ML20070U140
| ML20070U140 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 02/07/1983 |
| From: | Dignan T, Gad R PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8302100220 | |
| Download: ML20070U140 (10) | |
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Filed: Fcbruary 7, 1983 3,kQED
'83 FBB -9 p g gy; UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION af "
before the ATOMIC SAFETY AND LICENSING 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 OL HAMPSHIRE, et al.
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50-444 OL
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(Seabrook Station, Units 1 & 2)
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APPLICANTS' FIRST MOTION FOR
SUMMARY
DISPOSITION (CONTENTIONS NECNP I.D.4 AND I.L)
Pursuant to 10 CFR S 2.749, the Applicants hereby move for summary disposition of contentions NECNP I.D.4 and I.L.
This motion is grounded upon answers to interrogatories submitted by NECNP, NHAG and SAPL.
Pursuant to 10 CFR S 2.740 and this Board's orders, the Applicants submitted identical interrogatories to 8302100220 830207 PDR ADOCK 05000443 0
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e each of the admitted intervenors.
Two of the interrogatories were:
"Does [name of intervenor] intend to litigate Contention NECNP 1.D.4?"
and "Does [name of intervenor} intend to litigate Contention NECNP I.L?"
In each case the term " litigate" was specially defined to include the introduction of direct testimony, the cross-examination of witnesses, the submission of proposed rulings and findings, or the exhortation that the pending application be denied or conditioned, all on the basis or in respect of the specified contention.
NECNP, NHAG and SAPL all answered that they did not intend to offer any evidence on these contentions.1 With respect to contention I.D.4, NECNP (the proponent of both contentions) stated that "Unless the Applicants should alter their apparent commitment to meet IEEE 2 CCCNH did not respond to the interrogatories at all.
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338-1977 or the Staff should make a determination of
]
noncompliance with that standard, NECNP does not intend to pursue this contention.nz With respect to contention I.L, NECNP stated that " Applicants' and Staffs' answers to NECNP's interrogatories indicate to us that Applicants have now abandoned the use of 4
accoustic accelerometers.
NECNP is prepared to drop this contention upon assurance from Applicants that direct PORV position indicators are in use at Seabrook.a 1
2 See " Applicants' Answers to 'NECNP Second Set of Interrogatories and Request for Documents to Applicants on Contentions I.D.1, I.D.4, I.F, I.I, I.L, and II.B' and Motion for a Protective Order" at 7, Interroq Atory No. 7 (filed 1/29/83).
aThe reference of NECNP to the Applicants' position is an amendment to the FSAR documents in a Response to a Staff " Request for Additional Information," which NECNP had, apparently, overlooked before filing this contention in the first place.
Since the FSAR is the application, NECNP has all the assurance it could ever get; there is only one application pending and it no longer is premised upon the use of accoustic 4
accelerometers for PORV indication.
See " Applicants' Answers to 'NECNP Firct Set of Interrogatories and request for Documents to Applicants on Contentins I.D.1, I.D.2, I.D.3, I.D.4, I.F, I.G, I.I.,
I.L.,
I.M, I.N, and I.U'" at 65-67, Interrogatories Nos.
I.L-1, I.L-4 and I.L-5 (filed 11/22/82).
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With respect to both contentions, NHAG answered the interrogatory with the identical declaration:
"New Hampshire does not intend to offer direct testimony relating to this contention.
However, the State reserves the right to cross-examine or offer proposed findings and ruling on the contention, depending upon the testimony presented."'
SAPL likewise replied as to both contentions in identical language, which consisted of.the facially unqualified negative (i.e.,
"No."),
plus a curious definition of the word "No." in the following terms:
"In answering "No."
to any of the applicant's-1'
[ sic] specific interrogatories, the Seacoast Anti-Pollution League does not waive its right to cross examine witnesses or to urge the denial (or allowance subject to conditions) of the pendings application on the basis of the topic or contention."
(On the other hand, neither NHAG nor SAPL answered any of the specific questions required to be answered of someone who proposes cross-examination, omissions that are the subject of separate motions.)
l
- It is not clear whence NHAG ob'tained the idea that it was privileged to offer direct testimony in respect of another intervenor's contention'in the first place.
See Northern States Power Company '(Prairie Island Nuclear l
Generating Plant, Units 1 & 2), ALAB-244, 8 AEC 857, 869 l
n.17, reconsideration denied, ALAB-252, 8 AEC 1175 (1974),
aff'd, CLI-75-1, 1 NRC 1 (1975); Project Management Corporation, (Clinch River Breeder Reactor Plant), ALAB-354, 4 NRC 383, 392 (1976).
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Plainly under these circumstances, there remains nothing to litigate under contentions I.D.4 and I.L.
NECNP, as the proponent of the contentions, has the right to withdraw them; equally, it has had the candor and the common sense to withdraw them in this case upon discovering that neither has any basis.
NECNP, on the other hand, is the only intervenor with the right to introduce direct testimony, in the absence of which there will be neither the need for a response by the 5
Applicants nor an opportunity to cross-examine.
5"In a ruling that has received explicit Supreme Court approval, the Commission has stressed that an intervenor must come forward with evidence ' sufficient to require reasonable minds to inquire further' to insure that its contentions ar explored at the hearing."
Pennsylvania Power & Light Company (Sy*7;ahanna Steam Electric Station, Units 1 and 2),
ALAB-613, 12 NRC 317, 340 (1980), citingConsumers Power Company (Midland Plant, Units 1 and 2), CLI-74-5, ~ AEC 19, 30-32 & n.27 (1974), rev'd sub nom. Aeschliman v.
NRC, 547 F.2d 622 (1976), rev'd sub nom. Vermond Yankee Nucler Power Corporation v. NRDC, 435 U.S.
519, 553-54 (1978). -
s, i
In a single sentence, there'is no longer any controversy regarding these two contentions.
For that reason, both should be dismissed on summary disposition.
. s Respectfully submitted, yb /
ko'trar.
G U}xo s, L,
15 / S. ((. C-e ci u_n Thomas G. Dignan, Jr.
R. K. Gad III Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 Telephone:
423-6100 Dated:
February 7, 1983 k.g
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STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO DISPUTE 1.
The Applicants have stated under oath in answer to interrogatories that "The Applicants meet all the requirements of IEEE 338-1977."
(" Applicants' Answers to 'NECNP Second Set of Interrogatories and Request for Documents to Applicants on Contentions I.D.1, I.D.4, I.F, I.I, I.L, and II.B' and Motion for a Protective Order" at 7, Interrogatory No. 7 (filed 1/29/83).
i 2.
NECNP hac stated under oath in answer to interrogatories that "Unless the Applicants should alter their apparent commitment to meet IEEE 338-l 1977 or the Staff should make a determination of noncompliance with that standard, NECNP does not intend to pursue this contention."
("NECNP Response to Applicants' Interrogatories and Request for the Production of Documents" (hereinafter "NACNP Ans/Ints") at 10-11 (filed 1/24/83).)
3.
The Applicants have stated under oath in answer to interrogatories that "The Applicants disagree with
[NECNP Contention I.L] in that qualified valve position limit switches and open/ closed indication j
lights are provided for the Power-Operated Relief Valves (PORV's), RC-PCV-456A and B.
Flow detection is not provided for each of the PORVs.
Direct valve position indication is provided.
An Accoustic Accelerometer System for detecting flow through the Powar-Operated Relief Valves (PORV's) is not provided." (" Applicants' Answers to
'NECNP First Set of Interrogatories and request for Documents to Applicants on Contentins I.D.1, I.D.2, I.D.3, I.D.4, I. F, I.G, I.I.,
I.L.,
I.M, I.N, and I.U'"
at 65-67, Interrogatories Nos.
I.L-1, I.L-4 and I.L-5 (filed 11/22/82).
4.
NECNP has stated under oath in answer to interrogatories that it 'is prepared to drop this contention.
." (NECNP Ans/Ints at 13.)
.. i l
5.
Both NHAG and SAPL have stated under oath in answer to interrogatories that they do not intend to offer any evidence on these contentions. ("The State of New Hampshire's Response to the Applicant's Interrogatories and Requests for the Production of Documents" at 19, 20 (filed 1/17/83); "SAPL's Response to Applicant's Interrogatories and Request for the Production of Documents" at 1, 2 (filed 1/?/83).
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CERTIFICATE OF SERVICE I,
R.
K. Gad III, one of the attorneys for the Applicants herein, hereby certify that on February 7,
- 1983, I made service of the within " Applicants' First Motion for Summary Disposition (Contentions NECNP I.D.4 and I.L)" by mailing copies thereof, postage prepaid, to:
Helen Hoyt, Chairperson Rep. Beverly Hollingworth Atomic Safety and Licensing Ccastal Chamber of Commerce Board Panel 209 Winnacunnet Road U.S. Nuclear Regulatory Commission Hampton, NH 03842 Washington, DC 20555 Dr. Emmeth ?..
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 Washington, DC 20555 Washington, DC 20006 Dr. Jerry Harbour E.
Tupper Kinder, Esquire Atomic Safety and Licensing Assistant Attorney General Board Panel Office of the Attorney General U.S. Nuclear Regulatory Commission 208 State House Annex Washington, DC 20555 Concord, NH 03301 Atomic Safety and Licensing Roy P.
- Lessy, Jr.,
Esquire l
Board Panel Office of the Executive Legal U.S. Nuclear Regulatory Commission Director l
Washington, DC 20555 U.S. Nuclear Regulatory l
Commission Washington, DC 20555 l
l Atomic Safety and Licensing Appeal Robert A. Backus, Esquire Board Panel 116 Lowell Street l
U.S. Nuclear Regulatory Commission P.O.
Box 516 i
Washington, 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 Augusta, ME 04333 Hampton, NH 03842 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 Washington, DC 20555 Boston, MA 02108 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, NH 03833 Roberta C.
Pevear Edward F.
Meany Designated Representative of Designated Representative of the Town of Hampton Falls the Town of Rye Drinkwater Road 155 Washington Road Hampton Falls, NH 03844 Rye, NH 03870 Mrs. Sandra Gavutis Designated Representative of the Town of Kensington RFD 1 East Kingston, NH 03827 l>! tY. 5. SeoW R. K.
Gad III -
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