ML20207A297
| ML20207A297 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 04/21/1987 |
| From: | Curran D HAMPTON FALLS, NH, HAMPTON, NH, HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#287-3210 OL, NUDOCS 8704270068 | |
| Download: ML20207A297 (7) | |
Text
jy2 /d 00CKETED April 21,1987 UNITED STATES NUCLEAR REGULATORY COMMISSIONB7 AR? 23 P4 54 BEFORE THE ATCMIC SAFETY ANC LICENSING BOARgFFICE C7 :EC?t rAi y DOCYLTmq s yrnty aftANCH
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In the Ma tter of
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Public Service Company of
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New Hampshire, et al.
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Docket Nos. 5 0-443 OL
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50-444 OL (Seabrook Station, Units 1 & 2)
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OFFSITE EMERGENCY
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PLANNING
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JOINT MOTION TO REJECT APPLICANTS' FILING OF APRIL 15, 1986, OR IN THE ALTERNATIVE, FOR IMPOSITION OF SANCTIONS AGAINST APPLICANTS Introduction On Ap ril 15, 1987, three weeks after the deadline for filing summary disposition motions, Applicants filed two additional doc-uments in support of their motions for summary disposition of various contentions challenging the adequacy of emergency response personnel for the State of New Hampshire.
Those docu-ments consisted of a " Personnel Resources Assessment Summary Developed in Support of Motions for Summary Disposition," dated April 1987 (hereafter " Summary") and the "Af fidavit of Anthony M.
Callendrello in support of Applicants' Motions for Summary Dis-position on Kensington Contention No. 1, Town of Hampton Conten-tion No. VI, Hampton Falls Contention No.
2, Town of South Hamp-ton Contention No. 2, NECNP Co ntention No. NHLP-2, and S APL Con-tention Nos. 8 and 8A."
The New England Coalition on Nuclear Pollution ("NECNP"),
Seacoast An ti-Pollution League ( "SAPL"), Town of Hampton ( "TOH"),
8704270068 870421 PDR ADOCK 05000443 Sol 3 G
. Town of Hamp ton Falls ( "TOHF"), Town of South Hampton ( " TOSH")
and Town of Kensington ("TOK") (hereafter "movants") jointly move the Licensing Board to reject these documents as untimely filed.
In the alternative, movants request the Licensing Board to bar consideration of the Summary in this summary disposition proceed-ing, as a sanction against Applicants for failing to identify or produce the Summary or any draf ts of the Summary in response to the movants' discovery requests.
Statement of Facts The Licensing Board has admitted to this proceeding a nunber of contentions which challenge the adequacy of New Hampshire emergency response personnel to respond to a radiological acci-dent at Seabrook.
See TOH Contention VI, SAPL Contentions 8 and 8A, NECNP Contention NHLP-2, TOSH Contention 2, TOHF Contention 2, and TOK Contention 1.
During the first week of March,1987, movants NECNP, SAPL, and TOH served interrogatories on Applicants, asking Applicants to, inter alia, state their posi-tions on all contentions relating to Revision 2 of the New Hampshire RERP that were admitted ty the Licensing Board on February 18, 1987, including TO!! Revised Contention VI and S APL Contentions 8 and 8A.
These interrogatories also asked Appl / : ants to identify and produce all documents on which they i
it.: ended to rely in the proceeding to support their position.1 Each set of interrogatories defined the term " document" to I
i 1
See SAPL Interrogatory A, Hamp ton In terrogatory 1, NECNP Interrogatories 2 and 3.
. include drafts.
SAPL Interrogatory 4 2 also asked Applicants, "From what specific state agencies will the state draw personnel to fill in for lack of adequate personnel in local communities?
For each agency named, state the total number of personnel avail-able to perform such functions."
Applicants filed their answers to all parties' inter-rogatories on March 18, 1987.
In their answers, Applicants f ailed to identify any documents, other than the New Hampshire RERP, on which they intended to rely to support their position on TOH Revised Contention VI or SAPL Contentions 8 and 8A.
More-over, the collection of documents that Applicants made available for inspection at the Seabrook site did not include the Summary or any draft.
On Ma rch 25, 1987, Applicants filed summary disposition motions on every contention admitted to this proceeding, includ-ing TOH Revised Contention VI, SAPL Contentions 8 and 8A, NECNP Contention NHLP-2, TOHF Contention 2, TCSH Contention 2, and TOK Contention 1.
In moving for summary disposition on these contentions, Applicants relied on the af fidavit of Anthony M.
Ca llend rello, which stated, inter alia, that "an ongoing person-nel resource assessment has been established to identify specific local municipality needs and availabilities of personnel resources necessary to fully implement the local Radiological Emergency Response Plans."
No supporting documentation was iden-tified or supplied.
In compliance with the Board's hearing schedule, movants filed responses to Applicants' summary disposition motions on
. April 15, 1987, so that they would be in the Board's and the parties' hands by April 16, 1987.
On April 15, Applicants filed the Callendrello affidavit and a document entitled " Personnel Resources Assessment Summary Developed in Support of Motions for Summary Disposition," dated April 1987.
The Summary and af fidavit purport to demonstrate that the State of New Hampshire has adequate personnel to compensate for local governments that fail to participate in an emergency response.
Although these
' documents were served three weeks af ter the deadline for filing summary disposition motions, Applicants filed no motion for leave to file the Summary and Callendrello affidavit.
Argument The Summary and Callendrello af fidavit should be rejected as late-filed.
Under the schedule established by the Licensing Board, all motions for summary disposition were due in hand by Ma rch 26,1987.
Applicants have failed to meet that deadline or even to seek the Board's permission to file the Summary and Cal-lendrello affidavit after the deadline.
The Board has held firmly to its summary disposition schedule, providing relief only in limited circumstances where a significant amount of discovery had not been completed.
Applicants have made no attempt to demonstrate special circumstances that would warrant an extension of the summary disposition schedule on their behalf.
Moreover, consideration of these new documents would impose undue hardship on the parties.
Movants did not receive the Sum-mary and Callendrello af fidavit until the day af ter they were
% required to file their oppositions to Applicants' summary dis-position motions.
They were thus afforded no opportunity to assess the Summary or to incorporate their evaluation into their
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responses.2 Movants have only four more weeks to prepare and file direct testimony for the adjudicatory hearings.
It would be unfair and unduly burdensome to saddle movants with the obliga-tion to review and respond to these new documents at the same time that they are preparing testimony for the hearings.
In the alternative, movants ask the Licensing Board to impose sanctions against Applicants for failing to comply with movants' discovery requests, by barring consideration of the Sum-mary in this summary disposition proceeding.
Although the Sum-mary must have been undergoing prepration for some ti 9 before it was filed, Applicants failed to produce the Summary or any draf ts in response to intervenors' discovery requests.
In failing to comply in good f aith with movants' discovery requests, Applicants deprived movants of a timely opportunity to review and respond to the document.
The Commission has stated that licensing boards may impose sanctions where parties fail to meet their obligations during NRC proceedings.
Statement of Policy on Conduct of Licensing Pro-ceedings, C L I-81-8, 13 NRC 4 52, 4 54 (1981).
Sanctions should be 2
We note that the Federal Emergency Management Agency has refused to evaluate the Summary because it was not submitted in accordance with FEMA regulations at 44 CPR Part 350.
See Af fidavit of Edward A. Thomas In Opposition to Certain Motions for Summary Disposition,11 16, 18, 20-23.
. tailored to " mitigate the harm caused by the f ailure of a party to fulfill its obligations and bring about improved future com-pliance."
Id.
In this case, the appropriate sanction for a
Applicants' f ailure to disclose the Summary or any draf ts during discovery would be to refuse to consider the Summary during this summary disposition proceeding.
Such a sanction will mitigate the harm done to movants by Applicants' surprise filing of the Summary at this late date, and discourage Applicants f rom abusing the discovery process in the future.
Movants seek expedited consideration of this motion, so that they may learn as quickly as possible whether they will be required to respond to the new material during this summary judg-ment proceeding.
Respectfully submitted on behalf of all parties to this
' oint motion l
Diane Curran HARMON & WEISS 2001 "S" Street N.W.
Suite 430 (202) 328-3500 Washington, D.C.
20009 April 21,1987 l
I certify that on April 21, 1987, copies of the foregoing l
pleading were served by first-class mail or as otherwise indi-cated on the attached service list.
Clane Curran
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Atomic Safety and Licensing loston,MA 02109 loard J.P. Nadeau
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r6herwin E. Turk Esq.
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- Dr. Jerry Hartour Atcetc Safety and Licensing Richard E. Sullivan, Mayor Mr. Angie Machiros, Chairsan Charles P. Grahas, Esq.
teard CittHall loard of Selecteen Mctar, Murphy and Grahae U.S. NRC Newt.uryport, MA 01950 Newbury, MA 01350 100 Main Street Washingtcn,D.C. 20555 Asestury, MA 01913 Alfred V. Sargent. Chairain WH. Joseph F!rnn. Esq.
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8 ly hand U.S. NRC Senatcr Gordon J. Husenter Washington,D.C. 20472 Washingtcn. :.C. 20555 U.S. ~ enate 88 ly Federal Express Wasnington. ?.C.
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Gary W. Holees. Esq.
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Portseouth, NH 03801 1AshtrurtonPlace,19thfloor R.I. Gad II Esq.
80 sten MA 02103 Ropes & Gray Matthew T. Brock, Esq.
225 Franklin Street
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' Stanler W. Inowles loston,MA 02110 P.O. tot 360 loardofSelecteen MaplewoodAve.
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