ML20205R379
| ML20205R379 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/30/1987 |
| From: | Selleck K PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#287-2993 OL, NUDOCS 8704060330 | |
| Download: ML20205R379 (10) | |
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Dated:
March 30, 19
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UNITED STATES OF AMERICA
~87 APR -3 Pl2:21 NUCLEAR REGULATORY COMMISSION before the I 'c[ ' '
ATOMIC SAFETY AND LICENSING BOARD
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In the Hatter of
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PUBLIC SERVICS COMPANY OF
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Docket Nos. 50-443-OL NEW HAMPSHIRE, st al.
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50-444-OL
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Off-site Emergency (Seabrook Station, Units 1 and 2) )
Planning Issues
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APPLICANTS' MOTION TO STRIKE TOWN OF HAMPTON REVISED CONTENTION III AND MOTION TO COMPEL AN3*ERS TO INTERROGATORIES PROPOUNDED TO TOWN OF HAMPTON AND RESPONSE TO MOTION FOR A PROTECTIVE ORDER Applict.nts move that the Board enter an order pursuant to
'.O CFR $ 2.707 striking Town of Hampton (TOH) Revised Contention III or, in the alternative, pursuant to 10 CFR
$ 2.7.40(f) compelling TOH to answer Interrogatories S-2 and l
S-3 forthwith.
Applicants further move that the Board enter an order denying TOH's motion for a protective order and f
' compelling TOH to answer Interrogatories S-4, S-5, S-6, and 3-7.
1 Applicants propounded the following interrogatories to TOS:
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"S-2.
Identify each document relied upon in u
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whole or in part in Town of Hampton Revised Contention III to provide adequate data to compute:
(1) the permanent and. transient populations of Town of Hampton, (2) proper vehicle occupancy rates and (3) daily a.m. and p.m.
road capacities for.the evacuation of-permanent and transient. populations from Town of Hampton under all traffic and weather.
conditions.
S-3.
Identify those sections of the evacuation road ~ routes which become impassable when a vehicle breaks down,-runs out of gas, or overheats and thereby becomes disabled."
To both interrogatories, TOH responded:
" Presently, to the extent the Town of Hampton intends to introduce evidence on the issues raised in Interrogatory S-2 [and_S-3], the Town will be relying upon the opinions and conclusions of Doctor Adler which will not be available until the dates previously discussed herein."
Town of Hampton Answers to l
Applicants' Off-Site EP Interrogatories and Request for the Production of Documents to the Town of Hampton ("TOH Answers") at 6.
The previous discussion to which TOH referred' reads as follows:
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" GENERAL RESPONSE The Town of Hampton presently lacks sufficient information to fully respond to Applicants' Interrogatories and Request for the Production of Documents.
By INTERVENORS' JOINT MOTION TO EXTEND HEARING SCHEDULE dated February 25, 1987, the Town of Hampton advised all parties that it will be approximately'two (2) months from the date of receipt of discovery materials until Intervenors' expert, Doctor Thomas J. Adler, can provide a i
preliminary response to Applicants' Interrogatories concerning Town of Hampton revised contention III.
An additional two (2) months will be required before Dr. Adler anticipates he will be able to provide a reasonably complete response to-
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interrogatories on this contention.
To the extent Dr. Adler's comments and opinions may bear upon those other Hampton contentions admitted by.the Board for litigation necessarily the Town presently cannot provide reasonably complete responses to Applicant on interrogatories, addressing these contentions."
TOH Answers at 1-2 (footnote omitted).
As the Board recently commented regarding Intervenors' requests for extension of the discovery period:
"The Board carefully considered the schedule at the-time it was issued.
We have not received any persuasive argument that would require us to alter it.
Indeed, from September 1986 until June 1, 1987, when these hearings will begin, hardly could be said to be so brief a period that four months would be needed to complete discovery.
There is no justification in any of these Intervenors' statements as to why these additional months are needed.
Certainly Dr. Adler's affidavit does not enlighten us.
Dr. Adler gives us no insight as to why he will require until July 1987 before filing his testimony since he has been identified as the Town of Hampton's expert witness since November 1986.
(TOH Supplement, November 19, 1987).
As the Staff has noted, the Attorney General of New Hampshire has for many months filed periodic reports on the status of the NHRERP and the revisions of the KLD ETE.
The Intervenors cannot choose to ignore the abundance of information available to them and now expect the Board to grant a prolonged extension because they did not choose to prepare their case on the very issues they had raised.
One must actively prepare the case or be left at the gate when the bell rings.
As the Staff has pointed out, not even the claim of financial burden to have gone forward with preparation for hearing prior to admission of the contentions would constitute a denial of due process."
Memorandum and Order of March 20, 1987 at 4-5.
TOH has denied Applicants discovery on issues TOH itself raised in its Revised Contention III.
An order should therefore be entered striking the contention.
In the -
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' i alternative, Applicants move that TOH be compelled to provide full answers to-Interrogatories S-2 and S-3.
. TOR objected to answering Interrogatory S-4, which asked TOH to " provide the means by which the Town of Hampton would respond'to a non-radiological emergency, such as a toxic chemical spill, hurricane or other severe weather emergency that could require sheltering or evacuation of significant segments of the town population."
In response to Interrogatories S-5, S-6, and S-7, which asked for more details concerning TOH's response to non-radiological emergencies, TOH responded:
"See Answer to Interrogatory S-4."
TOH's response to Interrogatory S-4 reads:
"This interrogatory is objected to on grounds it is unduly burdensome and seeks information irrelevant to this proceeding and is not reasonably calculated to lead to the discovery of admissible evidence.
"By way of further objection, the Town states that the 'non-radiological emergency' referenced in this Interrogatory is vague, ill-defined, and speculative; that regardlees of the Town's-response to a non-radiolgical emergency, the Town has voted not to participate in responding to an emergency at Seabrook Station; and therefor.the Town's emergency response capabilities have no bearing on this proceeding.
Whether or not the Town is willing to participate in implementing'the NHRERP, however, the Town, including-its beach o
population, cannot be provided reasonable assurance of adequate protection in.the event of any emergency at Seabrook.
The Town's non-radiological emergency capabilities again, are therefor irrelevant.
Additionally, even assuming this Interrogatory was not otherwise defective, it impermissibly seeks to shift th3 burden for emergency planning for Seabrook Station onto the i
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c-Town, in violation of 10 CFR Part 50, Appendix E.
Finally, the Applicant is already in possession of.
information on available Town, State and Federal 4'
personnel and equipment available to respond to a public emergency, however inadequate these sources would prove in the event of~a radiological i
emergency at Seabrook.
Applicants' Interrogatory
-is therfor redundant and would needlessly expend the Town's resources in providing a further response."
TOH Answers at 7-8.
TOH seems to object to the Interrogatory on five separate grounds, none of which is meritorious:
(1) 3 1
impermissibly seeking to shift a burden of proof, (2) seeking answers which the interrogator.already possesses, (3) vagueness, (4)-burdensomeness, and (5) irrelevance.1 i
Burden of proof is, of course, a standard used for the disposition of a case and not for determining the propriety of discovery requests.
Certainly parties are allowed to ask j
questions of other parties concerning issues in cases, i
regardless of who eventually will bear the burden-of proof on each issue.
TOH does indeed bear the burden of answering j
proper discovery questions.
Applicants' possession of the answers -- which TOH has l
by no means shown -- is also irrelevant to Applicants' right 1
i to such answers from TOH.
Applicants may have less -- or 4
1 TOH moved for a protective order'" prohibiting-Applicant from obtaining further discovery on the issues raised in Interrogatories S-4, S-5, S-6, and S-7, previously served.by-Applicants upon the Town."
Town of Hampton Motion for i
Protective Order.
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A more -- knowledge than TOH.
That will be discovered once TOH responds to the question.
Neither Applicants nor TOH can judge the breadth of Applicants' or TOH's knowledge until TOH responds properly to the question posed.
The question is not vague, but spells out the exact sort of emergency about which it seeks answers from TOH.
There can be no confusion about the thrust of the question.
TOH claims generally that providing an answer would be unduly burdensome.
This is not credible.
If the Town of Hampton has no preparation whatsoever for non-radiological emergencies, then that is a sufficient answer.
If it has I
some, then it need only identify them.
If the Town does not know whether or not it has any, it can respond by saying so.
It cannot hide behind an unsubstantiated claim of " burden" to evade answering at all.
Lastly, TOH claims the questions are irrelevant.
Nothing could be more relevant.
The plans and resources that TOH possesses or reserves for the case of non-radiological emergencies are central to these proceedings.
TOH claims that the Town's emergency response capabilities are " inadequate".
Applicants are entitled to the facts upon which this conclusion is based, including the facts concerning the Town's response capabilities, in every detail.
Only then can TOH's assertion be substantiated or j
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exposed as mistaken or false.
Applicants are entitled to answers to Interrogatories S-4 through S-7.
i By their attorneys, Thomas.G. Dignan, Jr.
R. K. Gad III Kathryn A. Selleck Ropes & Gray 225 Franklin: Street Boston, MA 02110 (617) 423-6100 t
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DOCKETED CERTIFICATE OF SERVICE USNRC.
I, Kathryn A. Selleck, one of the attorneys for Applicants herein, hereby certify that on March 30, 7,
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R2:21 made service of the within document by mailing copies thereof, postage prepaid, to:
OFFICE 0F 3Dj;tMky 00CMETING A SEAVICE' Administrative Judge Helen Hoyt, StephenE.Merrill,EskdESe Chairperson Attorney General 7
j Atomic Safety and Licensing.
George Dana Bisbee, Esquire.
Board Panel Assistant Attorney General l
U.S. Nuclear Regulatory Office of the Attorney General Commission 25 Capitol Street Washington, DC 20555 Concord, NH 03301-6397 i
4 Dr. Emmeth A. Luebke Dr. Jerry Harbour i
Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission
. ashington, DC 20555 Washington, DC 20555 W
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Robert Carrigg, Chairman
. Diane Curran, Esquire Board of Selectmen Andrea C.
Ferster, Esquire i
Town Office Harmon & Weiss Atlantic Avenue Suite 430
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North Hampton, NH 03862 2001 S Street, N.W.
j Washington, DC 20009 4
Atomic Safety and Licensing Sherwin E. Turk, Esquire i
Board Panel Office of the Executive Legal
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U.S. Nuclear Regulatory Director Commission U.S. Nuclear Regulatory
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Washington, DC 20555 Commission Washington, DC 20555 l
Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Board Panel Backus, Meyer & Solomon 4
U.S. Nuclear Regulatory 116 Lowell Street j
Commission P.O.
Box 516 Washington, DC 20555 Manchester, NH 03105 i
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 i
4 A
Paul McEachern, Esquire Carol S.
Sneider, Esquire Matthew T. Brock, Esquire Assistant Attorney General Shaines & McEachern Department of the Attorney General l
25 Maplewood Avenue One Ashburton Place, 19th Floor P.O. Box 360 Boston, MA 02108 l
Portsmouth, NH 03801 Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Board of Selectmen-City Manager RED 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. Peter S. Matthews One Eagle Square, Suite 507 Mayor Concord, NH 03301 City Hall i
(Attn:
Herb Boynton)
Newburyport, MA 01950 Mr. Thomas F. Powers, III 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 RED Dalton Road i
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, NM 03301 Mr. Ed Thomas Judith H. Mizner, Esquire FEMA, Region I Silverglate, Gertner, Baker 442 John W. McCormack Post Fine, Good & Mizner Office and Court House 88 Broad Street Post Office Square Boston, MA 02110 Boston, MA 02109 4 1
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F Charles P. Graham, Esquire McKay, Murphy and Graham i
100 Main Street Amesbury, MA 01913 KathrYn A.
Selleck i
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