ML20195B638

Response to Seacoast Anti-Pollution League 860515 Fourth Supplemental Petition for Leave to Intervene Re Offsite Emergency Planning Issues.Board Should Rule That late-filed Contentions Excluded.Certificate of Svc Encl

ML20195B638
Person / Time
Site:	Seabrook
Issue date:	05/21/1986
From:	Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
References
CON-#286-282 OL, NUDOCS 8605290452
Download: ML20195B638 (6)

Text

.y Dated: May 21, 1986 UNITED' STATES OF AMERICA f NUCLEAR REGULATORY COMMISSION , (y

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before the b, 'C@L L '

ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of- )

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.PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL 1 NEW HAMPSHIRE, et al. ) 50-444-OL

) Off-site Emergency

-(Seabrook Station, Units 1 and 2 ) Planning Issues

)

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APPLICANTS' RESPONSE TO SEACOAST ANTI-POLLUTION LEAGUE'S FOURTH SUPPLEMENTAL PETITION FOR LEAVE TO INTERVENE Under date of May 15, 1986, Seacoast Anti-Pollution League (SAPL) filed a " Fourth Supplemental Petition for Leave to Intervene" (SAPL Petition). Therein SAPL seeks to have accepted for litigation a late-filed contention concerning the evacuation time estimate (ETE) done for the State of New Hampshire by KLD Associates, Inc. (KLD).

The applicants have previously filed a brief with the Board on the issue of whether the regulations require the litigation of any ETE adopted by a state which is not generated by the applicant for an operating license.

Applicants' Brief with Respect to (1) The Mass. AG 8605290452 860521 PDR ADOCK 05000443 Q- PDR 350

Contention and (2) The So-called " Multiple ETEs" Issue at 6-8 (April 11, 1986). For the reasons set forth therein, it is the position of the applicants that this issue should be excluded.

In addition, we respectfully submit that the "five factors" test for late-filed contentions dictates exclusion of this contention. The applicants would concede that the first, second and fourth factors weigh in favor of SAPL.

With respect to the third factor the Commission has recently 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. Mississippi Power & Light Co.

(Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC 1725, 1730 (1982).

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 prospective witnesses, and summarize their proposed testimony.' Id."

CLI-86-08, supra, Slip Op. at 5.

It is the evidentiary contribution which is important, not legal skills, including the ability to cross-examine.

Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-671, 15 NRC 508, 513 n.14 (1982).

"A late petitioner can establish that its participation may reasonably be expected to assist in developing a sound

r record by '(1) identifyling]

specifically at least one witness it intends to present; and (2) provid[ing]

sufficient detail respecting that witness' proposed testimony to permit the Board to reach a reasoned conclusion on the likely worth of that testimony on one or more of lits] contentions.'."

Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-767, 19 NRC 984, 985 (1984) quoting id.,

ALAB-747, 18 NRC 1167, 1101 (1983).

SAPL's showing on the third factor in its entirety is:

"SAPL contributed to the development of the record with respect to the Applicants' ETE back in 1983. SAPL expects at minimum to participate in like manner to examine the soundness of the assumptions upon which the ETE adopted by the State of New Hampshire is based. SAPL cannot yet assert with absolute certitude whether or not SAPL will sponsor any witnesses." SAPL Petition at 4.

This is a total "non-showing". No witness is named.

This factor should weigh heavily against SAPL.

As to the fifth factor, it is clear that admission of the contention will broaden or delay the resolution of the New Hampshire plan issues. SAPL argues that it will not broaden or delay the proceeding "beyond the point where it would be broadened or delayed by the exercise of the Board's duty to review these matters." SAPL Petition at 5. But this Board, siting in an operating license proceeding has no duty to examine any issue not put into contention by a party. The " duty" arises only after the contention is admitted. Thus on the fifth factor SAPL has made no showing.

O 4

CONCLUSION The first, second and fourth factors favor SAPL's position. On the critical third and fifth factors, SAPL has made no showing at all. On balance therefore, the ruling should be that the late-filed contentions are excluded.

Respectfully submitted,

] wjh,-vr Thoinas Ci. Dig 6afi, Jr.

R. K. Gad III Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 Counsel for Applicants 4-

)

I CERTIFICATE OF SERVICE -

I,_ Thomas G. Dignan, Jr., one of the attorneys for the Applicants herein, hereby certify that on May 21, 1986, I made service of the within document by mailing copies '

.; thereof, postage prepaid, to:

Administrative Judge Helen Hoyt Stephen E. Merrill, Esquire Chairperson Attorney General Atomic Safety and Licensing George Dana Bisbee, Esquire Board Panel Assistant Attorney General U.S. Nuclear Regulatory Office of the Attorney General Commission 25 Capitol Street Washington, DC 20555 Concord, NH 03301-6397 Dr. Emmeth A. Luebke Dr. Jerry Harbour Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Robert Carrigg, Chairman Richard A. Hampe, Esquire Board of Selectmen Hampe and McNicholas Town Office 35' Pleasant Street Atlantic Avenue Concord, NH 03301 North Hampton, NH 03862 Diane Curran, Esquire Sherwin E. Turk, Esquire Harmon & Weiss Office of the Executive Legal Suite 430 Director

'2001 S Street, N.W. U.S. Nuclear Regulatory Washington, DC 20009 Commission Washington, DC 20555 Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Board Panel- Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03105 Atomic Safety and Licensing Mr. Ed Thomas Board Panel FEMA, Region I l U.S. Nuclear Regulatory 442 John W. McCormack Post Commission Office and Court House Washington, DC 20555 Post Office Square Boston, MA 02109

Paul McEachern, Esquire Carol S. Sneider, Esquire Matthew T. Brock, Esquire Assistant Attorney General Shaines & McEachern Department of the Attorney General 25 Maplewood Avenue one Ashburton Place, 19th Floor P.O. Box 360 Boston, MA 02108 Portsmouth, NH 036C1 Gary W. Holmes, Esquire Mr. Peter J. Matthews Holmes & Ells Mayor 47 Winnacunnet Road City Hall Hampton, NH 03841 Newburyport, MA 01950 Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall Kensington, NH 03827 126 Daniel Street Portsmouth, NH 03801 Senator Gordon J. Humphrey Mr. Angie Machiros U.S. Senate Chairman of the Washington, DC 20510 Board of Selectmen (Attn: Tom Burack) Town of Newbury Newbury, MA 01950 Senator Gordon J. Humphrey Mr. J. P. Nadeau 1 Pillsbury Street Selectmen's Office Concord, NH 03301 10 Central Road (Attn: Herb Boynton) Rye, NH 03870 Mr. Thomas F. Powers, III Mr. William S. Lord Town Manager Board of Selectmen Town of Exeter Town Hall 10 Front Street Friend Street Exeter, NH 03833 Amesbury, MA 01913 H. Joseph Flynn, Esquire Brentwood Board of Selectmen Office of General Counsel RFD Dalton Road Federal Emergency Management Brentwood, NH 03833 Agency 500 C Street, S.W.

Washington, DC 20472 Philip Ahrens, Esquire Assistant Attorney General Cfpartment of the Attorney General Augusta, ME 04333 m;d'.

Thomac Dignan,;V Jr.