ML20215D487

Order Denying New England Coalition on Nuclear Pollution Motion for Leave to File Response,Due to Failure to Show Good Cause to Staff Proposed Findings of Fact.Served on 861215.Related Correspondence

ML20215D487
Person / Time
Site:	Seabrook
Issue date:	12/12/1986
From:	Harbour J, Luebke E, Wolfe S Atomic Safety and Licensing Board Panel
To:	NEW ENGLAND COALITION ON NUCLEAR POLLUTION
References
CON-#486-1889 82-471-02-OL, 82-471-2-OL, OL-1, NUDOCS 8612160376
Download: ML20215D487 (4)

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c/t'Ff UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DotHETEr ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: ~86 DEC 15 A10:36 Sheldon J. Wolfe, Chairman Emeth A. Luebke Jerry Harbour { fig SERVED DEC 151986

) Docket Nos. 50-443-OL-1 In the Matter of ) 50-444-OL-1

)

PUBLIC SERVICE COMPANY ) (On-Site Emergency Planning 0F NEW HAMPSHIRE, et a_1. ) and Safety Issues)

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) (ASLBP No. 82-471-02-0L)

(Seabrook Station, Units 1 and 2) )

) December 12, 1986 ORDER (Denying NECNP Motion For Leave To File Response)

At the close of the reopened hearing on October 3,1986, pursuant to 10 C.F.R. 62.754, the Board directed that by certain due dates the parties must file proposed findings of fact, conclusions of law, briefs and a proposed form of order or decision, and that Applicants should file a reply by December 1, 1986 (Tr. 1024). After the filings of these initial submissions, the Applicants did file their reply on December 1.

On December 4,1986, NECNP filed a motion for leave to file a response to NRC Staff proposed findings and to Applicants' reply to NECNP s proposed findings. In a response of December 5, Applicants stated that they had no objection to the allowance of the motion and that allowance thereof rested within the Board's discretion; however, Applicants stated that NECNP erred in asserting that, for the first time 8612160376 861212 PDR C ADOCK 05000443 PDR

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in their reply of December 1, Applicants had raised a challenge to the scope of NECNP Contention I.B.2. In a response of December 9, the Staff opposed NECNP's motion, but noted that, in the event the Board granted the motion, it might request leave to file a substantive reply.

NECNP presents two grounds in support of its motion. As a threshold matter, it should be noted that, pursuant to 92.754, the party having the burden of proof (here the Applicants) may reply after the filings of proposed findings and conclusions of law and briefs by other parties. Since Applicants alone have the right to file the final submission, a motion for leave to file a response either to the Staff's proposed findings or te Applicants' reply must be supported by a showing of good cause. NECNP has failed to show good cause. First, NECNP alleges that, in its reply of December 1, Applicants had raised for the first time a challenge to the scope of NECNP Contention I.B.2 as interpreted by NECNP. However, Applicants argue that early in the hearing on September 30, 1986 (Tr. 392-93), they had objected to cross-examination which exceeded the scope of the contention -- i.e.,

objected that NECNP Contention I.B.2 only contended that Applicants had failed to specify the time duration for which the electrical equipment was environmentally qualified and did not encompass whether or not there was an adequate basis for the time durations as specified. The Staff urges that, earlier in their brief in support of their proposed findings filed on October 30, 1986, the Applicants had asserted that the contention was narrow in scope and was limited to contending that time durations had not been specified, and that, therefore, NECNP had had the

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opportunity to contest Applicants' assertion in its own proposed findings filed on November 12, 1986. Thus, having been made aware earlier that Applicants had challenged the scope of the contention as interpreted by NECNP, we conclude that said Intervenor has failed to show good cause in support of its motion for leave to respond to Applicants reply of December 1.1 Second, NECNP urges that its motion should be granted because "the NRC [ Staff] has taken a position in support of Applicants' license application." Since the Staff is but one of the parties in this case and may or may not, like any other party, support another party's position, we agree with the Staff that it is irrelevant for purposes associated with NECNP's motion that the Staff's proposed findings support the Applicants' position. We also agree with the Staff that, in light of the Staff's prefiled and cross-examination testimony, NECNP should not have been surprised that the Staff proposed findings supported the Applicants' position. Finally, we do not understand 1

We note, in passing, our surprise that NECNP would seek leave to respond to Applicants' reply of December 1 wherein Applicants urged in substance that NECNP I.B.2 only contended that Applicants had not specified the time duration over which the equipment was qualified and did not encompass the irrelevant issue of whether the environmental qualification program was correctly designed and correctly carried out. (Apps. Reply at 4). We had ruled during the hearing that the issue of whether the equipment qualification files adequately supported the specified time durations was relevant to the contention. (See Tr. 392-94). This ruling was binding upon all parties before us and governs in the case before this Board.

Obviously, that ruling may be appealed after the issuance of our partial initial decision.

NECNP's assertion that the Staff has offered "new" arguments in support of Applicants' license application. Once again, in light of the Staff's prefiled and cross-examination testimony, NECNP knew or should have anticipated what the Staff's arguments would be. NECNP may be assured that the Board will ignore any party's arguments which are not reasonably based upon or derived from the record. Thus, NECNP has failed to show good cause in support of its motion for leave to respond to the Staff's proposed findings of fact.

For the foregoing reasons, the instant motion is denied.

THE ATOMIC SAFETY AND LICENSING BOARD SOk SheldonJ.Wpffe, Chairman ADMINISTRATIvi JUDGE

. M ocf g ry Harh6ur ~

ADMINISTRATIVE JUDGE wmY h. A Emmeth A Luebke ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland this 12th day of December,1986.

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