presented to the court by the commission and the Applicants based on the fact that certain decisions and issues have never been reviewed on the merits by this Board and/or the commission ,
prior to Intervenors seeking judicial review of them. As !
discussed infra, the administrative exhaustion argument is :
untenable in light of 5 USC 5704 (third sentence). !
1/ The Mass AG also freely acknowledges that the analysis of l
" finality" set out earlier and the precise limits and focus of i the court of Appeals' present review of the commission's action i is fundamentally contested by both the Applicants and the !
commission's representatives. In short, there is absolutely no agreement on what is before the court on review and what '
posture it is in. Indeed, the commission has affirmatively represented that its "immediate effectiveness" decision And i oniv that decision is now before the Court while the Mass AG has moved the court to strike any reference to that decision !
based on 10 CFR $2.764(g). l
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I creating overlapping and duplicative appellate process.F such duplication is not favored. C1. West Penn Power co. v. .
ERA, 860 F.2d $41, 585 (3rd Cir. 1988) (" simultaneous jurisdiction raises the possibility that a court of appeals l l
will expend extensive judicial tir,e on a case only to have l agency reconsideration nullify its effort . . . . ") :
- 3. In these circumstances, this Board should simply stay I
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or cease further appellate review at this time. Specifically, !
it should immediately postpone the oral argument now scheduled ;
for April 18, 1990. i
- a. A stay or cessation of further agency appellate review will permit the parties to focus their attention on the i
court proceeding and determine what issues will be presented to l
the Court for review free of any simultaneous and possibly disruptive further intra-agency process. I
- b. A stay or cessation of further agency appellate !
review will give effect to 5 USC $704 (third sentence) which !
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2/ The Mass AG has already made clear in his March 29 '
I Memorandum regarding the present jurisdiction of the other panel of this Board that in his view this Board should cease and desist at such time as overlapping and duplicative i appellate process exists. Although depending on the timing of ;
the other panel's disposition of Intervenors' low power testing appeal, such duplication may be avoided on those issues, it is -
a virtual certainty that the issues now before this panel will [
be briefed to the Court prior to any merits disposition by this l panel. Indeed, Intervenors note that their appeal of 3 issue i areas from the Licensing Board's December 1988 decision r regarding the NMRERP is still pending before this Board. '
Indeed, as to the remaining unreviewed portion of LBP-88-32, !
! Intervenors intend to brief those issues to the Court and '
further delay by this Board may well make its review of those issuesduplicativeandoverlappgngaswell, t
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makes clear that Intervenors were and are under no obligation to pursue intra-agency appellate review as a condition precedent to judicial review once final auency action has occurred. 5 USC 6704 (third sentence). Indeed, as noted, l 1
Intervenors have taken no steps at all to seek such review I after the March 1 immediate effectiveness decision.
The staff in its April 51E/ Response to Intervenors' March 29 Jurisdictional Memorandum at 9-10, n.6 cites ICC v.
l Brotherhood of Locomotive Enaineers, ("ICC v. BLEH) 482 U.S.
1 270 (1988) and asserts that: '
The Supreme Court's interpretation of Section 704 of the i Administrative Procedure Act vitiates the Intervenors i reliance upon the literal terms of that provision. l At usual, the Staff's misreading to federal law is blatent and no doubt intentional. Far from " vitiating" the Mass AG's '
reading of 5 USC $704 (third sentence) the Supreme Court's '
discussion supports it. That section of the APA states in essence that judicial review of a final agency action will lie !
notwithstanding the presence er absence of a notion for reconsideration or any intra-agency appeal. The Supreme Court ;
in Icc v. BLE held that as to motions for reconsideration (or rehearing) if such has been filed by a litigant then that ,
li'taant can not simultaneously seek iudic.ial review. Yet, at l
the same time, the Court held that the thrust of $704 is that such a notion for reconsideration is not required for judicial review 12/ Once again the NRC Staff failed to send this pleading to the Mass AG by overnight delivery. It was received on
, April 10. 1990.
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i That language has long been construed by this and other !
courts merely to relieve parties from the requirement of petitioning for rehearing before seeking judicial review )
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.. . but not to prevent petitions for reconsideration that
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are actually filed from rendering the ordern under i reconsideration nonfinal. i
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Icc v. BLE, supra at 285. Thus, although the Supreme Court '
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certainly rejected a literal reading of 1704, its ;
interpretation supports the Mass AG's analysis of the ef fect of f that section on this case. Assuming (as the Staff did and l i
without detailed analysis) that intra-agency appeals should be j analyzed in the same way that notions for reconsideration are under 5704, Icc v. BLE might support the proposition that there !
is no reauirement that such an intra-agency appeal be filed i before seeking judicial review of an otherwise final agency >
action but that if after such final aaency action has occurred i
a litigant seeks intra-agency appeal he must wait until the [
agency disposes of that appeal before seeking judicial review. l, Thus, the Supreme Court has essentially substituted for the !
phrase "whether or not" in the third sentence of $704 the new phrase "notwithstanding that no."11/ The result is that l 7
11/ Indeed, prior to the final draft of $704, the phrase l "notwithstanding that no petition" stood in the place of r "whether or not there has been presented (a petition)." H.R.
1203, 79th Cong., 1st Sess. 610(c) (1945). This may indicate that the Supreme Court's present interpretation of this section actually catches the Congressional intent which was focussed on the case when D2 petition had been filed and not on the case when one had been filed. In any events !
As originally introduced 10(c) said nothing as to whether an administrative appeal was a condition precedent to judicial review. In the final draft it was provided that ,
an administrative appeal would not be necessary to exhaust administrative remedies unless the board adopted a rule that during the pendency of the appeal the effectiveness of the order would be automatically stayed.
Comment, " Final" Orderst Section 10(c) of the APA, 6 Stanford ,
L. Rev. 531, 535 (1954).
0 'j i
e notwithstanding that no motion for reconsideration or l
intra-agency appeal has been flied judicial review will still l l
lie. This certainly works a change from "whether or nota such f
process has been filed yet it is a change that supports the 1 j
Mass AG's position on administrative exhaustion and thus his !
view that the underivina Seabrook adiudication is now knigrg i i
the court of Anneals notwithstanding that the decisions and j issues have not been reviewed by this Board and/or the Commission, of course, in this case Intervanors have filed intra-agency appeals but as discussed they did this for i protective purposes only and before and not after the i Commission's immediate effectiveness decision. Moreover, far l
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from affirmatively seeking simultaneous appellate review, ;
Intervenors unambiguously seek Audicial and not further agency !
appellate review at this time. Indeed, if the Mass AG could i
find clear judicial precedent governing the application of $704 I (third sentence) to the circumstances of this case, he would withdraw his intra-agency appeals on the grounds that that j section makes such appeals unnecessary to judicial review.12/ ;
12/ Courts dealing with notions for reconsideration (or reheating) under $704 have held that if the litigant withdraws his pending agency motion then judicial review would lie. West Penn Power Co. v. EPA, 860 F.2d supra at 588; United l Transnortation Union v. ICC, 871 F.2d 1114, 1118 (D.C. Cir. .
1989). However, these cases do not address the timeliness '
issues that withdrawal presents. (A litigant files a timely motion for reconsideration and then after 60 days, for example, !
withdraws it. Is judicial review then timely?) Moreover, intra-agency appeals as opposed to motions for reconsideration t present more complex issues because: 1) the agency appellate (footnote continued)
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Absent clear guidance in this regard, the Mass AG instead moves
, this Appeal Board to stay or cease its appellate processes in light of this statutory scheme without forcing the Mass AG to ,
withdraw his appeals to obtain the same practical result,
- c. In the event this Board does not stay or otherwise cease its appellate review, the Mass AG will then seek to enjoin such further agency process in the court of Appeals and/or otharwise seek declaratory judicial relief as to the proper interpretation of $704 (third sentence) and the consequences on pending judicial review (and any future agency appellate review after any judicial romand) of a " withdrawal" by Intervenors of their intra-agency appeals in light of that section.
For all of the reasons set forth above this Board should stay or otherwise cease further appellate review of issues
- presented by appeal of LPP-89-32 and related rulings. It should immediately postpone oral argument presently scheduled for April 18, 1990. Such a stay or cessation of intra-agency (footnote continued) process may well be, as here, in various states of
" completeness" because litigants d2 have af firmative administrative exhaustion obligations orlor to final agency action; 2) motions for reconsideration come normally 2nly at or after a final agency action while here, for example, Intervenors' still pending appeal of the remaining portion of the Licensing Board's NHRERP decision was filed a year RE12r to h
final agency action; and 3) litigants, as here, may well file protective intra-agency appeals anticipating remand after judicial review.
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process should continue until presently pending judicial review j
- on the merits of final agency action is complete or, in the !
alternative, until the Court of Appeals could provide declaratory relief as to the nature and scope of its present l
hppellate jurisdiction. f i
Respectfully submitted, !
JAMES M. SHANNON l ATTORNEY GENERAL t
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John Traficente l Chief, Nuclear Safety Unit
. Department of the Attorney General l
One Ashburton Place :
Boston, MA 02108 !
(617) 727-2200 l Dated: April 11, 1990 l t
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UNITED STATES OF AMERICA e jr #
NUCLEAR REGUIATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOA 3 gr O* M Before Administrative Judgest p #I4 G. Paul Bollwerk III, Chairman g Alan S. Rosenthal 9l Howard A. Wilber
)
In the Matter of ) Docket Nos. 50-443-OL
) 50-444-OL PUBLIC SERVICE COMPANY )
0F NEW HAMPSHIRE, ET R. )
)
(Seabrook Station, Units 1 and 2) ) April 11, 1990
)
CERTIFICATE OF SERVICE I, John Traficonte, hereby certify that on April 11, 1990, I made service of the enclosed INTERVENORS' MOTION FOR IMMEDIATE STAY OR CESSATION OF FURTHER APPEAL BOARD REVIEW OF LBP-89-32, LBP-89-33 AND RELATED RULINGS via telefax as indicated by (*),
and by first class mail to:
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 Boston, MA 02110
- Mitai A. Young, Esq. Phillip Ahrens, Esq.
Edwin J. Reis, Esq. Assistant Attorney General U.S. Nuclear Regulatory Commission Department of the Attorney General Office of the General Counsel Augusta, ME 04333 11555 Rockville Pike, 15th Floor Rockville, MD 20852 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 Diane curran, Esq.
Seacoast Anti-Pollution League Harmon, Curran & Towsley Five Market Street Suite 430 Portsmouth, NH 03801 2001 S Street, N.W.
Washington, DC 20006 Barbara St. Andre, Esq. Judith Mitner, Esq.
Kopelman & Paige, P.C. 79 Stat 6 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. Amirlan, Esq. Senator Gordon J. Humphrey 145 South Main Street U.S. Senate P.O. Box 38 Washington, DC 20510 Bradford, MA 01835 (Attnt 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 (Attnt Herb Boynton) Concord, NH 03301
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- *i l
3 Paul McEachern, Esq. j Shaines & McEachern !
25 Maplewood Avenue, PO Box 360 !
Portsmouth, NH 03801
- l I
- G. Paul Bo11werk, Chairman
- Alan S. Rosenthal !
Atomic Safety & Licensing Atomic Safety & Licensing i
!' Appeal Board O.S. Nuclear Regulatory Commission Appeal Board ,
s
' ' U.S. Nuclear Regulatory Commission Washington, D.C. 10555 Washington, D.C. 10555 l
- Howard A. Wilber Jack Dolan ;
Atomic Safety & Licensing Federal Emergency Management Agency !
Appeal Board Region 1 U.S. Nuclear Regulatory Commission J.W. McCormack Post Office &
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Washington, D.C. 10555 Courthouse Building, Room 442 Boston, MA 02109 :
George Iverson, Director l N.H. Office of Emergency Management '
State House Office Park South 107 Pleasant Street Concord, NH 03301 i
I r
Respectfully submitted, !
JAMES H. SHANNON ATTORNEY GENERAL i -
s :
t b M IC JA^ ed .. i Jo6n Taficonte ;
f / Assitant Attorney General
. Chief, Nuclear Safety Unit Department of the Attorney General One Ashburton Place Boston. MA 02108 (617) 727-2200 i Dated: April 11, 1990 L
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