ML20043H162

Brief of Seacoast Anti-Pollution League on Appeal of LBP-90-12.* Seacoast Anti-Pollution League Should Not Be Forced to Face Hopson Choice or Participate in Meaningless Proceeding & Have Remanded Issues Dismissed.W/Svc List

ML20043H162
Person / Time
Site:	Seabrook
Issue date:	06/15/1990
From:	Backus R BACKUS, MEYER & SOLOMON, SEACOAST ANTI-POLLUTION LEAGUE
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#290-10492 ALAB-924, LBP-88-32, LBP-89-32, LBP-90-12, OL, NUDOCS 9006220102
Download: ML20043H162 (6)

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DOCKEIED r- USNRC

. June 15,.1990 UNITED STATES OF AMERICA 'gQ JN 18 PS :41 3 NUCLEAR REGULATORY COMMISSION l

ATOMIC SAFETY AND LICENSING APPEAL BOARD ((lhp,$kf}f9vi[

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Before Administrative Judges: '

G. Paul Bollwerk, III, Chairman

.i Alan S. Rosenthal i Howard A. Wilber I l

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In the Matter of .)

) Docket No. 50-443-OL g(/f-Ob l PUBLIC SERVICE COMPANY )  !

OF NEW HAMPSHIRE, ET AL. )

) l (Seabrook Station, Unit 1) I'

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)  !

BRIEF OF SEACOAST ANTI-POLLUTION LEAGUE ON APPEAL OF LBP 90-12 ,

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Respectfully submitted, Seacoast Anti-Pollution League By its Attorney, Robert A. Backus, Esquire BACKUS, MEYER & SOLOMON 116 Lowell Street Manchester, NH 03105 (603) 668-7272

9006220102 90061D PDR ADOCK 05000443 O PDR Md

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. i STATEMENT OF THE CASE 6 ,

In LBP 88-32, 28 NRC 667, the Seabrook Licensing Board approved the NHRERP as to all issues in contention, save only an issue as to returning commuters, as to which the Board reserved  !

judgment. In ALAB 924, November 7, 1989, the Appeal Board reversed and remanded the Licensing Board's decision on four issues, thereby finding that the NHRERP was not an approvable:

plan, as a result of certain contentions filed by SAPL, among other parties.

In LBP 89-32, two days later, the Licensing Board held that, regardless of ALAB 924, that it could and would authorize the "immediate issuance" of a full power license. In LBP 89-33, the Licensing Board said it could do so because none of the issues on which it had been reversed and ordered to conduct a remanded proceeding were " safety significant."

On January 11, the Licensing Board invited the parties to advise it'as to how to proceed in regard to the remanded issues.

By letter of January 19, 1990, SAPL said it would have no interest in proceeding further before the Licensing Board, in regard to the remanded issues, unless the romanded proceedings would in some way i

be relevant to the issuance or validity of a nuclear license, On March 1, the Commission, in its immediate effectiveness 1

decision permitted the license to be immediately issued, subject t

to a brief housekeeping stay.

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On May 3, the Licensing Board dismissed SAPL from the L proceeding. SAPL timely appealed.

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I ISSUE Whether the Licensing Board erred in dismissing SAPL from the proceeding and, if so, whether the Board could use its dismissal order to eliminate certain of the remanded issues.

ARGUMENT The dismissal of SAPL from the proceeding was an error.  !

Although the Licensing Board purported to grant SAPL's request to withdraw, the fact is SAPL never asked leave to withdraw, but only ,

indicated it would not be participating in the proceeding before the Licensing Board in regard to the remanded issues under the

. condition where disposition of the remanded issues, regardless of outcome, were irrelevant to licensing. '

The issues in question were remanded by this Board in ALAB '

-924 and, depending upon the disposition of those issues by the Licensing Board, may again come before the Appeal Board, the Commission, or perhaps even a reviewing court.

SAPL has in no way abandoned those issues or its right to contend that those issues are relevant to the validity of the Seabrook license before any tribunal. All SAPL has ever done is say that, because as far as the Licensing Board is concerned, its participation will be without any force or effect on the i-l licensing, it did not choose to participate in the remanded proceedings on those issues before the Licensino Board. This is a far cry from having abandoned those issues, or foregoing any interest in pursuing any of those issues as relevant to licensing before other tribunals. l 1

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e SAPL holds, as it has'long held, that the remanded issues are r

material to the issuance of a license.

Although as a result of its letter to the Licensing Board of January 19, SAPL may be foreclosed from contesting the Licensing Board's choice of proceedings to deal with the remanded issues and will leave the development of any evidentially record in regard to those remanded issues to others, SAPL cannot be foreclosed from its legal position merely because it chose not to expend scarce '

volunteer resources in a proceeding which cannot effect, under the Licensing Board's own decision of November 9, the ultimate issue in the case, and the issue that led SAPL to intervene in the first place, the issuance of a nuclear license.

SAPL should not be forced to face a Hopson's choice; either participate in a meaningless proceeding or, if it does not choose to.do so (because of the great expense to its contributors), have the remanded issues, which do concern the public health and 4

' safety, dismissed.

Respectfully submitted, SEACOAST ANTI-POLLUTION LEAGUE By its Attorneys, a BACKUS, MEYER & SOLOMON By:

R o b"e r't d . "B a'c k u s , Esquire 116 Lowell Street P.O. Box 516 Manchester, NH 03105 (603) 668-7272 1

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04; DATED: June 14,.1990

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I hereby certify that copies of the within Brief of Seacoast

• Anti-Pollution League =Brief have been forwarded this date to the

' parties.on'the attached service.

Re6eMK Bacikus, Esquire. i

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l t-Alan S. Nomenthal .

Docketing & Service Sec. SAPL

. Aptmic Saftty and 11oensin9 Office of Secretary 5 Market Street

, Appeal Panel US NBC Portsmouth, NH 03801 US NIC Washington, DC 20555 Washington, DC 20555 l

Howard A. Wilber George W. Watson, Esquire George Dana Bisbee, Esquire Atanic Safety and Licensin9 Federal Emergency Attorney General's Office Appeal Board lwunagement Agency State of New Hanpshire 1

US NIC 500 C Street, S.W. Concord, NH 03301 Washington, DC 20555 Washingtcn, DC 20472 i

G. P:.ul Bollwerk, III, Chnm. Edwin J. Reis, Esquire Sandra Gavutis Atcznic Safety ard Licensin9  : Office of Exec. Iagal Dir.

Appeal. Panel US NIC 'c/o P.O.C.10,382 Box US NFC Washington, DC 20555 Amesbury, MA 019.13 Washington, DC 20555 i

Kenneth A. McCollan John Traficonte, Esquire Senator Gordon J. Hunphrey Atomic Safety and Assistant Atty. General US Senate' Licensing Board One Ashburton Place Washington, DC 20510 US NRC 19th Floor Attn. Gordon FbcDonald -

Washington, DC 20555 Boston, MA 02108 Richard F. Cole Judith !!. Mizner, Esquire Atanic Safety and Atanic Safety and Licensin9 79 State Street Licensing Appeal Board Board Newburyport, MA 01950 Panel i US NRC US NIC.

Wa hington, DC 20555 Washington, DC 20555 Ivan W. Smith, Chnm. Paul McEachern, Esquire Atanic Safety and Atanic Safety and Shaines & McEachern Licensing Board Panel Licensing Board 25 bbplewood Avenue US NIC US NFC P.O. Box 360 Washington, DC 20555 Washington, DC 20555 Portsmouth, Nil 03801 Diane Cu wan, Esquire Thctnas Dignan, Esquire George L. Iverson, Director Hannon, Curran & Tousley Ropes & Gray 20001 S Street NW Office of Emergency bnagenent -

One International Place State of New Hampshire Suite 430 Boston, MA 02110 Washington, DC 20009 Executive Department 107 Pleasant Street Concord, NH 03301