ML20155A975
| ML20155A975 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 09/29/1988 |
| From: | Bergquist S NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#488-7210 OL-1, NUDOCS 8810060138 | |
| Download: ML20155A975 (8) | |
Text
_ _
18'8 sEP t 91998 CW*
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 88 cci -4 PS:25 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD p re:l i o.
CA( p In the Matter of
- ^
Docket Nos.
50-443 OL-01 PUBLIC SERVICE COMPANY OF 50-444 OL-01 NEW HAMPSHIRE, el al.
On-site Emergency Planning and Safety Issues (Seabrook Station, Units 1 and 2)
NRC STAFF RESPONSE TO MASSACHUSETTS ATTORNEY GENERAL'S REQUEST TO FILE REPLY TO "APPLICANTS' ANSWER TO MOTION TO AMEND BASIS FILED BY MASSACHUSETTS ATTORNEY GENERAL WITH RESPECT TO SIREN CONTENTIONS" INTRODUCTION On September 21, 1988, the Massachusetts Attorney General (Mass AG) filed a request (Mass AG Request) pursuant to 10 C.F.R. I 2.730(c) for Board permission to file a reply to Applicants' Answer To Motion To Amend Basis Filed By Mass AG With Respect To Sirens Contention (Applicants' Answer). Applicants' Answer was in response to Mass AG's September 8, 1988, Motion To Amend Bases (Mass AG Motion to Amend) regarding the Amended Contention of Attorney General James M. Shannon on Notification System for Massachusetts.
The Mass AG Motion to Amend sought to add two new "bases", alleged to be directly related to bases already admitted for hearing. The NRC Staff has already registered its disagreenent with Mass AG's attempt to introduce these new "bases" into this proceeding. See NRC Staff Response To Motion By Massachusetts Attorney General To Amend Bases With Respect To Sirens Contention, September 22, 1988 (NRC Staff Response). As the rationale for his request, the Mass AG refers to a Comnission rule change on Septenber 16, 1988, which rendered moot the
$kooggg p]
3
(
2 issue of the necessity of adequate notification to the general public of a radiological emergency as prerequisite to low-power licensing. As explained in this response to Mass AG's present request, he is essentially reiterating arguments made in his Motion to Amend, while belatedly attempting to address the criteria for late-filed contentions imposed by 10 C.F.R. I 2.714(a).
For reasons discussed below, his request should be denied.
BACKGROUND in his Motion to Arend, Mass AG sought addition of these amended "bases":
10a. Applicants no longer intend to use the sirens in the voice n' ode for instructing the transient beach population in an emergency and there are no other means in place that provide reasonable assurance that the beach population in Massachusetts will be ade-ovately instructed in the event of an emergency at Seabrook Station.
2a. 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.
These "bases" were said to be related to, and merely further evidence of, the following previously-admitted bases:
Basis 10. The applicants have not indicated when and under what circunstances the tone alert mode or the message mode will be used.
Basis 2.
The applicarts are legally prohibited under local ordinances from operating their six staging areas and their VANS vehicles at the pre-selected acoustic locations.
The specific laws and ordinances can be identified when the Applicants disclose the acoustic locations and staging areas.
1
The NRC Staff has already submitted its reasons for rejecting Mass AG's argumants in support of his Motion to Amend. See NRC Staff Response at 3-7.
In his new request, Pass AG cites the following language of the contention under which bases 10 and 2 were admitted into this proceeding as further justification that proposed amended bases "10a" and "2a" are within the scope of the contention:
Applicants have failed to comply with the provisions of 10 C.F.R. I 50.47(b)(5) and Part 50, Appendix E, IV,D(3). The means they claim to have established to provide early notification and clear instruction to the populace of the Towns of Amesbury, Merrimac, Newbury, Newburyport, Salisbury and West Newbury, Massachusetts and Salisbury State Beach Reservation in Salisbury, Massachusetts are inadequate.
Further, Mass AG adduces new arguments in a belated attempt to demonstrate that proposed "bases" 10a and 2a comply with two of the requirements governing the admission of late-filed contentions, namely "the extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record" and "[T]he extent to which the petitioner's participation will broaden the issues or delay the proceeding." See 10 C.F.R. I 2.714(a)(1)(iii) and (v).
APGUMENT The only new elernent in Mass AG's request designed to demonstrate that he is not really trying to add new issues to this proceeding is the contention quoted supra.
This new factor utterly fails to neet the substance of arguments made in either Applicants' Answer or the NRC Staff Response that "bases" 10a and 2a are actually untimely new contentions which could and should have been made long before the eve of the filing date for sumary disposition rotions, and which now should be subject to
4 o
the five-factor balancing test set forth in 10 C.F.R. I 2.714(a)(1).
It appears that Mass AG now recognizes the failure, in his Motion to Amend, to establish a logical connection between proposed amended "bases" 10a and 2a and admitted bases 10 and 2, and is maintaining that other parties to this litigation were somehow put on notice by the broad generality of the contentinn of the future need to litigate issues raised by the new "bases". Were such an argument to be validated, the vagueness of highly general contentions could be exploited to append an endless array of new "bases", no ratter how tenuously related to previously admitted bases.
This flouts the intent of the specificity requirement of 10 C.F.R. 7 6 2.714(a)(2) that parties be put on notice of issues to be litigated, and l
fails to show any logical nexus between proposed new "bases" 10a and 2a t
and the admitted bases.
Belatedly acknowledging the need to comply with the "five factors" test of 10 C.F.R. I 2.714(a)(1), Mass AG maintains his Motion to Amend was timely.
See Mass AG Request at 2-3.
What he evidently means by this is that he had good cause for his late-filed contentions.
However, he nowhere refers to the "good cause" requirenent, or plausibly justifies 5
delaying his attempt to add 10a and 2a until the iminence of the sumary disposition filing deadline.
A person who files an untirely contention must affirmatively address the five lateness factors stated in 10 C.F.R. I ?.714(a)(1) in his peti-t'on, regardless of whether any other parties in the proceeding raise the tafdiness issue.
Boston Edison Co. (Pilgrin Nuclear Power Station).
ALAB-816, 22 NRC 461, 465 (1985),
Thus, the burden of proof is on Mass AG to show justification for admission of late-filed contentions. M. at 466. A late petitioner like Mass AG who failed to address the lateress 2
5-factors in his Motion to Amend is not entitled to a second opportunity to make a substantial showing on those factors, althoujh a Board in its discretion may give a late petitioner such an opportunity. Ld.at468.
However, the Board should not do so in this case. Mass AG does not even attempt to explain why there is good cause to entertain his belated atterpt to satisfy the five-factor test.
Nor could he succeed in making such a showing, because there is nothing in the instant response that could not have been presented initially.
Although the Licensing Board might, as a matter of discretion, accord Mats AG a second opportunity to make a "substantial showing" on the late-ness factors, it is not obliged to do so.
In short, Mass AG "ignored...
the terms of 10 C.F.R. $ 2.714(a)(1) and his own past practice in Seabrook --
at his peril." [d.
In his Recuest, Pass AG argues that addition of "bases" 10a and 2a will assist in developing a sound record and will not unduly broaden the issues or delay the proceedings. He is wrong on both counts, but that is irrelevant for purposes of assaying the legal merits of his present pleading.
He ignored the five lateness factors in his motion of Septem-ber 8, 1988, which attempted to add two new contentions in the guise of previously admitted bases. Pass AG's belated, improvisational attempt to make a showing on the lateness factors comes too late.
The Board should deny his Request.
Respectfully submitted, p*
hr Stephen A. Bergquist Counsel for NRC Sta'f Dated at Rockville, Paryland this Ogth day of Septerber 1988
UNITED STATES OF AMERICA Nb NUCLEAR REGULATORY COMMISSION BEFORE THE, ATOMIC SAFETY AND L,1 CENSING BOARD
'88 007 -4 PS :25 In the Matter of
,,n,.
Docket Nos. 50-44h0L-01c,.
.o PUBLIC SERVICE COMPANY OF 50-444 OL-01 C -
NEW HAMPSHIRE, d a_1.
On-site Emergency Planning and S.'ety issues (Seabrook Station, Units 1 and 2)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO MASSACHUSETTS ATTORNEY GENERAL'S RE0 VEST TO FILE REPLY TO ' APPLICANTS' ANSWER TO MOTION TO AMEND BASIS FILED BY MASSACHUSETTS ATTORNEY GENERAL WITH RESPECT TO SIREN CONTENTIONS" 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 Comission's internal mail system or, as indicated this 29th day of September 1988.
Sheldon J. Wolfe, Esq., Chairman
- Docketing and Service Section*
Administrative Judge Office of the Secretary Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, DC 20555 Washington, DC 20555 Thomas G. Dignan, Jr., Esq.
Dr. Jerry Harbeur*
Robert K. Ged, III, Esq.
Administrative Judge Ropes & Gray Atonic Safety and Licensing Board 225 Franklin Street U.S. Nuclear Regulatory Comission Boston, MA 02110 Washington, DC 20555 Ashed N. Amirian, Esq.
Dr. Erreth A. Luebke Tcwn Counsel for Merrimac Administrative Judge 376 Main Street 4515 Willard Avenue Haverhill, MA 08130 i
Chevy Chase, Maryland 20815 i
H. J. Flynn, Esq.
Atomic Safety and Licensing Assistant General Counsel Appeal Panel (5)*
Federal Erergency Management U.S Nuclear Regulatory Comission Agency Wasnington, DC 20555 500 C Street, SW Washington, DC 20472 Atomic Safety and Licensing Board Parel (1)*
Sheldon J. Wolfe, Esq.
U.S. Nuclear Regulatory Comission Administrative Judge Washington, DC 20555 1110 Wimbledon Drive l
McLean, VA 22101 I
2 Philip Ahren. Esq.
Calvin A. Canney Assistant Attorney General City Hall Office of the Attorney Gereral 126 Daniel Street State House 5tation Portsmouth, NH 03801 Augusta ME 04333 Mr. Angie Machiros, Chairman Carol S. Sneider Esq.
Board of Selectren Assistant Attorney General 25 High Road Office of the Attorney General Newbury, MA 09150 One Ashburton Place, 19th Floor Boston, MA 02100 Allen Lampert Civil Defense Director George Dana Bisbee, Esq.
Town of Brentwood Assistant Attorney General 20 Franklin Office of the Attorney General Exeter, NH 03833 25 Capitol Street Concord, NH 03301 William Armstrong Civil Defense Director Ellyn R. n!eiss. Esq.
Town of Exeter Diane Curran, Esq.
10 Front Street Harmon & Weiss Exeter, NH 03833 2001 S Street, NW Suite 430 Gary W. Holmes. Esq.
Washingten. DC 20009 Holmes & Ellis 47 Winnacunnet Road Robert A. Backus. Esq.
Har.pton, NH 03842 Backus, Meyer & Solomon 116 Lowell Street J. P. Nadeau Manchester, NH 03106 Board of Selectnen 10 Central Street Paul McEachern. Esq.
Rye, NH 03870 Matthew T. Brock, Esq.
Shaines 6 McEachern Judith H. Mizner, Esq.
25 Maplewood Avenue Silverglate, Gertner, Baker, P.O. Boy 360 Fine & Good Portsrouth, NH 03801 88 Board Street Boston, MA 02110 Charles P. Graham, Esq.
McKay, Murphy & Graham Robert Carrigg, Chairman 100 Main Street Board of Selectmen Amesbury MA 01913 Town Office Atlantic Avenue Sandra Gavutis, Chairnan North Hampton, NH 03870 Boerd of Selectren RFD #1, Box 1154 Kensington, NH 03827
3 William S. Lord Peter J. Matthews, Mayor Board of Selectmen City Hall Town Hall - Friend Street Newburyport MN 09150 Aresbury, MA 01913 Michael Santosuosso Chaiman Mrs. Anne E. Goodman. Chairman Board of Selectmen Board of Selectmen South Hampton, NH 03827 13-15 Newmarket Road Durhan, NH 03824 Hon. Gorden J. Hurphrey United States Senate 531 Hart Senate Office Building Washington, DC 20510 fh S.
%ll Stephen A. Bergquist
v Counsel for NPC Staff
.