ML20154D730
| ML20154D730 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 09/12/1988 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#388-7070 OL-1, NUDOCS 8809160079 | |
| Download: ML20154D730 (9) | |
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l707b Septenhem12, 1988 o
y,ip c UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION *88 SEP 14 P3 :53 before the
,m Gw.
ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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PUBLIC SERVICE COMPANY
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Docket Nos. 50-443-OL-1 OF NEW HAMPSHIRE, EI AL.
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50-444-OL-1
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(Seabrook Station, Units 1
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(Onsite Emergency and 2)
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Planning and Safety
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Issues)
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APPLICANTS' ANSWER TO MOTION TO AMEND BASIS FILED BY MASS AG WITH RESPECT TO SIRENS CONTENTION Under date of September 8, 1988, on almost the eve of the date for sending out motions for summary dispositien in the "sirens" portion of thr proceeding, the Attorney General of the Commonwealth of Massachusetts (Mass AG) filed a document entitled Motion to Amend Basis (The Motion).
The thrust of The Motion is to seek the admission into litigation of two new contentions with respect to the early notification system for Seabrook Station.
For the reasons set forth below, the motion should be denied.
I.
THE MOTION MUST BE TREATED AS ONE SEEKING THE ADMISSION OF A LATE-FILED CONTENTION.
The Motion is careful to refer to what is being sought as the admissior. of new "Bases" rather than contentions.
This approach is taken in order, apparently, to avoid having to address the "five factors" test for admission of late-filed 8809160079 000912 gDR ADOCK 0 % g 3
contentions set out in 10 CFR 5 2.714 (a) (1), all of which clearly are not addressed in the motion.
This piece of legerdemain should be rejected.
The first of the new "bases" reads as follows:
"Applicants no longer intend to use the sirens in the voice mode for instructing the transient population in an emergency and there are no other means in place that provide reasonable assurance that the beach population in Massachusetts will be adequately instructed in the event of an emergency at Seabrook Station"1 The second reads as follows:
"The Applicants are prohibited from use of the acoustics locations which have been selected because no permission for use of these locations has been obtained from the property owners.n2 The language and phrasing of the above quoted assertions are in the nature of contentions, not bases.
Furthermore, the Appeal Board has recently made clear that the scop 3 of what is included I
within an already admitted contention is to be derived from the contention and bases as stated when the contention is admitted.3 If the issue is not within the scope of the contention and bases admitted, any attempt to raise it must satisfy the "five factors" test of 10 CFR $ 2.I714 (a) (1).
Mass AG makes no attempt to argue that the previously i
1 otion at 1.
M 2 Motion at 2.
f l
3 ublic Service comoany of New Hamoshire (Seabrook Station, P
Units 1 and 2), ALAB-899, __NRC __, Slip Op. at 7-8 n.11 (Aug.
23, 1988).
2 i
D admitted sirens contention and bases encompassed the second of its newly raised issues.
As to the first, he argues that the original basis 10 encompassed such an issue, that basis being:
"10.
the Applicants have not indicated when and under what circumstances the tone alert mode or the message mode will be used."
Linguistically it is a far reach to say that the above-quoted assertion was to be read es encompassing the issue of whether there would be a way adequately to "instruct" the beach population.
There is nothing in the contention and bases, as already admitted, which in any way raises an issue as to how any particular population will be "instructed."
This being the case, the issue now sought to be raised is simply not within the scope of the contention and bases as admitted.4 Thus the "five factors" test set forth in 10 CFR 5 2.714 (a) (1) must be satisfied.
As seen below, in this case, they are not.
II.
THE "FIVE FAC"ICRS" TEST IS NOT MET A.
Good Cause, if any, for ilure to file on time.
The Motion does address this factor.
With respect to the first new contention, it is admitted that Mass AG was fully aware that the voice mode was not to be used as of July 28, 1988.5 we are given no explanation as to why the Mass AG waited over one 4 ALAB-899, supra, n.4.
5 otion at 3, and Exh. A thereto.
Indeed as early as July M
5, 1988, Mass AG had been informed in answer to an interrogatory that the voice mode was not required for use under the Massachusetts Utility Plan (SPMC).
Aeolicants' Resoonse to "Massa:husetts Attorney General's First Set of Interrocatories to ADolicants Recardina Siren Contentions" at 11 (July 5, 1988).
3 l
O month unti) almost the eve of the summary disposition deadline to file the Motion.
As to the second contention:
The Board is cryptically told that Mass AG "only learned during the course of discovery the addresses of the preselected acoustic locations where the sirens are to be operated.n6 conveniently not mentioned is the fact that as early as June 28, 1988, Mass AG was offered the information under a protective agreement,7 but refused to take it because of a desire to avoid having to keep the ir. formation confidential, and, in any event, the information was made available as of July 1G, 1988 and actually reviewed for the first time at the site on July 20, 1988.8 Again no excuse is given for waiting until almost the eve of the Summary Disposition deadline for filing.
In these circumstances, the first factor l
should weigh against hilowing the motion.
B.
The availability of other means whereby the petitioner's interest will be protected.
The Motion does not address this or any of the remaining factors.
The Applicants would concede that this (and the fourth i
l i
factor) favor the Mass AG, as is usually the case.
- However,
"[t]his factor, like the closely related fourth factor (the 4
extent to which other parties will represent petitioners' 6 Motion at 3-4.
7 Egg Aeolicants' Motion to comoel Answers to Interroaatot*ies Pronounded to the Attorney General for The Commonwealth of Massachusetts at 17 (July 20, 1988).
8113 Memorandum and Order (Rulina on Aeolicants' Revised l
Motion to Concel), (August 19, 1988), at 6.
4
interest) is accorded less weight, under established Commission precedent, than factors one, three, and five."9 C.
The extent to which the petitiormr's participation may reasonably be expected to assist in developing a cound record.
"Our case law establishes both the importance of this third factor in the evaluation of late-filed contentions and the necessity of the moving party to demonstrate that it has special expertise on the subjects which it seeks to raise. (citation) The Appeal Board has saift
'When a petitioner addresses this criterion it should set out with as much particularity as possible the precise issues it plans to cover, identify its prospective witnesses, and summarize their proposed testimony'.n10 This the Mass AG has not even attempted to do.
The third factor must weigh heavily against him.
D.
The extent to which the petitioner's interest will be represented by existing partien.
As indicated above in i B., had the Mass AG addressed this factor, it would likely have favored him as is usually the case.
9 ommonwealth Edison Comoany (Braidwood Nucle.nr Power C
Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 245 (1986), citina with nocroval, South Carolina Electric and Gks Co. (Virgil C.
Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 895 (1981).
10 Commonwealth Edison Coreany (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 246 (1986), citina with aeoroval, Mississioni Power and Licht Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC 1725, 1730 (1982).
5
o E.
The artent to which the petitioner's participation will broaden the issues or delay the proceeding.
The injection of new issues will always delay the prcceeding.
Indeed, the entire area of sirens is susceptible of summary disposition, which is immediately in order as this is written.
There can be no doubt that allowance of this motion will result in delay.
In any event, Mass AG has simply forsworn addressing this factor.
III.
CONCLUSION The motion fails to satisfy the procedural prerequisites for filing a late-filed contention as it is required to do.
Even if this failure to address the necessary factors is overlooked, an analysis of the "five factors" reveals a balance heavily weighted against the Mass AG.
Factors one, three, and five, the important ones, all weigh against him.
The Motion should be denied.
Respectfully submitted, d5 ThT Ms Gs::3Htgf an, J r.
Kathryn A. Selleck Jeffrey P. Trout Jay Bradford Smith Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 Counsel for ADD 11ccnts 6
\\')9 5 5 t CERTIF*.. ATE OF SERVICE I, Thombs G. Dignan, Jr., one of the attorneys for-12, @1988,eIP 14 P3 Applicants herein, hereby certify that on September I made service of the within document by depositing copies thereof with Federal Express, prepaid, for delivery to (dr -
q where indicated, by depositing in the United States mail?"'pl.,[,
first class postage paid, addressed to) the individuals listed below.
Administrative Judge Sheldon J.
Robert Carrigg, Chairman Wolfe, Esq., Chairman, Atomic Board of Selectmen Safety and Licensing Board Papel 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 Emmeth A.
Diane Curran, Esquire Luebke Andrea C. Ferster, Esquire 4515 Willard Avanue Harmon & Weiss Chevy Chase, MD 20815 Suite 430 2001 S Street, N.W.
Washington, DC 20009 Dr. Jerry Harbour 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 Eest West Highway Concord, NH 03301-6397 Bethesda, MD 20814 l
Adjadicatory File Sherwin E. Turk, Esquire i
Atomic Safety and Licensing office of General Counsel l
Board Panel Docket (2 copier U.S. Nuclear Regulatory U.S. !!uclear Regulatory Commission Commission one White Flint North, 15th Fl.
East West Towers Building 11555 Rockville Pike 1
4350 East West Highway Rockville, MD 20852 Bethesda, MD 20814 l
- Atcmic Safety and Licensing Robert A.
Backus, Esquire Appeal Board Panel Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516
)
Washington, DC 20555 Manchester, NH 03105 l
1 1
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O l
Philip Ahrens, Esquire Mr. J. P. Nadeau Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central Road i
General Rye, NH 03870 l
t Augusta, ME 04333 Padl McEachern, Esquire Carol S. Sneider, Esquire Matthew T. Brock, Esquire Assistant Attornsy General Shaines & McEachern Department of the Attorney General 25 Maplewood Avenue Cne Ashburton Place, 19th Floor P.O.
Box 360 Boston, MA 02108 Portsmouth, NH 03801 Pts. Sandra Gavutis Mr. Calvin A. Canney chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall 1
Route 107 126 Daniel Street Kensington, NH 03827 Portsmouth, NH 03801
- Senator Gordon J. Humphrey R. Scott Hill-Whilton, Esquire U.S. Senate Lagoulis, Clark, Hill-Whilton &
1 Washington, DC 20510 McQuire (Attnt Tom Burack) 79 State Street Newburyport, MA 01950 i
- Senator Gordon J. Humphrey Mr. Peter J. Matthews i
One Eagle Square, Suite 507 Mayor Concord, NH 03301 City Hall (Attnt Herb Boynton)
Newburyport, MA 01950 l
Mr. Thomas F. Powers, III Mr. William S.
Lord Town Manager Board of Selectmen i
Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 i
Exeter, NH 03833 i
H. Joseph Flynn, Esquire Charles P. Graham, Esquire t
Office of General Counsel Murphy and Graham
[
Federal Emergency Management 33 Low Street Agency Newburyport, MA 01950 500 C Street, 9.W.
Washington, DC 20472 Gary W. Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnat Road 35 Pleasant Street Hampton, NH 03841 Concord, NH 03301 Mr. Richard R. Donovan Judith H. Mizner, Esquire o
Federal Emergency Management 79 State Street Agency Second Floor Federal Regional Center Newburyport, MA 01950 130 228th Street, S.W.
Bothell, WA 98021-9796 7
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'Th6 mas C. 01{ nan, Jr.
(*= ordinary U.S. First Class Mail.)
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