ML20197J834
| ML20197J834 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/15/1986 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#286-208 OL, NUDOCS 8605200183 | |
| Download: ML20197J834 (9) | |
Text
-
0 (
v Dated:
May 15',
1986 ',,
~
p h~
l' UNITED STATES OF AMERICA ppN iI a6gg' NUCLEAR REGULATORY COMMISSION j-before the i
t ATOMIC SAFETY AND LICENSING BOARD
,.-(
g s
)
In the Matter of
)
)
l PUBLIC SERVICE COMPANY OF
)
Docket Nos. 50-443-OL NEW HAMPSHIRE, et al.
)
50-444-OL
)
Off-site Emergency 4
(Seabrook Station, Units 1 and 2
)
Planning Issues
)
)
APPLICANTS' RESPONSE PURSUANT TO BOARD ORDER OF MAY 2, 1986 TO SAPL'S DISCUSSION OF THE LATE-FILED CRITERIA Statement of Facts Unde'r date of April 8, 1986, Seacoast Anti-Pollution League (SAPL) filed a Third Supplemental Petition for Leave to Intervene (SAPL Petition).
This petition set out eight contentions designated "8A",
" Redrafted No.
15",
" Redrafted No. 23" and Numbers "26-30".
On April 18, 1986, the Applicants filed a response to this petition.
(Applicants' Response).
Therein the Applicants made a general objection to all of the new contentions on the basis that no showing had been made with respect to the late-filed criteria as l$g52OO183860515 g
ADOCK 05000443 PDR 3SO3
I
\\
required by 10 CFR $ 2.714(a)(1).
Applicants' Response at 1-2.
Thereafter, the Applicants set out specific objections to all of the new contentions.
Applicants' Response at 2-9.
On May 2, 1986, this Board issued an order directing SAPL to file a " discussion of the late-filed criteria only".
ASLB Order of May 2, 1986 at 2.
On May 8, 1986, SAPL filed
~
its response (SAPL Response) which sets out, inter alia, SAPL's showing under the late-filed criteria. 2
- Herein, still asserting the specific reasons for exclusion of the various contentions articulated in Applicants' Response of April 18, 1986, the applicants address the late-filed criteria showing.
ARGUMENT I.
First Factor - Good cause, if any, to file on time The Applicants would concede there exists good cause (i.e. a lack of documents) for all of the newly proffered contentions except Nos. 29-30.
These are allegedly addressed to the revisions to the Seabrook and Hampton local 1
SAPL also ignored the Board's direction that the document be confined "only" to a discussion of the late-filed criteria and included a response on the merits to what Staff and Applicants had stated in their responses to the original petition.
While SAPL has employed the guise of entitling its pleading, inter alia, a " motion for leave to respond", the pleading is bereft of any moving language or reasons why the motion should be granted.
.I e
plans.
The revisions of the Hampton and Seabrook local plans consisted of inserting the provisions for
" pre-evacuation" of the beach areas at an early stage.
The proffered contentions do not, in any way, address this aspect of the two local plans.
They talk about personnel availability (No. 29) and sheltering (No. 30).
Thus, we respectfully suggest that with respect to these two contentions this factor weighs against SAPL.
II.
Second and Fourth Factors -
Availability of other Means to Protect Petitioners' Interest and the Extent to Which Other Parties Will Represent Petitioners' Interest These factors are accorded less weight than the first, third and fifth factors.
Commonwealth Edison Co. (Braidwood Station, Units 1 and 2), CLI-86-08, 23 NRC (March 28, 1986) Slip Op. at 2; South Carolina Electric & Gas Co.
(Virgil C.
Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC
-881, 895 (1981).
They do weigh in SAPL's favor herein.
III. Third Factor - Extent to Which Petitioner can Contribute to Development of a Sound Record 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).
e e
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 record by '(1) identify [ing]
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 [its] 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, 1181 (1983).
SAPL's showing on this factor, in its entirety, is:
"SAPL expects to bring local officials and other personnel depended upon in the emergency response effort to testify as to the difficulties of fulfilling obligations to protect public health and safety with State personnel under the schemes proposed in the N.H.
Compensatory Plan, and with State and/or local personnel with regard to the revisions of the Hampton and Seabrook RERP's.
SAPL also hopes to bring testimony as to the inadequacy of the public information materials.
SAPL's witness on this latter subject is expected to be Dr. Donald Herzberg, a e
e physician trained in diagnostic radiology and nuclear medicine who practices at the Dartmouth-Hitchcock Medical Center in Hanover, N.S.
SAPL also intends to conduct cross-examination of witnesses brought by other parties."
SAPL Response at 3-4.
This is woefully short of what is required.
The one witness named has no apparent expertise in emergency planning and we are wholly unfavored with any detail of his proposed testimony.
Unnamed " local officials" SAPL
" expects" to bring and other testimony SAPL " hopes" to bring add nothing to this inadequate showing.
SAPL has wholly failed to satisfy this third, and extremely important factor.
Its failure to do so should weigh heavily against admission of the new contentions.
4 IV.
The Fifth Factor - Broadening and Delay of the Proceeding Other than simply stating it, SAPL provides no basis for saying admission of these contentions will not broaden or delay the proceeding.
SAPL simply says the issues are, in its judgment, important, but that is not the issue.
The issue is whether the proceeding will be broadened or delayed.
As the Commission recently stated:
"The appropriate place for taking into account the potential significance of a contention is in the evaluation of the third factor, contribution to the record of the proceeding.
Implicit in the evaluation of the third factor is that a significant contention contributes more to the development of a sound record than does an insignificant contention.
The five-factor test assumes that a
- party's showing on that third factor may have to be balanced against the likelihoos of delay, under the fifth factor, as part of the overall balancing of factors."
CLI-86-08, supra, Slip Op.
at 8.
SAPL has, as indicated above, made no real showing under the third factor.
Its showing under the fifth factor is equally inadequate.
CONCLUSION The first factor weighs in SAPL's favor in the case of all but two of its contentions.
As usual the second and fourth (and least important factors) also favor SAPL's
~
position.
On the critical third and fifth factors, SAPL has made no adequate showing at all.
On balance therefore, the ruling should be that the late-filed contentions are excluded.
Respectfully submitted, b W //.-
Tliomas C. Yefnsn, Jr.
R.
K.
Gad III Ropes & Gray 225 Franklin Street Boston, MA 02110 i
i (617) 423-6100 Counsel for Applicants j
4 I
i y p-9?v'-Mu--#heF*9*T-TW
-P-e=r=7m7-7 w - * - - *N
- - - - =
5 m-'
q--*gT---gr,.
ys---
---e-9+- -,
-ee--iii---ww-m7
,.m-y.a*w wee--w=gm p'>r-'*_--w e
P*r*w M
m
e i
f 6
/
~
CERTIFICATE OF SERVICE I,. Thomas G. Dignan, Jr.,
one of the attorneys for the Applicants herein, hereby certify that on May 15, 1986, I made service of the within Applicants' Response Pursuant to Board Order of May 2, 1986 to SAPL's Discussion of the L'te-Filed Criteria by depositing a
copies thereof with Federal Express, prepaid, for y,
delivery to (or, where indicated, by. depositing in the United States mail', first class postage paid, addressed to):
M Helen-Hoyt, Chairperson Robert Carrigg, Chairman Atomic Safety and Licensing, Board of Selectmen Board Panel Town Office i
U.S. Nuclear Regulatory Atlantic Avenue
,LCommission North Hampton, NH 03862 East West Towers Building 4350 East West 1 Highway i
Bethesda, MD 20814 t
Dr. ymmeth A.,Luebke
- Diane Curran, Esquire N,. Atomic Safety ar,d Licensing Harmon & Weiss
~ '
-Board Panel 2001 S Street, N.W.
U.S.
Nuclear Regulatory Suite 430 Commissi'on Washington, DC 20009 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Dr. Jerry Harbo~r Stephen E. Merrill u
Atomic Safety and' Licensing Attorney General Board Panel George Dana Bisbee U.S. Nuclear Regulatory Assistant Attorney General Commission Office of the Attorney General 7
. East West Towers Building 25 Capitol Street 4350: East West Highway Concord, NH 03301-6397 Bethesda, MD,20814 i
N 4
e
- Atomic Safety and Licensing Sherwin E. Turk, Esquire Board Panel Office of the Executive Legal U.S.
Nuclear Regulatory Director Commission U.S.
Nuclear Regulatory Commission Washington, DC 20555 Tenth Floor 7735 Old Georgetown Road Bethesda, MD 20814
- Atomic Safety and Licensing Robert A.
Backus, Esquire Appeal Board Panel 116 Lowell Street U.S.
Nuclear Regulatory P.O.
Box 516 Commission Manchester, NH 03105 Washington, DC 20555 Philip Ahrens, Esquire Mr.
J.P. Nadeau Assistant Attorney General Selectmen's Office 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 Shaines & McEachern Department of the Attorney General 25 Maplewood Avenue One Ashburton Place, 19th Floor P.O.
Box 360 Boston, MA 02108 Portsmouth, NH 03801 Mrs. Sandra Gavutis Mr. Calvin A.
Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall Route 107 126 Daniel Street Kensington, NH 03827 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. Peter J. Matthews 1 Pillsbury Street Mayor Concord, NH 03301 City Hall (Attn:
Herb Boynton)
Newburyport, MA 01950
a 4
Mr. Donald E.
Chick Mr. William S.
Lord Town Manager Board of Selectmen Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 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 Gary W. Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03841 Concord, hH 03301 Mr. Ed Thomas FEMA, Region I 442 John W. McCormack Post Office and Court House Post Office Square Boston, MA 02109
(*= Ordinary U.S. First Class Mail.)
~
d'$
Thomas t,.
Digndn, Jr.
t
-.