ML20012F689
| ML20012F689 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 04/04/1990 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#290-10221 LBP-89-28, OL, NUDOCS 9004200125 | |
| Download: ML20012F689 (8) | |
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USNRC April 4, 1990
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UNITED STATES OF AMERICA I
NUCLEAR REGULATORY COMMISSION g
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ATOMIC SATETY AND LICENSING APPEAL BOARD In the Matter of I
f PUBLIC SERVICE COMPANY Docket Nos. 50-443-OL 0F NEW HAMPSHIRE, it al.
50-444-OL l
(Seabrook Station, Units 1 (Offsite Emergency
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i LICENSEES' MEMORANDUM WITN RESPECT To i
JURISDICTION OF TEIS APPEAL BOARD I
f OVER APPEALS OF LBP-89-28 Under date of March 29, 1990, the Intervenors have filed a i
memorantum addreseing the issue of this Appeal Board's f
i jurisdicticn to entertain the appeal of LBP-89-28.
As we l
understand the position taken by the Intervenors, it is that the pendency of Commonwealth of Massachusetts v. HEC, No. 90-1132 (D.C. Cir.) (hereafter "No. 90-1132) precludes this Appeal Board from entertaining this appeal absent the assent of all parties f
thereto.
The Intervenors have given limited assent, good until l
they filt; their docketing statement.'
Licensees have taken the
'We confess to a lack of understanding as to the l
significance of the filing of the docketing statement.
i Jurisdiction eit:1er is with this Appeal Board now or it is not; i
the filing of the docketing statement does nothing to confer, JURI$tR.St 90042001P5 900404' PDR ADDCK 0D000443
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I position that if assent is requihed, as Intervenors argue, Applicants do not consent.3 Novaver, as seen below, no such I
assent by anyone is necessary for an Appeal Board of the NRC to entertain an appeal of LBP-89-28 as of this time.
l NRC case law is clear to the effect that the Commission and j
its appeal boards will proceed with intra-agency appeals even f
i though a petition for review is pending in a Court of Appeals at
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i least absent a situation where the intra-agency appeal is of a j
decision which is squarely before the Court of Appeals under the l
petition for review.3 Unfortunately for Intervenors, LBP-89-28 i
is not before any Court of Appeals.
j At this juncture, the only live case dealing with Seabrook's full power license in the United States Court of Appeals for the District of Columbia Circuit is No. 90-1132.'
Another case which attenpted to bring up for review the decision of the Licensing i
Board authorizing issuance of the full power license, LBP-89-32, 1
commonwealth of Massachusetts v. HEC, Po 89-1743 (hereafter "No.
i 89-1743") has been dismissed.5 Thus, to the extent the f
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nova or erase jurisdiction in any tribunal.
i II. 62 (March 27, 1990).
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I 3Public Service Company of New Hannshire (Seabrook Station, Units 1 and 2), ALAB-349, 4 NRC 235, 242-45 (1976); Public l
Service comennv of New Haneshire (Seabrook Station, Units 1 and t
2), ALAB-350, 4 NRC 365, 366 (1976).
Ett 1112 Public Service comenny of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-l 76-24, 4 NRC 522, 523 (1976).
'The other live case deals with the low power license.
Commonwealth of Massachusetts v. HEC, No. 89-1306.
'N o. 89-1743 Order (March 7, 1990).
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i jurisdictional argument relies upon the concept that LBP-89-28
,6 was included in the Petition for Review filed in No. 89-1743, the order of dismissal vitiates that argument.
The matters which are the subject of No. 90-1132 were first brought to the Court by various motions filed in No. 89-1743.
These motions included a motion entitled:
" Petitioners' Motion to Amend Petition for Review or, in the Alternative, to Have Their March 7 Dispositive Motion Deemed a Petition for Mandamus" (here after " Motion to Amend").
After the Court dismissed No. 89-1743, it entered another order which, inter glia, gave birth to No. 90-1132.
In that order, referring to the Motion to Amend, the Court:
"0RDERED that the motion to amend petition bg construed as a new netition for review or in the alternative, a petition for writ of mandamus.
The new petition shall be designated as No. 90-1132 and captioned g,..nwealth of Massachusetts, Commo et al. v.
As a result of the above-quoted order, the scope of the live case, No. 90-1132, is the review sought in the Motion to Amend.
l A review of that document reveals that the review thereby sought is solely of Public service comoany of New Hannshire (Seabrook Station, Units 1 and 2), CLI-90-02, 31 NRC (March 1, 1990) and Anl% Pages 1-15 of Public Service Connany of New Hannshire (Seabrook Station, Units 1 and 2), CLI-90-03, 31 NRC (March 1, 1990).I CLI-90-02 of course has nothing to do with
'No. 89-1743 Order (March 7, 1990) (emphasis added).
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' Motion to Amend at 3 n.2. l.
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LBP-89-28, it being the answer to a certified question.
In the j
case of CLI-90-03, Pages 1-15 dealt only with the Commission's
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denial of Intervenors' notion to vacate LBP-89-32 on the grounds that the Licensing Board had no power to authorite a full power license in light of the Appeal Board decision in Bdglie service connany of New Haneshire (Seabrook Station, Units 1 knd 2), AIAB-924, 30 NRC (Nov. 7, 1989).
The portion of CLI-90-03 that I
deals with LBP-89-28 deliberately was not taken up.
It is true l
that in a footnote in a reply brief before the Court of Appeals, the Intervanors stated:
" Petitioners, as noted, analogized the I
situation to noticing the appeal after the disposition of a discretionary notion for reconsideration or new trial.
If this is in error and the court finds that the Petition l
for Review in Docket No. 90-1132 must also expressly identify the non-adjudicatory
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portions of CLI-90-03 for jurisdiction to 4
lie, Petitioners request that this repl deemed an amended Petition for Review."y be i
Prescinding from the propriety of tucking a notion to amend in a footnote of a reply brief,' the fact is the Court has not acted on the motion and therefore, as of this writing, LBP-89-28 is l
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"No. 90-1132, Petitioners' Recly to the Resoondents' Oooosition to "DisDositive Motion" and " Motion for Eroedited consideration" (March 13, 1990) at 9 n.11.
'In addition, the footnote went on to make clear that the Intervenors were seeking the amendment only for jurisdictional purposes, repeating that "[t] hey do not seek judicial review of the non-adjudicatory, non-merits discretionary decision
' approving' the license."
Petitioners' Reclv, supra n.8 at 9 n.11.
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simply not before the court of Appeals, never mind squarely
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I before it.
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Respectfully submitted, l
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~ Thomas 4. dpfynan, Jr.
George H. Lewald i
Xathryn A. Selleck Jeffrey P. Trout
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Ropes & Gray
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one International Place i
Boston, MA 02110-2624 (617) 951-7000
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Counsel for Applicants l
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us%kC CERIIFICATE OF SERVICE f
2, Thomas G. Dignan, Jr., one of the attorneye fo)O ygR -9 P3 :46 l
t Licensees herein, hereby certify that on April 4, 1990, I i
made service of the within document by depositing ccytes s sgnifiay l
thereof with Federal Express, prepaid, for delivery.teK41 4 Sf 'WICI.
l whereindicated,bydepositingintheUnitedStatesmail!gNLM first class postage paid, addressed to):
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Alan S. Rosenthal, Chairman Howard A. Wilber i
Atomic safety and Licensing Atomic safety and Licensing Appeal Panel Appeal Panel 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 I
Thomas S. Moore Mr. Richard R.
Donovan Atomic Safety and Licensing Federal Emergency Management t
Appeal Panel Agency U.S. Nuclear Regulatory Federal Regional Center Commission 130 228th Street, S.W.
East West Towers Building Bothell, Washington 98021-9796 l
4350 East West Highway Bethesda, MD 20814 l
Administrative Judge Ivan W.
H. Joseph Flynn, Esquire Smith, Chairman, Atomic Safety Office of General Counsel
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and Licensing Board Federal Emergency Management U.S. Nuclear Regulatory Agency Commission 500 C Street, S.W.
East West Towers Building Washington, DC 20472 4350 East West Highway Bethesda, MD 20814 i
Administrative Judge Richard F.
Gary W. Holmes, Esquire Cole Holmes & Ells Atomic Safety and Licensing Board 47 Winnacunnet Road l
U.S. Nuclear Regulatory Commission Hampton, NH 03842 East West Towers Building 4350 East West Highway Bethesda, MD 20814 i
Administrative Judge Kenneth A.
Judith H. Mizner, Esquire McCollom 79 State Street, 2nd Floor 1107 West Knapp Street Newburyport, MA 01950 Stillwater, OK 74075 l
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l George Dana Bisbee, Esquire Robert R. Pierce, Esquire Associate Attorney General Atomic Safety and Licensing office of the Attorney General Board j
25 Capitol street U.S. Nuclear Regulatory l
Concord, NH 03301-6397 Commission i
East West Towers Building l
4350 East West Highway Bethesda, MD 20814 l
t Mitai A. Young, Esquire Diane curran, Esquire Edwin J. Reis, Esquire Andrea C.
Forster, Esquire l
Office of the General Counsel Harmon, Curran & Tousley U.S. Nuclear Regulatory Commission Suite 430 i
One White Flint North, 15th F1.
2001 S Street, N.W.
11555 Rockville Pike Washington, DC 20009 i
Rockville, MD 20852 Adjudicatory File Robert A. Backus, Esquire I
Atomic Safety and Licensing 116 Lowell Street i
Board Panel Docket (2 copies)
P.O. Box 516 U.S. Nuclear Regulatory Manchester, NH 03105 Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814
- Atomic Safety and Licensing Suzanne P. Egan, City Solicitor e
Appeal Board Lagoulis, Hill-Whilton &
i U.S. Nuclear Regulatory Rotondi Commission 79 State Street I
Washington, DC 20555 Newburyport, MA 01950 Philip Ahrens, Esquire John Traficonte, Esquire Assistant Attorney General Assistant Attorney General i
Department of the Attorney Department of the Attorney General General l
Augusta, ME 04333 One Ashburton Place, 19th F1.
Boston, MA 02108 Paul McEachern, Esquire Barbara J. Saint Andre, Ecquire Shaines & McEachern Kopelman and Paige, P.C.
25 Maplewood Avenue 77 Franklin Street P.O. Box 360 Boston, MA 02110 Portsmouth, NH 03801 R. Scott Hill-Whilton, Esquire Ashod H. Amirian, Esquire i
Lagoulis, Hill-Whilton &
145 South Main Street Rotondi P.O. Box 38 79 State Street Bradford, MA 01835 I
Newburyport, MA 01950 e,
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- senator Gordon J. Humphrey
- senator Gordon J. Humphrey U.S. Senate one Eagle square, suite 507 Washington, DC 20510 concord, NH 03301 I
(Attn Tom Burack)
(Attn Herb Boynton)
G. Paul Bo11werk, III, Chairman George Iverson, Director Atomic safety and Licensing H.H. office of Emergency Appeal Panel Management l
U.S. Nuclear Regulatory Commission state House Office Park south East West Towers Building 107 Pleasant street 4350 East West Highway Concord, NH 03301 l
Bethesda, MD 20814 Mr. Jack Dolan i
Pederal Energency Management Agency Region I J.W. McCormack Post Office &
Courthouse Building, Roon 442 i
Boston, MA 02109 55 Thomas G.' Digypn, Jr.
(*=0rdinary U.S. First class Mail.)
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