ML20196J238
| ML20196J238 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/08/1988 |
| From: | Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#188-5799 ALAB-864, OL, NUDOCS 8803140214 | |
| Download: ML20196J238 (11) | |
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00CKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'88 MAR 10 P4 :17 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOAM6jh[,'![i[Ni!
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Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF
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50-444 OL NEW HAMPSHIRE, ej al.
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Off-site Emergency Planning
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(Seabrook Station, Units 1 and 2)
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NRC STAFF'S RESPONSE TO JOINT INTERVENORS' APPEAL BY MOTION FOR-DIRECTED CERTIFICATION is Sherwin E. Turk Senior Supervisory Trial Attorney March 8,1988 8803140214 880300 PDR ADOCK 05000443 G
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL ROARD in the Matter of
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Docket Nos. 50-443 OL l
PUBLIC SERVICE COMPANY OF
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50-444 OL g
NEW HAMPSHIRE, el al.
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Off-site Emergency Planning
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(Seabrook Station, Units 1 and 2)
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NRC STAFF'S RESPONSE TO JOINT INTERVENORS' APPEAL BY MOTION FOR DIRECTED CERTIFICATION i
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l Sherwin E. Turk Senior Supervisory Trial l.
Attorney
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March 8,1988 l'
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UNITED STATES OF AMERICA NUCLEAR REOULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD in the Matter of
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Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF
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50-444 OL NEW HAMPSHIRE, et al.
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Off-site Emergency Planning (Seabrook Station, Units 1 and 2)
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NRC STAFF'S RESPONSE TO JOINT INTERVENORS' APPEAL BY MOTION FOR DIRECTED CERTIFICATION On February 24, 1988, the Town of Amesbury, Town of Hampton, Seacoast Anti-Pollution League, and the New England Coalition on Nuclear Pollution filed an interlocutory notice of appeal and a joint motion for directed certificat!on, O appealing from the Licensing Board's Order establishing a
revi:ed schedule for further litigation in this proceeding. U For the reasons set forth below, the NRC Staff opposes the Motion and recommends that it be denied, r)lSCUSSION The standards governing motions for directed certification and, in particular, interlocutory Appeal Board review of scheduling orders, are well established and were recently addressed by the Appeal Board in this 1/
"Intervenors' Notice of Appeal" and "J oint Intervenor Appeal by
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Motion for Directed Certification" ("Motion"), dated February 24, 1988.
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"Memorandum and Order (Revising Schedule and Approving Protective Order)" ("Order"), dated February 17, 1988.
a proceeding.
Public Service Co. of New Hampshire 4eabrook
- Station, 9
Units 1 and 2), A LA B-864, 25 NRC 417 (V v,
(granting inter-locutory review and directing that schedul' nts be made).' -The Appeal Board summarized these standards o.
,ws:
The Commission's Rules of Practice prohlblt appeals f
from interlocutory ilcensing board rulings of the type involved here.
And, as we recently had occasion to observe anew in this proceeding, it is well settled that we will exercise our discretionary power to review an interlocutory ruling by way of directed certification i
only if that ruling either (a) threatens the party 4
adversely affected with immediate and serious irreparable harm that could not be remedied by a later
- appeal, or (b) affects the basic structure of the proceeding in a pervasive or unusual manner. We went 4
on to stress that "[w]here a scheduling order is involved, that standard ordinarily requires a showing that the schedule deprives the complaining party of its right to procedural due process."
Id. at 420-21, cy,I3 ALAB-858, 25 NPC 17, 20-21 (1987) (footnotes omitted).
An application of these standards to the instant Motion derionstrates that it should be denied. M The intervenors' Motion essantially complains that the Board's Order affords them an inadequato amount of time in which to file contentions addressing the Seabrook Plan for i
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The Intervenors do not argue either that the Licensing Board's schedule threatens them with "Immediate and serious irreparable harm" or that it "affects the basic structure of the proceeding in a pervasive or unusual manner", but move directly to a "due process" argument (Motion at 7).
Although this may be viewed as a fatal procedural flaw, the Staff's response will assume that this omission was inadvertent and that either one, or both, of the criteria were meant io be asserted in conjunction with the Intervenors' due process claims.
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q Massachusetts Communities ("SPMC"), M given the fact that they are f
simultaneously required to file proposed findings of fact and conclusions of law on the adequacy of the New Hampshire Radiological Emergency Response Plan ("NHRERP"), prepare testimony on the remaining NHRERP
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issue (protective measures for seasonal beach populations), and litigate outstanding safety issues in the on-site proceeding. O The Intervenors assert that the Licensing Board's revised schedule "Is so compresseo as 4/
The SPMC represents the Applicants' offsite emergency plan for
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Massachusetts portions of the Seabrook emergency planning zone (EPZ), developed pursuant to 10 C.F.R.
I 50.47(c) after the Commonwealth of Massachusetts determined to withdraw from further participation in offsite emergency planning for Seabrook.
The SPMC was filed and transmitted to the parties in principal part on September 18, 1987.
Additional portions of the plan, previously redacted from the September filing, were filed under a request for non-disclosure on December 30, 1987; these portions were provided to the Intervenors within a few days after issuance of the Board's g
revised schedule and the accompanying temporary protective order on February 17, 1988.
Since then, the Applicants filed three partial revisions of the SPMC, with the changes on each page clearly designated by sidebar notations.
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At first glance, the Intervenors' Motion may be read to complain
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about all aspects of the revised schedule, without any clear indication as to which portions of the revised schedule, if any, are acceptable to the Intervenors.
This is not the case, however. The focal point of Intervenors' Motion is their complaint about the time afforded for filing contentions on the SPMC.
Thus, the Intervenors rejected the Applicants' suggestion that aM 5 nal time be allowed for the filing of proposed findings on the NHRERP, conditioned upon retention of the date for filing SPMC contentions (Motion, at 11-13 and n.8).
In addition, on March 7, 1988, Counsel for the Staff suggested to Counsel for the Towns of Hampton and Amesbury that the instant dispute might be resolved by the partles' agreement to extend the date for Intervenors' filing of proposed findings on the NHRERP from April 6 to April 18, 1988, retalning the current date of April 1 for filing contentions on the SPMC.
Counsel for the Towns rejected this proposal, stating that the ir.tervenors requ8re additional time for the filing of SPMC contentions, and proposed Instead that the original schedule (with a contention filing date of May 6,1988), be reimposed.
to preclude Intervenors from any meaningful opportunity to participate on significant issues raised in this licensing proceeding," and that it denies "their rights to a fundamentally fair hearing" in contravention of k
constitutional due process requirements (Motion, at 2).
These assertions are without merit.
It is undisputed that the i
principal part of the SPMC was transmitted to the intervenors on September 18, 1987.
Although the Intervenors were engaged in hearings on the NHRERP during the period of October 1987 - February 1988, the hearing sessions were held on intermittent weeks during that period, b i
Further, because the "lead intervenor" concept was utilized, the hearings did not not require each Intervenor's undivided attention throughout this 4
period.
For instance, the Town of Amesbury and NECNP (to a lesser extent), were absent on many hearing days; and, since November 4, 1987, the Intervenors have performed only limited roles (principally follow-up cross-examination and argument of procedural motions),
inasmuch as the vast majority of the litigation since then has involved evacuation time estimate issues, for which lead responsibility was assigned to the Massachusetts Attorney General by prior agreement of the I
intervenors.
Thus, under the revised schedule the Intervenors will have had many months to review and develop contentions addressing the bulk of the SPMC.
This Is far more time than is typically afforded for 6/
A surumary listing the prior hearing sessions is set forth in "Appilcants' Response to Joint intervenor Appeal by Motion for Directed Certification" ("Applicants' Response"), dated March 3, 1988, at 4-5.
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See Applicants' Response at 5-7.
a the filing of contentions (generally in the range of 30 days), and is certainly not "so compressed" as to preclude the intervenors from meaningful participation in this litigation or to violate their "rights to a fundamentally fair hearing."
Likewise, little attention should be afforded Intervenors' complaints concerning the time available to file contentions addressing the portions of the SPMC that were provided to intervenors under a protective order in February 1988.
These portions of the plan (largely relating to letters of agreement executed by providers of services, equipment and facilities, and comprising only a limited part of the overall planning effort for Massachusetts) were offered to the Intervenors in December 1987, subject to the entry of a protective order barring disclosure to unauthorized persons.
The intervenors rejected this suggestion until February 1988, some two months later, and they therefore had a hand in creating the time burdens of which they now complain.
Further, having received the information in February, they will have had sor.ie tio days under the revised schedule to review the information and file any related contentions; this cannot be said to constitute "so compressed" a schedule as be fundamentally unfair o.'
to be violative of their due process rights. 8,/
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The Intervenors assert that they Intend to perform some "survey" work in connection with this Information, which they believe will require additional time to complete.
In that event, however, the intervenors should proceed to file any contentions wFich they have been able to substantiate prior to the April 1 filing date, and may later file an addendum, upon a showing of good cause, seeking leave to supplement their previously filed contentions with such additional information as they may obtain after April 1,1988.
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Finally, the Intervenors assert that they "should not be required to assemble a battery of attorneys in order to meaningfully participate in a licensing hearing" (Motion at 14).
This assertion is inherently flawed.
The Intervenors' asserted need for additional time must be balanced with l
the Applicants' need to proceed without undue delay and the public's f
interest in having a prompt resolution of licensing issues, if the
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Intervenors elect to raire a plethora of issues, as apparently they have determined to do in this proceeding, it is incumbent upon them to coordinate their resources or to retain additional counsel in order that the litigation not be unduly prolonged. E l
t CONCLUSION f
As discussed above, the intervenors have failed to demonstrate that l
the Licensing Board's revised schedule deprives them of procedural due process, and they have therefore failed to satisfy the standards for
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directed certification, discussed previously by the Appeal Board in this l
proceeding in ALAB-864.
For these reasons, as more fully set forth above, the intervenors' Motion should be denied.
i Respectfully submitted, it.
Sherwin E. Turk Senior Supervisory Trial Attorney Dated at Rockville, MD this 9th day of March,1988 i
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Buth the Commission and Appeal Board have indicated that the fact that a party may possess fewer resources than others to devote to a proceeding does not relieve that party of its hearing obligations, Statement of Policy on Conduct of Licensing Proceedings, C Ll-81 -8, i
l 13 NRC 452, 454 (1981); Wisconsin Electric Power Co. (Point Beach l
Nuclear Plant, Unit 1), A LA B-696, 16 NRC 1245, 1261 n.29 (1982).
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00LKETED i
USNRC UNITED STATES OF AMERICA f.
NUCLEAR REGULATORY COMMISSION
'88 MAR 10 P4 :17 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL MD1;N9hf 6 RANCH in the Matter of
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Docket Nos. 50-443 OL i
PUBLIC SERVICE COMPANY OF
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50-444 OL NEW HAMPSHIRE, ej al.
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O ff-site Emergency Planning
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(Seabrook Station, Units 1 and 2
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CERTIFICATE OF SERVICE i
I hereby certify that copies of "NRC STAFF'S
RESPONSE
TO JOINT INTERVENORS' APPEAL BY MOTION FOR DIRECTED CERTIFICATION" in the above-captioned proceeding have been served on the following by deposit in the United States mall, first class or, as indicated by an
- asterisk, by deposit in the Nuclear Regulatory Commission's internal mall system, this 8th day of March 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, DC 20555 Washington, DC 20555 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 l
U.S. Nuclear Regulatory Commission Washington, DC 20555 l
Washington, DC 20555 l
Dr. Jerry Harbour
- Thomas G. Dignan, Jr., Esq.
Administrative Judge Robert K. Cad, Ill, Esq.
Atomic Safety & Licensing Board Ropes & Gray U.S. Nuclear Regulatory Commission 225 Franklin Street Washington, DC 20555 Boston, MA 02110 H.J. Flynn, Esq.
Atomic Safety and Licensing Assistant General Counsel l
Appeal Panel
- Federal Emergency Management Agency U.S. Nuclear Regulatory Commission 5')0 C Street, SW Washington, DC 20555 Washington, DC 20472 l
l Philip Ahren, Esq.
Calvin A. Canney Assistant Attorney General City Hall i*
Office of the Attorney General 126 Daniel Street State House Station Portsmouth, NH 03801 i
Augusta, ME 04333 L.
Mr. Angle Machiros, Chairman Carol S. Sneider, Esq.
Board of Selectmen f
Assistant Attorney General 25 High Road R
Office of the Attorney General Newbury, MA 09150 f
One Ashburton Place,19th Floor l
Boston, MA 02108 George Dana Bisbee, Esq.
Allen Lampert Assistant Attorney General Civil Defense Director L
Office of the Attorney General Town of Brentwood i
25 Capitol Street 20 Franklin i
Concord, NH 0330)
Exeter, NH 03833 Ellyn R. Weiss, Esq.
William Armstrong
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Diane Curran, Esq.
Civil Defense Director f
Harmon & Weiss Town oF Exeter 2001 S Street, NW 10 Front Street Suite 430 Exeter, NH 03833 Washington, DC 20009
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Robert A. Backus, Esq.
Gary W. Holmes, Esq.
a Backus, Meyer s Solomon Holmes & Ellis 116 Lowell Street 47 Winnacunnet Road j
Manchester, NH 03106 Hampton, NH 03842 Paul McEachern, Esq.
J. P. Nadeau
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Matthew T. Brock, Esq.
Board of Selectmen l
Shaines & McEachern 10 Central Street 25 Maplewood Avenue Rye, NH 03870 0
P.O. Box 360 Portsmouth, NH 03801 Judith H. Mizner, Esq.
Charles P. Graham, Esq.
Silverglate, Gertner, Baker, McKay, Murphy & Graham Fine 5 Good 100 Main Street 88 Board Street Amesbury, MA 01913 Boston, MA 02110 Sandra Gavutis, Chairman Robert Carrigg, Chairman Board of Selectmen Board of Selectmen RFD #1, Box 1154 Town Of0ce i
i Kensington, NH 03827 Atlantic Avenue North Hampton, NH 03870
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William S. Lord Peter J. Matthews, Mayor Board of Selectmen City Hall Town Hall - Friend Street Newburyport, MN 09150 Amesbury, MA 01913 Mrs. Anne E. Goodman, Chairman Michael Santosuosso, Chairman Board of Selectmen Board of Selectmen 13-15 Newmarket Road South Hampton, NH 03827 Durham, NH 03824 I
Hon. Gordon J. Humphrey United States Senate 531 Hart Senate Office Building Washington, DC 20510
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c Sherwin E. Turk Senior Supervisory Trial Attorney 4
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