ML20154P675
| ML20154P675 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 09/26/1988 |
| From: | Selleck K PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#488-7164 OL, NUDOCS 8810030145 | |
| Download: ML20154P675 (10) | |
Text
. __ _________________________________ _____.._
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00LKETED UWC September 26, 1988
'88 SEP 28 P5 :36 UNITED STATES OF AMERICA NUCLEAR REGUIATORY COMMISSION b
o e
before the ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
)
)
PUBLIC SERVICE COMPANY OF
)
Docket Nos. 50-443-OL NEW HAMPSHIRE, et al.
)
50-444-OL
)
(Seabrook Station, Units 1 and 2)
)
(Off-site Emergency
)
Planning Issues)
)
APPLICANTS' RESPONSE TO NOTIONS OF INTERVENORS AND EDNARD A. THOMAS FOR LEAVE TO FILE RESPONSES TO APPLICANTS' REPLY TO INTERVENOR FINDINGS ON SHELTER CONTENTIONS Applicants respond herein in opposition to two motions for leeve to file responses to Applicants' reply to intervenors' proposed findings of fact and conclusions of law on shelter contentions.
Both motions, one filed by intervanors Mass AG, NECNP, SAPL, and TCH and the other filed by Edward A. Thomas on his own behalf, should be denied.
Applicants do not address here the specific arguments int.venors would urge in support of their proposed shelter findings.
Those arguments do not constitute sufficient grounds for a grant of leave to file a reply to which they 89100g$ h p
PDR 03 g5
are not entitled under the rules of practice.
133 10 CFR S 2.754.
The record in any event speaks for itself and, we submit, fully bears out the validity of Applicants' filing.
Two matters, however, do call for refutation here and now.
First, the previous position of Edward A. Thomas plainly was not admitted in evidence for all purposes, and, second, there is nothing untoward in Applicants' points going to the credibility of Mr. Thomas.
These were timely and properly made in reply to intervanors' proposed findings.
Needless to say, they do not provide an occasion for supererogatory responses.
1.
As to the Evidentiary Limitations on the Previous Thomas Position.
The previous position of Mr. Thomas on beach shelter contentions (filed June 4, 1987 and again in September 1987) was not admitted in evidence, as intervenors claim, without limitation and for all purposes.
That claim is unfounded.
Intervenors cite but unaccountably discount this Board's ruling on the matter.
"MR. DIGNAN:
Well, Your Honor, if you're taking it for the truth of the matters contained, the v'eness must testify he believes it.
"JUDGE SMITH:
Well, that's right.
You cover that on cross-examination.
In the meantime it's accected for the fact that on June the 3rd this was his O
iudament as to what the testimony should have been.
"MR.
FLYNN:
I've been --
"MR. DIGNAN:
I don't have any problem with it for that purpose, Your Honor, that's my point.
JUDGE SMITH:
All right.
So we're fine."
IIA 13551-5? (emphasis added).
The Thomas position was never again offered for any purpose other than the limited historical purpose enunciated by the Board.
Interestingly, Mass AG, when invited to pursue the matter, expressly declined the invitation.
"BY MR. OLESKEY:
"Q Mr. Thomas, I take it from your testimony just before the break that the document you sent down to Washington last June 4th would be marked Mass. AG Exhibit 50, that was in your judgment an accurate summary of where you thought your agency was on the beach population issue at that time; is that right?
"Q And if you were asked today to do this again in the circumstances which existed last June would you send down the same text you sent down then?
"JUDGE SMITH:
Whoa, I have trouble with that one.
Necessarily he would, you know --
would he send down today --
"MR. OLESKEY:
This is tautology.
"JUDGE SMITH:
Yes.
"MR. OLES' Ys Well, I'm just trying to deal with what I understood that your last comments were that, as a ruling, which is that this is some kind of historical document only and doesn't represent Thomas's views.
o*
l I
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I j
l "JUDGE SMITH:
Well, then ask the question, based upon what you l
j know today would you still advocate this as --
i l
"MR. OLESKEY:
Well, that gets into a level of complexity that 1
deals with everything that's i
happened between June 2,
'87 and today.
To get this in the record j
as his view of where the agency was or should be last June, I think the only operative question a
was, was it your best judgment, L
was it accurate, did you send it j
down to be relied on, which is j
i all I said, t
j "JUDGE SMITH:
Yes.
I j
"MR. DIGNAN:
And he so testified 4
and it's in for that purpose, as j
I understand it, to show his i
- view, f
I "MR. OLESKEY:
All right.
That's
+
what I wasn't clear about.
i 1
"JUDGE SMITH:
Yes, it's in for i
that purpose.
My concern with your last question is it i
necessarily then, if everything i
were the same then up till the l
time you sent it.
I "MR. OLESKEY:
I was proceeding i
from a misapprehension about what your concern was, Judge Smith, so I don't need that question."
(
Ira 13553, 13554-55.
Intervenors' other argument that the Thomas position was j'
admitted for general purposes is equally wanting.
f Intervenors have the temerity to assert:
t "In addition, the form FEMA position was admitted as Attachkent 7 to the Goble testimony, at Post Tr. 10952."
Intervenors' Motion at 4 n.3.
t t
f l
J
I e
The Board specifically inquired, with respect to the Goble attachments:
"JUDGE SMITH:
Do I understand this entire presentation correctly, that attachment one through ten are not being offered as prime exhibits, they're being offered as the basis for the written testimony as to which this cross-examin(Goble) panel is being ed.
"MR. OLESKEY:
Correct.
"JUDGE SMITH:
My understanding is correct.
"MR. TURK:
And may I seek one clarification of it.
In other words, these are historical documents which they read, which they considered and which went into their own thinking.
"JUDGE SMITH:
That's my understanding."
Irx 10964.
Given this backdecy, it is too late in the day even to suggest that the document was accepted for all purposes.
2.
As to Mr. Thomas's Credibility In their proposed findings on intervenors' shelter contentions, Applicants refrained from any comment upon the credibility of Edward A. Thoman.
Similarly, they had i
refrained from extensive cross-examination of Mr. Thomas on June 15, 1988.
Intervenors, however, elected to put Mr.
Thomas's credibility at issue using
't to underpin their proposed findings notwithstanding their knowing of the record l
- support for a negative finding on this score.1 Applicants' reply, accordingly, was very much in order.
While the credibility of Mr. Thomas was a matter that Applicants had considered to have become a non-issue, intervenors were of a different mind.
They can hardly cry foul for having forced Applicants to join the issue.
Needless to say, their provocation of a reply to their proposed findings does not provide an occasion to depart from the rule of practice which i
does not allow for yet another go around.
Mr. Thouas on his own behalf has also sought leave to file a response to Applicants' reply to intervenors.
Mr.
Thomas seeks leave to file a response on the ground that he perceives a need to communicate with the Board on the matter of his credibility.
This belief, we observe, he has a
perceived for some time.
The rules of practice, however, do j
not provide for a non-party witness to contribute proposals I
for the Board's findings of fact.
See 10 CFR $ 2.734.2 To i
be sure, Mr. Thomas has a personal interest in the matter of his credibility.
However, credibility is not established as 1
112, at21, record citations listed in Applicants' Motion for order (And/or Subpoenas) Requiring Attendance and Testimony of Particular Named NRC Employees, filed on January 6, 1988, passim.
2 Mr. Thomas cites 10 CFR 5 2.730(c) as authority for his personal response.
That section, however, governs responses to motions and not filings on proposed findings.
Furthermore, that section also limits the right of response i
to parties.
l. _ _. _ -
i an after the fact matter.
- lothing is presented here that warrants a departure from the rule.
CONCLUSION The motions of intervenors and Edward A. Thomas for leave to file responses to Applicants' reply to intervenors' proposed findings on shelter contentions should be denied.
Respectfully submitted, J
Thomfs G.
Dign'an, Jr.
G6erge H. Lewald Kathryn A. Selleck Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 Counsel for Acolicants f
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'88 SP 28 PS :36 CERTIFICATE OF SERVICE uc'.
- ,e I, Kathryn A. Selleck, one of the attorneys Corr.the: J Applicants herein, hereby certify that on September 26F 1988, I made service of the within document by depositing copies thereof with Federal Express, prepaid, for delivery to (or, where indicated, by depositing in the United States mail, first class postage paid, addressed to):
Administrative Judge Ivan W. Smith Robert Carrigg, Chairman Chairman, Atomic Safety and Board of Selectmen Licensing Board 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 Judge Gustave A. Linenberger Diane Curran, Esquire Atomic Safety and Licensing Andrea C.
Forster, Esquire 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 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 East West Highway Concord, NH 03301-6397 Bethesda, MD 20814 Adjudicatory File Sherwin E. Turk, Esquire Atomic Safety and Licensing Office of General Counsel Board Panel Docket (2 copies)
U.S. Nuclear Regulatory U.S.
Nuclear Regulatory Ccmmission Commission East West Towers Building One White Flint North, 15th Fl.
4350 East West Highway 11555 Rockville Pike Bethesda, MD 20814 Rockville, MD 20852
- Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Board Panel 116 Lowell Street U.S.
Nuclear Regulatory P. O.
Box 516 Commission Manchester, NH 03105 Washington, DC 20555
6 e
1 Philip Ahrens, Esquire Mr. J. P. Nadeau Assistant Attorney General Selectman's Office Department of the Attorney 10 Central Road General Rye, NH 03870 Augusta, ME 04333 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 Fl.
Portsmouth, NH 03801 Boston, MA 02108 Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall 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-Washington, DC 20510 Whilton & McGuire (Attnt Tom Burack) 79 State Street Newburyport, MA 01950
- Senator Gordon J. Humphrev Mr. Peter J. Matthews one Eagle Square, Suite 507 Mayor Concord, NH 03301 City Hall (Attnt 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 H. Joseph Flynn, Esquire Charles P. Graham, Esquire Office of General Counsel Murphy and Graham Federal Emergency Management 33 Low Street Agency Newburyport, MA 01960 500 C Street, S.W.
Washington, DC 20472 Gary W. Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03841 Concord, NH 03301 -.
o Mr. Richard R. Donovan Judith H. Mizner, Esquire Federal Emergency Management 79 State Street, 2nd Floor Agency Newburyport, MA 01950 Federal Regional Center 130 228th Street, S.W.
Bothell, Washington 98021-9796 Ashod N. Amirian, Esquire Leonard Kopelman, Esquire 376 Main Street Kopelman & Paige, P.C.
Haverhill, MA 01830 77 Franklin Street Boston, MA 02110 Robert R. Pierce, Esquire Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814 f
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