ML20206H158

New England Coalition on Nuclear Pollution & Town of Hampton Joint Motion for Extension of Time for Responding to Summary Disposition Motions.* Extension Until 20 Days After Completion of All Discovery Requested.Svc List Encl

ML20206H158
Person / Time
Site:	Seabrook
Issue date:	04/13/1987
From:	Curran D HAMPTON, NH, HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	Atomic Safety and Licensing Board Panel
References
CON-#287-3102 OL, NUDOCS 8704150275
Download: ML20206H158 (8)

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April 13,1987 000KETED USNHC UNITED STATES NUCLEAR REGULATORY COMMISSION 10' ART 14 P2 :5 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD OFFICE 0* net 4 ARY DOCHETinG A . evict HtANC4

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In the Matter of )

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Public Service Company of )

New Hampshire, et al. ) Docket Nos. 50-443 OL

) 50-444 OL (Seabrook Station, Units 1 & 2) ) OFFSITE EMEPGENCY

) PLANNING

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NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S AND TOWN OF 31.MPTON'S JOINT MOTION FOR EXTENSION OF TIME FOR RESPONDING TO

SUMMARY

DISPOSITION MOTIONS The New England Coalition on Nuclear Pollution ("NECNP") and the Town of Hampton join in the motions filed by the Commonwealth of Massachusssetts and the Seacoast Anti-Pollution League for extensions of the time in which to respond to Applicants' summary disposition motions, and request that the Board extend the dead-line until twenty days after all answers to discovery requests have been completed. NECNP and Hampton also provide the follow-ing additional grounds for extension of the deadline for respond-ing to the motions.1

1) Applicants have moved for summary disposition on each of the eight contentions filed by NECNP and Hampton and admitted to this proceeding. Each motion is accompanied by at least one 1

The parties do not by this motion waive their previous request for a longer extension of the hearing schedule in order to pro-vide suf ficient time for intervenors' experts to review documents relating to evacuation time estimates. That motion was denied by the Licensing Board and is now before the Appeal Board.

8704150275 870413 i PDR ADOCK 05000443 ,p S Q G PDR

af fidavit attesting to numerous factual issues that Applicants claim are not in dispute. In order to respond to the motions, substantial time is required for examination of the emergency response plans and the FEMA /RAC review, making information avail-able to expert witnesses, preparation of rebuttal testimony, and legal research.

2) Conflicting obligations that have arisen in this case or are directly related to this case have made it impossible to comply with the Board's deadline of April 16, for responding to summary disposition motions. First, at the time that Applicants j moved for summary judgment (Ma rch 25,1987) , discovery disputes had not ended. Because of inadequate answers to interrogatories supplied by Applicants and New Hampshire, NECNP f ound it neces-sary to seek an order compelling answers from the Licensing Board, and filed a motion to compel on March 27, 1987. New i

information provided in New Hampshire's answers to inter-rogatories also resulted in the need for NECNP to file a sup-plemental set of interrogatories to New Hampshire on April 2, 1987 Se cond, on the same day that Applicants moved for summary disposition on all issues admitted to this proceeding, the onsite License Board issued its Partial Initial Decision approving low power operation of the Seabrook plant. Under Commission regula-tions, NECNP and Hampton were required to immediately prepare stay motions and notices of appeal for filing within ten days of

the decision.2 The Appeal Board has scheduled oral argument on the stay motions on April 24, 1987. Under the Commission's rules, the parties will be also required to file briefs in sup-port of their appeals by May 8,1987. Preparation of those briefs will require a review of the extensive record of this pro-ceeding since'it opened in 1982; legal research on a wide range of issues; and the drafting of arguments on those issues.

Applicants triggered a third conflicting legal obligation on April 7,1987, when it filed a " Suggestion of Mootness and Motion f or Vacation of Stay" with the Commission, arguic? that by filing a set of emergency plans for the Commonwealth of Massachussetts, Applicants had mooted the controversy over whether the issuance of a low power license should be denied for failure to submit of fsite emergency plans in conformance with 10 C.F.R. S 50.33(g) .

The Commission has ordered the parties to brief this issue by April 2 8,1987. Because the new plans are neither state or local government plans or utility plans, this is a case of first impression which will require considerable research and careful briefing.

Finally, NECNP and Hampton are in the course of preparing comments on two generic rulemaking proposals which are directly related and could have a profound impact on the Seabrook operat-2 NECNP and Hampton filed stay motions and notices of appeal on April 8, 1987

ing license case. The first is a set of rulemaking petitions relating to the size of the emergency planning zone. One of the petitions calls for the use of probabilistic risk assessment to I establish EPZ size on a site-specific basis. "Kenneth G. Sexton; Filing of Petition for Rulemaking," 51 Fed. Reg. 3 5,518 (October 6, 1986).

NECNP and Hampton have opposed such a measure as pro-posed by Applicants in their Petition Under 10 C.F.R. S 2.758 and s

10 C . F. R. S 50. 4 7(c) With Respect to the Regulations Requring Planning for a Plume Exposure Pathway Emergency Planning Zone in Excess of a One-Mile Radius. Clearly, in order to protect their interests, NECNP and Hampton are required to address this issue as it is raised in the rulemaking petition. The parties must file comments on the petitions by April 15, 1987.

The Commission has also published for public comment a proposal to eliminate its preparedness requirements for plants where state and local governments have refused to submit emer-gency plans. " Licensing of Nuclear Power Plants Where State and/or Local Governments Decline to Cooperate in Offsite Emer-gency Planning," 52 Fed. Reg. 6980 (March 6,1987) . Comments on the proposal are due May 5,1987. If passed, this proposed rule may provide Applicants with a mechanism for bypassing the Commis-sion's stringent emergency planning requirements for the Common-wealth of Massachussetts. NECNP and Hampton are now in the pro-cess of preparing the extensive legal and factual arguments necessary for their opposition to this rulemaking proposal.

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3) The parties have also been engaged in discovery dis-putes for much of the time that summary judgment motions have been pending. The Licensing Board issued its ruling on NECNP's motion to compel answers by Applicants on April 7,1987, and the parties did not receive the order until several days later.

Pr esum a bly , it will be several more days before Applicants supply the information ordered by the Board. In addition, NECNP is awaiting the State of New Hampshire's response to its Second Set of Interrogatories, filed April 7, 1987.

Hampton is also engaged in a discovery dispute with Applicants regarding Hampton's motion for a protective order, and Applicants' motion to compel or in the alternative, to strike Hampton's Contention III. The Board should allow sufficient time for resolution of discovery disputes, completion of discovery, and assimilation of any newly supplied information before com-mencing summary disposition proceedings.

4) Summary judgment proceedings are premature, in light of the fact that FEMA has not yet taken a position on any of the issues on which Applicants have moved for summary disposition.

Because the Board must rely to a great extent on FEMA's findings regarding the adequacy of the plans, it should not rule on Applicants' summary disposition motions before FEMA has stated its position.

5) Fi nally , to require the parties to answer Applicants' summary disposition motions according to the strict schedule

established by the Board would defeat the purpose of NECNP's and Hamp ton' s interrogatories and reward Applicants for failing to comply fully with the parties' discovery requests. Both NECNP and Hampton asked Applicants to describe the basis for their positions on each contention and to identify all witnesses that they intended to call during the proceeding. In answer to the interrogatories, Applicants claimed that they had identified no witnesses, and failed to identify any of the affidavits that they would rely on less than a week later in filing motions for sum-mary disposition. Thus, Applicants frustrated the parties' s

attempts to use the discovery process to obtain an early descrip-tion of the basis for Applicants' positions on the issues. To hold the parties to the original summary judgment schedule would unfairly penalize NECNP and Hampton for Applicants' abuse of the discovery process.

For the foregoing reasons, NECNP and Hampton request that the Board extend the deadline for responding to Applicants' sum-mary disposition motions be extended until twenty days after com-pletion of s'.1 discovery.

Respectfully submitted on behalf of NECNP and the Town

.p t on, P e Curran HARMON & WEISS 2001 "S" Street W. Suite 430 Washington, D.C. 20009 (202) 328-3500 April 13,1987

I certify that on April 13, 1987, copies of the foregoing pleading were. served by first-class mail or as otherwise indi-cated on the attached service list ,

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SE44,001 SERV!CE LIST -- CFFSITE LICENSING 20ARD 8 Helen F. Hoyt, Chairsan North Haspton, Nil 03826 442 J.W. McCoreack (P0CH)

Ateelt Safety and Licensing loston, MA 02109 goard J.P. Nadeau rSherwin E. Turk. Esq.

U.S. NRC TownofRye Office of General Ccunsel SandraGavutis Washington,D.C. 20555 155 Washington Road U.S. NRC RFD 1 80: !!5A Rye, New Haspshire 03870 Washington,D.C. 20555 East rensington, NH 03827 apr. Jerry Hartour Atcaic Safety and Licensing RichardE.Sullivan, Mayor Mr.AngieMachiros,Chairsan CharlesP.Grahae,Esq.

Boar 6 CityHall BoardofSelecteen Mctar, Murthy and Grahas U.S. NRC New:uryport, MA 01950 Newtury,MA 01950 100 Main Street Washingtcn,D.C. 20555 Asesbury, MA 01913 AlfredV.Sargent,Chairsan H.JosephFlynn,Esq.

8Gusta<eLineverger teardofSelecteen OfficeofGeneralCounsel ______________

Atcaic Safety and Licensing TownofSalistury,MA 01950 FEMA loard 500 C Street S.W. a By hand U.S. NRC Senatcr Gordon J. Husonrey Washington,D.C. 20472 Washington,D.C. 20555 U.S. Senate 88tyFederalExpress Wasningtcn, D.C. 20510 GeorgeCanaEistee,Esq.

At; sic Safety sn1 L] censing (Attn. Ice aurack) Geoffrey M. Huntingten. Eso.

Coardfanel 'if fice of the Attorney General U.S. NRC !electeen of Northas:tcn State House Annen dashington,D.C. 20555 Northaeoten. New Haspsnire Concord,NH 03331 03926 Atcelc Safett M Licensing A!!enLaspert Acpest Ecarl hnel Senator Gcr:en J. Huechrev Civil refense Directcr U.S. MC I Eagle 51uare, Ste 507 Tcnn of Brentadood cashington,D.. 20555 Contcr2,NH 03301 Exeter,NH 03333 Dotketing and Service Micnael Santosuosso, Chairsan Richard A. Haece, Esq.

U.S. NRC Ecard of Selecteen HaeceandMcNicnolas casnington,D.C. 20555 Jewell Street, AfD i 2 35PleasantStreet South Hasptcn, NH 03342 Concord,nH 03301 Mrs. Anne E. Goodean leardofSelec!aen Judith H. Mizner, Esq. GaryW.Holees.Esq.

13-15 New Mar p t Road Silverglate,Gertner,etal. Holees & Ellis Durhae,NH 03342 88 Broad Street 47 Winnacunnent Road Boston,MA 02110 Haspton,NH 03842 Willias S. Lord, Selectean Town Hall -- Friend Street Rep. Roberta C. Pevear WilliasArestrong Asesbury, MA 01913 Drinkwater Road CivilDefenseDirector Haeoton, Falls,hH 03844 10 Front Street Jane Doughty Ereter,NH 03833

SAFL PhillipAhrens,Esq.

5 Market Street AssistantAttorneyGeneral CalvinA.Canney Portssouth,NH 03301 State House, Station 1 6 City Manager Augusta ME 04333 CityHall Carols.Sneider, Esquire 126DanielStreet Assistant Attctney General' ** Thomas G. Dignan, Esq. Portssouth, NH 03801 1 Ashburton Place, 19th Floor R.I. Gad II, Esq.

Boston, MA 02103 Ropes & Gray Matthew T. Brock, Esq. -

225FranklinStreet Shatnes & McEachern Stanley W. Incules Boston,MA 02110 P.O. Bor 360 BoardofSelecteen MaplewoodAve.

P.O. Box 710 RobertA.lackus,Esq. Portssouth, NH 03801 Backus,Meyer&Soloson 111 Lowell Street Edward A. Thesas Manchester, NH 03105 FEMA