ML20024A082
| ML20024A082 | |
| 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 8306150388 | |
| Download: ML20024A082 (8) | |
Text
,
j
/
Filed:
Juna 8, 1983 I
00CKETED USNRC
'83 Juli13 100:36 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i
before the
' ATOMIC SAFETY AND LICENSING APPEAL BOARD
~
r
/
)
In the Matter of
)
)
PUBLIC' SERVICE COMPANY OF NEW
)
Docket Nos. 50-443 HAMPSHIRE, et al.
)
50-444
)
(Seabrook Station, Units 1 & 2)
)
)
APPLICANTS' RESPONSE TO SEACOAST ANTI-POLLUTION LEAGUE APPEAL OF DISMISSAL OF CLASS 9 ACCIDENT CONTENTION OR, IN THE ALTERNATIVE, REQUEST FOR CERTIFICATION PURSUANT TO 10 CFR S 2.718(i)
On May 11, 1983, the Atomic Safety and Licensing Board granted Summary Disposition of a contention raised by the intervenor Seacoast Anti-Pollution League (SAPL) known~as "SAPL Supp.
3."
Public Service Company of_'New Hampshire (Seabrook Station, Units 1 & 2), LBP-83 _, 17 NRC (May 11, 1983), Slip Op. at 30-35.
The Board acted on cross-motions for Summary 8306150388 830608 PDR ADOCK 05000443 G
([ ] ~'
<q?
Disposition, SAPL being clear that no genuine issue of material fact was presented until it lost.
SAPL now seeks appellate review of this ruling as of right or, if that is denied, by way of directed certification.
SAPL HAS NO APPEAL AS OF RIGHT SAPL acknowledges that the grant of summary disposition did not result in SAPL's dismissal from the proceeding as a party.
SAPL nevertheless urges that it is entitled to an appeal as of right because SAPL Supp. 3 was "the only contention in which SAPL is the sponsoring party."
SAPL Appeal at 2.
However, SAPL " joined" and adopted another contention (of New Hampshire) and thus is still a party; SAPL has evidenced no interest in dismissing that other contention.
This being the case, no direct appeal is available:
i "The test of ' finality' for appeal l
purposes before this agency (as in the courts) is essentially a practical one.
As a general matter, a licensing board's action is final for appellate purposes where it either disposes of at least a majority segment of the case or terminates a party's right to participate; rulings which do neither are interlocutory."
Toledo Edison Co. (Davis-Besse Nuclear Power Station) l ALAB-3OO, 2 NRC 752, 758 (1975) (emphasis added).
Quoted with approval, Louisiana Power and Light Co.
l l
l l
m I
e (Waterford Steam Electric Station, Unit 3), ALAB-690, 16 NRC
, CCH Nuclear L. Rep. 1 30,727 at p. 30,535 (Sept. 7, 1982).
Thus, the appeal should be dismissed.
DIRECTED CERTIFICATION SHOULD BE DENIED l
In the alternative, SAPL seeks directed certification.
It argues that it has met the!second part of the usual test j
applied to petition for such relief 1.e.,
that the ruling complaint of "[will affect] the basic structure of the proceeding in a perverse or unusual manner." Public Service j
compnay of Indiana (Marble Hill Nuclear Generating Staion, l
Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977).
SAPL's r
l entire argument in this regard is:
SAPL submits that the issue of compliance with the Commission's IPS on accident considerations is such an issue, and that its elimination from this f
proceeding will effect the proceeding in a ' pervasive or unusual manner.'
The issue of accident considerations is
, central, not only to the determination of the balancing of risk and benefits, but also to the evaluation of the adequacy of emergency planning, and to the determination of whether or not the operating license, if granted, should provide for mitigating features.
There is also no issue more cent 51 te the public concerns raised by the proposed license.
If the Board's ruling is upheld, there will be no public hearing on this central issue."
l.,
t
,.n,----,-~,r-..,,e
,-.n.-.,-nn,
..---,.n------.,--,..--.,.,_,,,,.,.,,.,n--
This argument, stripped to its essentials, is that an error of law without more has been committed by the Licensing Board.
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 dispositive:
"[Ilt 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 might 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 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.
Directed certification should be denied.
I
_4_
t l
l l
L
CONCLUSION The appeal should be dismissed; directed certification should be denied.
Respectfull submitted,
'w
.I a,
t:
ThomasG.fignan,Jr.
R. K. Gad III ROPES & GRAY 225 Franklin Street Boston, MA 02110 (617) 423-6100
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 Seacoast Anti-Pollution League Appeal of Dismissal of Class 9 Accident Contention or, in the Alternative, Request for Certification Pursuant to 10 CFR $ 2.718(i) by m. ailing 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 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 Commission Concord, NH 03301 Washington, DC 20555 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 l
the Town of Hampton the Town of Brentwood 5 Morningside Drive R.F.D.
1, Dalton Road Hampton, NH 03842 Brentwood, NH 03833 i
l Roberta C.
Pevear Patrick J. McKeon Designated Representative of Selectmen's Office l
the Town of Hampton Falls 10 Central Road Drinkwater Road Rye, NH 03870 Hampton Falls, NH 03844 l
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 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 1
Robert K.' Gad III i
l l l
I l
?