ML20198E318

Response Supporting Town of Hampton 860513 Memorandum in Support of late-filed Contentions.Good Cause for Late Filing of Contentions Demonstrated.Certificate of Svc Encl

ML20198E318
Person / Time
Site:	Seabrook
Issue date:	05/19/1986
From:	Sherwin Turk NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
CON-#286-258 OL, NUDOCS 8605270336
Download: ML20198E318 (10)

Text

A a - a m 75 May 19,198

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UNITED STATES OF AMERICA / ~

C L1 NUCLEAR REGULATORY COMMISSION T-

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BEFORE THE ATOMIC SAFETY AND LICENSING BOAR c[c. .uc$[Qa fj In the Matter of ) / I1I

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PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443 OL NEW HAMPSHIRE, et _al. _

) ' 50-444 OL

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(Seabrook Station, Units 1 and 2) ) ,

NRC STAFF'S RESPONSE TO

" TOWN OF HAMPTON MEMORANDUM IN SUPPORT OF ' LATE FILED' CONTENTIONS" On April 14, 1986, the Town of Hampton filed a set of supplemental contentions, consisting of three revised and one new contention,1 which addressed the adequacy of the New Hampshire compensatory plan and the revised emergency plan for the Town of Hampton, which had been trans-mitted to the Board and parties on March 4,1986. As noted in the NRC Staff's response to these supplemental contentions, - the Town failed to address the late-filing criteria set forth in 10 C.F.R. I 2.714(a)(1),

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-1/ " Contentions of the Town of Hampton to Revised Radiological l Emergency Response Plan and to Compensatory Plan for the Town of Hampton, New Hampshire" (" Supplemental Contentions") , filed l

April 14,1986.

-2/ "NRC Staff's Response to Contentions of the Town of 11ampton to 1 Revised Radiological Emergency Response Plan and to Compensatory Plan for the Town of Hampton, New Hampshire" (" Staff Response"),

filed May 5,1986.

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which the Commission has indicated must be considered by the Board in determining whether to admit late contentions for litigation. 3-On May 6, 1986, the Licensing Board issued an Order O requiring the Town of Hampton to address the late-filing criteria specified in 10 C.F.R. 5 2.714(a)(1). As required by the Board, the Town filed its response to the Board's Order on May 13, 1986. 5,/ -In accordance with the Board's Order, the Staff hereby files its response to the Town's discussion of the late-filing criteria.

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.

-3/ See Commonwealth Edison Co. (Braidwood Station, Units 1 and 2),

'00-86-08, 23 NRC ( April 24,1986) (slip op. at 11-12).

-4/ " Order (Requiring Town of Hampton to Address Requirements of 10 C.F.R. 5 2.714(a)(1))," issued May 6,1986.

-5/ " Town of Hampton Memorandum in Support of ' Late Filed' Contentions 10 CFR 52.714(a)(1)" ("Hampton Memorandum"), filed May 13, 1986.

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The Commission discussed these five factors most recently in its Braidwood decision, CLI-86-08, supra. With respect to the first factor listed 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), LBP-83-58, 18 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 Town of Hampton appears to have demon-strated good cause for its late filing of contentions on April 14, 1986.

The Town's supplemental contentions are directed to the New Hampshire compensatory plan and the revised plan for the Town of Hampton, which had not been made available to the Board and parties until March 4,1986.

The Town's supplemental contentions, addressing those plans, were filed approximately one month after the Town had received those materials; in our view, the Town does not appear to have been dilatory in its filing of the supplemental contentions. 6_/ Accordingly, the first factor weighs in

-6/ As noted in the Staff's response SAPL's discussion of the late filing criteria, filed on May 15, 1986, it may be argued that these con-tentions are not " late" at all, but that they were timely filed in accordance with the Board's scheduling order of January 17, 1986.

The January 1986 transmittal of New Hampshire emergency plans did not contain the New Hampshire compensatory plan or the revisions to the Town of Hampton's plan which were developed to protect the Town's beach population, which are addressed by the Town's supplemental contentions. It may well be asserted that the Board's (FOOTNOTE CONTINUED ON NEXT PAGE)

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. favor of the Town of Hampton. II The seccnd and fourth factors enumerated above are closely related, and may be conside:ed together. See Braidwood , supra, slip op, at

4. 8,/ To our knowledge, there are no other means available pursuant to which the Town's interests may be protected apart from its participation in this proceeding. While the Town l could particiiate in the State's planning process, at present it cannot be known whether the State would ,

adopt all of the Town's views as to the adequacy of the emergency plans, nor does there appear to be some other mechanism by which the Town could protect its interests apart from participating in this proceeding.

Similarly, it is not apparent that the other parties to this proceeding can or will represent the Town's interests. Accordingly, these factors should also be viewed as weighing in favor of the Town.

With respect to the third factor, the Staff submits that the Town has not adequately demonstrated that it may be expected to contribute to the 1

(FOOTNOTE CONTINUED FROP1 PREVIOUS PAGE)

Order requiring the filing of contentions by February 24, 1986, could not reasonably have been intended to apply to these emergency planning materials, which had not been made available to the Board and parties prior to the established deadline for filing contentions.

7/ Notwithstanding this conclusion, we note that the Town incorrectly

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asserts that "the NRC Staff recognized the difficulty of reviewing a State RERP that is substantially incomplete or subject to major, and late-filed revision." Hampton Memorandum at 3. The Staff made no such statement, nor does the transcript citation referred to by the Town provide support for the Town's assertion. .

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As noted by the Commission, these factors are accorded less weight than factors one, three and five. Braidwood, supra, slip op, at 4.

development of a sound record. 0l -

In this regard, the Town states only as follows:

At the summer hearing, the Town will present testimony by Ifampton officials on the deficiencies in the Revised Hampton RERP and Compensatory

, Plan, including inadequate personnel, equipment, and unreasonably low population estimates. As the Town with the highest peak population within the EPZ, Hampton believes this evidence is essential to this Board to determine whether the State RERP cannot provide reasonable assurance of adequate protection to the Hampton population in the event of radiological emergency.

, Hampton Memorandt m, at 4.

The Town has not yet proffered its evidence as to the adequacy of the State's emergency plans for the Town, and the Staff does not suggest here that the Town's evidence will be insubstantial or of little importance

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to the Board. Nonetheless, the Town has failed to provide the degree of specificity which is required under Commission case law to allow the Board to conclude that the Town will contribute to the development of a sound record. The Town has not identified the officials it expects to call l 9/ With 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 a Light Co. (Grand Gulf Nuclear Station . Units 1 and 2). ALAB-704, 16 NRC 1725, 1730 (1982). The Appeal Board has said:

2 "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.

Braidwood, supra, slip op. at 5.

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. as witnesses in this proceeding; it has not identified the specific matters which would be addressed by those persons; and it has not summarized their proposed testimony. For these reasons, this factor weighs against the admission of the Town's supplemental contentions.

With respect to the fifth factor, broadening and delay of the

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proceeding, the admission of the Town's supplemental contentions may be expected to lead to some broadening of the issues to be , litigated.

However, these contentions generally only amplify certain previously admitted contentions, and any resultant broadening of the issues to be i

litigated may be expected to be rather minor. Moreover, the admission of l these contentions is not likely to delay the proceeding, inasmuch as the New Hampshire evacuation time estimates have not yet been submitted, and emergency plans have not yet been submitted for the Commonwealth of Massachusetts. Accordingly, this factor should be viewed as weighing in favor of the Town of Hampton, b 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. I 2.714(a)(1) supports the admission of the Town's supplemental contentions. Accordingly, the supplemental contentions should be admitted to the extent that they satisfy other requirements governing the 10/ Indeed, as the Town asserts (Hampton Memorandum at 4-5), 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 emergency planning materials to the Board and parties at an earlier date.

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. niing of contentions, as set forth in the Staff's response of May 5, ,

1 1986. b CONCLUSION ,

For the reasons set forth above, the Licensing Board should admit the Town's supplemental contentions to the extent set 'forth in the Staff's response to those contentions, filed on May 5,1986. ,

Respectfully submitted, I"b Sherwin E. Turk Deputy Assistant Chief Hearing Counsel Dated at Bethesda, Maryland this 19th day of May,1986 i

-11/ The Staff notes that the Town has indicated that additional con-tentions may be generated upon the filing of the State's ETEs, and that the Town has requested that "it not be compelled to expend additional time and resources justifying contentions made in response to late filed documents by the State" (Hampton Memorandum, at 5).

In this regard, the Staff submits that different circumstances may pertain to future sets of late-filed contentions, as to whether the late filing-criteria have been satisfied. Accordingly,. the Staff believes the Board should continue to require the parties to address the late-filing criteria in filing late contentions, in accordance with the Commission's Braidwood decision.

UNITED STA.TES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443 OL NEW IIAl.1PSHIRE, et _al.

) 444 OL (Seabrook Station, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO ' TOWN OF HAMPTON MEMORANDUM IN SUPPORT OF " LATE FILED" CONTENTIONS'"

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 express mail, this 19th day of May,1986.

Helen Hoyt, Esq. , Chairman

• Dr. Emmeth A. Luebke*

Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atoalc 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

• Ms. Carol Sneider, Esq.

Administrative Judge Assistant Attorney General Atomic Safety and Licensing Board Office of the Attorney General U.S. Nuclear Regulatory Commission One Ashburton Place,19th Floor Washington, D.C. 20555 Boston, MA 02108 Beverly Hollingworth Stephen E. Merrill 209 Winnacunnet Road Attorney General Hampton, NH 03842 George Dana Bisbee Assistant Attorney General l Sandra Gavutis, Chairman Office of the Attorney General i

Board of Selectmen 25 Capitol Street RFD 1 Box 1154 Concord, NH 03301-6397 Kensington, NH 03827 Richard A. Hampe, Esq.

New Hampshire Civil Defense Agency 107 Pleasant Street Concord, NH 03301

Calvin A. Canney, City Manager Allen Lampert City IIall Civil Defense Director 126 Daniel Street Town of BreMwood Portsmouth, NH 03801 20 Franklin Street Exeter, NH 03833 Roberts C. Pevear State Representative Angie Machires, Chairman Town of Hampton Falls Board of Selectmen Drinkwater Road 25 High Road Hampton Falls, NH 03844 Newbury, MA 09150 Mr. Robert J. Harrison Jerard A. droteau, 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 03106 Edward A. Thomas Philip Ahrens, Esq.

Federal Emergency 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 Dottghty Atomic Safety and Licensing Seacoast Anti-Pollution League Board

• 5 Market Street U.S. Nuclear Regulatory Commission Portsmouth, NH 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 7-_ g -- , - - - v -- -- -

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. Yoang, 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.

Mr. Robert Carrigg, Chairman Mrs. Anne E. Goodman, Chairman Board of Selectmen Board of Selectmen Town Ofdce 13-15 Newmarket Road Atlantic Avenue Durham, NH 03824 North Hampton, NH 03862 R. K. Gad III, Esq. Gary W. Holmes, Esq.

Ropes & Gray Holmes & Ellis 225 Franklin Street 47 Winnacunnet Road Boston, MA 02110 Hampton, NH 03842

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Sherwin E. Turk Deputy Assistant Chief Hearing Counsel

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