ML20155B935

NRC Staff Response to Supplemental Contentions of Atty General Jm Shannon to Amend 4 of Seabrook Plan for Commonwealth of Ma Communities.* Contentions Fail to Meet Subj Cite & Should Not Be Admitted.Certificate of Svc Encl

ML20155B935
Person / Time
Site:	Seabrook
Issue date:	06/02/1988
From:	Chan E NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#288-6462 OL, NUDOCS 8806140026
Download: ML20155B935 (8)

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h f[> 06/02/88 DOCMETED USNRC

~ UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '88 M ~8 All

.sna  :. , ::e 4M BEFORE THE ATOMIC SAFETY AND l.ICENSING BOARDuipp!!.'dd In the Matter of Dockot Nos. 50-443 OL PilBLIC 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 SUPPLEMENTAL CONTENTIONS OF ATTORNEY GENERAL JAMES M. SHANNON TO AMENDMENT 4 0F THE SEABROOK PLAN F0P JASSACHUSETTS COMMUNITIES INTRODUCTION On May 13, 1988, the Attorney General for the Comonwealth of Massachusetts ("Mass AG") submitted its "Supplemental Contentions"

("Contentions") to Amendment 4 of the Seabrook Plan for Massachusetts Communities ("SPMC"). The Mass AG's submission contained a recitation of proposed additional bases for Mass AG Contentions 47 and 56 previously filed on the SPMC. These proposed additional bases concern (a) allegedly inadequate procedures for implementing dismissal or cancellation of schools and early evacuation of schools for Contention 47, and (b) allegedly conflicting PARS for beach transiants and non-transient populations ar.d allegeilly inappropriate PARS for the sheltering of transient beach populations in Massachusetts beach areas for Contention

56. In support of its submission of proposed bases, Mass AG stated that its filing was "in response to Amendment 4."

For the reasons set forth below, the Staff opposes the admission of these additional bases.

8806140026 880602 PDR ADOCK 05000443 0 PDR bse7

i DISCUSSION A. The Petition Fails to Satisfy the Standards for Late-Filed Contentions Motions to admit late-filed contentions are to be evaluated in light of the five factors delineated in 10 CFR 2.714(a)(1). That regulation requires a balancing of the following in determining whether to grant an untimely filing:

(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.  ;

l Although the Mass AG does not address any of the standards of 10 l C.F.R. 5 2.714 (a)(1) for late-filed contentions in its filing, in the discussion which follows, the Staff presents its analysis of the instant filing. The Staff's analyses of the five factors of 10 C.F.R. 6 2.714 (a)(1) indicates that Mass AG has not satisfied its burden and the i contention should be rejected. l

1. Good Cause for Failure to File on Time The Mass AG does not state any good cause for its late filing of additional bases except to state in its submission that these bases are submitted "in response to Amendment 4." There is no acknowledgement that the submission of the new contention bases is untimely or any explanation

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l , offered for.the late filing. Accordingly, the Mass AG has failed to demonstrate good cause for failing to file in a timely fashion.

2. Other Means to Protect Intervenor's Interest The Mass AG's submission does not address this issue; however the Staff does not contend that other means are available to protect the Mass AG's interest. Accordingly, this factor may be found to weigh in favor of the Mass AG.

3. Contribution to the Development of a Sound Record Commission case law establishes that the movants 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, Unit 1), ALAB-743, 18 NRC 387, 399-400 (1983).

Since the Mass AG's submission does not address this standard, it cannot be assumed that the Mass AG will call any witnesses to testify or how these witnesses might be expected to contribute to the record.

Accordingly, this factor weighs against admission of the contention bases.

4. Extent to Which Intervenor's Interest Will Be l Represented by Existing Parties No other party has raised these issues for litigation in the  :

proceeding, and absent the admission of these contention bases, Mass AG's 1

interest will not be represented by any other party to the proceeding.

Accordingly, this factor might be found to favor Mass AG.

5. Broadening the Issues or Delay to the Proceeding Admission of the proposed bases would broaden, somewhat, the numerous issues already proposed for litigation. Since the Staff has opposed the admission of Contention 56 and those parts of Contention 47 concerning the subject of the proposed bases, the admission of these additional bases could tend to delay the proceecing.

B. The Supplemental Contentions Do Not Peet the Basis ,

and Specificity Recuiremerits of_10 C.F.R. 5 2.714 (b)

The principles governing the admission of contentions are discussed at length in the Staff's May 27, 1988 response to Intervenors' contentions and will not be repeated here.

Mass AG's additional bases atention 47 "U" do not add anything new or different to the bases already set forth by Mass AG in its original filing and the proposed bases could be rejected for this reason alone.

Additionally, parts (1) and (3) lack the requisite specificity to constitute an admissible contention. The Mass AG does not indicate what "necessary resources" are unavailtble for early dismissal, or what decision criteria are missing or necessary to make a decision, much less "the best possible" decision.

Parts (2) and (4) of proposed bases "U." constitute a challenge to the Comission regulations, in that there is no regulatory requirement or NUREG-0654 guidance that school officials inform parents about the location of their children or that school officials understand and

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implement the PARS. To the extent that the cooperation of teachers involves role conflict, this issue was litigated in an earlier phase of this proceeding and need not be relitigated.

The new bases G and H for Contention 56 should be rejected for lack of regulatory basis and because they fail to lend any additional support for the contention as earlier proposed. For the same reasons noted in the 1

Staff's May 27, 1988 response to the original Ccntention 56 (Staff l Response at 50.) neither basis G nor H provide any additional support for 1

the contention and should be rejected.

CONCLUSION l For the reasons discussed above, factors 1, 3 and 5 weigh against i I

admission of these proposed late-filed contention bases, while Tactors '

2 and 4 weigh in favor of admission of the bases. In sum, a balancing of the late-filed contention factors weighs against the admission. In addition, the proposed late-filed contention bases fail to meet the  ;

specificity and basis requirements of 10 C.F.R. 5 2.714 (b) and for this reason should not be admitted.

Respectfully submitted, Elaine I. Chan Counsel for NRC Staff Dated at Rockville, Maryland this 2nd day of June,1988  !

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UNITED ST ATES OF AMERIC A NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF 1 50-444 OL N EW H AMPSHIRE,_tet g. ) Off-site Emergency Planning (Seabrook Station, Units 1 and 2)

CERTIFIC ATE OF SERVICE I hereby certify that copies of "N R C ST AFF'S RESPONSE TO SUPPLEMENTAL CONTENTIONS OF ATTORNEY GENER AL JAMES M. SH ANNON TO AMENDMENT 4 0F THE SEABROOK PLAN FOR MASSACHUSETTS COMMUNITIES" in the a bove-captioned proceeding have been served on the following by deposit in the U nited States m ail, fir. lass or, as indicated by an asteris k , by deposit in the Nuclear Reg ulatory Com mission's internal mail system, this 2nd day of June 1988.

Ivan W. Smith, Chairman

• Atomic Safety and Licensing Administrative Judge Board

• Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D C 20555 Washington, DC 20555 l

1 Gustave A. Linenberger, Jr.* Docketing and Service Section* l Administrative Judge Office of the Secretary '

Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D C 20555 Washington, D C 20555 Dr. Jerry Harbour

• T homas G. Dignin , Jr. , Esq.

Administrative Judge Robert X. Gad, III Esq.

Atomic Safety & Licensing Board Ropes & Gray '

U.S. Nuclear Regulatory Commission 225 Franklin Street Washington, D C 20555 Boston , M A 02110 l

Atomic Safety and Licensing H. J. Flynn, Esq.

A ppeal Pcnel* Assistant General Counsel U.S. Nuclear Regulatory Commission Federal Emergency Management Agency Washington, D C 20555 500 C Street, SW Washington, DC 20472

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l Philip Ahren, Esq. Calvin A. Canney Assistant Attorney General City Hall Office of the Attorney General 126 Daniel Street State House Station Portsmouth, N H 03801 Augusta, ME 04333 Mr. Angie Machiros, Chairman Carol S. Sneider, Esq. Board of Selectmen Assistant Attorney General 25 High Road Office of the Attorney 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 03833 Elly n R . Weis s , Es q . William Armstrong Diane Curran, Esq. Civil Defense Director Harmon & Weiss Town oF Exeter 2001 S Street, N W - 10 Front Street Suite 430 Exeter, N H 03833 Washington, D C 20009 Robert A. Backus, Esq. Gary W. Holmes, Esq.

Backus, Meyer & Solomon Holmes & Ellis 116 Lowell Street 47 Winnacunnet Road Manchester, NH 03106 Hampton, N H 03842 Paul McEachern, Esq. J. P. Nadeau Matthew T. Brock, Esq. Board of Selectmen Shaines & McEachern 10 Central Street 25 Maplewood Avenue Rye, NH 03870 P.O. Box 360 Portsmouth , N H 03801 Judith H. Mizner, Esq.

Charles P. Graham, Esq. Silverglate, Gertner, Baker, McKay, Murphy & Graham Fine & Good 100 Main Street 88 Board Street Amesbury, M A 01913 Boston, M A 02110 Sandra Gavutis, Chairman Robert Carrigg, Chairman Board of Selectmen Board of Selectmen R FD #1, Box 1154 Town Office Kensington, N H 03827 Atlantic Avenue North Hampton, NH 03870 William S. Lord Peter J. Matthews, Mayor '

Board of Selectmen City Hall Town Hall - Friend Street Newburyport, MN 09150 '

Amesbury, M A 01913

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. Mrs. Anne E.- Goodman, Chairman Michael Santcsuosso, Chairman Board of Selectmen Board of Selectmen 13-15 Newmarket Road South Hampton, NH 03827 Durham, NH 03824 Hon. Gordon J. Humphrey Ashod N. Amirian, Esq.

United States Senate Town Counsel for Merrimac 531 Hart Senate Office Building 376 Main Street Washington, D C 20510 Haverhill, M A 08130 Elaine I. Chan Counsel for N RC Staff i

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