ML20024A081
| ML20024A081 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 06/08/1983 |
| From: | Dignan T, Gad R PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8306150387 | |
| Download: ML20024A081 (9) | |
Text
lb-Filed:
Junn 8, 1983 00CKETED UERC
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'83 JU:113 A10:36 UNITEDSTATEbOFAMERICA NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING APPEAL BOARD
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In the Matter of
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PUBLIC SERVICE COMPANY OF NEW
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Docket Nos. 50-443 HAMPSHIRE, et al.
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50-444
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(Seabrook Station, Units 1 & 2)
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APPLICANTS' RESPONSE TO NECNP PETITION TO THE APPEAL BOARD FOR DIRECTED CERTIFICATION On May 11, 1983 the Atomic Safety and Licensing Board in this proceeding entered a Memorandum and Orderi dismissing " Contention II.B.4" (the Contention) raised in this proceeding by the New England Coalition l
2Public Service Company of New Hampshire (Seabrok Station, Units 1 & 2), LBP-83 __, 17 NRC (1983).
Hereafter cited to the slip opinion as "ASLB Memo."
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8306150307 830608 PDR ADOCK 05000443 l
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on Nuclear Pollution (NECNP).
This contention, in its entirety, was as follows:
"The Quality Assurance Program for operations as described in the FSAR does not demonstrate how the Applicant will assure that replacement materials and replacement parts incorporated into structures, systems, or components important to safety will be equivalent to the original equipment installed in accordance with proper procedures and requirements, and otherwise adequate to protect the public health and safety.
Similarly, the Quality Assurance Program does not assure or demonstrate how repaired or reworked structures, systems, or components will be adequately inspected and tested during and after the repair or rework and documented in 'as built' drawings."2 The contention was dismissed upon motions of the Applicants' and the Staff for Summary Disposition.
NECNP now seeks directed certification of this ruling.a 2ASLB Memo at 27.
aNECNP has numerous issues still pending; the ruling on the particular contention at issue is interlocutory; and thus there is, and NECNP asserts, no right of appeal.
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For the reasons set forth below the Applicants say that the petition for directed certification should be denied.*
'This response deals only with the issue of whether directed certification should be granted; when, as and if the Appeal Board grants directed certification, the Appellants will brief the merits of the issues raised.
Nevertheless, it does seem appropriate that two observations be made at this stage.
First, NECNP does not appear to assert that Contention II.B.4 was not ripe for summary disposition (see NECNP Petition at 4-5); NECNP's position, rather, is that the disposition (properly) made summarily ought to have been in its favor (though NECNP filed no motion of its own).
Second, NECNP in its petition has mischaracterized the nature of the Licensing Board's ruling below (and, therefore, it has of necessity mis-stated what the legal issue on appeal will be when the matter is ripe for appellate review):
prescinding from any rulings on other contentions of.other parties, the ruling on this contention is not a case where the Licensing Board relied upon Applicant commitments.
Rather, as one of two alternate grounds for decision, the Board relied upon material incorporated by reference into the FSAR (to provide the supposedly missing details of "how" something will be done in the future).
See ASLB Memo at 29.
See Tr. 751-53 (4/7/83).
That, indeed, this contention was not resolved by reliance on a commitment to "do" something in the future is necessarily belied by the fact that the contention itself, as admitted by the Board, was limited to the adequacy of the FSAR submission on the topic.
See the Licensing Board's i
Memorandum and Order of 9/13/82 at 80.
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i Stripped of rhetoric, NECNP's petition seeks a ruling that an asserted error of law.by a Licensing Board in granting a summary disposition motion as to one of several contentions in a proceeding (many of which remain for hearing) is grounds for the grant of a petition for_ directed certification.
It is argued that this error is one that meet.9 the second part of the usual test applied to petition for directed certification i.e.,
that it is one that "[will affect]
the basic structure of the proceeding in a pervasive or unusual manner."
Public Service Co. of Indiana (Marble Hill Nuclear Generating Station), ALAB-405, 5 NRC 1109, 1192 (1977).5 While NECNP argues that, the 5 NECNP advances no assertion that the ruling in question would qualify under the first prong of the Marble Hill standard.
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argument still comes down to an argument that what has happened is that mere error of law has been committed.8 In such circumstances the words of the Appeal Board in Houston Lighting & Power Company (Allens Creek Nuclear Generating Station, Unit No. 1), ALAB-635, 13 NRC 309, 310-11 (1981) are on point and dispositive:
"[I]t has not been satisfactorily explained why appellate scrutiny of the ruling cannot abide the event of the initial decision and (if dissatisfied with the result reached in that decision)
[Intervenor's) appeal from it.
To be sure, if the ruling were found erroneous on such an appeal, the consequence mig't well be a vacation of-the initial decision and a remand to the Board below.
But the same possibility exists with respect to all interlocutory determinations made by licensing boards on matters which have a potential bearing upon the outcome of the proceeding.
If, standing alone, that consideration were enough to justify interlocutory review, it would perforce follow that virtually 8The argument that the asserted error is pervasive in that two other contentions, raised by a different intervenor who does not seek interlocutory' review, were also dismissed is merely an argument that the ruling, if unjustly made (as NECNP says) and if applied elsewhere (as NECNP says), is the-law of the case at the Licensing Board level.
This is true of all rulings of law-it does not single out this case as being one An which "the public interest will suffer or unusual delay or expense will be encountered,"
Public Service Co. of N.H.
(Seabrook Station, Units 1 & 2), ALAB-271, 1 NRC 479, 483 (1975).
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J every significant licensing board ruling during the course of a proceeding would be a fit candidate for immediate appellate examination.
It is scarcely necessary to expound at any length upon why a drastic alteration of existing practice to accommodate that thesis would be intolerable - as well as in derogation of the Commission's explicit policy disfavoring interlocutory review.
Here as in Allens Creek, "No serious claim has been, or could be, mtde that the ruling in question has
'affected the basic structure of the proceeding in a pervasive or unusual manner'."
13 NRC at 311 n.1.
Conclusion For the foregoing reasons, the petition for directed certification should be denied.
R fully
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{
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Thomas G.
DYgdan, Jr.
R.
K. Gad III ROPES & GRAY 225 Franklin Street Boston, MA 02110 (617) 423-6100 l i i
t
s CERTIFICATE OF SERVICE I,
Robert K.
Gad III, one of the attorneys for the Applicants herein, hereby certify that on June 8, 1983, I made service of the within Applicants' Response to NECNP Petition to the Appeal Board for Directed Certification by mailing copies thereof, postage prepaid, to:
Alan S.
Rosenthal, Chairman Gary J. Edles, Esquire Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C. 20555 Dr. Reginald L Gotchy Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission i
Washington, D.C. 20555 Helen Hoyt, Chairperson-Diana P. Randall Atomic Safety and Licensing 70 Collins Street Board-Seabrook, NH 03874 U.S. Nuclear Regulatory Commission Washington, DC 20555 Dr. Emmeth A.
Luebke William S.
Jordan, III, Esquire Atomic Safety and Licensing Harmon & Weiss Board 1725 I Street, N.W.
U.S. Nuclear Regulatory Suite 506 Commission Washington, DC 20006 Washington, DC 20555 Dr. Jerry Harbour Dana Bisbee, Esquire Atomic Safety and Licensing Assistant Attorney General Board Office of the Attorney General U.S. Nuclear Regulatory 208 State House Annex 1.
Commission Concord, NH 03301 Washington, DC 20555 -.
9 Atomic Safety and Licensing Roy P.
- Lessy, Jr.,
Esquire Board Panel Office of the Executive Legal U.S. Nuclear Regulatory Director Commission U.S. Nuclear Regulatory Washington, DC 20555 Commission Washington, DC 20555 Atomic Safety and Licensing Robert A.
Backus, Esquire Appeal Board Panel 116 Lowell Street U.S. Nuclear Regulatory P.O.
Box 516 Commission Manchester, NH 03105 Washington, DC 20555 Philip Ahrens, Esquire Anne Verge, Chairperson Assistant Attorney General Board of Selectmen Department of the Attorney Town Hall General South Hampton, NH Augusta, ME 04333 David L.
Lewis Jo Ann Shotwell, Esquire Atomic Safety and Licensing Assistant Attorney General Board Panel Environmental Protection Bureau U.S.
Nuclear Regulatory Department of the Attorney General Commission One Ashburton Place, 19th Floor Rm. E/W-439 Boston, MA 02108 Washington, DC 20555 Mr. John B.
Tanzer Ms. Olive L.
Tash Designated Representative of Designated Representative of the Town of Hampton the Town of Brentwood 5 Morningside Drive R.F.D.
1, Dalton Road Hampton, NH 03842 Brentwood,-101 03833 Roberta C.
Pevear Patrick J. McKeon Designated Representative of Selectmen's Office the Town of Hampton Falls 10 Central Road Drinkwater Road Rye, NH 03870 Hampton Falls, NH 03844 Mrs. Sandra Gavutis Calvin A. Canney Designated Representative of City Manager the Town of Kensington City Hall RFD 1 126 Daniel Street East Kingston, NH 03827 Portsmouth, NH 03801 L
9 Ruthanne G. Miller, Esquire Mr. Angie Machiros Law Clerk to the Board Chairman of the Atomic Safety and Licensing Board of Selectmen Board Town of Newbury U.S. Nuclear Regulatory Newbury, MA 01950 Commission Washington D.C.
20555 Mr. Maynard B.
Pearson Richard E.
Sullivan, Mayor 40 Monroe Street City Hall Amesbury, MA 01913 Newburyport, MA 01950 Donald E. Chick Town Manager Town of Exeter 10 Front Street Exeter, NH 03833
[
vc-C Robert K. / ad III I1'
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