ML20006F455
| ML20006F455 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 02/13/1990 |
| From: | Trout J PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#190-9908 ALAB-924, LBP-89-32, OL, NUDOCS 9002280049 | |
| Download: ML20006F455 (8) | |
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DOCKETED February 13$Nff990 UNITED STATES OF AMERICA
'90 FEB 16 All 07 i
NUCLEAR REGULATORY COMMISSION griCE OF SECRfiARY v0CKLlit4G A Sf i?VICI-before the bRal!CH ATOMIC SAFETY AND LICENSING BOARD l
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In the Matter of
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PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443-OL NEW HAMPSHIRE, et al.
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50-444-OL
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Off-site Emergency L
(Seabrook Station, Units 1 and 2)
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Planning Issues
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l APPLICANT 8' REPLY TO " RESPONSE OF THE NASSACEUSETTS ATTORNEY GENERAL i
AND TNE NEW ENGLAND COALITION ON.
l NUCLEAR POLLUTION TO BOARD QRDER OF JANUARY 11, 1990" f
Pursuant to this Board's Order of January 11, 1990, 1
Applicants reply herein to the " Response of the Massachusetts Attorney General and the New England Coalition on Nuclear Pollution to Board Order of January 11, 1990" (Feb. 1, 1990) l (hereinafter " Response").
Applicants' reply to the January i
19 response letter of the Seacoast Anti-Pollution League
("SAPL"), wherein. SAPL refused to participate in any further 4
proceedings before this Board, is fully contained in
" Applicants' Motion to Dismiss Abandoned Remand Issues" JPTRNPOL.NH 9002280049 900213 PDR ADOCK 05000443 l
0 PDR
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(Jan. 26, 1990), and no purpose would be served by repeating it here.
In their Response, the Attorney General of The Commonwealth of Massachusetts (" Mass AG") and the New England l
I Coalition on Nuclear Pollution ("NECNP") offer two pieces of l
" advice" to the Board which Applicants believe warrant a I
reply.
1.
Mass AG and NECNP first argue that the Licensing Board's Partial Initial Decision in LBP-89-32 was " unlawful" and demand that the Board " revoke and vacate" that decision.1 Prescinding from the fact that this demand is scarcely responsive to the Board's actual request in its January 11, 1990 order, Applicants note that the Commission has asserted jurisdiction over the question of whether LBP-89-32 should be vacated.2 Applicants also note that Mass AG's and NECNP's claim that LBP-89-32 " openly and directly contradict (s) the express holdina of ALAB-924 as to the possibility of approving the NHRERP in its present posture,"3 simply Response at 1, 3.
2 ggg order (Unpublished) (Nov. 16, 1989), at 2.
Applicants have argued to the Commission, and continue to believe, that LBP-89-32 was wholly proper.
Egg Acclicants' Resnonse to Intervenors' Immediate Effectiveness Review Comments.
Stav Recuests and Sucolement to Intervenors' Motion to Vacate Those Portions of LBP-89-32 Authorizina Issuance of a Seabrook Ooeratina License (Dec.
8, 1989.)
3 Response at 2 (emphasis in original).. --
l collapses in the face of the Appeal Board's unpublished order of November 14, 1989.
4 2.
Later in the Response, Mass AG and NECNP assert, without analysis or explanation,' that hearings are required as to all remanded issues.
The only point in this portion of the Response warranting a reply is the assertion, in a footnote, that Mass AG has a "right as an interested state to participate fully in all remanded issues."5 As to this i
i point, the Response is incorrect.
While an " inter.asted state" is accorded special treatment pursuant to 10 C.F.R. 52.715(c) at the initial stage of its intervention, once it is into the case it is bound by the same requirements as any other party.'
In this case, the simple fact is that Mass AG peither participated in the trial of, nor filed proposed finding with Instead of providing the advice requested by the Board, Mass AG and NECNP " reference the detailed analyses of the four remanded issues set out at 35-62 of" another brief attached by them as an " Exhibit" to the Response.
Response at 5.
To the extent that Mass AG and NECNP seek to incorporate these 27 pages of brief by reference, they are flouting the 20-page limit set by the Board in its January 11 order.
5 Response at 5 n.
3.
The Response does not claim--nor coula it--that NECNP is entitled to " interested state" treatment, or that NECNP claimed such a right in the November 9, 1989 filing referen:ed in the footnote.
6 digt, Gulf States Utilities Co. (River Bend Station, Units 1 and 2), LBP-76-32, 4 NRC 293, 299 (1976) ; gge also Public Service comoany of New HamoshlIn (Seabrook Station, Units 1 and 2), CLI-77-25, 6 NRC 535, 537 n. 1 (1977); Gulf States Utilities 222 (River Bend Station, Units 1 and 2), ALAB-317, 3 NRC 175, 180
- n. 7 (1976). -
I respect to, the-three remanded issues specified in Aeolicants' Motion to Dismiss Abandoned Remand Issues (Jan. 26, 1990).
According, Mass AG could not appeal (and in fact he did not appeal) those issues.7 A fortiori, having been barred from appealing those issues, Mass AG may not now jump in to litigate them on remand, notwithstanding his claim to have asserted a "right" to do so in a footnote to a brief filed three months ago.s Mass AG and the other intervenors simply left those issues to be prosecuted by SAPL (while they threw their energies into pursuing myriad other issues).
t 7
Philadelohia_ Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-845, 24 NRC 220, 251-253 (1986); Carolina Power and Licht Co. (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 542-43 n. 58 (1986); ggg also Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
ALAB-583, 11 NRC 447-(1980).
Moreover, to the extent that prior l
case law may have been inconsistent or ambiguous, the Commission codified this rule effective as of September 11, 1989.
Egg 54 Fed. Reg. 33168, 33177-78 (Aug. 11, 1989) (citing the Limerick i
decision as the direction in which "(p)ractice under the i
Commission's existing regulations have been moving").
j e
" Parties may not dart in and out of proceedings on their own terms and at their own convenience and still expect to enjoy the benefits of full participation without the responsibilities."
Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-691, 16 NRC 897, 907 (1982).
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l Having made that tactical choice, Mass AG must now live with the consequences of SAPL's withdrawal.'
Respectfully submitted, f
00'
' Thomas G.
Dignan, Jr George H. Lewald Kathryn A. Selleck i
Jeffrey P. Trout Ropes & Gray One International Place Boston, MA 02110-2624 (617) 951-7000 Houston Lichtina & Power Co. (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC 360, 382-83 (1985); agg also Texas Utilities Electric Co. (Commanche Peak Steam Electric Station, Units 1 and 2), CLI-88-12, 28 NRC 605 (1988); Duke Power 921 (Cherokee Nuclear Station, Units 1, 2 and 3), ALAB-440, 6 NRC 642 (1977). i
r tmunTo UWRC
% FEB 16 All:07 (JRTIFIr: ATE OF SERVICE I, Jeffrey P. Trout, oneoftheattorneysfohaka$A e hts herein, hereby certify that on February 13, 1990, I msed dbrvice of the within document by depositing copies thereof with Federal Express, prepaid, for delivery to (or, where indicated, by depositing in the United States mail, first class postage paid, addressed to):
Administrative Judge Ivan W. Smith Adjudicatory File Chairman, Atomic Safety and Atomic Safety and Licensing Licensing Board Board Panel Docket (2 copies)
U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 Administrative Judge Richard F. Cole Robert R.
Pierce, Esquire Atomic Safety and Licensing Board Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board East West Towers Building U.S. Nuclear Regulatory i
4350 East West Highway Commission Bethesda, MD 20814 East West Towers Building i
l 4350 East West Highway Bethesda, MD 20814 l
Administrative Judge Kenneth A.
Mitzi A. Young, Esquire McCollom Edwin J.
Reis, Esquire 1107 West Knapp Street Office of the General Counsel Stillwater, OK 74075 U.S.
Nuclear Regulatory L
Commission L
One White Flint North, 15th Fl.
11555 Rockvillo Pike Rockville, MD 20852 l
George Dana Bisbee, Esquire Diane Curran, Esquire Associate Attorney General Andrea C.-Ferster, Esquire Office of the Attorney General Harmon, Curran & Tousley 25 Capitol Street Suite 430 Concord, NH 03301-6397 2001 S Street, N.W.
Washington, DC 20009
- Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Board 116 Lowell Street U.S. Nuclear Regulatory P.
O.
Box 516 Commission Manchester, NH 03105 Washington, DC 20555
s Philip Ahrens, Esquire Suzanne P. Egan, City Solicitor Assistant Attorney General Lagoulis, Hill-Whilton &
Department of the Attorney Rotondi General 79 State Street Augusta, ME 04333 Newburyport, MA 01950 Paul McEachern, Esquire John Traficonte, Esquire Shaines & McEachern Assistant Attorney General 25 Maplewood Avenue Department of the Attorney P.O.
Box 360 General Portsmouth, NH 03801 One Ashburton Place, 19th F1.
Boston, MA 02108
- Senator Gordon J. Humphrey R. Scott Hill-Whilton, Esquire U.S. Senate Lagoulis, Hill-Whilton &
Washington, DC 20510 Rotondi (Attn:
Tom Burack) 79 State Street Newburyport, MA 01950
- Senator Gordon J. Humphrey Barbara J. Saint Andre, Esquire One Eagle Square, Suite 507 Kopelman and Paige, P.C.
Concord, NH 03301 77 Franklin Street (Attn:
Herb Boynton)
Boston, MA 02110 H. Joseph Flynn, Esquire Judith H. Mizner, Esquire i
l Office of General Counsel 79 Stato Street, 2nd Floor Federal Emergency Management Newburyport, MA 01950 Agency 500 C Street, S.W.
Washington, DC 20472 l
Gary W. Holmes, Esquire Ashod N. Amirian, Esquire Holmes & Ells 145 South Main Street 47 Winnacunnet Road P.O.
Box 38 Hampton, NH 03842 Bradford, MA 01835 l
Mr. Richard R. Donovan Mr. Jack Dolan L
Federal Emergency Management Federal Emergency Management l
Agency Agency - Region I l
Federal Regional Center J.W. McCormack Post Office &
l 130 228th Street, S.W.
Courthouse Building, Room 442 L
Bothell, Washington 98021-9796 Boston, MA 02109 l
I l l
1
n G
,4' George Iverson, Director N.H. Office of Emergency Management State House Office Park South 107 Pleasant-Street Concord, NH 03301 Jdffrey P. Trout
(*= Ordinary U.S.
First Class Mail) l l.
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