ML20206T143

Applicants Response to `Atty General Jm Shannon Motion to Extend Deadline within Which to Respond to Applicants Motions for Summary Disposition'.* Certificate of Svc Encl

ML20206T143
Person / Time
Site:	Seabrook
Issue date:	04/10/1987
From:	Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20206S995	List: ML20206S990 ML20206T061 ML20206T143
References
OL, NUDOCS 8704230119
Download: ML20206T143 (11)

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SSCKETED USNRC jI MH 17 P2:50 Dated: April 10$9[8Q{I]){Y '

ERANJ:i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING 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 Issues)

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APPLICANTS' RESPONSE TO " ATTORNEY GENERAL JAMES M.

SHANNON'S MOTION TO EXTEND THE DEADLINE WITHIN WHICH TO RESPOND TO APPLICANTS' MOTIONS FOR

SUMMARY

DISPOSITION" The Attorney General for the Commonwealth of Massachusetts (" Mass AG") by motion dated March 30, 1987 requests that this Board issue an order extending the deadline by which the Attorney General must respond to Applicants' motions for summary disposition. Applicants oppose this request.

ARGUMENT The Rules of Practice allow twenty days for responding to motions for summary disposition. 10 CFR s. 2.749. Under 19 870410 87042fbOCK05000443 PDR PDR G

this Board's order of January 9, 1987, Mass AG has twenty days to respond to those of the Applicants' motions for summary disposition as Mass AG sees fit. Memorandum and Order of January 9, 1987, at 2. Mass AG's proffered reasons for changing the schedule to allow him more time to respond to the Applicants' motions are entirely unconvincing.

Mass AG first contends that, to prepare proper responses, he must do certain tasks, such as consulting with his experts, drafting answers, and preparing counter affidavits and statements of undisputed facts. This work is in no way different from the work that should always be undertaken before responding to motions for summary disposition and is not grounds for extending the time provided in the Rules.

Mass AG contends, however, that he does not have sufficient time to gather and assess the discovery responses he has received from the Applicants. This is a result of the Mass AG's own schedule. Mass AG determined not to file his discovery request until the last possible day. Mass AG has failed to inspect all the documents offered for his inspection by the Applicants. For some documents he has inspected, he has failed to inform the Applicants which documents he wants copied, even though such information has  ;

i been requested by Applicants. j l

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Mass AG claims he has been " allowed an inadequate period of time to analyze the Applicants' answers to interrogatories and production of documents." Mass AG's complaints about Applicants' production of documents are misleading. Mass AG failed to say that he was offered the opportunity to inspect documents from Thurday, March 26 on and did not avail himself of that opportunity until Monday, March 30. On March 30, representatives of the Mass AG inspected documents from 10:00 a.m. until 12:30 noon, at which time Applicants began photocopying the requested documents. Applicants detailed one individual full time and one individual part time to photocopy and assemble the documents at a sophisticated collating copier for two days. Mass AG was advised that the copies would be ready by 4:00 p.m. on Wednesday, April 1, 1987. Mass AG elected to pick up the documents on Thursday, April 2, 1987. Mass AG's complaint that his representatives "were unable to obtain copies immediately" verges on the ludicrous: he ordered and received 8,362 pages of photocopying. Such a project cannot be completed "immediately" under any circumstances.

Mass AG also complains that the documents were produced in an imprecise manner and that "it will take . . . at least several additional days to organize the produced documents and to determine whether . . . the responses are complete, 3

i and to which interrogatories they are responsive, and then to copy and forward such documents to his experts for analysis."

This complaint is insubstantial. At the time of the document production Applicants provided Mass AG with an index to all the documents produced. Mass AG ordered and received extra copies of many of the documents for the express purpose of sending them to Mass AG's experts. The manner of production does not require a change in the schedule.

Mass AG's complaints about " omissions" in the documents are equally unmeritorious. The first two listed " omissions" concern items Mass AG would need to reproduce certain runs made by KLD Associates. Applicants were informed by Mass AG, after the close of discovery, that he would like to get a copy of the software, the IDYNEV model, used by KLD, because without it he could not duplicate the runs. Applicants made the best arrangements in the circumstances. In view of the fact that Applicants and KLD do not own the model and cannot simply copy and distribute it upon request, Applicants arranged to put at Mass AG's disposal an office and a computer terminal at KLD where he could have immediate access to the input F.es, the output paper, and the model actually used by KLD. Mass AG's first response was to call this offer

" unreasonable" but Applicants believe it has since been accepted and that Mass AG has made arrangements with KLD to 4

use KLD's facilities. Immediate possession of the input files and output paper would not have advanced anything, since they could not be used without the proper model. It should be noted that Mass AG was informed that all the input files had been copied on magnetic tape as requested and that the job which was estimated to take two person-weeks was accomplished, by dint of much effort, in only a few days.

Mass AG has stated that in view of its decision to use the KLD offices, it does not require these copies.

Mass AG claims that Applicants have omitted from their production photos or maps indicating parking spaces in the beach area that KLD Associates identified or counted in determining numbers of vehicles as Mass AG requested in Interrogatory 137. Applicants provided the slides of-all areas of parking which were used to count parking spaces.

Applicants did not understand Mass AG's question to ask Applicants to create maps for Mass AG with lines drawn on them where lines do not in reality exist. And indeed the rules do not require the Applicants to create such items for Mass AG's benefit. Pennsylvania Power & Light Co.

(Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 334 (1980). KLD counted parking spaces in areas without lines by counting the cars themselves, or if there were no cars, by measuring the length of unoccupied 5

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t space and expressing it in terms of cars. See NHRERP Rev. 2, Volume 6, Appendix E at E-4-5.

Paragraph 7 of Mass AG's motion complains that Applicants produced 11,000 slides of the beach area in response to Interrogatory 136. Applicants are unable to do anything to assist the Mass AG in this matter as yet, since the Mass AG has not informed Applicants of what copies it would like made, he has only countermanded his order to copy all of them. Applicants can only stand by and wait while the Mass AG makes up his mind. It should be noted here too that although Mass AG determined on Monday, March 30, 1987,that he would need to send someone to look at the slides and determine which ones to copy, he did not send someone to view the slides until-Friday, April 3, and as Applicants have stated, nothing has been said to Applicants since.

Applicants have fully complied with Mass AG's discovery requests. Indeed, Applicants have gone out of their way to comply with informal discovery requests and to provide duplication of materials Mass AG requests as expeditiously as possible. The only outstanding items are items that Applicants cannot duplicate until Mass AG gives the instructions. There has been no delays that would warrant a change in the schedule. Indeed, the only significant delays have been caused by the Mass AG himself, and those are not 6

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egregious..

Mass AG has indicated his desire to depose Applicants' experts before responding to Applicants' motions for summary disposition. This is a tacticai decision for the Mass AG to make, and one which he has apparently made. Applicants have received no notices of deposition or requests to depose experts and the discovery period is over. He cannot be I

heard to argue that he did not know who to depose because the rules permit him to designate a subject matter and have the proper witness produced. 10 CFR s. 2.740a(a).

Applicants' responses to Mass AG's discovery requests, both formal and informal, have been complete, responsive, and expeditiously gathered, indexed, and copied. Mass AG has failed to advance-any reason sufficient to justify extending the' schedule for responding to motions for summary disposition.

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CONCLUSION Mass AG's motion to extend the deadline within which to respond to Applicants' motions for summary disposition should be denied.

By their attorneys.

UM Thomas G. Dignan, Jr.

Goerge H. Lewald Kathryn A. Selleck Ropes & Gray 225 Franklin St.

Boston, MA 02110 (617) 423-6100 8

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GGCMETED USNRC CERTIFICATE OF SERVICE ..

I, Kathryn A. Selleck, one of the attorneys for fhj R 17 f 2 50 Applicants herein, hereby certify that on April 10, 1987, I made service of the within document by mailing coptyplCE OF SECEtTARY thereof, postage prepaid, to: 00CKETg .gERV CL Administrative Judge Helen Hoyt, Stephen E. Merrill, Esquire Chairperson Attorney General Atomic Safety and Licensing George Dana Bisbee, Esquire Board Panel Assistant Attorney General U.S. Nuclear Regulatory Office of the Attorney General Commission 25 Capitol Street Washington, DC 20555 Concord, NH 03301-6397 Judge Gustave A. Linenberger, Jr. Dr. Jerry Harbour Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Robert Carrigg, Chairman Diane Curran, Esquire Board of Selectmen Andrea C. Ferster, Esquire Town Office Harmon & Weiss Atlantic Avenue Suite 430 North Hampton, NH 03862 2001 S. Street, N.W.

Washington, DC 20009 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 Washington, DC 20555 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 e

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e Paul McEachern, Esquire Carol S. Sneider, Esquire Matthew T. Brock, Esquire Assistant Attorney General Shaines & McEachern Department of the Attorney General 2S 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 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 (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 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 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 1

t Charles P. Graham, Esquire McKay, Murphy and Graham-100 Main Street Amesbury, MA 01913 i

Kathrin A. Selleck