ML20155G947
| ML20155G947 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/03/1988 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#488-7239 OL-1, NUDOCS 8810180143 | |
| Download: ML20155G947 (10) | |
Text
7g39
'e Octk h 3, 1988 t
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION before the 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, 31 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 REQUEST TO FILE REPLY OF MASSACHUSETFS A'ITORNEY GENERAL TO "APPLICANTS '
ANSWER TO MOTION TO AMEND BASES FILED BY MASSACNUSETTS l
A'ITORNEY GENERAL WITH RESPECT TO SIREN CONTENTIONS" INTRODUCTION Under date of September 21, 1998, the Attorney General of The Commonwealth of Massachusetts (Mass AG) has filed a document entitled: Reauest to Pile Recly of Massachusetts i
Attorney General to "Acolicants' Answer to Motion to $2end Bases Filed by Massachusetts Attorney General with Reseect to a
S.iren contentions" (The Request).
The purpose of the filing is apparently to make further arguments in support of a a
"Motion to Amand Bases" filed by Mass AG on September 8, 1988, and answered by the Applicants on September 12, 1988, 8010180143 881003 3
PDR ADOCK 05000443 0
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and the Staff on September 22, 1988.
It is stated that The Request is filed because:
"The reply is necessary because since the l
Applicants' Answer the Commission has j
adopted an amendment to 10 C.F.R. 5 50.47(d) which bears directly on the Applicants' arguments."1 The above-quoted justification is a ruse in large part.
In fact, the recent amendment of the regulation referenced has, at best, minimal tangential relevance to the arguments made in The Request.2 In fact, The Request is an attempt to make the arguments which Mass AG should have made in the September 8, 1988, filing for the first time.3 For the reasons set forth below, this tactic should not be rewarded, and, in any event, the necessary showing has not been made.
1Reauest at 1.
2E13 infra n. 5 and accompanying text.
3Mass AG's somewhat unstructured approach to this entire proceeding is further illustrated by the fact that the transcript attached to The Request and which allegedly forms a partial basis for it is under this Board's protective order and an agreement prohibiting its disclosure.
When this was called to Mass AG's attention, the Applicants were advised that this was simple inadvertence, a representation we accept.
As a result we are filing no motion for sanctions.
However, as set forth in the argument herein, this casual approach of "file what you feel like whenever you feel like it" should not be condoned by granting The Request.
ARGUMENT I.
The Request Makes no Case for the Exercise of this Board's Discretion to Grant The Request Under the Commission's Rules of Practice, there is no right of reply to the answer to a motion.4 A motion for leave to file a reply is, of course, addressed to the sound discretion of the Board.
No case has been made for the exercise of that discretion here.
As will appear below, every argument that has substantive relevancy to the matter at bar could, and should, have been made in the original filing except one.
That one is an erroneously premised argument, 112 infra i II.,
to the effect that an admission of the new issues will cause no delay because the "siren issues are (now] full-power rather than low-power issues.
"5 As pointed out below, however, whether it delays full-power or low-power operation, admission of Mass AG's new issues will certainly cause delay.
The adjudicatory boards of the NRC have a long-standing history of granting relief from the Rules of Practice when 4 10 CFR I 2.730(c).
5The other place where reference is made :.a the rule change is in a section where Mass AG complains of the Applicants' refusal to agree to ignore an outstanding Board scheduling order and put off the filing of Summary Disposition Motions with respect to the siren issues.
t the party in error is a lay person unfamiliar with legal matters.6 However, in this case the initial pleading was filed by the Office of the Attorney General of a State; an office from which at least seven attorneys have appeared of record in this proceeding.
There simply is no excuse for not making the arguments made in The Request in the initial filing.
Thus The Request for leave to file should be denied.
II.
Even if the Board Elects to Receive and Consider the Argumente made in The Request, the Arguments Made therein Should Be Rejected on the Merits.
The arguments made in The Request address three of the "five factors" to be considered under 10 CFR 5 2.714 (a) (1) in deciding whether to admit a late-filed contention.
The following rejoinder is offered as to cach of the arguments cade:
1.
Timeliness It is argued that basis loa could not have been filed until after Amendment No. 6 to the SPMC was served.7 However, as was pointed out in Applicants' original answer, Mass AG should have realized from a review of an answer to 6 Detroit Edison Co. (Enrico Fermi Atomic Plant, Unit 2),
A LAB-4 7 9, 7 NRC 470, 471 (1978) (layman's reply to answer to motion filed without leave accepted, examined, and addressed by Appeal Board).
7Recuest at 2.
his interrogatory on this point filed July 5, 1988, that the voice mede was not being used at all.8 And, in any event, as also pointed out in Applicants' original answer,9 Mass AG admits it was made clear to him on July 28, 1988, in a deposition.10 As to the arguments that Basis 2a could not have been brought until after the Desmarais Deposition plus time for a title search on the locations:
This ignores the fact that the exact locations were offered to the Mass AG, and refused by him, as early as June 28, 1988, and were actually reviewed by him on July 20, 1988.11 The timeliness argument is without merit.
2.
Development of Record The Commission has stated:
"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 said:
'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 8ApDlicants' Answer to Motion to Amend Bases Filed by Mass AG with Respect to Sirens Contention 3 at n.5.
91d. at 3.
10 Motion to Anend Bases (Sept.
8, 1988), Exh. A at 143.
11Acolicants' Answer. hypIA n. 8 at 4.
a prospective witnesses, and symmarize their proposed testimony'."ld In the filing at bar no witness is named; the summaries are too brief.
The necessary showing is lacking.
3.
Deley of Proceeding The first argument made is that the new bases "arise directly from existing bases and are well within the scope of the siren contention."13 We have already addressed that argument in our initial answer.14 The second argument is that there will be no delay because the siren issue is now a full-power issue, not a low-power issue.
This may be so, but that does not vitiate the fact that it will broaden the issues and delay the proceeding.
All new issues have that effect.
12Commonwealth Edison Comeany (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 246 (1986),
citina with annroval_, Mississinei Power and Liaht Co. (Grand Gulf Nuclear Station, Unita 1 and 2), ALAB-704, 16 NRC 1725, 1730 (1982).
13 Request at 4.
14Aeolicants' Answer, suora n. 8 at 3.
One wonders why the filing at issue was even made if the issues were so clearly part of the contention already admitted.
"4 l
COMcLuaION Tor all of the reasons set forth in the Applicants' original answer and those set forth herein, The Request should be denied.
Respectfully submitted, M
E
./$WWW maWDignan, Jr.
George H. Lewald Kathryn A. Selleck Jeffrey P. Trout Jay Bradford Smith Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 Counsel for Applicants t'
CERTIFICATE OF SERVICE 73 ET 11 P2 :31 I,
Thomas G. Dignan, Jr., one of the attorneys for the Applicants herein, hereby certify that on October 3, 1988, I made service of the within document by depositing cople's, thereof with Federal Express, prepaid, for delivery to'(or<
where indicated, by depositing in the United States mail, first class postage paid, addressed to) the individuals listed below.
Administrative Judge Sheldon J.
Robert Carrigg, Chairnan Wolfe, Esq., Chairman, Atomic Board of Selectmen Safety and Licensing Board Panel Town Office U.S. Nuclear Regulatory Atlantic Avenue Commission North Hampton, NH 03862 East West Towers Building i
4350 East West Highway a
Bethesda, MD 20814 J
l Administrative Judge Emmeth A.
Diane Curran, Esquire Luebke Andrea C.
Ferster, Esquire 4'\\5 Willard Avenue Harnoti & Weiss
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Chevy Chase, MD 20815 Suite 430 2001 S Street, N.W.
Washington, DC 20009 i
Dr. Jerry Harbour Stephen E.
Merrill l
Atomic Safety and Licensing Attorney General Board Panel George Dana Bisbee U.S. Nuclear Regulatory Assistant Attorney General commission t
office of the Attorney General East West Towers Building 25 Capitol Street 4350 East West Highway Concord, NH 03301-6397 i
Bethesda, MD 20814
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Adjudicatory File Sherwin E. Turk, Esquire Atomic Safety and Licensing office of General Counsel i
Board Panel Docket (2 copies)
U.S. Nuclear Regulatory j
U.S. Nuclear Regulatory Commission Commission One White Flint North, 15th Fl.
East West Towers Building 11555 Rockville Pike 4350 East West Highway Rockville, MD 20852 Bethesda, MD 20814
- Atomic Safety and Licansing Robert A.
Backus, Esquire Appeal Board Panel Backus, Meyer & Solomon l
U.S. Nuclear Regulatory 116 Lowell Street Commission P.O.
Box 516 Washington, DC 20555 Manchester, NH 03105 l
1
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Philjp Ahrens, Esquire Mr. J. P. Nadeau Assistant Attorney General Selectmen's Offico 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 1
Shaines & McEachern Department of the Attorney General :
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25 Maplewood Avenue one Ashburton Place, 19th Floor P.O.
Box 360 Boston, MA 02108 i
Portsmouth, NH 03801 L
Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Board of Selectmen City Manager s
RFD 1 - Box 1154 City Hall i
a Route 107 126 Daniel Street l
Kensington, NH 03827 Portsmouth, NH 03801 l
- Senator Gordon J. Humphrey R. Scott Hill-Whilton, Esquire
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U.S. Senate Lagoulis, Clark, Hill-whilton &
Washington, DC 20510 McQuire (Attnt Tom Burack) 79 State Street l
Newburyport, MA 01950
- Senator Gordon J. Humphrey Mr. Peter J. Matthews One Eagle Square, Suite 507 Mayor Concord, NH 03301 City Hall l
(Attnt Herb Boynton)
Newbu ryport, MA 01950 l
i Mr. Thomas F.
Powers, III Mr. William S.
Lord i
Town Manager Board of Selectmen Town of Exeter Town Hall - Friend Street l
10 Front Street Amesbury, MA 01913 r
Exeter, NH 03833 i
H. Joseph Flynn, Esquire Charles P. Graham, Esquire
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office of General Counsel Murphy and Graham 1
Federal Emergency Management 33 Low Street t
Agency Newburyport, MA 01950 i
500 C Street, S.W.
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Washington, DC 20472 f
cary W. Holmes, Esquire Richard A. Hampe, Esquire
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Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street l
Hampton, NH 03841 Concord, NH 03301 i
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Mr. Richard R. Donovan Judith H. Mizner, Esquire Federal Emergency Management 79 State Street Agency Second Floor Federal Regional Center Newburyport, MA 01950 130 228th Street, S.W.
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Bothell, WA 98021-9796 i
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