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UNITED STATES'OF AMERICA'

NUCLEAR REGULATORY COMMISSION10 F&t-B P4 :17

' ATOMIC SAFETY .\ND LICENSING BOARD '

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Before the Administrative Judges: {h{C g'

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BEAHCHIvan W. Smith, ChairmanDr.-Richard F. Cole

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Kenneth A. McCollomi

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LIn the Matter of ) Docket Nos. 50-443-OL) 50-444-OL

PUBLIC SERVICE COMPANY ),

OF NEW HAMPSHIRE, EI AL. ),

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(Seabrook Station, Units 1 and 2) ) February 7, 1990 1

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c- INTERVENORS' OPPOSITION TOAPPLICANTS' JANUARY 26 MOTION TO a

DISMISS ABANDONED REMAND ISSUES

The Massachusetts Attorney General (" Mass AG")'and the New

England Coalition on Nuclear Pollution '("NECNP")- (the +

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"Intervenors") file-this opposition to Applicants' January 26-

L Motion to Dismiss-Abandoned Remand Issues. That motion should^

be denied for the reasons.that follow.

A. This Board's January 11, 1990 Order 1/ Provides-No Basis for this Motion

1. The Board's Order was precatory and not mandatory. It

provided an opportunity to advise the Board'but did not require '

1/ The Intervenors do not repeat here what they have already^

argued in their February 1, 1990 Response to the Orderconcerning this Board's lack of jurisdiction to proceed withthe remanded' issues. Obviously, this jurisdictional failingalso prevents this Board from granting the Applicants' motionin any event.

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E or command that|SAPL (or anyone'else) make use of this f

opportunity.i' !

2. Similarly, the order said nothing about the

-possibility that a substantive failure to respond-with< ,

advice / could have the legal effect of an= abandonment or2

withdrawal.-

3. Significantly, the Board's Order clearly anticipated-

(for good and sound reasons as discussed infra)-that interested,

carties would advise the Board as to the remanded issues. j

Thus, nothing about the order would support the notion that any.E 4

one party like SAPL by its-response (or failure to

lsubstantively respond) could unilaterally withdraw or abandon

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the remanded issues.. Indeed, Intervenors did file a timely ,

l'response in'accordance with the terms of the order which ran to

all remanded issues.

h B. Other Intervenors had already adopted the remanded,.

issues before January 19, 1990.

Assuming arauendo that SAPL withdrew or abandoned certain,

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' remanded issues on January 19, 1990, this is of no moment '

because other Intervenors had already adopted these issues and

had (and have) taken all necessary steps to secure their rights ,

to' participate in their resolution.

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2/ Intervenors do not repeat but simply adopt SAPL's arguments,

L made in. opposition regarding the intent or meaning of itsL January 19, 1990 letter.

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l.- _At the point at which the Intervenors filed theirI i ~

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briefs on appeal of LBP-88-32 (March 1989) each Intervenor had

'the~right to' appeal on all issues in the proceeding. Egg 54

Fed. Reg. 33168,-33177 (August 11, 1989). The Appeal Board in

review of LBP-88-32 expressly ordered that the various

'intervenors DQt duplicate arguments-in their briefs. Thus, the

Mass AG and NECNP were just as much seeking appeal on the

issues briefed or argued by SAPL to the Appeal' Board as SAPL'

-was. Indeed, NECNP in its March 24, 1989 Brief on Appeal ofa

LBP-88-32 expressly stated at 1: i

In light of the Appeal Board's directive to avoidrepetitive arguments, NECNP has not briefed all of theissues that are of concern to-it. Therefore, we adopt andincorporate'by reference the briefs filed by the other

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Intervenors.

2. On November 9, 2 days after ALAB-924 issued, the Mass

AG asserted the Commonwealth's right as an interested state to-

involve itself in the further resolution of all the remandedissues. Egg Intervenors' November 9 Request for Prehearing

Conference in Response to ALAB-924 at 3.n.1:

The Mass AG hereby asserts his right as an interested state--to participate fully in all remanded issues.

In effect,_even if the Mass AG is-deemed not to have

participated below in three of the four remanded issues (the_

teachers,'the special facility ETEs and the Special Needs

Survey) and otherwise not to have briefed any of these issues

on appeal, upon the issuance of ALAB-924, the Mass AG expressly

asserted his right under NRC law to come into this part of the

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Al' proceeding, as it were, " late" and involve itself in any*

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further resolution of the remanded issues. As such the Mass AG'

takes the proceeding as he finds it which is precisely what he

has'done since November 9, 1989:

M a. TLT Mass T.G (with SAPL and NECNP) filed a motion

for mandatory rel. 1 on November 13 with the Appeal Board

pursuant to its jurisdiction over LBP-88-32, claiming that thisBoard's disposition of the remanded issues in LBP-89-32

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violated the mandate of ALAB-924. This motion represents and

reflects the Mass AG's and NECNP's independent involvement in

and prosecution of the issues surrounding the ALAB-924 remand.

b. Further, after LBP-89-33-issued, the. Mass AG and

NECNP again asserted their independent involvement in the

remanded issues by supplementing their earlier November 13

motion-with:a further motion to the Commission. This

December I motion / discussed in great! detail the factual and2

legal' errors made by this Board in its disposition of the

remanded issues as explained in LBP-89-33. Obviously,

Intervenors' unambiguous prosecution of the remanded issues in

2/ This December 1 mandamus. motion was an " appeal" usingmandamus as the appellate procedural vehicle of LBP-89-32 andLBP-89-33 to-the extent that those decisions erred in disposingof the ALAB-924 remand. (It was also a continuation ofIntervenors' appeal of LBP-88-32.) Thus, Intervenors (Mass AGand NECNP) have already annealed this Board's disoosition ofthe remanded issues and they did this prior to January 19,1990. Egg Intervenors# February 6, 1990 Emergency Motion: (1)

+ to Clarify the Status of the Appeal of LBP-89-33 (312.] at3-7.- The Mass AG also noticed his appeal of LBP-89-33 onNovember 22, 1989.

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Y this regardstook place prior to January 19, 1990. Indeed, the ;

commission itself in its Orders of November 1<6 (taking

jurisdiction over the Intervenors' November 13 Motion), ;

November 21 (setting a schedule for briefs)'and November 22 ,

(amending that schedule) acknowledged the obvious involvement i,, i

by the Mass AG and NECNP in the proper disposition of the

ALAB-924 remanded issues by giving these Intervenors an express"

'Emportunity to brigf.this Board's disposition as set out in-.t

'LBP-89-33.

In sum, there is unequivocal evidence that the Mass AG and

NECNP have prosecuted the issues remanded in ALAB-924 from',

November 9 forward to this date, taking all steps to preservet

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their' rights, both trial and appellate. Their prosecution of -

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these issues has been acknowledged in orders of the Appeal

Board, the Commission and even in the January 11 Order of this

(, Board which the Applicants argue as theTlegal predicate for "

L! their Motion. Even assuming arauendo, that this Board were toL

r,. rule that SAPL's January.19, 1990 letter effected:a withdrawal.

L or-abandonment by SAPL, or that the letter's tone or content isL

otherwise sanctionable, the Mass AG and NECNP are independently

prosecuting these issues 1and have been vociferously prior to

January 19. Thus, the Applicants' motion seeking dismissal of

these issues should be denied.A/.-

JL/- Intervenors' do not repeat but simply adopt SAPL's policyarguments concerning public safety and adjudicated deficienciesin emergency planning at Seabrook.

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'If CONCLUSIONl-

-For all of the reasons set forth above, the Applicants'. '

~ January 26{-1990 Motion to Dismiss Abandoned Romand Issues

should be dismissed.-,

A

Respectfully submitted,--

COMMONWEALTH OF4 MASSACHUSETTS

NEW-ENGLAND COALITION-ON JAMES M. SHANNON. NUCLEAR POWER ATTORNEY GENERAL''

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Diane-Curran, Esq.' n-Traficohte-',

Harmon,. Curran,'& Towsley ef,' Nuclear Safety Unitne Ashburton Place-Suite 430

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Boston, MA 021082001'S Street,:N.W.'Washington,.DC 20008 (617),727-2200

Dated:- February 7, 1990

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"" ' UNITED-STATES OF AMERICA U{kECEO-

NRCNUCLEAR' REGULATORY COMMISSION

ATOMIC SAFETY AND LICENSING BOARD '90 FEB -8 P4,:17 -<

Before the Administrative Judges:OrriCE OF SECRETARY

Ivan W. Smith, Chairman DOCKET L RVICI.'

Dr. Richard F. ColeKenneth A. McCollom

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In the Matterlof ) Docket Nos. 50-443-OL) 50-444-OL

PUBLIC SERVICE: COMPANY )OF NEW HAMPSHIRE, ET AL. )

)(Seabrook Station, Units 1 and 2) ) February 7, 1990

)

CERTIFICATE-OF SERVICE..

I, John Traficonte, hereby certify that on February 7, 1990, I ,

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made service of the within INTERVENORS' OPPOSITION TO APPLICANTS'

JANUARY 26-MOTION'TO DISMISS ABANDONED REMAND ISSUES by Federal

Express as indicated: by (*) and by first class mail-to:

*Ivan W. Smith, Chairman *Kenneth A. McCollom-Atomic Safety & Licensing Board 1107 W. Knapp St.U.S. Nuclear Regulatory Stillwater, OK 74075

' CommissionEast West Towers Building * Docketing and Service4350LEast West Highway U.S. Nuclear RegulatoryBethesda,<MD 20814 Commission

Washington, DC 20555

*Dr. Richard F. Cole Paul McEachern, Esq.Atomic Safety & Licensing Board Shaines & McEachernU.S. Nuclear Regulatory Commission 25 Maplewood AvenueEast West Towers Building P. O. Box 360

* ~4350 East West Highway Portsmouth, NH 03801Bethesda, MD 20814

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* Robert R. Pierce, Esq. * Thomas G. Dignan, Jr., Esq. 5Atomic Safety &' Licensing Board Katherine Selleck, Esq.U.S. Nuclear Regulatory Commission Ropes-& Gray {3East West Towers Building One International Place

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4350 East West Highway Boston, MA 02110Bethesda, MD 20814

H. Joseph Flynn, Esq. *Mitzi A. Young, Esq.Assistant General Counsel Edwin J. Reis, Esq.Office of General Counsel U.S. Nuclear Regulatory ;

Federal Emergency Management CommissionAgency. Office of the General Counsel

500 C Street, S.W. 15th FloorWashington,'DC 20472 11555 Rockville Pike

Rockville, MD 20852

Atomic Safety & Licensing Robert A. Backus, Esq. |

Appeal-Board Backus, Meyer & Solomon-U.S. Nuclear Regulatory 116 Lowell Street

|L Commission P.O. Box 516 "

Washington, DC 20555 Manchester, NH 03106

Atomic Safety & Licensing Board Jane Doughty'

| U.S. Nuclear Regulatory Commission Seacoast Anti-Pollution League.| Washington, DC 20555- 5 Market Street'

|- Portsmouth, NH 03801|

Charles P. Graham, Esq. Barbara St. Andre, Esq.3 Murphy & Graham Kopelman & Paige, P.C.| 33 Ixnt Street 77 Franklin Street

Newburyport, MA 01950 Boston, MA 02110'

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( Judith H. Mizner, Esq. R. Scott Hill-Whilton, Esq.L 79 State Street Lagoulis, Hill-Whilton-H 2nd Floor & Rotondi

Newburyport, MA 01950 79 State Street-Newburyport, MA 01950 -

'

Diane Curran, Esq. Ashod N. Amirian, Esq.,

Harmon, Curran, & Towsley 145 South Main StreetSuite 430 P.O. . Box 382001 S Street, N.W. Bradford, MA 01835'

Washington, DC 20008

'Senator Gordon J. Humphrey Senator Gordon J. HumphreyU.S. Senate One Eagle Square, Suite 507Washington, DC 20510 Concord, NH 03301(Attn: Tom Burack) (Attn: Herb Boynton)

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John'P.lArnold, Attorney General- Phillip Ahrens, Esq.. ;

Office of the~ Attorney General' Assistant-Attorney-General- jo 2

I 25 Capitol Street 1 Department of the Attorney jL Concord, NH 03301. General jF Augusta, ME. 04333 )

is

Jack Dolan' George Iverson, Director :I'

(Federal Emergency Management N.H. Office of Emergency. I

Agency. Management 1v-Region 1

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State House Office Park South- ?

J.W. McCormack Post Office &- 107 Pleasant ~ Street

ZQ Courthouse Building, Room =442. Concord, NH 03301' l4 '- ' Boston, MA.02109- 1

ii

COMMONWEALTH OF MASSACHUSETTS

JAMES M. SHANNONATTORNEY GENERAL

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Mi" '

n Trafico'nte '

sistant.' Attorney GeneralChief, Nuclear Safety Unit

. Department:of the Attorney General *

L one Ashburton-Place o

_,:1 Boston, MA '02108-1698.

(617): 727-2200 '

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D$TED: February 7, 1990'

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