ML20151A646

NRC Staff Response to Town of Salisbury Amended Contentions Re Applicant Plan for Commonwealth of Ma Communities.* Applicant Untimely Amends to Contentions Should Be Rejected. Certificate of Svc Encl

ML20151A646
Person / Time
Site:	Seabrook
Issue date:	07/07/1988
From:	Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#388-6744 OL, NUDOCS 8807200073
Download: ML20151A646 (8)

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'2 DOCKETED USHRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION  % L 18 P3:27 M F!CE l' S R h '.

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 00CEiG '. MM enMu 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 TOWN OF SALISBURY'S AMENDED CONTENTIONS WITH RESPFCT TO APPLICANT'S PLAN FOR MASSACHUSETTS CO W UNITIES On June 17, 1988, the Town of Salisbury filed the "Town of-Salisbury's Amended Cententions With Respect to Applicant's Plan for Massachusetts Communities" ("Amended Contentions"), in which it set forth rore detailed versions of the contentions it had filed some two T.onths earlier, concerning the Seabrook Plan for Massachusetts Communities

("SDMC") 1/ Nowhere, hovlever, does the Town offer an explanation as to why it should now be permitted -- nine months after the SPMC was submitted ar.o two conths after the deadline for filing contentions expired -- to mcdify its original contentions, or why its original contentions failed to include the material which it has now filed. For these and other reasons set forth below, the NRC Staff opposes the admission of these amended contentions and recommends that they be rejected.

DISCUSSION A. The Town Has Failed to Satisfy the l Standards for late-Filed Contentions.

i 1/ See "Town of Salisbury's Contentions With Respect to Applicant's Plan

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for Massachusetts Communities," filed April 11, 1988.

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. It is well established that the admission of late-filed contentions is to be evaluated in light of the factors delineated in 10 CFR Q 2.714(a)(1). That regulation 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; (iii) The extent to which the petitioner's

-participation may reasonably be expected to assist in developing a sound record; (iv) The extent to which the petitioner's interest 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 Town 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, a balancing of these five factors indicates that the Town's amended contentions should be rejected.

1. Goed Cause for Failure to File on Time.

The only indication provided by the Town as to why it waited until now to file its amended contentions is that the Town believes they "adequately address the concerns raised by the Applicant in its response

[tocontentions]datedApril 26, 1988 and serve as a reply thereto." No information is provided as to why the additional material contained in the l

l amended contention:, could not have been filed as part of the Town's I

original contentions, nor is any information provided which might support i a finding of good cause for its failure to file on time. The Town has l

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failed to offer any reason why it should now be permitted to file what is, in effect, a second, late-filed set of contentions. Accordingly, this factor. Weighs heavily against the admission of the amended contentions.

2. Othbr Means to Protect Petitioner's Interest.

The Town has not addressed this issue, and it is therefore difficult to determine whether other means exist by which its interests may be protected. In this regard, however, the Town could be admitted as a party should the Board admit any of its original contentions, and the Town may still be able to protect its own interests. Further, it should be noted that even if the Town's original contentions are rejected, the Massachusetts Attorney General has been and is expected to be an active party in the SPMC litigation, and the Town may well be able to coordinate its efforts with those of the Attorney General. While the Town's interests may diverge from those of the Attorney General and may not be represented by that litigant, nonetheless the Town has failed to provide any information which would indicate that this factor weighs in favor of edmitting its amended contentions.

3. C_cntribution to the Development of a Scund Record.

Commission case law establishes that perscns seeking to litigate a lat: 'iled contention must identify their prospective witnesses and summarize 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 sound 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,

! tlnit 1), ALAB-743, 18 NRC 387, 399-400 (1983).

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The City does not address this requirement, and has failed to provide any indication that it . intends to call witnesses, how those witnesses may be expected to' testify, or how any such witnesses may be expected to contribute to the development 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 Town has failed to address this issue, and it is therefore difficult to determine whether its interests will be represented by other parties. As noted above with respect to the second factor, the Town may still be admitted as a party with respect to its original contentions; and, in any event, the Massachusetts Attorney General has been and.is expected to be an active party in the SPMC litigation, and the Town may be able to coordinate its efforts with those of the Attorney General. While the Attorney General may not necessarily represent the Town's interests to the same extent or in the same manner that the Town itself would, nonetheless no basis has been provided which would permit a determination

l. that this factor weighs in favor of the admission of these late-filed amended contentions.

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5. Broadening the issuas or Delay to the Proceeding.

Admission of these contentions would undoubtedly broaden the nonerous 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 Amended Contentions Do Not Meet the Basis and Specificity Pequjrements of 10 C.F.R. 5 2.714 (b).

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The principles governing the admission of contentions were discussed at length in the Staff's May 27, 1988 response to contentions., U and will not be' repeated here. Suffice it to say that, pursuant to 10 C.F.R. 9 2.714(b), a petitioner must set forth the "basis" for its contentions with "reasonable specificity". This requirement has not been satisfied here by the Town with respect to its amended contentions. The Town has not provided any information in its amended contentions which would cause the Staff to alter its views as to the admissibility of the Town's original contentions (Staff Response, at 93-109). Accordingly, for the reasons set forth in the Staff's Response, the Town of Salisbury's amended contentions should be rejected.

CONCLUS_ ION As set forth above, a balancing of the five factors in 10 C.F.P,.

62.714(a)(1)weighsagainsttheadmissionoftheTownofSalisbury's untimely amended contentions. Further, for the reasons set forth in the Staff's response to the Town's original contentions, these untimely amendments to those contentions should be rejected.

Respectfully submitted,

' M Sherwin E. Turk Senior Supervisory Trial Attorney Dated at Rockville, Paryland this 7th day of July,1988 2/ "NRC Staff's Respense to Contentions Filed by Towns of Amesbury, Newbury, Salisbury and llest Newbury, The Cities of Haverhill and Newburyport, and by the Massachusetts Attorney General, NECNP and SAPL" ("Steff Respcnse"), dated Pay 27, 1988.

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DOLKETED UWC UNITED ST ATES-0F AMERIC A NUCLEA R REGUL ATORY COMMISSION '88 JL J g .P 3 :27 -

B EFO RE THE A,TOMIC S AFET Y A ND LICENSIN G B O A R D Q7{} gig BRANC, In the Matter of )

) Docket Nos. 50-443 OL

'PUBLIC SERVICE COMPANY OF ) 50-444 OL NEW H AMPSHIRE, et t H. ) Off-site Emergency Planning 7

(Seabrook Station, Units 1 and 2) )

C E R T IFIC A T E O_F, _ S E R VIC E I hereby certify that copies ' of "NRC ST A FF'S RESPONSE TO TOWN OF- S ALISB U R Y'S AMENDED . C0hTENTIONS WITH RESPECT TO APPLIC AN T'S PLAN FOR MASSACHUSETTS C O M M U NITIES" in the

, above-captioned proceeding have been served on the following by deposit in l the U nited States m ail, first class or, as in dicated by an asteris k , by deposit in the N uclear Regulatory Commission's internal mail system, this 7th day of July 1988.

1 Ivan W. Smith, Chairman

• Atonic Safety and Licensing Administrative Judge Board' Atomic Safety ant' Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D C 20555 l

Washinston, DC 20555 Gustave A. Linenberger, Jr.* Docketing and Service Section*

Administrative Judge Office of the Secretary I

Atomic Safety and Ll censing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commissicn Washington, DC 20555 Washingten, D C 20555 I

Dr. Jerry Harbour

• Thomas G. Dignan, Jr., Esq.

L Administrative Judge Robert K. Ged, III, Esq.

l\ Atomic Safety & Licensing Board Ropes & Gray i U.S. Nuclear Regulatory Comraission 225 Franklin Street Washington, D C 20555 P oston , M A 02110 l

l Atcmic Safety and Licensing H . J. Flyn n , Esq.

i Appeal Panel

• Assistant General Counsel L U.S. Nuclear Pegulatory Commission Federal Emergency Management Agency Washington, D C 20555 500 C Street, SW

'y Washington, D C 20472 k;

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, :o Philip Ahren, Esq. Calvin A. Canney Assistant Attorney General City Hall Office of the Attorney General 126 Daniel Street State House Station Portsmouth, NH 03801 Augusta, ME 04333 Mr. Angie Machiros, Chairman Carol S. Sneider, Esq. Board of Selectmen <

Assistant Attorney -General 25 High Road Office of the Attorneyi 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, NH 03301 Exeter, N H 0383L Ellyn R. Weiss, Esq. William Armstrong <

Diene Curran, Esq. Civil Defense Director >

Harmon & Weiss Town oF Exeter 2001 S Street, NW 10 Front Street Lo ' Suite 430 Exeter, NH 03833 Washington, D C 20009 Robert A. Backus, Esq. Gary W. Holmes, Esq.

Backus, Meyer & Solomon Holmes & Ellis 116 l.owell Street 47 Winnacunnet Road

. Manchester, N H 03106 Hampton, N H 0384?

Paul McEachern, Esq. J. P. Nadeau Vatthew T. Brock, Esq. Board of Selectmen Shaines a UcEachern 10 Central Street PS Maplewood Avenue Rye, N H 03870 P.O. Roy 300 Portsmouth, NH 03801 Judith H. Mizner, Esq.

Charles P. Graham, Esq. Silverglate, Gertner, Baker, i .McKay, Murphy & Graham Fine a Good l 100 Main Street 88 Board Street I A mesbury, M A 01913 Boston, M A 02110 Sandra Gavutis', Chairman Robert Carrigg, Chairrran '

Board of ' Selectmen Board of Selectmen RFD #1, Box 1154 Town Office l , d Kensingtbn, NH 03827 Atlantic Avenue i North Hampton, NH 03870 l

. William S. Lord Peter J. Matthews, Mayor Board of. Selectmen City Hall i Town Hall - Friend Street Newburyport, M N 09150

- Amesbury, M A 01913 I

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- Mrs. ' Anne E. Goodman, Chairman Michael'Santosuosso, Chairman

, Board of Selectmen Board of' Selectmen 15 Newmarket Road South Hampton, NH 03827 Durham . - N H 03824 '

Hon. Gordon J. Humphrey Ashod N. Amirian, Esq.

United States Senate . Town Counsel for Merrimac 531 Hart Senate Office Building 376 Main Street flashington, D C . 20510 Haverhill, M A 08130 Yhl Sherwin E. Turk Senior Supervisory Trial Attorney t

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