ML20207S601
| ML20207S601 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/16/1987 |
| From: | Chan E NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#187-2821 OL, NUDOCS 8703200084 | |
| Download: ML20207S601 (10) | |
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00CKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'87 liar 18 P3 57 DEFORE TIIE ATOMIC SAFETY AND LICENSING BOARU[.j,f :,.[]
z m.:n In the Matter of
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Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF
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50-444 OL NEW IIAMPSHIRE, et al.
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Off-site Emergency Planning
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(Scabrook Station, Units 1 and ?
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NRC STAFF'S RESPONSE TO MOTIONS TO EXTEND THE HEARING SCHEDULE AND TO ATTORNEY GENERAL SHANNON'S PARTICIPATION IN LITIGATION OF NEWLY ADMITTED CONTENTIONS I.
INTRODUCTION On February 25, 1987 the Town of IIampton, Seacoast Anti-Pollution League, New England Coalition on Nuclear Pollution, and the Common-wealth of Massachusetts ("Intervenors") filed a joint motion requesting that the Licensing Board extend by four months, the discovery period, and all other items in the hearing schedule ordered by the Board in its January 9,1987 Memorandum And Order; the Town of Amesbury joined in this motion by motion dated February 27, 1987. In addition, on March z, i
1987, Attorney General Shannon filed a separate motion in which he seeks an extension of the hearing schedule and notices his intention to parti-cipate in the litigation of newly admitted contentions.
For the reasons set forth below, the Staff opposes the requests to extend the hearing schedule, but does not oppose the Attorney General's participation in litigation of the newly admitted contentions, i
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II. DISCUSSION A.
The Joint Motion In the Joint Motion, Intervenors note that the KLD ETE contentions were not admitted until February 18, 1987, that they intend to seek discovery on the KLD ETE, and that they need certain discovery materials in order to formulate their own responses to discovery on the KLD ETE.
Intervenors contend that an additional four months are needed to complete discovery responses, and seek a corresponding extension of the entire hearing schedule.
The Intervenors filed an affidavit prepared by their expert,
Dr. Adler, in support of their request.
The Intervenors argue that denial of their request would constitute legal error as well as a denial of their and the public's rights to due process to t
participate meaningfully in the license proceeding, and to review and follow up on the Applicants' discovery responses.
The Staff has previously recognized that the admission of contentions addressing the KLD ETE might require additional effort in discovery and 3
litigation to prepare for an evidentiary hearing (see Staff's proposed schedule, illed November 21, 1986).
Nonetheless, the Staff cannot support Intervenors' request for a four month extension of the hearing schedule.
SAPL and the Town of Hampton raised KLD ETE contentions in early 1986.
On November 19, 1986, the Town of Hampton identified expert witnesses, including Dr. Adler, whom it planned to use to critique the i
KLD ETI:, to respond to discovery, and to prepare testimony. II The Intervenors have received periodic reports on the status of the NHRERP from the Office of the New Hampshire Attorney General, including reports concerning the State's progress in revising and approving the KLD ETE.
It therefore appears that renorts on the KLD ETE study have been available to Intervenors for review well in advance of the discovery period.
In view of all the information available to Intervenors prior to the commencement of discovery, and Hampton's specific identification of Dr. Adler as an expert witness several months ago, the Intervenors appear already to have had some opportunity to develop their case, prior to the commencement of discovery.
In any event, the Intervenors have not supported their asserted need for a four-month extension of the i
hearing schedule -- a schedule which was adopted for litigation of all contentions on the NHRERP, and not just those involving the ETE.
Intervenors argue that denial of the requested extension would constitute an abuse of discretion, reversible error, and a denial of due process.
However, Commission regulations empower the Licensing Board to " regulate the course of the hearing and the conduct of the participants."
10 C.F.R. I 2.718 (e).
Further, the regulations afford the Board broad discretion, "for good cause", to shorten or lengthen the time for various activities to be undertaken in the course of the proceeding. 10 C.F.R. I 2.711.
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See " Town of Hampton Supplement to Memorandum on 10 C.F.R.
TT.714(a)(1) and Contentions of the Town of Hampton to New IIampshire Radiological Emergency Response Plan Revision 2".
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a The Intervenors rely upon Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-459, 7 NRC 179,188 (1978), and Houston Lighting a Power Co. (South Texas Project Units 1 and 2), ALAB-799, 21 NRC 360, 379 (1985), in support of,their 2 argument that denial of their request would deny their rights to due N' process.
The Intervenors' reliance on thece. decisions is misplaced.
In Marble Hill, the Staff had begun prepaling its testimony two months' before requesting leave to file it; in responsa to the Staff's request, the Board gave all parties until a date certain for filing testimony. on the subject. The Appeal Board found that, notwithstandin'g the Staff's longer i
preparation time, the complainant was not " entitled to stand pat... and make no effort at all to prepare a rebuttal...." (Marble Hill, supra, 7 NRC at 188).
In the instant case, however, no party had a time l
advantage in conducting discovery on the KLD ETE contentions; rather, every party had the same rights and limitations as to the tirne in which 1
they were able to conduct discovery.
In South Texas, the issue was whether a denial of due process was occasioned by the Licensing Board's refusal to delay the hearing schedule to permit the attendance durin'g part of the hearing of the " individual most familiar with the details."
In denying directed certification', the Appeal Board found that the denial of the scheduling request did not constitute a denial of due process.
The Board ' f'urther found that the.
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party's complaint that it had to expend its limited resources to hire outside counsel did not establish a denial of due process.
South Texas, supra, 21 NRC at 379.
In the instant case, the Intervenors' assertion 1
that they "could not be reasonably expected to have made substantial
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expenditures for expert consultations and assistance in framing discovery b
requests",until the contentions were admitted, likewise does not support a clcim of a denial of due process.
s The Boazd has expressed its view that given the time that the J
parties have had the New Hampshire plans and Revision 2 of the J
NHRERP, scheduling time frames "can and should be shortened."
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Board established the schedule in its January 9,1987 Order. A denial of Intervenors' extension request would not constitute a denial of their rights to procedural due process nor does the financial burden claimed by the Intervenors establish a ' denial of due process.
Attorney General Shannon's Motion Attorney General Shannon's separate motion for reconsideration of the hearing schedule relies upon the time provisions set forth in 10 C.F.R. I 2.743(b), which indicates that testimony is to be filed 15 days prior to the hearing, and requests that 30 days be afforded between the time testimony is filed and the commencement of hearings.
In addition, i
l he asserts that a pre-hearing conference is required prior to the hearing, 3
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pursuant to 10 C.F.R. I 2.759 i
i These assertions are misplaced.
First, as set forth above, the Licensing Board has' the authority under 10 C.F.R.
f2.711, for good cause, to shorten or lengthen the time for acts required to be performed
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'in an adjudicatory proceeding. The Licensing Board's establishmmt of its schedule in this proceeding has not been shown to be an abuse of its l',
discretion.
Second, the prehearing conference required to be held by 10 C.F.R.
I 2.752 has ' already been held, and no further prehearing
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conference is mandated by the Commission's rules of procedure.
Accordingly, the Staff opposes the Attorney General's motion for reconsideration. 2,/
Finally, the Staff does not oppose Attorney General Shannon'a I
participation in litigation of the newly admitted contentions; such participation is consistent with his right to participate in this proceeding under 10 C.F.R. I 2.715(c).
III. CONCLUSION For the reasons set forth above, the Staff opposes the motions to extend the hearing schedule, but does not oppose Attorney General Shannon's participation in litigation of the newly admitted contentions.
Respectfully submitted, A
,_n Elaine I. Chan Counsel for NRC Staff Dated at Bethesda, Maryland this loth day of March,1987 2/
Attorney General Shannon has also requested that the Applicants and
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FEMA file their testimony before other parties in the proceeding.
The Staff opposes this request as inconsistent with established "3
I agency practico and, further, as unnecessary.
In the event that the Attorney General er other parties wish to rebut the Applicants' or FEMA's testimony, the proper course is for them to file a proper motion requesting leave to do so.
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UNITED STATES OF AMERICA HUCLEAR RECULATORY COMMISSION BEFORE Tile ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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Docket Nos. 50-443 OL PUBLIC S1:RVICE COMPANY OF
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50-444 OL NE11 HAMPSIIIRE, eM.
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Off-site Emergency Planning
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(Seabrook Station, Units 1 and 2
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NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the above-captioned matter.
In accordance with 10 C.F.R. I 2.713(b), the following information is provided:
Name Elaine I. Chan Address U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, DC 20555 Telephone Number Area Code 301 - 492-7148 Admission District of Columbia Court of Appeals Name of Party NRC Staff U.S. Nuclear Regulatory Commission Washington, DC 20555 Elaine I. Chan Counsel for NRC Staff Dated at Bethesda, Maryland this 16th day of March,1987
6 00LKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'87 MAR 18 P3 57 BEFORE THE ATOMIC SAFETY AND LICENSING R}&A_RDyl-gty BRANCH In the Matter of
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Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF
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50-444 OL NEW HAMPSHIRE, g al.
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Off-site Emergency Planning
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(Seabrook Station, Units 1 and 2
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_ CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO MOTIONS TO EXTEND THE HEARING SCHEDULE AND TO ATTORNEY GENERAL SHANNON'S PARTICIPATION IN LITIGATION OF NEWLY ADMITTED CONTENTIONS" and
" NOTICE OF APPEARANCE" for Elaine I.
Chan, in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system this 16th day of March,1987.
Helen Hoyt, Esq., Chairman
- Gustave A. Linenberger, Jr.*
Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Ccmmission U.S.
Nuclear Regulatory Commission Washington, DC 20555 Washington, DC' 20555 Dr. Jerry Harbour
- Ms. Carol Sneider, Esq.
l Administrative Judge Assistant Attorney General l
Atomic Safety and Licensing Board Office of the Attorney General U.S. Nuclear Regulatory Commission One Ashburton Place,19th Floor Washington, DC 20555 Boston, MA 02108 Beverly Hollingworth Richard A. Hampe, Esq.
209 Winnacunnet Road New Hampshire Civil Defense Agency Hampton, NH 03842 107 Pleasant Street Concord, NH 03301 Sandra Gavutis, Chairman Calvin A. Canney, City Manager Board of Selectmen City Hall RFD 1 Box 1154 126 Daniel Street Kensington, NH 03827 Portsmouth, NH 03801
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Stephen E. Merrill Paul McEachern, Esq.
Attorney General Matthew T. Brock, Esq.**
i George Dana Bisbee Shaines & McEachern Assistant Attorney General
~25 Maplewood Avenue Office of the Attorney General P.O. Box 360 25 Capitol Street Portsmouth, NH 03801 Concord, NH 03301 Roberta C. Pevear Angie Machiros, Chairman State Representative Board of Selectmen Town of Hampton Falls 25 High Road Drinkwater Road Newbury, MA 09150 Hampton Falls, NH 03844 Allen Lampert Mr. Robert J. Harrison Civil Defense Director President and Chief Executive Officer Town of Brentwood Public Service Co. of New Hampshire 20 Franklin Street P.O. Box 330 Exeter, NH 03833 Manchester, NH 03105 Charles P. Graham, Esq.
Robert A. Backus, Esq.
McKay, Murphy and Graham Backus, Meyer & Solomon 100 Main Street 116 Lowell Street Amesbury, MA 01913 Manchester, NH 03106 Diane Curran, Esq.
Philip Ahren, Esq.
Harmon & Weiss Assistant Attorney General 2001 S Street, NW Office of the Attorney General Suite 430 State House Station #6 Washington, DC 20009 Augusta, ME 04333 Edward A. Thomas Thomas G. Dignan Jr., Esq.
Federal Emergency Management Agency Ropes & Gray 442 J.W. McCormack (POCH) 225 Franklin Street Boston, MA 02109 Boston, MA 02110 H.J. Flynn, Esq.
William Armstrong Assistant General Counsel Civil Defense Director Federal Emergency Management Agency Town of Exeter 500 C Street, SW 10 Front Street Washington, DC 20472 Exeter, NH 03833 Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel
- Board
- U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 i
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Jane Doughty Docketing and Service Section*
Seacoast Anti-Pollution League Office of the Secretary 5 Market Street U.S. Nuclear Regulatory Commission.
Portsmouth, NH 03801 Washington, DC 20555 Maynard L. Young, Chairman William S. Lord Board of Selectmen Board of Selectmen 10 Central Road Town Hall - Friend Street South Hampton, NH 03287 Amesbury, MA 01913 Michael Santosuosso, Chairman Peter J. Matthews, Mayor Board of Selectmen City Hall South Hampton, NH 03287 Newburyport, MN 09150 Mr. Robert Carrigg, Chairman Judith H. Mizner, Esq.
Board of Selectmen Silverglate, Gertner, Baker Town Office Fine and Good Atlantic Avenue 88 Broad Street North Ilampton, NH 03862 Boston, MA 02110 R. K. Gad III, Esq.
Mrs. Anne E.
Goodman, Chairman Ropes & Gray Board of Selectmen 225 Franklin Street 13-15 Newmarket Road Boston, MN 02110 Durham, NH 03824 Gary W. Holmes, Esq.
Honorable Gordon J.
Humphrey Holmes & Ellis United States Senate 47 Winnacunnet Road 531 Hart Senate Office Building Hampton, NH 03842 Washington, DC 20510 Elaine I. Chan l
Counsel for NRC Staff 1
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