ML20245E642

Objection to NRC Staff Motion to Strike Notices of Appeal & Motion for Costs.* Motion Frivolous & Ignores Relevant Appeal Board Rulings That Bear on Issue in Proceeding.Motion Should Be Denied.Svc List Encl

ML20245E642
Person / Time
Site:	Seabrook
Issue date:	04/21/1989
From:	Backus R BACKUS, MEYER & SOLOMON, SEACOAST ANTI-POLLUTION LEAGUE
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML20245E628	List: ML20245E626 ML20245E642
References
LBP-89-10, OL, NUDOCS 8905020072
Download: ML20245E642 (7)

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'89 APR 24 P3 :30 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '(("' .:

ATOMIC SAFETY AND LICENSING APPEAL BOARD Before Administrative Judges:

Alan S. Rosenthal, Chairman Thomas S. Moore Howard A. Wilber

)

In the Matter of ) Docket No. 50-443-OL

) (Offsite EP)

PUBLIC SERVICE COMPANY )

OF NEW HAMPSHIRE, et al. ) April 21, 1989

)

(Seabrook Station, Unit 1) )

)

OBJECTION TO NRC STAFF MOTION TO STRIKE NOTICES OF APPEAL AND MOTION FOR COSTS INTRODUCTION By a pleading dated April 17, 1989, the NRC staff has moved to strike SAPL's and Mass AG's Notices of Appeal of LPB-89-10 i

dated March 20, 1989 and March 22, 1989 respectively.

The staff, we suspect deliberately, failed to file these notices until after SAPL had prepared and filed its brief on the merits, and within a few days of the due date for the j Massachusetts Attorney General's brief.

l The motion is frivolous and, worse, ignores relevant Appeal Board rulings that bear on this issue in the Seabrook proceeding itself. j l

8905020072 gDR ADOCK O 890421y3[

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We submit the. staff's conduct in this matter is questionable, and appears far below the standard one should expect of lawyers representing an agency which is charged with protecting the public interest.

THE MOTION The NRC staff motion is based on the theory that an appeal 4 from ASLB denial of a 52.758 waiver petition is "not immediately appealable because it neither disposes of a major segme.it of the case nor terminates an intervenor's rights to particir., ate in the proceeding." (p. 1)

OBJECTION TO THE MOTION The NRC staff's motion is frivolous. The ASLB decision under review finally disposes of the petition to contest the financial qualification of the Seabrook applicants. Had the ASLB granted the petition, pursuant to 2.758(d), it would have been immediately certified to the Commission for review. Since it is denied, the NRC staff apparently contends that the matter is closed out, and no appeal is possible unless and until a full power licensing decision is made. The plain fact is, as NRC staff well knows, that the denial of the waiver petition finally disposes of any opportunity for SAPL, or other interveners, to ever question the I

financial qualification of the Seabrook Applicants on the record in this proceeding.

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With a noticeable lack of candor, the NRC staff fails to mention that, in this very case, and on the very issue of

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financial qualification, an appeal of a prior ASLB denial of a 2.758 petition was taken to this Appeal Board, with no

" prematurity" objections by either staff or Applicant. The Appeal Board treated the issue on the merits. (See ALAB-895.) The NRC staff makes no mention of ALAB-895, or the fact that in its Brief on appeal of the Licensing Board decision that resulted in ALAB-895, it raised no prematurity objection.

Also, the staff fails to mention ALAB-860, in which this Appeal Board held, again in the Seabrook matter, that it did have appellate jurisdiction over decisions on 2.758 waiver petitions.

In that case, an appeal, admittedly interlocutory in character, was taken from a scheduling order entered in a 2.758 petition, prior to the final decision of the Licensing Board on the petition. The Appeal Board, in ALAB-860, did deny directed I

certification, but never hinted that upon the denial of the 2.758 petition on the merits an appeal would not lie as a matter of l

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% . I hL right.1,2 MOTION FOR COSTS For the staff, after delaying the filing of its motion until these interveners have prepared and filed their brief, now to seek to strike the notices of appeal, never mentioning ALAB-895 or ALAB-860, suggests conduct sufficiently egregious to warrant awarding SAPL its costs in responding to this motion.

It is worth speculating on the staff's motive here, in light of the fact that no similar staff objection was made when SAPL appealed the prior Licensing Board denial of a petition for waiver of the financial qualification modified rule. It appears that the staff is manipulating the " exhaustion of administration remedies" requirement to prevent SAPL and Mass AG from claiming error; on the theory that since the Agency still has the matter before it, awaiting final decision on full power licensing, any appeal is

" premature."

1/ Indeed, the Appeal Board noted that the Applicant had 3 contended that a denial of the petition would close out the matter, but the Appeal Board thought otherwise, and said that "we  ;

agree with the staff." 25 NRC 63 at 67. '

2/ The staff's discussion of directed certification is even more amazing. According to the staff, the denial of the petition results,in no "immediate and serious harm" to petitioners because i denial was in compliance with the Commission's rules of practice because the petition sought to challenge an NRC rule, which can only be permitted through the granting of a 2.758 petition, which had been denied! By the staff's logic, the denial of a 2.758 petition itself forecloses any appeal rights, and is thereby irrefutably correct and beyond challenge, regardless of what contentions were raised, or how they were disposed of below. We  ;

have no doubt the staff would like to treat all NRC litigation in this manner.

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CONCLUSION .

For the reasons stated, the motion to strike should be denied, and SAPL should be awarded its costs in responding to the motion.

1 Respectfully submitted, i Seacoast Anti-Pollution League By its Attorneys, BACKUS, MEYER & SOLOMON By: #  !

fo'b6r( A. Backus, Esquire 116 Lowell Street P.O. Box 516 Manchester, NH 03105 (603) 668-7,^??.

DATED: April 21, 1989 I hereby certify that copies of the foregoing objection have been forwarded this date by first-class mail, postage prepaid to the parties on the attached service list.

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- /4/M//A-Rot)d(td . Bac'kus, Esquire I

a i A1:n S. Ron nthsl, Chrman. Richard A. Hampa, Esquira John Traficonts, Esquire Atomic Safety and.Lictnsin8 NH Civil Defcnin Ag ncy Appeal Panel Assistant Atty. Gensrel Hampe & McNicholas US NRC One Ashburton Place 35 Pleasant Street 19th 71'o6r" Washington, DC 20555 Concord, NH 03301 l Boston, MA 02108 I

'89 APR 24 P3 :31 i I

i Howard A. Wilber Gary W. Holmes, Esquire Atomic Safety and Licensing hth.H.Mizner,, Esquire l Holmes & Ellis 79 State'.: Street Appeal Board 47 Winnacunnet Road I US NRC Newburyport, MA 01950 )

Hampton, NH 03842 Washington, DC 20555 i l

i Thomas S. Moore -

Diane Curran, Esquire Atomic Safety and Licensing Paul McEachern, Esquire Harmon, Curran & Tousley Shaines & McEachern Appeal Panal 20001 S Street NW US NRC 25 Maplewood Avenue Suite 430 P.O. Box 360 Washington, DC 20555 Washington, DC 20009 Portsmouth, NH 03801 Kenneth A. McCollom Suzanne Breiseth Atomic Safety and Office of Selectmen Licensing Board Town of Hampton Falls US NRC One Drinkwater Road Washington, DC 20555 Hampton Falls, NH 03844 Richard F. Cole Docketing & Serv. Sec. Thomas Dignan, Esquire Atomic Safety and LicensinS Office of the Secretary Ropes & Gray Board US NRC US NRC One International Place Washington, DC 20555 Boston, MA 02110 Washington, DC 20555 Ivan W. Smith, Chrman. Joseph Flynn, Asst. Gn. Cnsl. Jane Doughty Atomic Safety and Fed. Emerg. Mgmt. Agey. SAPL Licensing Board 500 C Street SW 5 Market Street US NRC Washington, DC 20472 Portsmouth, NH 03801 Washington, DC 20555 Phillip Ahrens, Esquire Sherwin E. Turk, Esquire George Dana Bisbee, Esquire Asst. Atty. General State House, Sta. #6 Office of Exec. Legal Dir. Attorney General's Office US NRC State of New Hampshire Augusta, ME 04333 Washington, DC 20555 Concord, NH 03301

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J,i. ilStadre Gavutis.: JJ. P..Ntdssu, Esquire

' JTown of ~ Kensington . Town of Rye p ' '! Box? 1154 . .

155 Washington Road 1 East'Kingston,.NH. 03827 Rye, N11 03870

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t b ~ Charles P.' Graham, Esquire Mr. Angie Machiros, Chrman.

-McKay, Murphy ~and Graham Town'of Newbury 100 Main Street Town Hall l Amesbury MA' 01913 25 High Road Newbury, MA 01951 I William S. Lord,< Selectman

-Town Hall 1 Friend Street

.Amesbury, MA 01913 Senator Gordon J. Humphrey US Senate Washington, DC '.20510 Attns. Janet Coit Atomic Safety and

-Licensing-Appeal' Board Pnnel US NRC Washington, DC 20555 Mr. - John -Duf.fet

. Pres. &' Chief Exec.-Officer

-PSCO f P.O. Box 330 Manchester, NH 03105 l

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' Atomic Safety and Licensing Board Panel US NRC Washington, DC 20555 .

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