ML20197J746
| ML20197J746 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/15/1986 |
| From: | Sherwin Turk NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#286-196 OL, NUDOCS 8605200159 | |
| Download: ML20197J746 (10) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIO
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BEFORE THE ATOMIC SAFETY AND LICENSING QOARD
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PUBLIC SERVICE COPIPANY OF
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Docket Nos. 50-443 OL NEri HAMPSHIRE, et al.
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50-444 OL
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(Seabrook Station, Units 1 anc' ?)
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NRC STAFF'S RESPONSE TO "SAPL'S RESPONSE TO BOARD ORDER OF MAY 2 AND T10 TION FOR LEAVE TO RESPOND TO APPLICANTS' AND STAFF'S RESPONSES TO SAPL'S THIRD SUPPLEMENTAL PETITION FOR LEAVE TO INTERVENE" On April 8, 1986, the Seacoast Anti-Pollution League (SAPL) filed
.two redrafted and six new contentions concerning portions of the New IIampshire Radiological Emergency Response Plans and certain other emergency planning materials which the Applicants had transmitted to the Board and parties on March 4 and 5,1986.1I As the Staff noted in its response to SAPL's Supplemental Contentions, 2_/
SAPL did not there address the late-filing criteria set forth in 10 C.F.R. 5 2.714(a)(1),
which the Commission has indicated must be considered by the Board in determining whether to admit late contentions for litigation. S 1/
" Seacoast Anti-Pollution Leagae's Third Supplemental Petition for Leave to Intervene"
("S APL's Supplemental Contentions"), filed April 8,1986.
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"NRC Staff Response to SAPL's Third Supplemental Petition for Leave to Intervene," filed April 28, 1986.
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See Commonwealth Edison Co. (Braidwood Station, Units 1 and 2),
LTI-86-08, 23 NRC
( April 24,1986) (slip op, at 11-12).
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On May 2, 1986, the Licensing Board issued a:, Order b requiring SAPL to address the late-filing criteria specified in 10 C.F.R.
I 2.714(a).
As required by the Board, SAPL filed its response to the Board's Order on May 8,1986. b In accordance with the Board's Order, the Staff hereby files its response to SAPL's discussion of the late-filing criteria, and also responds to SAPL's request that it be permitted to respond to the Staff's and Applicants' responses to its supplemental contentions.
DISCUSSION A.
The Five Factors 10 C.F.R.
I 2.714(a)(1) provides that, with respect to untimely filings, the following five factors should be balanced:
(1) good cause, if any, for failure to file on time; (2) the availability of other means whereby the petitioner's interest will be protected; (3) the extent to which the petitioner's participation may be reasonably expected to assist in developing a sound record; (4) the extent to which the petitioner's' interest will be represented by existing parties; (5) the extent to which the petitioner's participation will broaden the issues or delay the proceeding.
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" Order (Seacoast Anti-Pollution League Supplemental Petition for Leave to Intervene Falls to Address Requirements for Late-Filed Contentions in 10 CFR I 2.714)," issued May 2,1986.
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"S APL's Response to Board Order of May 2 and Motion for Leave to Respond to Applicants' and Staff's Response to SAPL's Third Supplemental Petition for Leave to Intervene" ("SAPL's Response"),
filed May 8,1986.
The Commission discussed these five factors most recently in its Braidwood decision, supra.
With respect to the first factor enumerated above, " good cause", the Commission noted as follows (slip op. at 2):
It is well established in our case law that this first factor is a crucial element in the analysis of whether a late-filed contention should be admitted.
If the proponent of a contention fails to satisfy this element of the test, it must make a " compelling" showing with respect to the other four factors.
Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Power Station, Unit 1), LDP-83-58. '8 NRC 640, 66 (1983); Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704,16 NRC 1725 (1982).
In the present case, the Staff is satisfied that SAPL has demon-strated good cause for its late filing of contentions on April 8, 1980.
SAPL's supplemental contentions address portions of the New Hampshire emergency plans and other emergency planning materials which neither the Applicants nor the State of New Hampshire had made available to the Doard and parties until f. larch 4 and 5,198G.
SAPL appears to have been diligent in filing its supplemental contentions shortly after these additional emergency planning materials were made available to them. b Accordingly, the first factor weighs in favor of SAPL.
6/
It may well be argued that SAPL's contentions were not " late" at all, but that they were timely filed in accordance with the Board's scheduling order of January 17, 1986 which required contentions to be filed within 30 days after the emergency plans are provided to the parties.
While certain portions of the New Hampshire emergency plans were transmitted to the Board and parties in January 1986, that transmittal did not contain three whole volumes of the plans, nor did it contain other emergency planning documents (such as the emrgency information materials).
It may well be asserted that the Board's Order requiring that contentions be filed in Fehruary 1986, (FOOTNOTE CONTINUED ON NEXT PAGE)
l Tae second and fourth factors enumerated above are closely related, and may be considered together.
See Braidwood, supra, slip op. at 4. b To our knowledge, there are no other means available pursuant to which SAPL's interests may be protected apart from its participation in this proceeding.
Similarly, no reason is apparent which would suggest that the other parties to the proceeding can or will represent SAPL's inter-ests.
Accordingly, these factors should also be viewed as weighing in favor of SAPL.
With respcet to the third factor, the extent to which SAPL may be expected to contribute to the development of a sound record, the Staff submits that SAPL has not adequately demonstrated that it may be expected to contribute to the development of a sound record. b SAPL states that (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) could not reasonably have been intended to apply to the emergency planning materials which had not yet been made available to the Board and parties.
7_/
As noted by the Commission, these factors are accorded less weight than factors one, three and five.
Braidwood, supra, slip op. at 4.
8_ /
Uith respect to this factor, the Commission has noted as follows:
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 I 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 parti-cularity as possible the precise issues it plans to cover, identify its prospective witnesses, and sum-marize their proposed testimony." Id.
Braidwood, supra, slip op. at 5.
it " expects to bring local officials and other personnel depended upon in the emergency response effort to testify" (Supplemental Contentions, at 2), but it fails to identify these individuals.
Further, while it does identify one individual whom it expects to call as a witness in the proceeding, it is not apparent that the named individual is quali-fled to address the issues raised by SAPL's supplemental contentions. El SAPL's statement that it " intends to conduct cross-examination of wit-nesses brought by other parties" does little to demonstrate that SAPL may be expected to contribute to the development of a sound record.
In sum, SAPL has not demonstrated the specificity which is normally required under this factor and, accordingly, this factor weighs against the admission of SAPL's supplemental contentions.
With respect to the fifth factor, broadening and delay of the proceeding, it is clear that the admission of SAPL's supplemental contentions will broaden the issues to be litigated.
Ilowever, the admission of these contentions is not likely to delay the proceeding, inasmuch a critical portion of the New Hampshire plans (volume 6,
containing the KLD evacuation time estimates) has still not been submitted, and emergency plans have not yet been submitted for the
-9/
SAPL has not stated what issues it expects will be addressed by this individual, whom it identifies as a physician trained in diagnostic radiology and nuclear medicine.
Accordingly, the Staff does not here express any view as to the qualifications or exper-tise of this individual, relative to the offsite emergency planning issues that have been admitted for litigation in this proceeding.
However, the Staff reserves the right to object to the individual's expert qualifications and/or the scope of his testimony, if and when he is proffered as an expert witness in the proceeding.
Commonwealth of P.fassachusetts, 1_0 /
Accordingly, this factor should be viewed as weighing in favor of SAPL.
In sum, factors (1), (2), (4) and (5) favor the admission of these late-filed contentions, while factor (3) weighs against their admission.
The Staff submits that a balancing of the five factors specified in 10 C. F. R. 5 2.714(a)(1) supports the admission of SAPL's supplemental contentions, and the contentions should be admitted to the extent that they satisfy the other requirements governing the filing of contentions, as set forth in the Staff's Response to SAPL's Supplemental Contentions, filed on April 28, 1986.
B. S APL's Motion.
SAPL urges that it be afforded an opportunity to respond to the Appliconts' and Staff's responses to its Supplemental Contentions (dated April 24 and April 28, 1980, respectively), and SAPL has included that response in its Supplemental Contentions, at 4-12.
While 10 C.F.R.
I 2.714 does not specifically provide for the filing of such replies,
the Staff does not object to SAPL's request.
Nonetheless, we submit that the admissibility of SAPL's supplemental contentions should be evaluated based upon the form and language of those contentions as they
-10/ Indeed, as set forth above, any delay which may be caused by the admission of these contentions most appropriately should be attributed to the Applicants' and State's failure to provide the subject energency planning materials to the Board and parties at an earlier date.
were originally filed by SAPL on April 8, 1986, and that SAPL's instant attempt to revise certain of its contentions should be rejected. El CONCLUSION For the reasons set forth above, the Licensing Board should admit SAPL's supplemental contentions to the extent set forth in the Staff's response of April 28, 1986.
Respectfully submitted, llADIG Sherwin E. Turk Deputy Assistant Chief Hearing Counsel Dated at Dethesda, P.laryland this 15th day of Play,1986 l
l l
6,
-11/ In addition, the Staff notes that SAPL incorrectly states that "the Staff does not oppose the admission" of Contention 27.
In fact,
the Staff does oppose the admission of SAPL Contention 27, for the reasons set forth in the Staff's response of April 28, 1986, at 7-8.
UNITED STATES OF AMERICA MUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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PUDLIC SERVICE COMPANY OF
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Docket Nos. 50-443 OL NEW H AMPSIIIRE, e_t_ _al.
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50-444 OL (Scabrook Station, Units 1 snd '!)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO 'SAPL'S RESPONSE TO BOARD ORDER OF MAY 2 AND MOTION FOR LEAVE TO RESPOND TO APPLICANTS' AND STAFF'S RESPONSES TO SAPL'S THIRD SUPPLEMENTAL PETITION FOR LEAVE TO INTERVENE'" 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, through deposit in the Nuclear Regulatory Commission's internal mail system or, as indicated by a double asterisk, by Federal Express, this 15th day of May,1986.
Helen Hoyt, Esq., Chairman
- Dr. Emmeth A. Luebke*
Administrative Judge Administrative Judge Atomic Safety and Licensing Board 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
- Carol Sneider, Esq.
Administrative Judge Assistant Attorney General Atomic Safety and Licensing Pnard Office of the Attorney General U.S. Nuclear Regulatory Commission One Ashburton Place,19th Floor Washington, D.C.
20555 Boston, MA 02108 Beverly llollingworth Stephen E. Merrill, Esq.
209 Winnacunnet Road Attorney General Hampton, NH 03842 George Dana Bisbee, Esq.
Assistant Attorney General Sandra Gavutis, Chairman Office of the Attorney General Board of Selectmen 25 Capitol Street RFD 1 Box 1154 Concord, NH 03301-6397 Kensington, NH 03827
Calvin A. Canney, City Manager Allen Lampert City Hall Civil Defense Director 126 Daniel Street Town of Brentwood Portsmouth, NH 03801 20 Franklin Street Exeter, NH 03833 Roberta C. Pevear State Representative Angie Machiros, Chairman To' -
< Hampton Falls Board of Selectmen Drhi,.ater Road 25 High Road Hampton Falls, NH 03844 Newbury, MA 09150 Mr. Robert J. Harrison Jerard A. Croteau, Constable President and Chief Executive Officer 82 Beach Road, P.O. Box 5501 Public Service Co. of New Hampshire Salisbury, MA 01950 P.O. Box 330 Manchester, NH 03105 Diane Curran, Esq.
Harmon & Weiss Robert A. Backus, Esq.**
2001 S Street, N.W.
Backus, Meyer & Solomon Suite 430 116 Lowell Street Washington, D.C.
20009 Manchester, NH 0310G Edward A. Thomas Philip Ahrens, Esq.
Federal Eracrgency Management Agency Assistant Attorney General 442 J.W. McCormack (POCH)
Office of the Attorney General Boston, MA 02109 State House Station, #6 Augusta, ME 04333 H.J. Flynn, Esq.
Thomas G. Dignan, Jr., Esq.
Assistant General Counsel Ropes & Gray Federal Emergency Management Agency 225 Franklin Street 500 C Street, S. W.
Boston, MA 02110 Washington, D.C.
20472 Jane Doughty Atomic Safety and Licensing Seacoast Anti-Pollution League Board
- 5 Market Street U.S. Nuclear Regulatory Commission Portsmouth, NU 03801 Washington, D.C.
20555 Atomic Safety and Licensing Paul McEachern, Esq.
Appeal Panel
- Matthew T. Brock, Esq.
U.S. Nuclear Regulatory Commission Shaines & McEachern Washington, D.C.
20555 25 Maplewood Avenue P.O. Box 360 Portsmouth, NH 03801
2
, Docketing and Service Section*
William Armstrong Office of the Secretary Civil Defense Director U.S. Nuclear Regulatory Commission Town of Exeter Washington, D.C.
20555 10 Front Street Exeter, NH 03833 Maynard L. Young, Chairman Board of Selectmen Peter J. Matthews, Mayor 10 Central Road City Hall.
Rye, NH 03870 Newburyport, MA 09150 Michael Santosuosso, Chairman William S. Lord Board of Selectmen Board of Selectmen South Hampton, NH 03827 Town Hall - Friend Street Amesbury, MA 01913 Stanley W. Knowles, Chairman Mrs. Anne E. Goodman, Chairman Board of Selectmen Board of Selectmen P.O. Box 710.
13-15 Newmarket Road
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North Hampton, NH 03862 Durham, NH 03824 R. K. Gad III, Esq.
Gary W. Holmes, Esq.
Hopes & Gray Holmes & Ellis 225 Franklin Street 47 Winnacunnet Road Doston, MA 02110 Hampton, NH 03842 Richard A. Ilampe, Esq.
New Hampshire Civil Defense Agency 107 Pleasant Street Concord, NH 03301 i n Sherwin E. Turk Deputy Assistant Chief Hearing Counsel
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