ML20147H777
| ML20147H777 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/03/1988 |
| From: | Dignan G, Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#188-5763 OL, NUDOCS 8803090066 | |
| Download: ML20147H777 (12) | |
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4 March [,$khph0 j8 Mhl -7 P3 53 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION rFrtCE Gi IF.CIW W <
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- before the ATOMIC SAFETY AND LICENSING APPEAL BOARD
)
In the Matter of
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PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443-OL NEW HAMPSHIRE, et al.
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50-444-OL
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(Offsite Emergency (Seabrook Station, Units 1 and 2)
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Planning Issues)
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APPLICANTS' RESPONSE TO JOINT INTERVENOR APPEAL BY MOTION FOR DIRECTED CERTIFICATION Introduction On February 24, 1988, Town of Amesbury (TOA), Town of Hampton (TOH), Seacoast Anti-Pollution League (SAPL), and New England Coalition on Nuclear Pollution (NECNP) (collectively referred to hereinafter as Intervenors), filed a motion for directed certification seekino interlocutory review of the Atomic Safety and Licensing Board's Memorandum and Order (Revising Schedule and Approving Protective Order) issued l
February 17, 1988 ("Revised Schedule").1 The Revised l
Schedule sets the dates for finishing the New Hampshire Radiological Emergency Response Plan (NHRERP) litigation and l
l l
1 Although Intervenors style their appeal "(p)ursuant to 10 CFR 2.762," the proper authority is found in 10 CFR 5 2.718(i).
Public Service Comoany of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-271, 1 NRC 478, 482-83 (1975).
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commencing the Seabrook Plan for Massachusetts Communities (SPMC) litigation.
For the reasons set forth below, Intervenors' Motion (Int. Mot.) should be denied.
Araument Directed certification is granted "only when a licensing board's action either (a) threatens the party adversely affected with immediate and serious irreparable harm which could not be remedied by a later appeal, or (b) affects the basic structure of the proceeding in a pervasive or unusual manner."
Public Service Company of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-864, 25 NRC 417, 420-21 (1987),
citing Public Service of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-858, 25 NRC 17, 20-21 (1987).
Because scheduling matters rest "peculiarly within the licensing board's discretion," directed certification is granted sparingly with respect to such matters.
Consumers Power Co.
(Midland Plant, Units 1 and 2), ALAB-541, 9 NRC 436, 437-38 (1979).
Thus in order to obtain interlocutory review of a scheduling order, the movant ordinarily must make "a showing that the schedule deprives the complaining party of its right to procedural due process."
ALAB-864, suora, at 420-21, citina Houston Lichtina & Power Co. (South Texas Project, Units 1 and 2), ALAB-637, 13 NRC 367, 370-71 (1981).
Intervenors can make no such showing here.
Intervenors admit they had no quarrel with the Licensing Board's first proposed schedule set forth in its Memorandum b
and Order Setting and Proposing Schedule Milestones issued February 3, 1988 ("First Schedule").
Int. Mot. at 4, 15.
The only change made to the First Proposed Schedule which moved up any intevenor's deadline was the change in the deadline for contentions on the SPMC from May 6, 1988 to April 1, 1988.2 Hence, Intevenors' only complaint is the change of this deadline.
That single change is made up for by other accommodations 3 and in any event does not impose-any undue burden on any intervenor.
Intervenors complain they cannot write SPMC contentions and NURERP findings simultaneously.
They overstate -- and misstate -- their tasks.
Intervenors claim "[t] hat schedule required Intervenors, within approximately eight weeks of the close of the hearing record on the NHRERP, to compile and submit proposed findings based upon approximately 10,000 pages of transcript while simultaneously preparing contentions on the SPMC."
Int. Mot. at 5.
Therein Intervenors make two misstatements.
First, contrary to Intervenors' claim, the entire set of NHRERP hearings was transcribed in 7,090 pages, 3,113 of 2
The original date was marked with an asterisk to show it was a "softer" date, "regarded by the Board as (a) proposal [] open to further discussion."
First Schedule at 2.
3 The compensating changes were:
(1) The time within which Applicants' proposed findings were due was shortened for a second time, giving Intervenors even more flexibility in responding, gag First Schedule at 2 n.1, and (2) the 7arties' deadline for filing testimony on shelter was moved from March 28, 1988 to April 18, 1988, with consequent delays in the schedule for the evidentiary hearing on shelter. [
r which concerned Evacuation Time Estimates (ETE), an issue litigated by the Attorney General for the commonwealth of Massachusetts (Mass. AG) who is not a party to this motion.
Presumably, each Intervenor will propose findings on the issues it took the lead in litigating.
Egg First Schedule at 2 ("[t]he Board expects that the parties will adhere to the lead intervenor approach through the filing of proposed findings.")
There is no question of any Intervenor wading through 10,000 transcript pages to develop proposed findings.
Second, contrary to Intervenors' claim, Intervenors have not been required to draft contentions in an eight week time frame.
Rather, they have had since September, 1987 to do so.
Intervenors try to suggest that they have each been litigating all t-.' s of the NHRERP continuously since September, 1987, end were therefore prevented from preparing contentions on the SPMC.
They claim:
"[A]lmost since the date of receipt of the SPMC, Intervenors have been engaged in hearings on the NHRERP."
Int. Mot. at 3-4.
The picture is misleading.
As the Licensing Board noted:
"The Main Track (NHRERP) issues have been heard in discrete segments since October 5, 1987; there have been generous gaps between hearing weeks; and specific responsibility for all issues has been allocated among l
lead intervenors from the very beginning.
In i
L addition, the schedule for the Main Track affords to the Intervenors eight weeks after the close of the record j
for filing proposed findings compared to the forty days anticipated by 10 CFR 5 2.754."
l First Schedule at 2.
l Throughout their motion, Intervenors attempt to take I.
l
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credit for the work of Mass. AG.
Mass. AG has undertaken the lion's share of the responsibility for opposing both the NHRERP and the SPMC.
Mass AG is lead intervenor in the NHRERP litigation for the "shelter track" as well as ETE and Human Behavior issues.
By itself, the ETE and Human Behavior portion of the NHRERP litigation consumed by far the greatest amount of hearing time (22 of the total 35 days of hearing) and accounted for the bulk of the prefiled testimony in the case (464 of 668 pages).
In addition, Mass. AG has been designated lead intervenor for the SPMC litigation.
First Schedule at 3.
Intervenors complaining here should not appropriate to themselves t.ny credit for the activities of a very well-staffed Attorney General's office.
Rather, as they object so strenuously to being treated collectively as one resource pool, Intervenors should stand examination separately.
1.
IQH TOH presented five pieces of direct testimony and one piece of rebuttal testimony in the NHRERP hearings.4 Those pieces were presented and cross-examined on six days.
(Some of the witnesses were cross-examined for less than half an hour, none took more than a day.)
TOH has not presented any witnesses since December 17, 1987.
TOH did not choose to be 4
TOH has indicated it might still make a "limited supplemental presentation," Int. Mot. at 6 n.4, to which it has been referring since January 13, 1988.
Transcript of Proceedings (II.) at 8982 (Jan. 13, 1988).
O l
sole lead intervenor on any issue, and while asking follow-up questions on a number of issues, took lead responsibility for i
cross-examining only three narrow subparts of issues.
TOH's cross-examination on those subparts took less than seven days and was completed on October 23, 1987.
2.
NECNP NECNP presented one piece of direct testimony and one piece of rebuttal testimony by the same witness.
Neither piece was cross-examined.
NECNP was lead intervenor on one issue (but later delegated that status to SAPL), and, again while asking follow-up questions on a number of issues, took lead responsibility for cross-examining only subparts of two issues.
NECNP's cross-examination on those subparts took less than six days and was completed on October 23, 1987.
3.
SAPL SAPL presented nine pieces of direct and rebuttal testimony (totaling 69 pages) in the NHRERP hearings.
SAPL has not presented any witness since January 13, 1988.
While asking follow-up questions on a number of issues, SAPL took lead cross-examination responsibility for two issues and two subparts of other issues, which entailed less than 10 days of cross-examination and was completed on January 13, 1988.
4.
19A TOA presented only one witness during the NHRERP hearings.
Mr. Lord, ToA's representative, filed a 14-page piece of testimony and was cross-examined for a short time on I
December 17, 1987.
Mr. Lord asked some questions on cross-examination of Mr. Lieberman on December 1, 1987, but otherwise conducted no examinations during the hearings.
Indeed, Mr. Lord did n'ot appear at the hearing very often.5 Mr. Brock, representing TOH, told the Licensing Board that he has been retained to represent TOA as well as TOH in the SPMC litigation.
II, 6531-32.
If TOA elects to hire counsel whose other commitments detracc from the time available to serve TOA, that is TOA's choice and by no means a denial of due process.
Intervenors stress that they did not receive certain information regarding the identity of service providers under the SPMC until recently.
That information, they neglect to add, has been available to them since December 1987, when Applicants offered to give immediate access to the information under a protective order (which would still allow intervenors' representatives and helpers to contact the providers).
Intervenors' refusal to act on this offer until 5
Mr. Lord's failure to appear caused Judge Smith to comment:
"I am also concerned about the fact that Mr. Lord has not been here, and he's arrived, just as I've cautioned against, now he's arrived not really (knowing) what has transpired in the hearing, and you are asking questions and creating situations that have come up and been resolved before.
I don't know what we're going to do about this problem is you don't know what has happened in all the weeks we've had testimony, and I don't know how you are going to frame your questions so that you don't run into trouble such as you are, but you proceed as well as you can."
II. 6686 - 87 (Dec.
1, 1987).
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-February 10, 1988 should bar them from complaining that they only received the information within days of the entry of the protective order.
Intervenors certainly cannot contend that the Licensing Board abused its discretion in allowing Intervenors over a month after recelot of the information to file their contentions, particularly where the information has been theirs for the asking since December, 1987.
Even if contentions fell due before Intervenors had access to the information -- which is not the case -- Intervenors' claim of denial of due process would fail, since they are not entitled to discovery prior to filing their contentions.
Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, 192 reconsiderat(2D denied, ALAB-110, 6 AEC 247, aff'd, CLI-73-12, 6 AEC 241 (1973); Wisconsin Electric Power Co. (Koshkonong Nuclear Plant, Units 1 and 2), CLI-74-45, 8 AEC 928, 929 *1974); BE1
- v. AEG, 502 F.2d 424, 428-29 (D.C. Cir. 1974).6 In sum, Intervenors have overstated their tasks under the Licensing Board's schedule and have failed to show that the Licensing Board abused its discretion in setting its i
6 Intervenors anticipate that ill-defined contentions will be rejected by the Licensing Board.
Int. Mot. at 16.
Applicants agree.
Lack of discovery does not excuse Intervenors from having to file contentions with the requisite specificity.
Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460 (1982), rev'd in Dart and_aff'd in cart, CLI-83-19, 17 NRC 1041 (1983),
f,
I schedule.7 Intervenors have not been required to draft findings and contentions simultaneously.
They have been given over six months to draft contentions and over eight weeks to draft findings.
If they squander their time, the fault lies not in the Board's order, but in the Intervenors' election of tactics.
Neither the bare assertion of due process violation nor the overstatement of burdens imposed by the Board's schedule amounts to the kind of showing necessary for Intervenors to prevail on their motion.
Conclusion Intervenors' motion should be denied.
Respectfully submitted, W/22' Thomas G M ignan, Jr.
George H.
Lewald Kathryn A.
Selleck Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 7As to Intervenors' unwarranted attempt to enlist Applicants in their cause by perceiving an "admisssion" by Applicants, Int. Mot. at 12, Applicants simply point out that their proposed schedule would have contentions due March 15, not April 1, as the Board determined. -
dfhC CERTIFICATE OF SERVICE I,
Kathryn A. Selleck, one of the attorneys for the Applicants herein, hereby certify that on March 3, 198(B INW -7 P3 33 made service of the within document by depositing copies thereof with Federal Express, prepaid, for delivery to, og,#' k _ _ _ a.t 'An f where indicated, by depositing in the United States ma x
first class postage paid, addressed to):
"d[fkhE"VICI-Alan S.
Rosenthal, Chairman Howard A. Wilber Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Appeal Panel U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 Thomas S.
Moore Robert Carrigg, Chairman Atomic Safety and Licensing Board of Selectmen Appeal Panel Town Office U.S.
Nuclear Regulatory Atlantic Avenue Commission North Hampton, NH 03862 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Administrative Judge Ivan W.
Diane Curran, Esquire Smith, Chairman, Atomic Safety Andrea C.
Ferster, Esquire and Licensing Board Panel Harmon & Weiss U.S. Nuclear Regulatory Suite 430 Commission 2001 S Street, N.W.
East West Towers Building Washington, DC 20009 4350 East West Highway Bethesda, MD 20814 Judge Gustave A.
Linenberger Stephen E. Merrill Atomic Safety and Licensing Attorney General Board Panel George Dana Bisbee U.S. Nuclear Regulatory Assistant Attorney General Commission Office of the Attorney General East West Towers Building 25 Capitol Street 4350 East West Highway Concord, NH 03301-6397 Bethesda, MD 20814 Dr. Jerry Harbour Sherwin E.
Turk, Esquire Atomic Safety and Licensing Office of the General Counsel Board Panel U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission One White Flint North, 15th Fl.
East West Towers Building 11555 Rockville Pike 4350 East West Highway Rockville, MD 20852 Bethesda, MD 20814
e t-Atomic Safety and Licensing Robert A.
Backus, Esquire Board Panel 116 Lowell Street U.S.
Nuclear Regulatory P.O.
Box 516 Commission Manchester, NH 03105 East West Towers Building 4350 East West Highway Bethesda, MD 20814
- Atomic Safety and Licensing Mr. J.
P. Nadeau Appeal Board Panel Selectmen's Office U.S.
Nuclear Regulatory 10 Central Road Commission Rye, NH 03870 Washington, DC 20555 Philip Ahrens, Esquire Carol S.
Sneider, Esquire Assistant Attorney General Assistant Attorney General Department of the Attorney Department of the Attorney General General Augusta, ME 04333 One Ashburton Place, 19th Fir.
Boston, MA 02108 Paul McEachern, Esquire Mr. Calvin A.
Canney Matthew T.
Brock, Esquire City Manager Shaines & McEachern City Hall 25 Maplewood Avenue 126 Daniel Street P.O.
Box 360 Portsmouth, NH 03801 Portsmouth, NH 03801 Mrs. Sandra Gavutis Mr. Angie Machiros Chairman, Board of Selectmen Chairman of the RFD 1 - Box 1154 Board of Selectmen Route 107 Town of Newbury Kensington, NH 03827 Newbury, MA 01950
- Senator Gordon J. Humphrey Mr. Peter J. Matthews U.S.
Senate Mayor Washington, DC' 20510 City Hall (Attn:
Tom Burack)
Newburyport, MA 01950
- Senator Gordon J. Humphrey Mr. William S.
Lord One Eagle Square, Suite 507 Board of Selectmen Concord, NH 03301 Town Hall - Friend Street (Attn:
Herb Boynton)
Amesbury, MA 01913 Mr. Thomas F.
Powers, III Brentwood Board of Selectmen Town Manager RFD Dalton Road Town of Exeter Brentwood, NH 03833 10 Front Street Exeter, NH 03833 --
C 1
H. Joseph Flynn, Esquire Richard A. Hampe, Esquire Office of General Counsel
'ampe and McNicholas Federal Emergency Management 35 Pleasant Street Agency Concord, NH 03301 500 C Street, S.W.
Washington, DC 20472 Gary W.' Holmes, Esquire Judith H. Mizner, Esquire Holmes & Ells Silverglate, Gertner, Baker, 47 Winnacunnet Road Fine, Good & Mizner Hampton, NH 03841 88 Broad Street Boston, MA 02110 Mr. Ed Thomas Charles P. Graham, Esquire FEMA, Region I McKay, Murphy and Graham 442 John W.
McCormack Post 100 Main Street Office and Court House Amesbury, MA 01913 Post Office Square Boston, MA 02109 A 6la XithEyn A.
Selleck
(*= Ordinary U.S. First Class Mail.)
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