ML20210B742
| ML20210B742 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/01/1987 |
| From: | Tompkins B NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#287-3333 ALAB-864, OL, NUDOCS 8705060007 | |
| Download: ML20210B742 (22) | |
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.ej333 3 00 METED UNITED STATES OF AMERICA USilRC NUCLEAR REGULATORY COMMISSION
-1 All :03 ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:
OFFICE 0; w. : t, n (
00 CME!i% 4.1<via Alan S. Rosenthal, Chairman May 1, 19diANCH Gary J. Edles (ALAB-864)
Howard A. Wilber SERVED MAY -11987-In the Matter of
)
)
PUBLIC SERVICE COMPANY OF
)
Docket Nos. 50-443-OL NEW HAMPSHIRE, ET AL.
)
50-444-OL
)
(Seabrook Station, Units 1
) (Offsite Emergency Planning) and 2)
)
)
Donald S. Bronstein, Boston, Massachusetts, for James M. Shannon, Attorney General of the Commonwealth of Massachusetts.
Robert A. Backus, Manchester, New Hampshire, for the Seacoast Anti-Pollution League.
Diane Curran, Washington, D.C.,
for the New England Coalition on Nuclear Pollution.
Paul McEachern, Portsmouth, New Hampshire, for the Town of Hampton, New Hampshire.
Thomas G. Dignan, Jr.,
Boston, Massachusetts (with whom George H. Lewald and Kathryn A.
Selleck, Boston, Massachusetts, were on the brief), for the applicants Public Service Company of New Hampshire, et al.
Gregory Alan Berry for the Nuclear Regulatory Commission staff.
William S. Lord, Amesbury, Massachusetts, filed a memorandum on behalf of the Town of Amesbury.
8705060007 B70501 PDR ADOCK 05000443 G
PDR b
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2 MEMORANDUM AND ORDER Before us is the joint motion of several intervenors for directed certification'of the Licensing Board's March 20, 1987 memorandum and order (unpublished) in the offsite emergency planning phase of this operating license proceeding involving the Seabrook nuclear facility located on the-New Hampshire seacoast.
In that order, the Board below reaffirmed in its entirety the schedule, established in its January 9, 1987 memorandum and order, for the hearing on the New Hampshire Radiological Emergency Response Plan (hereaf ter the "New Hampshire Plan").
According to the intervenors, that " schedule is so compressed that it will deny the parties to this proceeding a fair hearing,"
4 contrary to both 10 CFR 2.718 and the constitutional 1 The Attorney General of Massachusetts on behalf of that Commonwealth; the Town of Hampton; the Seacoast Anti-Pollution League (SAPL) ; and the New England Coalition on Nuclear Pollution (Coalition).
2 See 10 CFR 2.718 (i) ; Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-271, 1 NRC 478, 482-83 (1975).
3 Unless otherwise indicated, this term embraces New Hampshire state and local plans.
Intervenors refer to the provision in Section 2.718 to the effect that "[a] presiding officer [e.g., a Licensing Board] has the duty to conduct a fair and impartial hearing according to law."
3 1
requirement of due process.5 Thus, intervenors maintain, our " prompt intercession is essential to assure" that the parties "are provided with the minimum opportunity to prepare for and to participate at a hearing in a complex area in a' manner consistent with the Commission's rules and due process."6 For the reasons set forth below, we conclude that (1) the schedule in question did not provide the intervenors with a fair opportunity to prepare for trial; and (2) neither the history of the litigation of New Hampshire emergency planning issues nor current circumstances justify such severe curtailment of the intervenors' procedural rights.
Accordingly, we grant directed certification and order adjustments in the schedule.
A.
The Commission's Rules of Practice prohibit-appeals-from interlocutory licensing board rulings of the type involved here.
And, as we recently had occasion to observe anew in this proceeding, it is well-settled that we will exercise our discretionary power to review an interlocutory ruling by way of directed certification only if that ruling 5 Joint Intervenor Appeal by Motion for Directed Certification (March 27, 1987) at 2.
6 Ibid.
See 10 CFR 2.730 (f).
I
4 either (a) threatens the party adversely affected with immediate and serious irreparable harm that could not be remedied by a later appeal, or (b) affects the basic structure of the proceeding in a pervasive or unusual 8
We went on to stress that "[w]here a scheduling manner.
order is involved, that standard ordinarily requires a showing that the schedule deprives the complaining party of
{
its right to procedural due process."
Thus, the question at hand is whether, as intervenors insist but the applicants and NRC staff dispute, the challenged hearing schedule on the New Hampshire Plan was so O ALAB-858, 25 NRC (January 15, 1987) (slip opinion at 5) (citing Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units l'and-2), ALAB-405, 5 NRC 1190, 1192 (1977)).
Id. at (slip opinion at 5-6) (citing Houston Lighting & Power Co. (South Texas Project, Units 1 and 2),
ALAB-637, 13 NRC 367, 370-71 (1981)).
See also Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2),
ALAB-863, 25 NRC (April 17, 1987) (slip opinion at 4); Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-719, 17 NRC 387, 391 (1983); Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-468, 7 NRC 465, 468 (1978) ; Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-459, 7 NRC 179, 188 l
(1978) ; Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-295, 2 NRC 668, 670 n.2 (1975); Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-212, 7 AEC 986, 991 (1974).
In the San Onofre case, we overturned a Licensing Board scheduling determination on the ground that it violated procedural due process; i.e.,
because it deprived a party "of a fair chance to prepare and present its case on all of the issues ripe for adjudication."
7 AEC at 994.
5 abbreviated as to deny intervenors a fair opportunity to be heard on their contentions admitted for litigation.
For, as implicitly, if not explicitly, recognized by the Commission both in its Rules of Practice and elsewhere, fundamental fairness is at the root of procedural due process.10 There is, of course, no litmus paper test for determining whether, in a particular case, the fundamental 10 Beyond the duty specifically imposed by Section 2.718 to conduct a fair hearing (see supra note 4), the Commission had this to say in its 1981 Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 453:
Individual adjudicatory boards are encouraged to expedite the hearing process by~using those management methods already contained in [10 CFR)
Part 2 of the Commission's Rules and Regulations.
The Commission wishes to emphasize though that, in expediting the hearings, the board should ensure that the hearings are fair, and produce a record which leads to high quality decisions that adequately protect the public health and safety and the environment.
i l
The Commission's Rules of Practice provide the board with substantial authority to regulate hearing procedures.
In the final analysis, the actions, consistent with applicable rules, which may be taken to conduct an efficient hearing are limited primarily by the good sense, judgment, and managerial skills of a presiding board which is dedicated to seeing that the process moves along at an expeditious pace, consistent with the demands of fairness.
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6 fairness standard is satisfied.ll As the courts have stressed, that assessment must be made on the basis of the totality of the relevant circumstances disclosed by the record.12 Among the factors to be considered are the amount of time that has been allotted for prehearing activity and the anunber, scope and complexity of the issues to be tried.
In addition, any established need for expedition can be taken into account, although that factor cannot serve to justify a hearing schedule that is so abbreviated as to make adequate trial preparation a practical impossibility.13 B.
1.
With these. principles in mind, we turn to the challenged hearing schedule on the New Hampshire Plan.
So 11 Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d 153, i
165 (6th Cir. 1973) ("due process varies with the subject matter and the requirement of each situation," citing Fuentes v. Shevin, 407 U.S. 67, 82 (1972), and
"[t]here is no table of weights and measures for ascertaining what constitutes due process," quoting Burns v. Wilson, 346 U.S.
137, 149 (1953)).
See also Fitzgerald v. Hampton, 467 F.2d 755, 764 (D.C. Cir. 1972) ("'due process' cannot be imprisoned within the treacherous limits of any formula").
12 See Goldberg v. Kelly, 397 U.S. 254 (1970).
13 Fitzc erald v. Hampton, 467 F.2d at 767, ("due process in ac ministrative hearings does not yield to administrative ' convenience or expediency, or because of a natural desire to be rid of harassing delay'," quoting Ohio Bell Telephone Co. v. Public Utilities Commission of Ohio, 301 U.S.
292, 305 (1937)).
As just seen, supra note 10, the Commission itself has emphasized that expedition in the hearing process must be " consistent with the demands of fairness."
See also Limerick, 25 NRC at (slip opinion at 25) (Kohl, concurring).
7 that the schedule may be viewed in proper perspective, it is necessary first to refer briefly to events preceding its adoption.
This operating license proceeding began in late 1981 --
more than five years ago.
Some nineteen months later, in May 1983, the NRC staff forwarded copies of a New Hampshire state plan to the Licensing Board and the parties.14 Several intervenors submitted contentions addressed to that plan and, on August 30, 1983, the Licensing Board ruled on their admissibility.
Additionally during 1983, local plans surfaced for all but one of the New Hampshire municipalities within the ten-mile Seabrook plume exposure pathway emergency planning zone (EPZ).
These plans also were the subject of intervenor contentions.
None of the contentions on either the state or local plans reached the hearing stage in 1983 -- or for that matter, in 1984, 1985 or 1986.15 This was not duc, however, to any foot-dragging on the part of the intervenors.
We need not set forth at great length the tortuous path that 14 The staff apparently transmitted the copies shortly after its receipt of the plan from the Federal Emergency Management Agency.
15 Contentions dealing with a previous study performed by the applicants of evacuation time estimates (ETE) were litigated in August 1983 but no decision was rendered by the Licensing Board.
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the litigation regarding New Hampshire offsite emergency planning for Seabrook took during the period between the summer of 1983 and early 1987.
Suffice it to say that the intervenors were not responsible for it.
As acknowledged by applicants' counsel at oral argument, the emergency planning contentions submitted on the state and local New Hampshire plans given in 1983 to the Federal Emergency Management Agency (FEMA) were not promptly litigated because the applicants' financial problems brought about a halt in plant construction.16 In December 1985, however, a replacement New Hampshire Plan -- covering both state and local participation -- was submitted to FEMA and, the following month, obtained by the staff and the other parties to the proceeding.
Given this development, the applicants asked the Licensing Board to call for fresh contentions.
As they pointed out, by taking this step and dismissing as moot all prior contentions offered with respect to the superseded plans, the Board would eliminate any need to compare one plan with another.17 The Board in essence adopted the applicants' suggestion and established a litigation schedule that provided for the commencement of the hearing on any admitted new contentions 16 App. Tr. 207-08, 1
Applicants' motion (January 14, 1986) at 2-3.
9
' on July 21, 1986.18 Thereafter, the start of the hearing was postponed first until August 4, 9 and then indefinitely.20 Although the Board did not assign a reason for the indefinite postponement, it was apparently prompted by FEMA's statement that its review of the December 1985 New Hampshire Plan would.not be completed before October 1986.
On September 8, 1986, New Hampshire submitted a second revision to its December 1985 Plan.
(The first revision had been supplied on June 3.)
Revision 2 made numerous, significant changes in the Plan.
On November 4, the 1
January 17, 1986 memorandum and order at 2-3.
19 April 29, 1986 memorandum and order at 101.
20 July 11, 1986 order at 2.
1 The portion of Revision 2 that pertains to Seabrook (rather than to the Vermont Yankee facility located across the Connecticut River from New Hampshire) consists of 29 volumes containing over 8000 pages (including text, procedures, figures, and tables.)
A cursory examination l
reveals that the portion of this revision directed to state undertakings has effected changes in such areas as public alerting methods; evacuation and sheltering criteria and procedures; allocation of responsibilities between state and local police authorities; and transportation requirements.
Perhaps the most notable change relates to the evacuation time estimates.
As applicants conceded at oral argument, the ETE study embraced in Revision 2 is essentially new.
App. Tr. 205-06.
The portion of Revision 2 directed to the functions of the local governments reflects alterations in the treatment of such subjects as public alerting, emergency (Footnote Continued)
10 i
Licensing Board set December 1 as the deadline for the submission of contentions arising out of Revision 2.22 l
On December 4, 1986, the Board announced that it would rule on the admissibility of the newly submitted contentions by January 16, 1987, at which time discovery would commence.
The Board went.on to direct that discovery be concluded by February 3, with the hearing to start on or after April 27.
Two weeks after that schedule was established, however, the applicants filed a petition with the Licensing Board under 10 CFR 2.758(b), seeking to be relieved of the requirement in 10 CFR 50.47 (c) (2) that it plan for an EPZ of approximately ten miles in radius.23 This development led the Licensing Board to enter the January 9, 1987 order later ratified in the March 20 order under present attack.
In the
~
January 9 order, the Board provided this revised schedule for the litigation of Revision 2 of the New Hampshire Plan:
Date Deadlines February 13, 1987 Board Order ruling on contentions, discovery commences.
l (Footnute Continued) l communications, protective response, radiological exposure control, recovery /re-entry, and the training of emergency response personnel.
22 November 4, 1986 memorandum and order at 37.
23 According to the applicants, a one-mile EPZ would adequately ensure the protection of the public health and safety.
As will be seen, the Licensing Board has just denied the petition.
11 March 6, 1987 Discovery closed (last discovery request due).
March 19, 1987 Answers to last interrogatories due within 14 days after the close of discovery.
March 26, 1987 Deadline for motions for summary disposition on late-filed Rev. 2 Contentions admitted or for other contentions as to which circumstances have changed such that summary disposition is now appropriate.
April 16, 1987 Response opposing or supporting motions due within 20 days.
April 27, 1987 Opp'osing parties may file responses to new facts and arguments presented in statements supporting motions for summary disposition.
May 11, 1987 Board Order ruling on motions for summary disposition.
I May 21, 1987 Prefiled testimony due 10 days after Board ruling on motions for summary disposition.
No sooner than Hearings commence.
May 28, 1987 (Date depends on arrangements for space and location.)
Subsequently, the Board advised the parties that the hearing I
would start on June 1 in the courtroom of the United States
12 District Court in Concord, New Hampshire, and would continue for that week and the week of June 22-26.24 As it turned out, the Licensing Board did not meet its self-imposed February 13 deadline for ruling on the intervenors' contentions on Revision 2 of the New Hampshire Plan.
Rather, the Board's order admitting twenty-one such contentions and. rejecting numerous others was not rendered until February 18. 5 It was not received by the intervenors 24 February 18, 1987 memorandum and order at 6. On April 2, the week of July 20-24, at the same location, was added to the hearing schedule.
5 Seventeen of the admitted contentions were sponsored by the Coalition, SAPL or Hampton; the other four were advanced by the Town of Kensington, New Hampshire (which has not joined in the motion for directed certification).
Although the Massachusetts Attorney General, who is participating in the proceeding as the representative of an interested state under the provisions of 10 CFR 2.715(c),
did not submit any contentions of his own respecting Revision 2 of the New Hampshire Plan, he intends to be an active participant in the litigation of eleven of the admitted contentions concerned with sheltering, evacuation time estimates and compensatory plans.
App. Tr. 145.
All of those contentions were sponsored by the Coalition, SAPL or Hampton.
See Attorney General Shannon's Notice of Intention to Participate (March 2, 1987) at 1.
It should be further noted that the Licensing Board also has before it for trial twelve contentions directed to the December 1985 version of the New Hampshire Plan that were admitted to the proceeding in April 1986 and not superseded by Revision 2.
Three of these contentions were sponsored by the Coalition.
The remaining nine were presented by the Towns of Kensington, Rye, Hampton Falls, and South Hampton, New Hampshire.
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13 until February 23.26 As a consequence, the period for seeking discovery was cut almost in half, to a mere eleven days (i.e., February 23 to March 6).
On February 25, the intervenors filed a motion with the Licensing Board seeking an amendment of the hearing schedule to enlarge the discovery period to four months and to adjust the other portions of the schedule accordingly.
While subscribing to that motion, on March 2 the Massachusetts Attorney General submitted a separate request for a schedule adjustment that focussed upon the assertedly inadequate period between the filing of prepared testimony and the June 1 date for the commencement of the hearing.
In its March 20 order, the Board denied both motions, prompting the request now before us for interlocutory review.
2.
The short of the matter is that, after several years during which the litigation of New Hampshire emergency response planning issues was held in abeyance for reasons not attributable to the intervenors, the Licensing Board imposed upon them a hearing schedule of extreme tightness.
Beyond that, the Board manifested an arbitrary unwillingness to make any adjustments in that schedule even when its own failure to meet the established deadline for ruling on 26 I
See App. Tr. 111.
14 contentions had the effect of reducing the period for the submission of discovery requests to eleven days.27 a.
Discovery.
Given the number and scope of the Revision 2 contentions admitted by the Licensing Board, we deem totally unreasonable the limited opportunity provided the intervenors to invoke the discovery procedures specified in the Commission's Rules of Practice.
This is particularly so in light of the Board's lack of an explanation respecting why it has now become necessary to conduct prehearing activities at a breakneck pace.
Nor is any possible explanation readily discernible.
To be sure, Unit 1 of the Seabrook facility is fully built and the applicants are-understandably eager to obtain a full-power' operating license for it.
But it is equally apparent that, i
27 We note in passing that the Licensing Board's February 18, 1987 order ruling on the contentions directed to Revision 2 of the New Hampshire Plan did not explain why particular contentions were admitted or rejected.
Consequently, the Board was required to state in the order (at 1) that it would "not accept any motion concerning these rulings prior to [the issuance of] the [mlemorandum explaining the bases of its rulings."
As of this writing, the memorandum has not been issued.
Thus, the five-day period provided by 10 CFR 2.752(c) for the filing of objections to the rejection of certain contentions has still not begun to run.
Yet, until the j
objections are received and ruled upon, neither the parties nor the Licensing Board will know for certain precisely what issues pertaining to the New Hampshire Plan are to be tried.
See 10 CFR 2.740 et seq.
W 15 even if all New Hampshire emergency response planning issues are resolved in the applicants' favor, formidable obstacles t
remain in the path of the achievement of that objective.
A substantial portion of the ten-mile EPZ is located within'the Commonwealth of Massachusetts and its governor has made clear that that state will not participate in emergency planning activities.
Although a grant of the applicants' pending petition seeking a reduction of the.EPZ to one mile would leave Massachusetts outside of its boundaries, the Licensing Board recently concluded that the requisite prima facie showing that such relief is warranted had not been made.29 As matters currently stand, then, before Seabrook can be licensed for full-power operation there must be acceptable emergency planning for the several Massachusetts communities within the ten-mile EPZ.
Accordingly, barring a change in position on the part of the Massachusetts governor, it would appear that the applicants must count on the Commission's adoption of a
' LBP-87-12, 25 NRC (April 22, 1987).
See also 10 CFR 2.758 (c).
Although the Licensing Board may not have known on March 20 that it would reach that conclusion, it was then aware that the staff would not complete its review of the applicants' proposed EPZ reduction until late this year.
See Staff Response (January 28, 1987) at 5; Staff Response (February 27, 1987), Affidavit of Scott Newberry at 8.
At the time of the entry of the March 20 order, the Board thus must have appreciated that in no event would an early grant of the applicants' petition be likely.
16 proposed amendment to its emergency planning regulations.
More specifically, a subsection (e) would be added to 10 CFR 50.47 providing that:
.The Commission may' issue a full power operating license for a facility notwithstanding non-compliance with other requirements of this section and 10 CFR'Part 50, Appendix E if non-compliance arises substantially from a. lack of participation in the development or. implementation of offsite emergency planning by a State or local government, and if the applicant demonstrates to the Commission's satisfaction that:
(1) The non-compliance could be remedied, or adequately compensated for-by reasonable State or local governmental cooperation; (2) Applicant has made a good faith and sustained effort to obtain the cooperation of the necessary governments; (3)
Applicant's offsite emergency plan includes effective measures to compensate for the lack of cooperation which are reasonable and achievable under the circumstances and which'take into account a likely State or local response to an actual emergency; and (4) Applicant has provided-copies of the offsite plan to all governments-which would have otherwise participated in its preparation or implementation and has assured them that it stands ready 30 cooperate should they change their position Whether the Commission will promulgate subsection (e) after its evaluation of the plethora of public comments it has received remains to be seen.31 Even if it does, however, the applicants will still have the burden of demonstrating, e
i 30 See 52 Fed. Reg. 6980, 6984 (1987).
As extended in an April 27 notice, the period for public comments on the proposal will expire on June 4, 1987.
i To date, over 2100 such comments have reached the Commission.
i
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17 inter alia, that their offsite emergency plan " includes effective measures to compensate for the lack of cooperation which are reasonable and achievable under the circumstances and which take into account a likely State or local response to an actual emergency."
It is fair to assume that the applicants' endeavor to satisfy this burden will not go unchallenged and that substantial time and effort will be required to resolve such issues.
It does not necessarily follow from these considerations that a protracted schedule for the hearing of the New Hampshire emergency planning issues would be justified.
But, once again, we are not presented with such a schedule here but, rather, with one that is the precise opposite.
Insofar as discovery requests are concerned, for example, the question.is whether, in the totality of circumstances, there was any practical reason why this important phase of pretrial activity had to be compressed into such a fleeting period.
We think that question must be answered in the negative.
Moreover, in contrast to the situation addressed in the recent Limerick decision,32 we are additionally satisfied from their uncontroverted representations at the oral argument that the intervenors have suffered serious prejudice by reason of the failure of 32 See Limerick, 25 NRC at (slip opinion at 6).
18 the Licensing Board to establish a more reasonable discovery period.
b.
Prepared testimony and start of hearing.
We find equally, if not more, troubling the portion of the Licensing Board's schedule calling for the submission of all prepared testimony within ten days of its ruling on the pending motions for summary disposition and the commencement of the evidentiary hearing five business days thereafter (the period between May 21 and June 1 includes two weekends and the Memorial Day holiday).
In the absence of the most dire necessity, and ncne was or could have been demonstrated here, such compression is simply unacceptable.33 Perhaps most disturbing of all was the Licensing Board's explicit decision not to provide an opportunity for prepared rebuttal testimony.
In denying reconsideration of its schedule, the Board opined that the proceeding would not be benefitted by allowing such testimony.
Rather, according to the Board, "[t]he filing of testimony simultaneously 33 We recognize that, in telephone conferences with the parties on April 13 and 14, the Licensing Board announced that it was summarily denying the applicants' motion for summary disposition on seven of the Revision 2 contentions.
See April 15, 1987 memorandum and order.
But the applicants had moved for summary disposition on all thirty-three admitted contentions (see supra note 25 and App. Tr. 189) and presumably the parties will not know until May 11 whether they need to prepare for trial on the remaining twenty-six.
19-serves to promote fairness for all parties."34 We believe that exactly the converse is the reality:
in the circumstances of this case at least, the lack.of an opportunity for prepared rebuttal testimony patently and seriously intrudes upon the intervenors' hearing rights.
j This point is readily illustrated by a single example.
Revision 2 is now before FEMA for its consideration and evaluation.
According to staff counsel, FEMA has given assurance that it will meet the May 21 deadline for the submission of its prepared testimony.35 When that testimony-is filed, the intervenors will learn for the first' time whether FEMA finds Revision 2 acceptable and, if so,-the reasons for its finding.
By virtue of 10 CFR 50.47(a)(2), a rebuttable j
presumption of correctness-attaches-to FEMA findings on i'
questions of the adequacy and implementation capability-of emergency response plans.
Under the Licensing Board's schedule, however, how will intervenors be able to attempt to rebut through affirmative evidence of their own any FEMA finding (s) with which they disagree?
The short answer is that, as staff counsel ultimately conceded,36 that i
34 March 20, 1987 memorandum and order at 2 note 2.
5 App. Tr. 209.
1 36 j
App. Tr. 209-16.
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20 7
opportunity will be entirely denied to them because, by the time they obtain the FEMA testimony, the period for the filing of their own prepared testimony will have expired.
Inasmuch as prefiled testimony is a precondition to a witness taking the stand, the Licensing Board has effectively precluded the intervenors from attacking the presumptive?.y correct FEMA finding other than through cross-examination.
If anything more than lip service is to be accorded the principle that every litigant is entitled to a fair hearing -- in the context of the matter before us, a fair opportunity to present its case -- that result cannot be tolerated.
C.
For the foregoing reasons, we conclude that, without sufficient assigned or apparent justification, the challenged hearing schedule was so grossly abbreviated in several respects as to impinge upon the intervenors' hearing rights and thus to be violative of due process.
That schedule must therefore be modified by the Licensing Board to cure the infirmity.
That modification shall be consistent with the following:
1.
The parties are to be given an opportunity for further discovery on the admitted Revision 2
\\
contentions of SAPL, Hampton, and the Coalition.
A period of at least fifteen days shall be provided for the submission of additional discovery requests and a
y f
e f'
21 A
v period of at least like duration providad for recponses to those re; quests.
3 2/
On the assumption that FEMA will furnish to the parties a full statement of its position on the New Hampshire Plan prior to June 1, 1987 (either through prefile6ftestimony-or in response to a discovery
- 7 request),'r the prefiled testimony of all parties to t
the pr'oceeding on the SAPL, Hampton, and Coalition
/
s h'
contentions shall be due on or after July 1, 1987, as e
op the Licensing Board may specify.
In the event that a full statement of the FEMA position is not furnished to the parties by June 1/I the deadline specified for the fillhg of the parties' 'prefiled testimony on those b
contentions shall be no less than thirty days after the statement becomes available.
3.
The hearing on the SAPL, Hampton, and Coalition contentions shall not be scheduled to commence on a
.)
date less than fifteen days after the filing and service of the prepared testimony.38 Inasmuch as the Towns of Kensington, Rye, Hampton Falls, and South Hampton did not join in the directed i
In lignt of staff counsel's representation that FEMA has given its assurance that its prepared testimony can be available by May 21, this assumption seems fully justified.
See 10 CFR 2.743(b).
22 certification motion, the Licensing Board remains free to apply the schedule set forth in the January 9 order to the contentions of those intervenors.
The Board may conclude, however, that it is preferable to have prehearing activity on all New Hampshire emergency planning issues proceed on the same timetable.
If so, the Board may decide to make the above-required modifications in the January 9 schedule applicable to the totality of the contentions before it.
Motion for directed certification granted; cause remanded to the Licensing Board for further proceedings in conformity with this opinion.
It is so ORDERED.
FOR THE APPEAL BOARD A-Barbara A. Tompkins~
Secretary to the Appeal Board
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