ML20154Q348
| ML20154Q348 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 09/22/1988 |
| From: | Bergquist S NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#488-7179 OL-1, NUDOCS 8810030376 | |
| Download: ML20154Q348 (11) | |
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79 09/22/88 00CKETE0 U.Wht UNITED STATES OF AMERICA NUCLEAR REGULATORY C0m!SSION 18 SEP 29 P3,06 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD r.r ec..; - -
l N;KU In the Matter ot
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Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF 50-4a4 OL-01 NEW HAMPSHIRE, g a,l.
On-site Emergency Planning and Safety Issues (Seabrook Station, Units 1 and 2)
NRC STAFF kESPONSE TO MOTION BY MASSACHUSETTS ATTORNEY GENERAL TO AMEND BASES WITH RESPECT TO SIRENS CONTENTION INTRODUCTION t
On September 8, 1980, the Massachusetts Attorney General (Mass AG) filed a mot hn (Msss AG Motion) pursuant to 10 C.F.R. Il 2.730 and l
2.714(a)(3) to amend the bases to the Amended Contention of Attorney General James M. Shannon on Notification Systen for Massachusetts by t
inserting two new bases which are alleged to be directly related to bases already admitted for hearing. As explained in this response, the Mass AG's Motinn does not satisfy the requirements of 10 C.F.R. I 2.714(a)(1).
l ThePassAG'sMotiontoadmittheselate-filedbasesshouldbedenied.Il f
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BACKGROUND Mass AG seeks to amend bases 2 and 10 of its contention, which was l
admitted by the Licensing Board on June 2, 1988, to add the following:
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The issue of the necessity of adequate notification to the general i
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public of a radiological emergency as prerequisite to low-power licensing has been rendered moot by the Comission's ruling on
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September 16, 1988.
However, the issue remains alive as regards t
emergency planning relative to full-power licensing.
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2 10a. Applicants no longer intend to use the sirens in the voice mode for instructing the transient beach population in an emergency and there are no other means in place that provide reasonable assurance that l
i the beach population in Massachusetts will be adequately L
instructed in the event of an emergency at Seabrook l
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Station.
2a. The Applicants are prohibited from use of the acoustics locations which have been selected because no permission for use of these 'lecations has been obtained from the property owners.
As grounds for its Motion, Mass AG avers that the two "bases" are the result of newly discovered facts, and/or of recent changes in the Appli-cants' notification systen plan which he could not have discovered l
1 earlier. Mass AG Potion at 2.
Further, Mass AG maintains these "bases" l
are directly related to bases already admitted for hearing and fall clearly within the secpe of the dmitted contention, such that they are merely further evidence, not even requiring a motion pursuant to 10 C.F.R.
i2.714(a)(3). Mass AG has attached to his motion as exhibits an excerpt from a deposition, and copies of amendments to the Seabrook Plan for Massachusetts Communities, q
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Basis 10 was originally worded as follows:
i The applicants htve not indicated when and L.nder what I'
circumstances the tone alert mode or the message mode l
will be used.
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The language of basis 2 as admitted into litigation was:
l The applicants are legally prohibited under local i
ordinances frcm operating their six staging areas and their VANS vehicles at the pre-selected acoustic e
locations. The specific laws and ordinances can be l
identified when the Applicants disclose the acoustic locations and staging areas.
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ARGUMENT
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l Whila Mass AG asserts that his new "bases" merely represent "further evidence" in support of his previously admitted contention, comparison of the respective texts reveals that such is not the case.
Rather, the Mass j
AG is attempting to inject new and untimely issues. As such, this r
attempted introduction fails to comply with tne requirements of 10 C.F.R.
t i2.714(a)(1). Although this regulation by its terms speaks to late-filed intervention requests, the "five-factor test" it sets forth has been interpreted to apply with equal force to late-filed contentions, see e.g.
j Public Service Company of New Hampshire (Seabrook Station Units 1 and 2),
ALAB-E99, 28 NRC
, slip op, et 6-7 ( Aug. 23,1988), and the rationale 4
1 for applying the criteria of section 2.714(a)(1) -- to give opposing j
parties notice of the issues they will be required to litigate --
I nilitates in favor of applying the same standards to motions to add i
i late-filed bases which provide new ratters to litigate.
Examination of Mass AG basis 10 as now admitted shows it solely
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concerns the circunstances under which the tone alert mode or the message t
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mode will be used. Preposed basis 10a intrcduces, in essence, a new l
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It is wholly premised on a supposed need for spoker l
j instructions to the Seabrook beach population in the event of an emergancy.
No argument is presented to demonstrate a noxus between the original basis 10, which concerns a lack of identification as to when and under what circumstances the tore alert mode or the message mode is to be used, and basis 10a, which is predicated on a necessity for spoken l
l instructions. No regulatory ground creating such necessity is set forth.
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. i Thus, a relationship between existing basis 10 and proffered basis 10a is not shown to exist.
j Similarly, proffered basis 2a is not justified by any demonstration j
of a relationship with the original basis 2.
Nothing in the text of the original basis which concerns laws and ordinances allegedly prohibiting applicants fron locating VANS vehicles at staging area locations can fairly be construed to encompass the question of the need for the permission of private property owners for use of these subsequently dis-closed sites which the Mass AG now seeks to raise. Hence, the Mass AG is again attempting to expand the issues in controversy.
As noted by the Appeal Board in a recent decision, where the scope of a contention is at issue, there is no good reason not to read the con-tention together with its bases to get a sense of what issue the party seeks to raise.
ALAB-899, slip op, at 7-8, n.11.
Since both of Mass AG's "basis 10e" and "basis 2a" raise issues not posed by admitted bases 10 and 2, they must both censtitute proper bases for a contention, and must also meet the burden for admissinn established by the five factors set forth in 10 C.F.R. I 2.714(a)(1):
(i) Good cause, if any, for failure to file on tine.
(ii) The availability of other means whereby the peti-tiener'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.
9 5-With respect to these criteria, Mass AG asserts no "good cause" (factor (i))foritsbelatedattempttointroduceitsamended"bases"into litigation. As noted above, no regulatory requirement for a "voice" mode of comunication to the Seabrook beach population is cited in support of proffered "basis 10a," and no such requirement exists.
Further, as noted on page 3 of Applicants' Answer To Motion To Amend Basis Filed By Mass AG With Respect To Sirens Contention (September 12, 1988) (Applicants' Answer), Mass AG was furnished with data upon which basis 10a is predi-cated at least by July 5, 1988, nearly two months ago.
With respect to proposed "basis 2a," no reason or argument is presented to justify Mass AG's tardy attempt to introduce the issue of the recessity of property owners' permission for siting of acoustics locations. The Mass AG acknowledges the natter in this new basis was made available to the Mass AG as of July 19, 1988, well before the date of i
his motion, Applicants' answer at 4.
More importantly, the issue could
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also have been raised at the time Mass AG's initial contentions in this proceeding were filed, or long before July 1988.
Further, no relationship is substantiated between "basis 2a" and basis 2 as admitted into litiga-tion, such that the latter may fairly be considered to have put opposing parties on notice at to the future need to litigate the former.
In sum, Mass AG has shown no reasons why his late notion should be entertained. He has given no good reasons for sitting on the sidelines for this long time.
He has given no good reasons why he should be permitted to introduce two new issues at this late date. Therefore, he has failed to shcw any good cause for his late filing, and this factor should preponderate ag? inst the granting of his motion to amend his bases
in these proceedings. Accordingly, the first factor -- good cause for delay -- weighs heavily against the Mass AG with respect to both "basis 10a" and "basis 2a."
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Absent a showing of good cause for late filing, an intervention i
petitlener mu t make a "compelling showing" on the other four factors statedin10C.F.R.I2.714(a). Mississippi Power & Light Co. (Grand f
Gulf Nuclear Statien, Units 1 and 2), ALAB-704, 16 NRC 1725, 1730 (1982),
citing South Carolina Electric and Gas Co. (Virgil C. Sumer Nuclear Station, Unit 1),ALAB-642,13NRC881,894(1981), aft d sub nom.
Fairfield United Action v. Nuclear Regulatory Commission, 679 F.2d 261 (D.C. Cir. 1982). Factor (ii) concerns whether there is another forum for i
a party to have its interests represented.
Factor (iv) concerns whether there is another party to represent petitioner's interests.
10 C.F.R.
I 2.714(a). These factors are gent rally given less weight than the others.
See, Commonwealth Edison Company (Braidwood Nuclear Power Sta-tion, Units 1 and 2), CLI-86-8, 23 NRC 241, 245; citing, South Carolina t
Electric and Gas Co. (Virgil C. Sumer Nuclear Station, Unit 1), ALAB-642, 4
l 13NRC881,895(1981). While the Staff believes that these two factors weigh in favor of Mass AG, in the circumstances of this case, despite his failure to address them, they do not create a "compelling showing" justi-
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fying admission of "hasis 10a" and "basis 2a" into this preceeding, j
i The third factor set forth in 10 C.F.R. I 2.714(a)(1) concerns the l
ability of Mass AG to contribute to development of a sound record. As the i
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Comission has previously noted, "[0]ur case law establishes both the
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importance of this third factor in the evaluation of late-filed conten-i l
tions and the necessity of the moving party to demonstrate that it has i
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7 special expertise on the subjects wiiith it seeke t raise." See, CLI-86-8, supra, 23 NRC at 246.
The Appeal B nrd M stated "[W] hen 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 sunmarize their proposed testimony."
Mississippi power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC 1725, 1730 (1982). Mass AG presents no argument whatsoever to substantiate compliance with this criterion in regard to
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either "basis 10a' or "besis 2a."
Accordingly, it must be weighed against him.
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Finally, factor (v) requires inquiry concerning whether the flass AG's i
l new contention rould broaden the issue or delay the proceeding. Without referring to this factor, he avers, in conclusory fashion, that "admission of these two bases will not broaden the scope of the hearing in any naterial way." Mass AG Motion at 4.
To the contrary, admitting either i
"basis 10a" or "basis Pa" into litigation would inevitably entail both the adverse consequences required to be considered under factor (v). Thus factor (v) further depresses the scales agcinst admission of the new j
"bases."
Balancing the tactors in 10 C.F.R. I 2.714(a)(1) requires that "basts" 10a and 2a be denied admission into litigation.
CONCLUSIE In sumary, Mass AG's Motion represents an untimely attempt to inject two new issues on the eve of the filing dste for sumary disposition motions. A balancing of the five factors set forth in 10 C.F.R.
I2.714(a)(1),inlightofprecedentandsoundpolicy,militatesagainst admitting these late-filed issues. Mass AG's motion, therefore, should be denied.
i Respectfully submitted, j
3 Stephen A. Bergquist Coursel for NRC Staff i
Dated at Rockville, Maryland
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this 22nd day of September, 1988 i
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UNITED STATES OF AMERICA Ti[
NUCLEAR REGULATORY COMMISSION BEFOR,C,THE AT0ftIC SAFETv AND LICENSING BOAth SEP 29 P3 :08 Ir. the Matter of l
Docket Nos. FdA'4'44,'0!s01 'Ei 43'OL-01 PUBLIC SEP.VICE COMPANY OF BW-NEll HAPPSHIPE, g al,.
On-site Emergency Planning and Safety Issues (SeabrookStation, Units 1and2)
CEP.T!FICATE OF SEPVIC I heret) certify that copies of 'W:C STAFF RESPONSE TO MOTION BY MASSACHUSETTS I
ATTOPNEY GEt!EPAL TO AMEtiD BASES WITH FESPEC1 TO SIFEP:S C0f"ENTION" in the above captioned proceeding have been served on the following by deposit in the United States rnail, first class, or as indicated by an asterisk, by deposi'. iri the Nuclect Fegulatcry Cornissicr's internal mail systen Or, as indicated this 02nd day of September 190,0.
Sheldco J. Wolfe, Esq., Chairr an*
Docketing ard Service Section*
4 Administrative Judge Office of the Stcretary Attric Safety r.rd Licensing Foard U.S. f.'uclear Regulatory Ccmission U.S. Nelear Regulatory Corrission Washington, DC 20555 Washington, DC pr555 Thornas G. Dignan, Jr., Eso.
Dr. Jerry Harbcur*
Robert k. Gad, III. Esq.
Administrative Judge Ropes & Oray j
Atoraic Safety.and Licensing Board 025 Franklin Street U.S. Nuclear Pegulatory Crwissier Bcston, MA 00110
).'eshingteri. DC ?0555 i
Ashed N. Amirian, Esq.
1 Dr. Erreth A. Luebke Tewn Counsel for !!errimac Adrinistretive Judge 376 Fain Street 451f Villard Avcr.cr HaverH 11, MA 08130 Chevy Chase, Garylend 00815 H. J. Flynn, Esc.
Attcie Safety a..d Licensirg Assistant General Ceunsel Appeal Par 41 (5)*
Tederal Emergency Panagerent U.S. Nuricar Ragulatory Comissicn Agency Westington, OC 70555 500 0 Street, SW Washington, DC 2047:
4 Atoric Safety and Licensing Beard Panel (1)*
Sheldon J. Wolfe, Esq.
U.S. 7;uclear Regulatory Cemission Acrinistrative Judge Washington, DC 20555 1110 Virtledon Drive i
l McLean, VA 22101 i
e 2
Philip Ahren Esq.
Calvin A. Canney Assistant Attnrrey General City Hall Office of the Attorney Gener.t1 126 Daniel Street State House Station Portsmouth,fH 03801 t
Augusta, PE 04333 Fr. Angie Machiros. Chairman Cerol S. Srcider, Esq.
Board of Selectmen Assistant Atterney General 25 High Pead i
Office of the Atterney General Newbury PA 09150 One Ashburton Place, 19th Floor Boston, MA 0*108 Allen Lampert Civil Defense Director George Cana Bisbee, Esq.
Town o' Brentweed Assistert Attorney Genera' 00 Franklin O'fice of the Attorney Gens.el Exeter, NH 03E2?
?S Capitol Street Concord, NH 03301 William Armstrong i
Civil Defense Oirector Ellyn R. Weiss, Esq.
Town of Exeter Diane Curran, Esq.
10 Front Street Harmon L Veiss Exeter, NH 03833 2001 S Street, ik Suite 430 Cary W. Holres Esq.
Washirgton, DC 20CCf Holres & Ellis 47 Winnacunnet Road Robert A. Pertus. Esq.
Hampton, NH 03842 Backus, Meyer & Solomon 110 Lowell Strcct J. P. Nadeeu Manchcrter, NH 03100 Roard of Selectren L
10 Certral Street Paul McEachern, Eso.
Pye, NH 03870 Patthew T. Erock, Esq.
Shatnes t. I'cEachern Judith H. Mizner Esq.
05 Haplewcod Averve Silverglate, Gertner, Baker, P.O. Box 300 Fine & Good Portsecuth, NH 03801 EC Board Strent Feston, MA 00110 Charles P. Grabar Eso.
McKay, l'urphy & Grahar Robert Carrigg, Chairr.an 100 rein Strert Board of Selectren Amesbury. MA 01g13 Town Office Atlantic Averue Sandre Gevutis, Chairman fierth Hampton, NH 03870 Board cf Selectr'en PFC el, Box 1154 Kensington, NH 03007
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1 William S. Lord Peter J. itatthews, Mayor I
Beerd of Selectmen City Hell Tewr, Hall - Friend Street Newburyport PN 09150 Amesbury, MA 01913 Michael Santosuosso Chaiman Mrs. Anne E. Goodmar., Chaiman Beard of Selectron Peard of Selectren South Hampton, NH 03827 13-15 Newmarket Road l
Durhan,fiH 03824 l
t Hon. Gerdon J. Hurphrey United States Senate 0:1 Hart Senate Office Puilding l
Vashingten. DC 20510 i
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Stepherf f. Bergquist 7F Counsel for NRC Staff