ML20213F402

Response Supporting Town of Amesbury 861020 Motion for Directed Certification Re Offsite Emergency Planning Issues

ML20213F402
Person / Time
Site:	Seabrook
Issue date:	11/10/1986
From:	Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#486-1474 OL, NUDOCS 8611140189
Download: ML20213F402 (20)

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UNITED STATES OF AMERICA DOCKETED U

NUCLEAR REGULATORY COMMISSION BEFORE TIIE ATOMIC SAFETY AND LICENSING APPEAL BAN e

In the flatter of )

)

PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443 OL ,,

NEW IIAMPSHIRE, et al.

) 50-444 OL

) Off-site Emergency (Seabrook Station, Units 1 and 2) ) Planning Issues NRC STAFF'S ANSWER IN SUPPORT OF TOWN OF AMESBURY'S MOTION FOR DIRECTED CERTIFICATION Sherwin E. Turk

. Senior Supervisory TrinI Attorney November 10, 1986 8611140189 861110 PDR ADOCK 05000443 G PDR CH1

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

. BEFORE TIIE ATOMIC SAFETY AND LICENSING APPEAL BOARD

. In the flatter of )

)

PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443 OL NEW IIAMPSHIRE, et al.

) 50-444 OL

) Off-site Emergency (Seabrook Station, Units 1 and 2) ) PInnning Issues i

NRC STAFF'S ANSWER IN SUPPORT OF TOWN OF AMESBURY'S MOTION FOR DIRECTED CERTIFICATION l

Sherwin E. Turk Senior Supervisory Trial Attorney November 10, 1986 l

TABLE OF AUTIIORITIES

- NRC CASES Page Public Service Co. of Indiana (Marble Hill Nuclear

- Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190 (1977). . . . . . .............. 7 Public Service Co. of New Ilampshire (Seabrook Station, Units 1 and 2), ALAB-839, 24 NRC (slip op. ,

July 3, 1986). ..................... 7 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-838, 23 NRC 585 (1986) . . . . . . 7, 9 REGULATIONS 10 C . F . R . I 2 . 711 . . . . . . . . . . . . . . . . . . . . 11

10 C.F.R. S 2.715(c). .............. . . . . 2, 3, 11, 12 10 C . F . R . I 2 . 7 3 0 . . . . . . . . . . . . . . . . . . . . 13 10 C . F. R . I 2. 74 0 . . . . . . . . . . . . . . . . . . . . 4-5, 11 10 C.F.R. I 2.740(c) . .............. .... 2, 3, 11, 13 0

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A UNITEP STATES OF AMERICA NUCLEAR REGULATORY COMf1ISSION

. RFFORE TIIE ATOMIC SAFETY AND LICENSING APPEAL DOARD

. In the f.latter of )

)

PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443 OI NEW llAMPSHIRE, et al. --

) 50-444 OL

) Off-site Emergency (Seabrook Station, Units 1 and 2) ) Planning Issues NRC STAFF'S ANSWER IN SUPPORT OF tot'N OF AMESBURY'S MOTION FOR DIRECTED CFETIFICATION On October 20, 1986, the Town of Amesbury filed a " Motion for Directed Certification" (" Motion"), in which it asked the Appeal Board to review the Liecnsing Board's Order of October 7, 1986; 1 that Order left standing certain sanctions imposed against the Town by the Board's Order of September 11, 1986, upon the Town's failure to comply with the Doord's prior order of June 24, 1986, directing answers to Applicants' interrogatories. For the reasons set forth below, the NRC Staff supports the Town's request for directed certification, and submits that the Licensing Doard's Orders of September 11 and October 7,1986, should be vacated insofar as they impose sanctions against the Town of Amesbury.

-1/ " Order (Addressing ' Town of Amesbury's Objection to the Order of the Board Imposing Sanction (9-11-8 6 )') ," issued October 7, 1986

(" Order") .

INTRODUCTION On April 29, 1986, the Appifcants served upon the Town of '

- Amesbury and numerous other participants in this proceeding ba detailed set of interrogatories and document requests, - which generally sought to discover whether and on what basis those entities intended to

!!tirate the 35 contentions which had been admitted on the New Hampshire Radiological Emergency Response Plan. On May 16,1986, when the Town of Amesbury and ten other interrenors and interested governments failed to respond to those interrogatories, the Applicants filed a motion to compel them to file answers thereto. O The Licensing Board issued an order granting Applicants' motion to compel on June 24, 1986, after the Town of Amesbury and eight other affected municipalities failed to respond to that motion. - Therein, the Board noted that "no response has been received nor has any of the entities applied for a protective order pursuant to 10 CFR 2.740(c)."

The Board directed Amesbury and the other towns and cities to respond to Applicants' Interrogatories by July 3,1986, stating that "[f] allure to

-2/ The Town of Amesbury was admitted end is participating in this t

proceeding as an " interested municipality" under 10 C.F.R.

I 2.715(c). See " Order (Admitting the Town of Amesbury, Masschu-setts as an Interested Municipality)," issued April 5,1983.

. 3/ " Applicants' Off-Site EP Interrogatories and Request for the Production of Documents to Town of Amesbury, Massachusetts (Set No.1)," dated April 28,1966 (" Applicants' Interrogatories").

4,/ " Applicants' Motion to Compel Response to Interrogatories," dated May 16,1986.

5,/ " Order (Granting Motions to Compel Responses to Applicants' Interrogatories)," dated June 24, 1986.

answer or respond shall not be e::cused on the ground that the discovery sought is objectionable unless the person or party failing to answer or

. respond has applied for a protective order pursuant to 10 CFR 2.740(c)." E On July 1,1986, the Town of Amesbury filed a motion for protective order and " response" to the Board's order granting Applicants' motion to compel. U On August 20, 1986, the Applicants filed a motion for sanctions against the Town of Amesbury and eight other municipalities for failing to respond to Applicants' Interrogatories. *- The Applicants asserted that, "over seven weeks after the issuance of Ithe Board's June 24, 1986]

Order, none of the above-listed cities and towns have answered the interrogatories in obedience to the order of this Board, or sought any

-6/ The nine cities and towns are: Town of Brentwood, Town of Seabrook, Town of North Hampton , Town of Salisbury, Town of Amesbury , City of Newburyport, Town of Rye, Town of Newbury, and City of Portsmouth.

7/ " Tow 1 of Amesbury's Response to Order of the ASLB to Compel Responsce to Applicant's Interrogatories and Motion for Protective Order," dated July 1,1986. Therein, Amesbury asserted that as an

" interested municipality" participating in the proceeding under 10 C.F.R. I 2.715(c), it wcs not a " party" and was not subject to discovery which, under Commission regulations, could only be served upon a party. Further, the Town noted that in response to a prior Board directive, it had already indicated its desire to participate on contentions concerning (1) " Contiguous Jurisdiction Governmental Emergency Planning" and (2) "the KLD Associates ETE [ Evacuation Time Estimate]"; the Town objected to being compelled to respond to

. Applicants' discovery, "[s]ince there are presently no contentions admitted on the subjects of interest.

By letter dated July 21, 1986, the Staff advised the Licensing Board that it was taking no position with respect to Amesbury's motion for protective order, inasmuch as it concerned a discovery dispute which did not involve the Staff.

{/ " Applicants' Motion for Sanctions," dated August 20, 1986.

other relief from the order" (Id. , at 2; emphasis added). On this basis, the Applicants requested that the nine towns and cities , including

- Amesbury, be dismissed from the proceeding. U On September 11, 1966, based upon Applicants' motion -- and in the abserce of any response opposing that motion -- the Licensing Board issued its Order imposing sanctions against Amesbury and the eight other towns and cities. Ib The Board's Order precluded the nine munici-

-9/ The NRC Staff filed a response to Applicants' motion on September 9, 1986. Therein , the Staff supported Applicants' request for sanctions but recommended that a lesser sanction be imposed, whereby the affected towns and cities would be precluded from presenting direct testimony or conducting cross-examination.

The Staff observed that the Applicants had " recite [d] the fact that the nine towns and cities have failed to comply with the Licensing Board's Order of June 24, 1986, or otherwise reouest relief from that Order," and that the Applicants' motion was based upon "this failure to comply with or seek relief from the Board's Order." The Staff's response inadvertently failed to acknowledge that Amesbury had filed a motion for protective order. -See "NRC Staff's Response to Applicants' Motion for Sanctions," dated September 9,1986.

10/ An untimely response to Applicants' motion was filed by the Town of Amesbury on September 15, 19P6 -- after the Licensing Board had already issued its Order imposing sanctions. See " Town of Ames-bury's Response and Objection to Applicants' Motion for Sanctions and NRC Staff's Response to Applicants' Motion for Sanctions," dated September 15, 1986. In its response, the Town opposed Applicants' motion on the grounde that (1) the Licensing Board had not yet ruled upon the Town's July 1,1986 motion for protective order, (2) the requested sanctions were unnecessary in that the Town did not intend to litigate any of the admitted contentions concerning the NHRERP, and (3) imposition of sanctions would unfairly preclude the Town from participating in litigation on any contentions which may be admitted in the future concerning Massachusetts emergency plans, ETEs, or contiguous jurisdiction emergency ple.nning, which the Town was interested in litigating.

On September 17, 1986, the applicants filed a reply to the Town's response, in which they acknowledged their " inadvertent failure to reference" the Town's July 1,1986 motion for protective order, but (FOOTNOTE CONTINUED ON FEXT PAGE)

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palities ' "from presenting direct testimony or cross-examining any witnesses proffered by other parties in this proceeding," and indicated

_ that the Board would not accept "any written pleadings on the direct or cross-examination testimony developed on this record by the other parties from these nine cities and towns," including findings of fact and conclusions of law. Like the Applicants' motion for sanctions and the l Staff's response thereto , the Board's Order failed to recognize that Amesbury had filed a motion for protective order on July 1,1986.

Following the Board's issuance of its Order imposing sanctions, motions or "cbjections" seeking relief from the Board's Order were filed i by the Towns of Amesbury, Rye , Seabrook, and Salisbury b By Order dated October 7, 1986, the Licensing Board denied the Town of (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) argued that the Town's motion was "out of time" under 10 C.F.R.

E 2.740, having been filed after the Applicants had filed their motion to compel. According to the Applicants, the Town's motion for protective order was "a nullity when filed." See " Applicants' Response to Town of Amesbury's Response and Objection to i Applicants' Motion for Sanctions and NRC St aff's Response to Applicants' Motion for Sanctions," dated September 17, 1986.

11/ These are as follows:

1. " Town of Amesbury's Objection to the Order of the Board Imposing Sanctions," filed September 19, 1986; 4

, 2. " Motion for Reconsideration by the Town of Rye of Board Order of Granting Applicants' Motion for Sanctions September 11, 1986," filed September 19, 1986;

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3 " Town of Seabrook Motion for Reconsideration of Order of the Board Imposing Sanctions," filed September 22,1986; and i 4. Town of Salisbury's " Motion to Reconsider Order," filed September 30, 1986.

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$ Amesbury's ' motion, El although it granted the motions filed by the ,

Towns of Seabrook and Salisbury, and granted, in part, the motion filed by the Town of Rye, in separate orders dated October 7 and 17, 1986. E On October 20, 1986, Amesbury filed the instant motion for directed certification.

DISCUSSION 1

In the discussion which follows , the Staff addresses, first , the standards governing motions for directed certification and, second, the

, Licensing Board's imposition of sanctions against the Town of Amesbury.

A. Directed Certification Is Appropriate.

] The Appeal Board recently had occasion to address the standards for directed certification, in reviewing a Licensing Board ruling which had denied a motion to amend the transcript of a prehearing conference, filed

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12/ " Order (Addressing ' Town of Amesbury's Objection to the Order of the Bocrd Imposing Saction Isic} ( 9-11-8 6 )') , " dated October 7, 198G.

4 The Staff responded to Amesbury's motion on October 9, 1986, <

before we had received the Board's Order of October 7, 1986 denying that motion. See "NRC Staff's Response to f,1otions Piled by the Town of Amesbury and the Town of Rye for Reconsideration of i Order Imposing Sanctions," dated October 9,1986.

-13/ See (1) " Order (Addressing ' Town of Seabrook Motion for Recon-sideration of Order of the Board of Imposing Sanctions')," dated October 7, 1986 (granting Seabrook's motion, conditioned upon its filing answers to Applicants' Interrogatories); (2) " Order (Ruling on

, . Town of Salisbury Motion to Reconsider Board Order of September

, 11, 1986)," dated October 17, 1986 (granting Salisbury's motion, conditioned upon its filing answers to Applicants' Interrogatories);

. and (3) " Order (Addressing Motion for Reconsideration by the Town of Rye of Board Order of Granting Applicants' Motion for Sanctions September 11, 1986)," dated October 7,1986 (granting Rye's motion in part , to the extent Rye sought to litigate its own admitted

contention, but conditioned upon its filing answers to Applicants' Interrogatories on that contention).

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by intervenor Seacoast Anti-Pollution League (SAPL). Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-839, 24 NRC (slip op. , July 3, 1986). There, the Appeal Board summarfred these standards as follows:

IW]e employ our directed certification authority only where a licensing board ruling either threatens the party adversely affected by it with immediate and irreparable impact that, as a practical matter, could not be alleviated by a later appeal, or affects the basic structure of the proceeding in a pervasive or unusual manner.

Id., slip op at 4-5. b The Appeal Board proceeded to grant SAPL's motion for directed certification, finding that the underlying materials I might not be available at the end of the proceeding and that the recollections of the Licensing Board members, the parties and the court reporter would become less reliable as time passes. In these circumstances, the Appeal Board found as follows (Id. , at 6-7):

It may well turn out that we will be unable to recon-struct the facts surrounding this incident if we await the end of the case. Thus, there is a strong likelihood that SAPL will be seriously and irreparably injured if we do not act now to determine whether the transcript is accurate.

In our view, the Town of Amesbury's instant motion for directed certification also presents a situation which requires appellate review now, in order to avert an "immediate and serious irreparable impact that, as a practical matter, could not be alleviated by a later appeal . " The sanctions imposed by the Licensing Board against the Town preclude it 14/ Accord, Public Service Co. of New Ilampshire (Seebrook Station ,

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Units 1 and 2), ALAB-838, 23 NRC 585, 592 (1986), citing Public Service Co. of Indiana (Marble 11111 Nuclear Generating Station, Units 1 and 2), ALAD-405, 5 MRC 1190,1192 (1977).

from piesenting testimony, conducting cross-examination, or filing any pleadings concerning other parties' testimony or cross-examination

- throughout the remainder of the proceeding. As the Town observes, these sanctions "may result in denial of the Town's full participation in any or all future hearings," not only with respect to contentions on the NHRERP which were the subject of Applicants' Interrogatories, but also with respect to subsequent revisions to the NHRERP as well as such plans as may be submitted for the Commonwealth of Plessachusetts -- in which Amesbury (a Massachusetts town) has expressed greater interest (Motion, at 2, 3).

In these circumstances, we agree with Amesbury's assertion that the sanctions imposed by the Licensing Board pose an "immediate and serious irreparable impact," in that they preclude the Town from any meaningful participation in the proceeding. While other municipalities and, indeed, the f.lassachusetts Attorney General are participating in this proceeding, there is no assurance that they could or would represent the Town's intererts and views herein. Further, if the Town is not permitted to participete in the proceeding, it will be impossible to know, at the conclusion of the proceeding, whether or how the Town's participation might have affected the course or outcome of the proceeding. Thus, immediate review of the Licensing Board's order is required, in that the e

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-g-harm caused by the Board's action "as a practical matter, could not be alleviated by a later appeal." 15/

. Finally, we agree with Amesbury's assertion that the Licensing Board's action "affects the basic structure of the proceeding in a pervasive or unusual manner." The Licensing Board's ruling effectively excludes Amesbury from participating in the offsite emergency planning proceeding -- a proceeding which is directly related to plans for the protection of the public within the Town's jurisdiction. The Town, however, may be expected to have both a substantial interest in litigating the adecuacy of portions of those plans, as well the ability to present facts and argurnents which may be of importance to the Commission in consic'ering these matters. Accordingly, the sanctions imposed against the Town may well have a " pervasive or unusual" effect on the proceeding.

15/ Amesbury's instant motion presents significantly different circumstances than those presented by the the Plassachusetts Attorney General's motion for directed certification, which was denied in ALAB-838. In that instance, involving the denial of a contention where similar contentions had been admitted, the Appeal Board noted, "despite the rejection of his sole pending contention, the Attorney GeneraPs right to participate fully in this proceeding remains wholly unaffected . " Public Service Co. of New Ilampshire (Seabrook Station , Units 1 and 2), ALAB-838, 23 NRC 585, 591 (1986). As further noted by the Appeal Board, "[in the event that the Attorney General is dissatisfied with the Board's ultimate

, disposition of the emergency planning issues, he can then appeal,"

which appeal could also " encompass any interlocutory orders having a bearing on that disposition." Id., at 593-94. By contrast, Amesbury's "right to participate fulF in this proceeding has been significantly restricted by the LicensinF Board's ruling. Further, if the Town is unable to participate before the Licensing Board, it is questionable whether and to what extent Amesbury will be able to obtain relief on appeal following "the Board's ultimate dicposition of the emergency planning issues."

In addition, as the Town has observed, at the same time that the Board has lifted its sanctions against the Town of Seabrook conditioned upon that Town's filing of answers to Applicants' Interrogatories, no such offer was made to the Town of Amesbury. While such even-handed treat-ment would normally be expected, the disparate treatment accorded to Amesbury is particularly troubling in view of the fact that Amesbury, unilhe Seabrook, had in effect already provided a response to Applicants' Interrogatories prior to the Board's ruling. Thus, as noted supra, at 3 n.7, Amesbury had previously stated that it is interested only in matters that are outside the scope of the contentions covered by Applicants' Interrogatories --

effectively indicating that it does not intend to participate in litigation on these contentions. Accordingly, no further response by Amesbury to the interrogatories on those contentions would oppear to be necessary. The Board's incongruous ruling affects the basic question as to whether Anesbury will be allowed to participate in, and thereby influence, the offsite emergency planning proceeding -- and thus may well have a " pervasive or unusual effect" on the proceeding.

B. Fsnctions Against the Town of Amesbury Should Be Lifted.

)

As set forth supra, at 2-3, in its Order of June 24, 1986, the Ifeensing Board observed that none of the nine towns and cities had j applied for a protective order -- and then went on to require Amesbury  !

. and the other municipalities to file answers to App!! cants' Interrogatories I

by July 3 "unless the person or party failing to answer or respond has applied for a protective order pursuant to 10 CFR 2.740(c)." In our view , this Order must reasonably be construed as having permitted the affected towns and cities to apply for a protective order in lieu of filing

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interrogatory answers, so long as they filed any such motion by July 3, 1986, the new date established by the Board for answering Applicants'

. Interrogatories. E Accordingly, even if Applicants are correct in

asserting that 10 C. F. R. I 2.740 requires 10 C.F.R. I 2.715(c) parti-cipants, as well as parties, to file motions for a protective order within tha time peraltted for filing interrogatory answers, we believe that the Board's Order of June 24 effectively extended the date by which such motions could be filed, until July 3,1986. b Amesbury's filing of its

-16/ Pursuant to 10 C.F.R. I 2.711, the presiding officer is empowered to shorten or extend the time in which an act is required or allowed to be done by Commission rule.  ;

-17/ In the discussion above, the Staff does not address the question raised by Amesbury as to whether a town participating in an NRC proceeding as an interested municipality under 10 C.F.R. I 2.715(c) must comply with NRC discovery rules. As we had previously stated with respect to another 10 C.F.R. I 2.715(c) participant, this question "is largely a novel one." See "NRC Staff Response to Applicants' Motion to Compel Answers to Interrogatories Addressed to the Attorney General of Massachusetts," filed June 9, 1980. The Staff there expressed the view that "the more a participant acts as a full party, the more that participant is bound by the procedural rules the Commission has established to regulate the behavior of the parties. " (Id., at 4). The Staff noted that the purpose of the discovery rules is to enable the parties "to more adequately prepare for litigation which in turn increase parties ability to develop a complete record while cutting down on unnecessary inconvenience, surprise and expense during trial." (Id. , at 4-5) . On balance, the Staff recommended ae follows (Id., atTT):

[T]he Staff submits that the proper course for the Board to follow at this time is to inquire of Massa-

, chusetts how the State wishes to proceed during the litigation. If Massachusetts wishes to present a direct case on any of the admitted contentions . s . it should

, be required to respond to the applicable interrogatories. Similarly, if Massachusetts plans to actively litigate any of the contentions through cross-examination, discovery is appropriate at this time.

(FOOTNOTE CONTINUED ON NEXT PAGE)

i i motion 'for protective order on July 1,1986 thus brought the Town into compliance with the Board's Order and eliminated any basis for imposing

. sanctions against the Town.

In Amesbury's response to Applicants' motion for sanctions (filed September 15, 1986) and its " objection" to the Board's Order imposing sanctions (filed September 19, 1986), the Town brought to the Board's attention the fact that its motion for protective order was filed on July 1, 1986, and was still pending before the Board. Amesbury's response to Appliennts' motion for sanctions, however, was filed out of time -- and, indeed , was filed after the Board had already granted Applicants' (FOOTNOTE CONTINUED FROM PREVIOUS PAGE)

On the other hand, if Massechusetts does not intend at this time to take a position on any of the admitted contentions. [it] should not be required to respond to the voluminous discovery request submitted by the ,

Applicants. In any event, the first step is for Massachusetts to indicate what role it wishes to play in the upcoming litigation; Applicants' Motion to Compel can then be ruled upon accordingly.

In ruling upon Applicants' motion to compel interrogatory answers to be filed by the lifassachusetts Attorney General, the Licensing Board stated:

We are in effect adopting the position of the NRC Staff as articulated in its response of June 9,1986 at page

5. If the Commonwealth intends to participate as an interested state under i 2.715(c), it must crearly and

, fully define the bounds of its intended participation.

We believe that in the interest of a fair hearing for all parties the Attorney General of the Commonwealth must

, notify all concerned of the . state's particular interests sufficiently that the parties are put on notice of what the Commonwealth will litigate.

" Notice to Parties (re Participation by Commonwealth of Massachusetts in Role as ! 2.715(c) Interested State)," dated June 16, 1980, at 1-2.

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motion b -- and clearly could not have influenced the Board's decision to impose sanctions against the Town on September 11, 1986.

Nonetheless, Amesbury's subsequent " objection" to that ruling should have served to remind the Board of the Town's motion for protective order.

In our view , upon consideration of the matters set forth in Amesbury's " objection" to the order imposing sanctions, the Board should have reconsidered its Order of September 11, 1966, and lifted the sanctions which had been imposed against the Town. Instead, the Board ruled that Amesbury's motion for protective order, filed after the Applicants had filed their motion to compel, was untimely under 10 C.F.R. I 2.740(c) and could not have been considered by the Board:

The Board did not consider the TOA motion since the proceeding had moved passed [ sic) a timely filing before Amesbury acted on July 1. To find otherwise would be to vest in a party the right to ignore a discovery request by not responding, or asking for a protective order, wait for a motion to compel and then respond to the discovery request or file for e protective order. The time allowed for filing an answer to a motion would be doubled at the discretion of a party. The Board's reading of the Commission's rules do not require that the Board abdicate its obligation to conduct an orderly proceeding.

Order of October 7, 1986, at 4. This determination by the Board ,

however, fails to consider the terms of its June 24 Order which had required interrogatory answers to be filed by July 3 "unless the person

-18/ Pursuant to 10 C.F.R. I 2.730, Amesbury's response to Applicants' August 20, 1986 motion for sanctions should have been filed by September 4, 1986. Had Amesbury timely filed its response, the Licensing Board would have had an opportunity to consider the Town's views prior to ruling on the Applicants' motion.

or party - failing to answer or respond has applied for a protective order . . . " -- as Amesbury did on July 1,1986.

. Further, the Board's ruling that Amesbury's motion for protective order was out of time and could not have been considered is somewhat puzzlin[r in light of the following statement in the Board's Order of October 7,1986:

While Applicants, the NRC Staff, and this Donrd did not acknowledge TOA's late filing, there was no obligation for such a pronouncement. TOA knew when it filed on July 1, 1986 that its response was untimely under any reasonable interpretation of the rules.

The Board notee, that TOA did not respond or renew its untinely motion when Applicants' Motion for Sanctions was filed on August 20, 1986. As the Board stated in its September 11, 1986 order we had delayed action in expectation of some responses or request for relief.

(Id. , at 4; emphasis added). This statement appears to indicate that the Board might have been inclined to consider an attempt by Amesbury to renew its July I motion for a protective order upon Applicants' filing of their August 20 motion for sanctions -- and only because Amesbury failed to respond to Applicante' motion more promptly did the Board refuse to

consider the matter any further. Clearly, Amesbury deserves a l

substantial measure of blame for feiling to make timely filings before the Board, having failed to file a timely response to Applicants' l

Interrogatories, to Applicants' motion to compel, and to Applicants' motion for sanctions. Amesbury's repeated practice of late filings should be condemned and its late pleadings rejected, if the sanctions against

, Amesbury are lifted by the Appeal Board. Ilowever, the untimeliness of Amesbury's filings does not warrant the sanctions imposed by the Licensing Board, which effectively exclude the Town from participating in the offsite emergency planning proceeding.

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i CONCLUSION For the reasons set forth above, the Staff supports the Town of

. Amesbury's motion for directed certification, and recommends that the Licensing Board's orders of September 11 and October 7,1986, imposing Stinctions against the Town, should be vacated.

Respectfully submitted, e

A [

Sherwin E. Turk Senior Supervisory Trial Attorney Dated at Bethesda, Pfaryland this 10th day of November,1986.

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00tKEili UwRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .gg ggy j7 pjg 3)

• BEFORE THE ATOMIC SAFETY AND LICENSING APPEAlr BOARD.

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In the Mctter of ) .

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} i PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443 OL l NEW HAMPSHIRE, et al.

) 50-444 OL

) Off-Site Emergency (Seabrook Station, Units 1 and 1) ) Planning Issues CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S ANSWER IN SUPPORT OF TOWN OF AMESBURY'S MOTION FOR DIRECTED CERTIFICATION" 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, through deposit in the Nuclear Regulatory Commission's internal mail system, this 10th day of November,1986.

Helen Hoyt, Esq. , Chairman

• Dr. Emmeth A. Luebke*

Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Jerry Harbour

• Ms. Carol Sneider, Esq.

Administrative Judge Assistent Attorney General Atomic Safety and Licensing Board Office of the Attorney General U.S. Nuclear Regulatory Commission One Ashburton Place,19th Floor Washington, D.C. 20555 Boston, MA 02108 Stephen E. Merrill Beverly Hollingworth Attorney General 209 Winnacunnet Road George Dana Bisbee Hampton, NH 03842 Assistant Attorney General e Office of the Attorney General Sandra Gavutis, Chairman 25 Capitol Street Board of Selectmen Concord, NH 03301-6397 RFD 1 Box 1154

= Kensington, NH 03827 Richard A. Hampe, Esq.

New Hampshire Civil Defense Agency Michael Santosuosso, Chairman 107 Pleasant Street Board of Selectmen t Concord, NH 03301 South Hampton, NH 03827 ,

Calvin A. Canney, City Manager Allen Lampert City Hall Civil Defense Director 126 Daniel Street Town of Brentwood PortFmouth, NH 03801 20 Franklin Street Exeter, NH 03833 Roberta C. Pevear State Representative Angie Machiros, Chairman Town of Hampton Falls Board of Selectmen Drinkwater Road 25 High Road Ilampton Falls, NH 03844 Newbury, MA 09150 Mr. Robert J. Harrison Charles P. Graham, Esq.

President and Chief Executive Officer McKay, ffurphy and Graham Public Service Co. of New Hampshire 100 Main Street P.O. Box 330 Amesbury, MA 01913 Manchester, NH 03105 Diane Curran, Esq.

Robert A. Backus, Esq. Harmon & Weiss Backus, fieyer & Solomon 2001 S Street, N.W.

116 Lowell Street Suite 430 Manchester, NH 03106 Washington, D.C. 20009 Edward A. Thomas Philip Ahrens, Esq.

Federal Emergency Management Agency Assistant Attorney General 442 J.W. McCormack (POCH) Office of the Attorney General Doston, MA 02109 State House Station, #6 Augusta, ME 04333 H.J. Flynn, Esq. Thomas G. Dignan, Jr. , Esq.

Assistant General Counsel Ropes a Gray Federal Emergency Management Agency 225 Franklin Street 500 C Street, S.W. Boston, MA 02110 Washington, D.C. 20472 Atomic Safety and Licensing Jane Doughty Board

• Seacoast Anti-Pollution League U.S. Nuclear Regulatory Commission 5 Mcrket Street Washington, D.C. 20555 Portanouth, NH 03801 Paul McEachern, Esq.

Atomic Safety and Licensing Matthew T. Brock, Esq.

Appeal Panel

• Shaines & McEachern U.S. Nuclear Regulatory Commission 25 Maplewood Avenue Washington, D.C. 20555 P.O. Box 360 Portsmouth, NH 03801 1 . ._ .____

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Docl:etisg and Service Section* William Armstrong Office of the Secretary Civil Defense Director U.S. Nuclear Regulatory Commission Town of Exeter Washington, D.C. 20555 10 Front Street Exeter, NH 03833 Maynard L. Young, Chairman 8 Peter J. Matthews, Mayor Board of Selectmen o 10 Central Road City Hall Rye, NH 03870 Newburyport, MA 09150 William S. Lord Mrs. Anne E. Goodman, Chairman Board of Selectment Board of Selectmen Town Hall - Friend Street 13-15 Newmarket Road Amesbury, MA 01913 Durham, NH 03824 Mr. Robert Carrigg, Chairman Gary W. Holmes, Esq.

Board of Selectmen Holmes a Ellis Town Office 47 Winnacunnet Road Atlantic Avenue Hampton, NH 03842 North Hampton, NH 0386?

R. K. Gad III, Esq.

Ropes & Gray 225 Franklin Street Boston, BIA 02110 kW Sherwin E. Turk Senior Supervisory Trial Attorney 6

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