ML20069F512

Response in Opposition to Ma Atty General Bellotti Motion for Clarification of ASLB 830117 Order & for Immediate Stay of Filing Deadline for Contentions on Emergency Planning for City of Newburyport.Certificate of Svc Encl

ML20069F512
Person / Time
Site:	Seabrook
Issue date:	03/22/1983
From:	Dignan T, Gad R PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20069F506	List: ML20069F501 ML20069F512
References
NUDOCS 8303230199
Download: ML20069F512 (9)

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'83 WR 22 P1 :59 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ,

before the ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of )

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PUBLIC SERVICE COMPANY OF NEW ) Docket Nos. 50-443 HN4PSHIRE, et al. ) 50-444

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(Seabrook Station, Units 1 & 2) )

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APPLICANTS' ANSWER TO " MOTION OF ATTORNEY GENERAL BELLOTTI FOR CLARIFICATION i

OF BOARD ORDER DATED JANUARY 17, 1983 l

AND FOR IMMEDIATE STAY OF FILING DEADLINE FOR CONTENTIONS ON EMERGENCY PLANNING FOR THE CITY OF NEWBURYPORT" Introduction l On December 22, 1982 this Board issued an order, subsequently memorialized in a written memorandum and order l under date of January 17, 1983, which provided, inter alia:

"The Board was informed that the projected date for the submission of Massachusetts draft l emergency plans is the end of January, and the i projected date for the bulk of the New Hampshire draft emergency plans is sometime in February. FEMA interim finding s are now l scheduled for April. The appropriate times for resubmitting off-site emergency. planning contentions was then discussed. The Board ruled that contentions addressing emergency l

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plans must be filed af ter the draft emergency plans (or relevant part thereof) have been submitted to FaiA and within 30 days of the plans being made available to the parties."

No party objected to this provision of the Board's order.

On February 28, 1983, the NRC staff provided to this Board and the parties a multipage document entitled

" Radiological Emergency Response Plan-City of Newburyport, Massachusetts-January 10, 1983" ("RERP-Ne wbu ryport" ) ,

together with a copy of a letter dated January 23, 1983 from FEM A Regional Counsel to NRC Staf f Counsel transmitting RERP-Newburyport to NRC Staff Counsel. The FE3A transmittal letter stated that "This plan wa s received from the State of Massachusetts by FEMA Region I on February 23, 1983."

We are unadvised as to When the Of fice of the Attorney General of Massachusetts ("MassAG") received its copy of the Staff's letter with enclosures,-

-The Motion states only that the "-Attorney General's-office just became aware of the possible problems associated with -RERP-Newburyport- during the week of March 7. " Motion at 3 n. l.

but presuming the normal course of mail delivery, it was received sometime during the week beginning Monday, February 28, 1983.

On March 18, 1983 the Attorney General's Of fice filed the pleading at bar, in which, for the first time, the MassAG: (a) informs the Board and the parties that RERP-Newburyport is not properly to be considered a Newburyport plan because officials of the City of Newburyport have not yet reviewed it, (b) requests a " stay" of its currently-in-force obligation to file any contentions it may wish to raise based upon RERP-Newburyport until the Board can rule on its motion for clarification, ( c) requests 14 days from the time of any adverse ruling on its motion for clarification to file contentions, and (d) advises the Board that, if the Board should require the MassAG to file contentions based upon the RERP-Newburyport, that office "will be forced to file a contention stating, in essence, that the document does not constitute Newburyport's emergency plan and raising every conceivable objection to -RERP-Newburyport- that the City might have. "

Motion at 4.

For the reasons set forth herein, the Applicants urge that the motion should be denied.

ARGUMENT

At the outset, the Applicants concede- that the question of whether or not to grant the relief sought by the pleading at bar- is clearly a matter addressed to the sound discretion of the Board. However, for the reasons set forth below, we believe that discretion should not be exercised in favor of the Attorney General's Office.

1. The motion's timing is not the be st. The movant admits it became aware of the " problem" it perceives during the week of March 7, 1983; the original plan, apparently, was to spring this issue on the Board and all the parties on March 17, 1983 at the then-scheduled prehearing conference.

It does seem that, having received the RERP-Newburyport at least two

-As must all of the other parties.

-The document, insofar as it is labelled a " motion for immediate stay," is not a proper pleading . The proper motion is a motion to enlarge time. Unfortunately, NECNP has initiated a practice of labelling motions to enlarge time as motions for "immediate stay" of an obligation to file. While this has a certain " ring" to it, possibly conjuring up an image of a pressing need to give immediate protection to life , libe rty, prope rty, etc . , the fact is that these are just garden-variety motions to enlarge time.

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weeks before March 18, 1983, some hint of the alleged problem ought to have been given before now.

2. If it was the MassAG's position that contentions should only be stated after emergency plans have become finalized by the municipalities involved, it should have made that clear by objecting to the Board order of Dec embe r 2 2, 1982, as memorialized on January 17, 1983, which made clear that contentions would be required to be filed 30 days after any " draft" was made available to the parties. Whatever RERP-Newburyport is, it i s a "draf t" at least.- The MassAG made no attempt to advise the Board of its objections to filing contentions to draft plans -- or to plans

-The document provided to the Board and the parties was prepared by the consulting firm retained to assist state and local authorities in the preparation of emergency plans. It was prepared "with the assistance of the Massachusetts Civil De fense Ag ency" (Motion at 1). While the document may not be final, it wa s not represented as being a final plan. On the other hand, it is not the product of a total stranger, either, and to imply that the document may not serve even as the focal point of comment, criticism, and revision, as the Motion implicitly does, is to denigrate unduly the work product of state officials for whom the movant is itself officially responsible.

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prior to any particularized but as yet undefined state of finalization -- until now.

3. It is likely that the Attorney General's Office will

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file "every conceivable objection" to the plan. Thatis t

fine; it will assure that the planners will have before them

in succinct form and at the earlie st possible time all possible objections as they work to formalize the plan.

Indeed, the result may be the accommodation of all the Attorney General's problems; at a minimum, the result vill be the resolution of disagreements regarding the plans in f

the most expeditious fa shion.-

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-There is nothing untoward or even unusual in a process that requires the early identification of contentions that i may later become obviated. Such, indeed, is often the I

course in NRC construction permit and operating license proceeding s, as it has in fact been even to date in this one. Whatever incremental effort is involved in filing such contentions (which is minimal if the effort to pursue informal resolution of the same concerns is genuine) is more than offset by the elimination of unwarranted and unproductive delay.

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CONCLUSION The motion, in all respects, should be denied.

Respectfully submitted,

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Thomas G. Dig nan, Jr.

R. K. Gad III Ropes & Gray 225 Franklin Street Boston, MA 02110

, (617) 423-6100 i

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'83 MR 22 P1 :59 CERTIFICATE OF SERVICE g, (;isdyfpy..m BUNCH .

1 I, Robert K. Gad III, one of the attorneys for the i Applicants herein, hereby certify that on March 22, 1983, I made service of the within Applicants' Answer to " Motion of

. Attorney General Bellotti for Clarification of Board Order Dated January 17, 1983 and for Immediate Stay of Filing 4 Deadline for contentions on Emergency Planning for the City f

of Newburyport" by mailing copics thereof (or, where

{ indicated by asterisk, having copies thereof delivered by hand), postage prepaid, to:

• Helen Hoyt, Chairperson Rep. Beverly Hollingworth Atomic Safety and Licensing Coastal Chamber of Commerce i Board Panel 209 Winnacunnet Road U.S. Nuclear Regulatory Commission Hampton, NH 03842 Wa shing ton, DC 20555

• Dr. Emmeth A. Luebke

• William S. Jordan, III, Esquire Atomic Safety and Licensing Harmon & Weiss Board Panel 1725 I Street, N.W.

U.S. Nuclear Regulatory Commission Suite 506 wa shing ton, DC 20555 Washington, DC 20006 i

*Dr. Jerry Harbour Dana Bisbee, Esquire i Atomic Safety and Licensing Assistant Attorney General Board Panel Office of the Attorney General U.S. Nuclear Regulatory Commission 208 State House Annex Wa shing ton, DC 20555 Concord, NH 03301 Atomic Safety and Licensing *Roy P. Le ssy, Jr . , Esquire Board Panel Office of the Executive Legal

, U.S. Nuclear Regulatory Commission Director l Wa shing ton, DC 20555 U.S. Nuclear Regulatory l Commission Wa shing ton, DC 20555 Atomic Safety and Licensing Appeal Robert A. Backus, Esquire Board Panel 116 Lowell Street j U.S. Nuclear Regulatory Commission P.O. Box 516

- Wa shing ton , DC 20555 Manchester, NH 03105 ,

Philip Ahrens, Esquire Edward J. McDermott, Esquire Assistant Attorney General Sanders and McDermott Department of the Attorney Professional Association General 408 Lafayette Road Augu sta , ME 04333 Hampton, NH 03842 l -- . - . .

4 David L. Lewis *Jo Ann Shotwell, Esquire Atomic Safety and Licensing Assistant Attorney General Board Panel Environmental Protection Bureau U.S. Nuclear Regulatory Commission Department of the Attorney General Rm. E/W-439 One Ashburton Place, 19th-Floor Wa shing ton, DC 20555 Boston, MA 02108 Mr. John B. Tanzer Ms. Olive L. Ta sh 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 , NH 03833 Roberta C. Pevear Patrick J. McKeon Designated Representative of Selectmen's Of fice the Town of Hampton Falls 10 Central Road Drinkwater Road Rye, NH 03870 Hampton Falls, NH 03844 Mrs. Sandra Gavutis Calvin A. Canney De signated Representative of City Manager the Town of Kensington City Hall RFD 1 126 Daniel Street Ea st King ston, 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 Board of Selectmen U.S. Nuclear Regulatory Commission Town of Newbury Wa shington D.C. 20555 Newbury, MA 01950 y', /,/ )?

i f  : ]Y Robert K. Gad III