ML20206G961

Applicant Response to Joint Intervenor Appeal by Motion for Directed Certification.* Motion Should Be Denied.Schedule Did Not Deny Joint Intervenor Right to Procedural Due Process.Certificate of Svc Encl

ML20206G961
Person / Time
Site:	Seabrook
Issue date:	04/10/1987
From:	Dignan T PUBLIC SERVICE CO. OF COLORADO
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#287-3056 OL, NUDOCS 8704150208
Download: ML20206G961 (12)

Text

gjh DOCHETED USNRC 4/10/87 . -

17 MW 13 P4:23 UNITED STATES OF AMERICA

• NUCLEAR REGULATORY COMMISSION C

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before the ATOMIC SAFETY AND LICENSING APPEAL BOARD

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In the Matter of )

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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) ) (Offsite Emergency Planning

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APPLICANTS' RESPONSE TO JOINT INTERVENOR APPEAL BY MOTION FOR DIRECTED CERTIFICATION On March 27, 1987, certain of the Intervenors in the above-captioned proceeding filed a Motion for Directed Certification seeking interlocutory review of the Memorandum and Order of the Licensing Board issued March 20, 1987 affirming the hearing schedule it ordered on January 9, 1987.

Herein the Applicants respond to that motion, and for the reasons set forth below say that the motion should be denied.

Directed certification is granted "only when a licensing board's action either (a) threatens the party adversely affected with immediate and serious irreparable harm which could not be remedied by a later appeal, or (b) affects 8 B70410 kDR4hhhjK05000443 C

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the basic structure of the proceeding in a pervasive or unusua'1 manner." Public Service Company of New Hampshire

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(Seabrook Station Units 1 and 2), ALAB-858, 25 NRC (Jan.

15, 1987), Slip Op. at 5; Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977). Because scheduling matters rest " peculiarly within the licensing board's discretion,"

directed certification is granted sparingly with respect to such matters. Consumers Power Co. (Midland plant, Units 1 and 2), ALAB-541, 9 NRC 436, 437-38 (1979). Thus in order to obtain interlocutory review of a scheduling order, the movant i ordinarily must make "a showing that the schedule deprives the complaining party of its right to procedural due process."

ALAB-850, supra, Slip Op. at 6 citing Houston Lighting &

Power Cc . (South Texas Project, Units 1 and 2), ALAB-637, 13 NRC 367, 370-71 (1981). As will be seen in the discussion of the merits of each of the assertions made therein set forth below, t.he motion at bar falls well short of the mark.

The first perceptible complaint advanced in the motion is essentially an argument that the schedule was too compressed to begin with, and, in particular, the time for undertaking

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discovery was further shortened because the Licensing Board l did not issue its ruling on contentions until five or six days after it was originally contemplated. Notion at 2-3. With t

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i respect to the latter point, we would point out that while it is true that the effect of the Licensing Board's delay in

} issuing its ruling on contentions was to shorten somewha't what has been styled as the discovery period, it is also true the the Licensing Board in its Memorandum and Order of January 9, 1987 encouraged the parties to respond to requests i

for information prior to commencement of discovery on February 13, 1987. Not only were no requests received, but the movants, and each of them, waited until the very last possible 1 day of the discovery period to serve their interrogatories and never even made a move in the direction of taking depositions.

As to the original schedule itself, while it is true that the i

i schedule clearly requires timely and prompt action, it is also I

j true that we are dealing here with a plant that is complete i and ready to run. That being the case, the Licensing Board I can fairly put the emphasis on the word "due" in the phrase "due process," and view the equities as favoring the use of expedition. This hardly, however, constitutes an abuse of j discretion.

A second complaint raised in the motion is that the tight schedule is being imposed despite the fact that what is

involved is " litigation on a set of NHRERP's consisting of

{; some 31 volumes of complex material." Nation at 4.

Conveniently left out of this dissertation is the fact that l

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t all that is at issue for new discovery etc. are the changes in the NHRERP made by Revision 2. These changes were all marginally lined for easy reference when the complete Revision 2 was issued in early fall, 1986.

The third complaint is that the Licensing Board has "already forced a wholly premature hearing on a key emergency planning issue" i.e., the old ETE. N'otion at 6. The short answer to this is "so what." No one regrets more than the Applicants that a second ETE was required. But this is a matter beyond the control of the Board and the Applicants.

l The states decide such matters. In any event, even assuming I

the Board acted wrongly in going forward with such hearings,

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which it did not, given the then extant circumstances, this is no reason to upset the current schedule.

. The fourth complaint is that the Massachusetts plan is t

not available, and therefore no license can issue, and l therefore we should not " rush to judgment" in the case of i

j NHRERP. Motion at 6-7. To begin with it should be pointed out that the licensing proceedings for Seabrook Station can I

hardly be characterized as involving " rushes to judgment."

If the Applicants' request for a waiver which is now pending is l

granted there will be no need to litigate matters in

< Massachusetts, and the instant hearings will have taken care

of New Hampshire. Furthermore a utility plan for

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Massachusetts has now been filed. In addition, as this Appeal Board has observed

"a mere commitment of resources to a

~ hearing that may later turn out to have been unnecessary does not justify interlocutory review of a Licensing Board order."

ALAB-858, supra, Slip Op. at 8.

The fifth argument advanced is an exercise in name a

calling wherein the Licensing Board allegedly given to

" intellectual dishonesty," Notion at n. 3, is claimed to be engaged in a " scheme" which "is intrinsically hostile, biased, and without rational basis." Motion at 7. If Movants are of this conviction, the correct vehicle is a motion to recuse, not a petition for directed certification.

The sixth complaint is that there may be further l

revisions to the NHRERp. Notion at 7. This is always true of any emergency plan. The findings to be made are predictive only. The fact that an emergency plan is a living document constantly being updated and perfected is one of the reasons why only predictive findings are possible or required.

The seventh complaint is that th'ere was no provision for follow up discovery in general and no time for depositions in particular. Motion at 9. As to follow up discovery:

nothing in the law or the regulations of this agency require, f as a matter of due process, the granting of follow up 1

discovery. Licensing proceedings are not court trials. All 2

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l testimony is filed in advance. The possibility of surprise is  !

i nil. With respect to depositions, as we have noted, no effort was made to take depositions. If the argument made is that i 1 i

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, there was no ability to notice depositions before witness i names were revealed through answers to interrogatories, that rings hollow. The rules permit and require the designation of a deponent familiar with a subject matter by the party to be 4

deposed upon a proper notice to that effect. 10 CFR 2.740a(a). It also is to be noted that if the claim is that the intervenors wanted depositions of expert witnesses, there was not even an attempt to make the necessary showing under 10 CFR 2.740a(b)(2).

! The eighth complaint is that FEMA and Staff have yet to take a position on the contentions. Motion at 9-10. This also is a "so what." The Staff and FEMA undoubtedly will have a position at the hearing, and there is nothing that requires that such a position be available before they file their testimony like every other party. 1 The ninth complaint is about the requirement for simultaneous testimony. Motion at 10-11. To begin with, the novants in their argument on this point, are confusing the I concept of burden of proof with the concept of burden of going forward. The hearing is convened to litigate the contentions I put forth in the first instance by the intervenors.

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Presumably they have some evidence to back these contentions up. This will be their direct case. They do not need the Applicants' testimony to put that together. The Licensing Board has stated that it does not feel it would benefit from^

rebuttal testimony. This conclusion by the trier of fact should not be questioned by an appellate tribunal in advance of the hearing.

i The tenth complaint concerns the Board's view that the intervenors had a burden of working on their cases before the final ruling on contentions and are not permitted simply to I sit back and wait for that ruling before preparing their I cases. Nation at 11-12. There is nothing wrong with this position in an operating license case. The financial costs of delaying the operation of a completed reactor may be subject to argument as to exact amount, but they are large, and they may be subject to a difference of opinion as to who should bear them, but there is no doubt that some discernable' group or groups in society will do so in one form or another. .This being the case, it is not unfair to require opponents of the plant to get their cases ready in advance.

The eleventh complaint is that the procedural rules as to prehearing conferences and the filing of testimony are not being followed. Notion at 12-13. There is only a requirement for one prehearing conference to be held in an ,

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operating license proceeding. There is no requirement that 1

one be held before every phase of a proceeding which is what is being entered into here. With respect to the rule foi filing testimony, an order which requires in hand service of' testimony ten days before the commencement of hearings is the equivalent of service by mail of the testimony fifteen days before the hearing. See 10 CFR 2.742 and 10 CFR 2.710.

Contrary to the assertion in the motion, the rule does not require that testimony be "available to the. Board and parties" fifteen days before the session in which it Is offered; it requires only that it be mailed before that date.

1 The twelfth complaint is that the real reason for the tight schedule is to assure the availability of a federal court house for the conduct of the proceeding. Hotion at 13-l

15. If this be a reason, it is a good one. The last session before a Licensing Board in the Seabrook proceeding was hardly 1

a model of decorum. The actions of uncontrolled demonstrators actually prevented the commencement of the proceeding on the day it was supposed to commence.

The thirteenth complaint is contained in an addendum to the motion. Therein it is argued that the relief sought should be granted because the novants have to respond to summary disposition motions and also prepare an appeal in the onsite phase of the case. As to the summary disposition

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6 motions, the Board has allocated the same time as the regulations would give. The mere answering of a summary disposition motion, if successful will give real leg up'on the preparation of testimony on the issue. As to the appeal, there is always the possibility of later relief from this Appeal lloard if that is necessary.

CONCLUSION The motion should be denied.

Respectfully submitted.

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Thomas G.' Digna67 Jr.

George H. Lewald Kathryn A. Selleck Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 Counsel for Applicants i

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e DOCKfiED USNRC CERTIFICATE OF SERVICE h

I, Thomas G. Dignan, Jr., one of the attorneys for 15eggg j3 p4 74 l

i Applicants herein, hereby certify that on April 10, 1987, I 4 made service of the within document by mailing copies I i Cf thereofFederalExpresstothosemarkedwithanasterihh}fE[jjibeiny otherwise first class mail, postage prepaid, to: yy/ MVIG.

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• Alan S. Rosenthal, Chairman *Howard A. Wilber i Atomic Safety and Licensing Atomic Safety and Licensing

! Appeal Panel Appeal Panel j U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission l East West Towers Building East West Towers Building j 4350 East West Highway 4350 East West Highway i Bethesda, MD 20814 Bethesda, MD 20814

• Gary J. Edles Mr. Ed Thomas Atomic Safety and Licensing FEMA, Region I J Appeal Panel 442 John W. McCormack Post j U.S. Nuclear Regulatory Office and Court House 1 Commission Post Office Square I East West Towers Building Boston, MA 02109 i 4350 East West Highway 3 Bethesda, MD 20814

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j Helen Hoyt, Chairperson Robert Carrigg, Chairman i Atomic Safety and Licensing Board of Selectmen i Board Panel Town Office l U.S. Nuclear Regulatory Atlantic Avenue Commission North Hampton, NH 03862 Washington, DC 2C555

]

Judge Gustave A. Linenberger

• Diane Curran, Esquire Atomic Safety and Licensing Harmon & Weiss 3 Board Panel 2001 S Street, N.W.

U.S. Nuclear Regulatory Suite 430 i Commission Washington, DC 20009 Washington, DC 20555 I

Dr. Jerry Harbour Stephen E. Merrill, Esquire Atomic Safety and Licensing Attorney General Board Panel George Dana Bisbee, Esquire U.S. Nuclear Regulatory Assistant Attorney General commission Office of the Attorney General I l Washington, DC 20555 25 Capitol Street

! Concord, NH 03301-6397 1

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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 Washington, DC 20555 Commission Tenth Floor 7735 Old Georgetown Ro'ad Bethesda, MD 20814 Atomic Safety and Licensing

• Robert A. Backus, Esquire Appeal Board Panel Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03105 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 i (Attn: Tom Burack) Town of Newbury ,

Newbury, MA 01950 ,

l Senator Gordon J. Humphrey Mr. Peter S. Matthews i One Eagle Square Suite 507 Mayor j l Concord, NH 03301 City Hall (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 -

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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, NH 03301 Judith H. Mizner, Esquire Charles P. Graham, Esquire Silvergla?.e, Gertner, Baker McKay, Murphy and Graham Fine, Good & Mizner 100 Main Street 88 Broad Street Amesbury, MA 01913 Boston, MA 02110

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Thomas G.'DidusM7'Jr.

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