ML20150C547
| ML20150C547 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/14/1988 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#188-5850 OL-1, NUDOCS 8803210086 | |
| Download: ML20150C547 (8) | |
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S c March 14pg9g Dated:
UNITED STATES OF AMERICA OfflCE c.r $f;[ffg' 00cnt y,y; NUCLEAR REGULATORY COMMISSION B!Mficy before the ATOMIC SAFETY AND LICENSING BOARD
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In the matter of
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Docket Nos. 50-443-OL-1 PUBLIC SERVICE COMPANY
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50-444-OL-1 OF NEW HAMPSHIRE, et al.
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(Onsite Emergency Planning (Seabrook Station, Units 1
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and Safety Issues) and 2)
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APPLICANT'S RESPONSE TO NECNP'S MOTION FOR RECONSIDERATION OF THE BOARD'S ORDER DENYING NECNP'S MOTION TO COMPEL On March 1, 1988 New England Coalition on Nuclear Pollution ("NECNP") filed a motion for reconsideration
("Motion for Reconsideration") of the Licensing Board's February 17, 1988 order denying NECNP's motion to compel
("Order").
In that Order, the Board rejected NECNP's argument that microbiologically induced corrosion ("MIC") is within the scope of NECNP Contention IV, and thus allowed to stand Applicants' objections to certain discovery requests.
As was the case with NECNP's initial motion to compel, l.
in its Motion for Reconsideration, NECNP attempts by way of a 8803210086 880314 PDR ADOCK 05000443 G
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- \\f discovery dispute improperly to expand and provide new bases for Contention IV.
The Motion for Reconsideration is deficient for the following reasons:
1.
NECNP fails to address successfully the Licensing Board's central point that the contention is clearly limited to concerns regarding "the possible degradation of the heat removal capability of cooling water systems at Seabrook as a result of the accumulation of marine organisms or debris."
(emphasis in original) Order at 5 citing ALAB-875.
- Instead, NECNP attempts to expand the contention to include issues regarding corrosion without persuasively explaining why corrosion is a concern related to the pertinent issue of the blockage of cooling systems caused by the accumulation of fouling organisms.
Moreover, while NECNP's states that "the bases to the contention clearly describes ' corrosion' as one of the problems associated with ' fouling'" (Motion for Reconsideration at 4), in fact, the basis for the contention l
l refers only to "corrosion products" and the concern expressed is that "buildup of fouling organisms or corrosion products l
on piping walls...cculd be dislodged by seismic activity and...(block) 'the cooling water flow.'"
Order at n.1.
2.
In support of its Motion for Reconsideration, NECNP filed the affidavit of Dr. James Bryers.
To the extent that !
l
f Dr. Bryers' affidavit opines that "microbiologically induced corrosion is within the scope of this contention" (Affidavit at 1 5) it is irrelevant and should be disregarded.
- Clearly, the determination of the appropriate scope of Contention IV is a legal issue to be decided by the Board.
The opinion one way or the other of a witness is immaterial.
Cohen v.
Avers, 499 F.
Supp. 298, 321 (N.D. Ill. 1978) aff'd 596 F.2d 733 (7th Cir. 1979) (An affidavit may be disregarded if it contains conclusions of law or of ultimate fact).
To the extent that Dr. Bryers' affidavit states his opinion that MIC is a detrimental effect of fouling, (Affidavit at 1 4) it is also irrelevant.
The argument advanced by NECNP and Dr. Bryers appears to be that some logical connection can be made between fouling and MIC.
While this argument might be pertinent to a motion to amend and expand Contention IV, it is unpersuasive on the issue of whether MIC is at present within the scope of Contention IV.
The Contention that NECNP chose to file was limited to concerns regarding the blockage of cooling systems caused by the accumulation of fouling products.
NECNP must litigate the Contention as filed and admitted.
To the extent that Dr. Bryers' affidavit demonstrates that as early as 1977 MIC was a concern that could relate to fouling (Affidavit at 1 9), it is mere:'; persuasive evidence i
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as to why it would be improper for NECNP now to submit a late-filed contention regarding MIC.
3.
NECNP's third argument regarding Applicants' objection to NECNP's definition of biofou]ing is virtually a verbatim reproduction of the argument NECNP filed on this issue in its original motion to compel.
As such, it fails to take into account either the Applicants' response or the Board's Order.
As Applicants argued previously, neither the contention nor the basis refers to "biofouling."
Therefore, NECNP's arguments based on the nature of "biofouling" (Motion to Reconsider at 9) are pointless.
Rather, as noted above, the relevant concern as framed in Contention IV is limited to the prevention of the accumulation of various aquatic organisms to ensure that the cooling systems do not become blocked.
Therefore, NECNP's proposed definition of biofouling as "any degree of sedimentation and/or corrosion of nuclear' power plant cooling systems..." (Motion for Reconsideration at 8) is impermissibly overbroad.
4.
Finally, NECNP renews its motion to compel discovery regarding circulating water systems other than cooling systems.
As noted in Applicants;' objection to NECNP's interrogatories inquiring into non-cooling water systems, the terms of the contention itself plainly limit the I -9
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inquiry to cooling systems.
NECNP's argument that discovery as to circulating water systems other cooling systems is relevant because the presence of problems in such systems may indicate that problems would, in the future, occur in cooling water systems even if none, in fact, has occurred to date, is baseless speculation that cannot expand the scope of the J
admitted contention.
CONCLUSTON For all of the above reasons, the Motion for Reconsideration should be denied.
Respectfully submitted, Thomas G.
Dignan, Jr.
Deborah S. Steenland Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 Attorneys for Aeolicants 1
I
00LKETED U5NRC CERTIFICATE OF SERVIC_E
'88 WR 17 @l:04 I,
Deborah S.
Steenland, oneoftheattorneysfor.f(p[e....1% g k.lf}yg/JM[~
t Applicants herein, hereby certify that on March 14, made service of the within document by mailing copieE BRANCH thereof, postage prepaid to:
Administrative Judge Sheldon J.
Stephen E. Merrill, Esquire Wolfe, Esquire, Chairman Attorney General Atomic Safety and Licensing George Dana Bisbee, Esquire Board Panel Assistant Attorney General U.S.
Nuclear Regulatory Office of the Attorney General Commission 25 Capitol Street Washington, DC 20555 Concord, NH 03301-6397 Judge Emmeth A.
Luebke Dr. Jerry Harbour Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board Panel 5500 Friendship Boulevard U.S.
Nuclear Regulatory Apartment 1923N Commission Chevy Chase, MD 20815 Washington, DC 20555 Robert Carrigg, Chairman Diane Curran, Esquire Board of Selectmen Andrea C.
Ferster, Esquire Town Office Harmon & Weiss Atlantic Avenue Suite 430 North Hampton, NH 03862 2001 S Street, N.W.
Washington, DC 20009 Atomic Safety and Licensing Sherwin E. Turk, 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 i
Appeal Board Panel Backus, Meyer & Solomon U.S.
Nucleat Regulatory 116 L)well Street Commission P.O.
Box 516 I
Washington, DC 20555 Manchester, NH 03105 Philip Ahrens, Esquire Mr. J.
P.
Nadeau Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central Road General Rye, NH 03870 Augusta, ME 04333 i
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Paul McEachern, Esquire Carol S.
Sneider, Esquire Matthew T.
Brock, Esquire Assistant Attorney General Shaines & McEachern Department of the Attorney 25 Maplewood Avenue General P.O.
Box 360 One Ashburton Place, 19th Fir.
Portsmouth, NH 03801 Boston, MA 02108 Mrs. Sandra Gavutis Mr. Calvin A.
Canney Chairman, Board of Selectmen Cih/ Manager RFD 1 - Box 1154 City Hall Kensington, NH 03827 126 Daniel Street Portsmouth, NH 03801 Senator Gordon J. Humphrey Mr. Angie Machiros U.S.
Senate Chairman of the Washington, DC 20510 Board of Selectmen (Attn:
Tom Burack)
Town of Newbury Newbury, MA 01950 Senator Gordon J.
Humphrey Mr. Peter S. Matthews One Eagle Square, Suite 507 Mayor Concord, NH 03301 City Hall (Attn:
Herb Boynton)
Newburyport, MA 01950 Mr. Thomas F.
Powers, III Mr. William S.
Lord Town Manager Board of Selectmen Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 l
H. Joseph Flynn, Esquire Drent sood Board of Selectmen l
Office of General Counsel RFD Dalton Road Federal Emergency Management Brentwood, UH 03833 Agency if sh ngto bC b472 Garf W.
Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03041 Concord, NH 03301 Mr. Ed Thomas Judith H. Mizner, Esquire FEMA, Region I Silverglate, Gertner, Baker 442 John W. McCormack Post Fine, Good & Mizner Office and Court House 88 Broad Street Post Office Square Boston, MA 02110 l
Boston, MA 02109 l !
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t; Charles P. Graham, E."quire McKay, Murphy and Graham 100 Main Street I
Amesbury, MA 01913
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Deborah S.
Steenland P
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