ML20151A630

NRC Staff Response to City of Haverhill Detailed Contentions.* City of Haverhill late-filed Contentions Should Be Rejected.Certificate of Svc Encl

ML20151A630
Person / Time
Site:	Seabrook
Issue date:	07/06/1988
From:	Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#388-6745 OL, NUDOCS 8807200067
Download: ML20151A630 (9)

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.. 7/6/8@0CKETED USilFC UNITen STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '88 JL .18 P3 :27 BEFORE THE AT_0MIC SAFETY AND LICENSING BOARD Of g0 b b ' b Dichce In the Matter-of. )

Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF 50-444 OL NEW HAMPSHIRE, et al. Off-site Emergency Planning (Seabrook Station, Units 1 and 2) )

NRC STAFF'S RESPONSE TO "CITY OF HAVERHILL'S DETAILED CONTENTIONS,"

On June 16, 1988, the City of Haverhill filed the "City of Haverhill's Detailed Contentions", in which it set forth 14 late-filed contentions concernir, the Seabrook Plan for Massachusetts Connunities

("SPMC") that it now seeks to litigate in this proceeding. For the reasons set forth below, the WC Staff opposes the admission of these contentions and recommends that they be rejected.

DISCUSSION A. The City Has Failed to Satisfy the Standa_r_ds for Late-Filed Contentions.

It is well established that the admission of late-filed contentions is to be evaluated in light of the factors delineated in 10 CFR

!2.714(a)(1). That egulation requires a balancing of the following factors in determining whether to admit a late-filed contention:

(i) Good cause, i f any, for failure to file on time; (ii) The availability of other means whereby the petitioner's interest will be protected; 8807200067 880706 PDR ADOCK 05000443 G PDR

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(iH) The extent to which the petitioner's participation may reason 3bly be expected to assist in developing a sound record; (iv) The extent to which the petitioner's inter.est will be represented by existing parties; (v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.

Nowhere in its filing does the City of Haverhill address these '

factors, nor has it demonstrated that a balancing of these factors weighs in favor of the admission of its late-filed contentions. As set forth below, however, a balancing of these five factors indicates that the City of Haverhill's late-filed contentions should be rejected.

1. Good Cause _fo_r Failure to File on Time.

The City does not state any reason whatsoever for its lateness in filing these 14 contentions, nor does it provide any information which might support a finding of good cause for its failure to fi'e on time.

The City has previously filed a set of SPMC content sn',, M and no reason i

appears why it should now be permitted to make a second, untimely filing.

Ac^ rdingly, ti.;s factor weighs heavily against the admission of the i contentions.

2. Other Means_to Protect Petitioner's Interest.

The City has failed to address this issue, and it is therefore difficult to determine whether other means exist by which the City's interests may be protected. In this regard, however, it should be noted that the Massachusetts Attorney General has been and is expected to be an

-1/ "Cententions by the City of Haverhill for the Massachusetts Emcrgency Response Plan," dated April 4, 1988. The Staff respended to these t

contertion.: in its filing of May 27, 1988; see Staff Response, at 76.

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r' l h: l active party in the SPMC litigation, and the City of liaverhill may well be able to coordinate its efforts with those of the Attorney General. While

~the City's interests may diverge from those of the Attorney General and may not be represented by that litigant, nonetheless the City has failed w

to provide any information which would indicate that this factor weighs in favor of. admitting the contentions.

3. Contribution _t_o the Development of a Sound Record.

Commission case law establishes that persons seeking t6 litipte a late-filed contention must identify their prospective witnesset and sumtrarize their testimony, and that they bear the burden of affirmatively demonstrating that their witnesses may reasonably be expected to assist in, the development of a scund record. See, e.g., Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167, 1177-78 (1983); long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALA8-743, 18 NRC 387, 299-400 (1983).

The City does not address this requirement, and has failed to provide any indication that it intends to call witnesses, how those witnesses may he expected to testify, or how any such witnesses may be expected to cor. tribute tc the developnient of a sound record. Accordingly, this factor weighs against admission of the contentions.

4. Extent to Which Petitioner's Interest Will Be Represented by Existing Parties.

The City has failed to address this issue, and it is thenfore dif ficult to determine whether its interests will be represent $d by other parties. As noted above with respect to the second factor, the Massachusetts Attorney Generel has been and is expected to be an active party in the SPMC litigation, and the City of Haverhill may be able to

m coordinate its efforts with those of the Attorney General. While the i

Attorney General may not necessarily represent the City's interests to the seme extent or in the same manner that the City itself would, nonetheless no basis has been provided which would permit a determination that this factor weighs in favor of the admission of these late-filed contentions.

5. Broadening the_ Issues or Delay to_the Proceeding.

Admission of these contentions would undoubtedly broaden the numerous issues already proposed for litigation in this proceeding and may result in substantial delay, as well. Accordingly, this factor weighs against the admission of the contentions.

B. The Supplemental Contentions Do Not Meet the Basis and Specificity Requirements of 10 C.F.R.,s 2.714 (b).

The principles governing the admission of contentions were discussed at length in the Staff's May 27, 1988 response to contentions, 2/ and will not be repeated here. Suffice it to say that, pursuant to 10 C.F.R.

Q 2.714(b), a petitioner must set forth the "basis" for its contentions with "reasonable specificity". This requirement has not been satisfied hern by the City.

In its previous set of contentions, filed on April 4,19F8, the City essentially asserted that the SPMC was deficient for failing to include the City within the plume exposure pathway EPZ, because "no provisions have been made for evacuation of schools, nursing homes, hospitals and day care centers or for any other related facility. Said facilities are 9/ "NRC Staff's Response to Contentions Filed by Towns of Amesbury, Newbury, Salisbury and West Newbury, The Cities of Haverhill and Newburyport, and by the Massachusetts Attorney General, NECNP ind '

SAPL" ("Staff Response"), dated May 27, 1988.

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locatedincloseIroximitytotheten(10) miles." In its response to the City's original contentions, the Staff indicated that they should be rejected as lacking specificity and basis. In particular, the Staff indicated that an insufficient showing had been made to support the inclusion of the City within the plume EPZ; that the contention, itself, indicated that the described facilities were located beyond 10 miles from the plant; and that no reason had been provided why the entire City should be included within the EPZ -- which would greatly enlarge the EPZ beyond the radius contemplated by the regulations -- when only a small portion of the City actually lies within 10 miles of the plant.

It is unclear whether the City's current "detailed contentions" were filed in an untimely attempt to reply to the responses to its original contentions, or were intended to be (as, in fact, they are) a substantial enlargement of those earlier contentions. In any event, the "detailed contentions" provide little reason to include the City within the plurre EP7, apart from indicating that some individuals who who will be evacuating from areas closer to the plant will pass through the City, rendering the City's own evacuation n' ore difficult. This factor, however, is true for any area located outside the emergency planning zone for Seabrook or any plant, and hardly constitutes sufficient reason to expand l the EPZ. Further, the "detailed contentions", themselves, indicate that a very small number of homes in the City (considerably less than 100) are located within 10 miles of the plant, and that the 10-mile radius includes only one day care center and no hospitals, nursing homes, or other facilities in the City. These facts can hardly be said to provide sufficient basis to require an expansion of the EPZ to include the entire l

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. City of Haverhill -- a city which, by its own estimate, has a population fof 50,000 persons. Absent.a sufficient showing of reason to support the City's assertion that it should.be included in the plume exposure pathway EPZ, its "detailed contentions" should be rejected.

l- CONCLUSION As set forth above, a balancing of the five factors in.10 C.F.R. 5 2.714(a)(1) weighs against the admission of the City of Faverhill's late-filed contentions. Further, the City has failed to satisfy the basis and specificity requirements of 10 C.F.R. 5 2.714(b). Accordingly, the City of Haverhill's late-filed contentions should be rejected.

Respectfully submitted, Sherwin E. Turk Senior Supervisory Trial Attorney Dated at Rockville, Maryland this 6th day of July,1988 l

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00CKETED U5HFC UNITED ST ATES OF AMERIC A NUCLEA R REGUL ATORY COMMISSION 88 J118 P3 :27 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD OFFICE 0; Em iAni 00CKE11NG A SEHVICf.

BR A Nt,4 In the Matter of Docket Nos. 50-443 OL PUBLIC SFRVICE COMPANY OF 50-444 OL -

N E W H A M P S HIP. E , et _al,. Off-site Emergency Planning -

(Seabrook Station, Units 1 and 2)

CERTIFIC ATE OF SERVICE I hereby certify that copies of "NRC ST A FF'S RESPONSE TO CIT Y OF H A V E R HILL'S DET AILED C O N T E N TIO NS" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, this 6th day of July 1988.

Ivan W. Smith, Chairman

• Atomic Safety and Licensing Administrative Judge Board

• Atnmic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D C 20555 Washington, D C 20555 Gustave A. Linenberger, Jr.* Docketing and Service Section*

Adniinistrative Judge Office of the Secretary Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D C 20555 Washington, D C 20555 Dr. Jerry Harbour

• Thomas G. Dignan, Jr., Esq.

Administrative Judge Robert K. Gad, III, Esq.

Atomic Safety & Licensing Board Ropes & Gray

U.S. Nuclear Regulatory Commission 225 Franklin Street Washington, D C Boston , M A 02110 20555 Aton.ic Safety and Licensing H. J. Flynn, Esq.

Appeal Panel

• Assistant General Counsel U.S. Nuclear Regulatory Con: mission Federal Emergency Management Agency Washington, DC 20555 500 C Street, SW Washington, D C 20472 l

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, s 1 Philip Ahren, Esq, Calvin A. Canney Assistant Attorney General City Hall Office of the Attorney General 126 Daniel Street State House Station Portsmouth, N H 03801 Augusta, ME 04333 Mr. Angie Machiros, Chairman Carol S. Sneider, Esq. Board of Selectmen Assistant Attorney _ General 25 High Road

-Office of the Attorney General Newbury, M A 09150 One Ashburton Place,19th Floor Boston, M A 02108 George Dana Bisbee, Esq. Allen Lampert Assistant Attorney General Civil Defense Director Office of the Attorney General Town of Brentwood 25 Capitol Street 20 Franklin Concord, N H 03301 Exeter, N H 03833 Elly n R . Weis s , Es q . William Armstrong Diane Curran, Esq. Civil Defense Director Harmon & Weiss Town oF Exeter 2001 S Street, NW 10 Front Street Suite 430 Exeter, N H 03833 Pashington, D C 20009 Robert A. Backus, Esq. Gary W. Holmes, Esq.

Backus, Meyer & Solomon Holmes & Ellis 116 Lowell Street 47 Winnacunnet Road Manchester, N H 03106 Hampton, N H 0384?

Paul McEachern, Esq. J. P. Nadeau Matthew T . B rcck, Esq . Board of Selectmen Shaines & McEachern 10 Central Street 25 Maplewood Avenue Rye, N H 03870 P.O. Box 360 Portsmouth, N H 03801 Judith H. Mizner, Esq.

Charles P. Graham, Esq. Silverglate, Gertner, Baker, McKay, Murphy & Graham Fine & Good 100 Main Street 88 Board Street Amesbury, M A 01913 Boston, M A 02110 Sandra Gavutis, Chairman Robert Carrigg, Chairman Board of Selectmen Board of Selectmen R F D #1, Box 1154 Town Office Kensington, N H 03827 Atlantic Avenue North Hampton, N H 03870 William S. Lord Peter J. Matthews, Mayor Board of Selectmen City Hall Town Hall - Friend Street Newburyport, MN 09150 A mesbury, M A 01913

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, Mrs. Anne E. Goodman, Chairman Michael Santosuosso, Chairman Board of Selectmen Board of Selectmen i 13-15 Newmarket Road South Hampton, NH 03827

' Durham, NH 03824 Hon. Gordon J. Humphrey Ashod N. Amirian, Esq.

1 United States Senate Town Counsel for Merrimac 531 Hart Senate Office Buf1 ding 376 Main Street Washington, D C 20510 Haverhill, M A 08130 Sherwin E. Turk Senior Supervisory Trial Attorney E

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