ML20236D803
| ML20236D803 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/13/1989 |
| From: | Cook G PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#189-8305 OL, NUDOCS 8903230274 | |
| Download: ML20236D803 (11) | |
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'89 MAR 20 P3 :45 March 13, 1989.
UNITED ($TATES OF AMERICA vot,n gg.
m NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
)
)
PUBLIC SERVICE COMPANY OF
)
Docket Nos. 50-443-OL NEW HAMPSHIRE, et al.
).
50-444-OL
)
(Seabrook Station, Units 1 and 2)
)
_(Off-site Emergency
)
Planning Issues)
)
1 APPLICANTS' MOTION TO. DISMISS CERTAIN SPMC CONTENTIONS Applicants hereby move that the Board dismiss JI Contentions 15, 34 Basis E, and 59, on the grounds that'the Attorney General for the Commonwealth of Massachusetts
(" Mass AG") has abandoned or otherwise failed to proceed with these contentions.1 BACKGROUND In its Memorandum and Order of January 24, 1989, the l
Licensing Board set the hearing scnedule for the Offsite Emergency Planning phase of the Seabrook licensing 1
Mass AG is the only party litigating these three contentions.
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7 proceedings.
The schedule required Interveners to file their testimony on " purely SPMC aspects" of the proceeding by February 21, 1989.
Memorandum and Order (Settina Hearina Schedule), at 2 (January 24, 1989).
Pursuant to that order, on February 7, 1989, Applicants and Mass AG signed a joinc stipulation that defined which contentions would be considered " pure SPMC" contentions.
Among the contentions that Mass AG and Applicants agreed would be considered " pure SPMC" contentions wero JI contentions 15, 34E, and 59.
As Applicants discuss in more detail below, however, Mass AG did not include any direct testimony on these three contentions in the materials he filed on February 21.
Moreover, in his trial brief, Mass AG stated that he "will rely upon cross-examination of FEMA personnel" to establish the evidence supporting JI J
Contentions 15 and 59.
Mass AG's brief did not address 34E at all.
On March 7, 1989, Richard W.
Donovan, in prefiled testimony offered on behalf of the Federal Emergency Management Agency (" FEMA"), stated that FEMA will present no testimony on contentions 15 and 59.
Prefiled Testimony of Richard W.
Donovan On Behalf Of The Federal Emercency Manacement Acency On The Seabrook Plan For Massachusetts Communities [ hereinafter " Donovan Testimony"), at 2.
Because the Board admitted Contentions 15 and 59 on condition that Mass AG carry the evidentiary burdens of production and I
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persuasion, respectively, and Mass AG cannot meet these i
burdens on the basis of a cross-examination of FEMA l
personnel, and because Mass AG has abandoned Contention 34 Basis E, the Board should dismiss these contentions and this basis.
DISCUSSION A.
JI Contention 15.
Joint Intervenor Contention 15 should be dismissed because Mass AG has not met and cannot meet his burden of proceeding with the evidence.
The contention states, ORO emergency workers will be liable for damages resulting from their actions and the SPMC does not discuss at all what, if any, provisions or agreements for indemnification exist.
As a result, the emergency response by ORO workers is unpredictable.
Moreover, although state emergency workers are indemnified by the Commonwealth pursuant to statute, the SPMC is silent on the relationship, if any, between authorization of police powers and indemnification for ORO workers.
When the Mass AG first presented JI 15, the Board expressed its reservations about the contention, observing that it "seems weak, and difficult to prove."
The Contention was admitted for litigation, but the Board decided to " place the burden of pfEheeding with the evidence upon the Attorney General."
Memorandum and Order - Part I (Rulina on Contentions on the Seabrook Plan For Massachusgtta l
Communities), at 106-107 (July 22, 1988).
V I
1 1
To meet the burden of going forward on the evidence, Mass AG must introduce sufficient evidence to establish an l
" affirmative showing."
Consumers Power Comnany (Midland i
Plant, Units 1 and 2),
CLI-74-5, 7 AEC 19, 32, rev'd sub.
nom. Aeschliman v. NRC, 547 F.2d 622 (D.C. Cir. 1976), rev'd and remanded sub. H23 Vermont Yankee Nuclear Power Coro, v.
HEC, 435 U.S.
519, 553-54 (1978).
An affirmative showing in turn requires the introduction of evidence " sufficient to w
require reasonable minds to inquire further."
Id. at 32, n.27.
Mass AG cannot meet this burden, since he has failed to file any direct testimony on the issues of liability or behavior.
Mass AG's declared intent to rely solely upon cross-examination of FEMA witnesses, EAR Trial Brief of_the 4
Massachusetts Attorney General on Joint Intervenor Contentions on the Seabrook Plan for Massachusetts Communities (SPMC)[ hereinafter " Mass AG's Trial Brief"], at 13-14, will not help meet the burden.
FEMA is not presenting direct testimony on this question,2 Donovan Testimony at 2; therefore, there can be no cross-examination 2 Applicants continue to take the position that FEMA's finding on tKe SPMC's adequacy, made without specifically addressing the questions raised in some contentions, constitutes a rebuttable presumption that those contentions are irrelevant or unnecessary to an appropriate review of the SPMC.
Egg Acolicants' Trial Brief As To First Filina Phase Of Litication As To SPMC and Exercise Contentions, at 4 (February 28, 1989).
i W
I of FEMA witnesses which will help Mass AG present any evidence, let alone achieve an affirmative showing, to i
buttress his allegations.
Egg FED. R.
EVID. 611(b); Houston Lichtina & Power Co. (South Texas Project, Units 1 and 2),
ALAB-799, 21 NRC 360, 378 (1985); Louisiana Power and Licht i
C22 (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1096 (1983).
Furthermore, the requirement of coming forward with sufficient evidence to require reasonable l
minds to inquire further "is not obviated by an intervenor's strategic choice to make its case through cross-examination."
Public Service Comeany of New Hamoshire, (Seabrook Station, Units 1 and 2), LBP-83-20A, 17 NRC 586, 589 (1983); gf. Kerr-McGee Chemical Corporation (West Chicago Rare Earths Facility), LBP-86-4, 23 NRC 75 (1986).
Mass AG has failed to meet the burden of going forward; thus, the Board should dismiss JI Contention 15.
B.
JI Contention 59.
Joint Intervenor Contention 59 should be dismissed because j
i Mass AG cannot meet the overall burden assigned by the Board.
JI 59 asserts that letters of agreement and contracts entered into before January 28, 1988 are unreliable under 5365(a) of the Bankruptcy Code and that the SPMC is therefore inadequate.
Like Contention 15, the Board, when first confronted with contention 59, stated that it " harbors doubts -___
\\
about the merits of the issue."
Memorandum and order - __E,a_gt; l
I (Rulina on Contentions on the Seabrook Plan For l
Massachusetts Communities), at 90 (July 22, 1988).
But the Board decided to "give the AG the benefit of the doubt."
Id.
Using its authority to assign evidentiary burdens, 10 CFR 52.732, the Board admitted the Contention with the condition that the AG carry "a weighty burden of proving by a preponderance of the reliable, probative and substantial evidence that his prediction of a court disavowal of f
contracts has merit."
Id.
l Mass AG, despite having this burden on this " pure SPMC" issue, has not filed any direct testimony on JI 59.
- Instead, the AG again declares that he "will rely upon cross examination of FEMA personnel to establish the evidence."
Mass AG's Trial Brief, at 65.
Yet, since FEMA offers no l
direct testimony on this question, Donovan Testimonv at 2, I
I such cross-examination cannot take place.
Egg FED. R.
EVID.
611(b); Houston Lichtina & Power Co. (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC 360, 378 (1985) ; Louisiana l
Power and Licht Co. (Waterford Steam Electric Station, Unit i
3), ALAB */32, 17 NRC 1976, 1096 (1983).
Therefore, Mass AG J
cannot meet his burden of proof and JI Contention 59 should be dismissed.. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _. _ - _ _ _ - _ _ - _ _ _
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JI Contention 34 Basis E.
l C.
l Joint Intervenor Contention 34 Basis E should be l
l dismissed because Mass AG has abandoned litigation of the issue.
Basis E to Contention 34 states, The SPMC provides no assurance that state and local government employees and those providing contract sarvices to the state and local governments (such as snow removal companies, private ambulances, and the like) will be adequately notified of an accident at Seabrook.
Mass AG has agreed with Applicants that JI 34E is a " pure-SPMC" Contention.
Egg Joint Stipulation Regarding Status of Admitted Contentions, at 10 (February 7, 1989).
The Board required Mass AG to file any testimony on such Contentions by i
February 21, 1989.
Memorandum and Order (Settina Hearina Schedule), at 2 (January 24, 1989).
Yet Mass AG neither j
argued the issue in his trial brief of February 21 nor filed testimony at that time to support the Contention.
By failing with respect to JI 34E to comply with the Board's scheduling order on the filing of testimony, Mass AG has abandoned the basis; it should therefore be dismissed.
Egg Carolina Power
& Licht Comoany (Shearon Harris Nuclear Power Plant) LBP 49, 22 NRC 899, 915 (1985), aff'd, ALAB-843, 24 NRC 200 (1986); Texis~Ut'ilities Generatina Comoany, (Comanche Peak Steam Electric Station, Units 1 and 2) LBP-83-60, 18 NRC 672 (1983); Texas Utilities Generatina Comoany, (Comanche Peak Steam Electric Station, Units 1 and 2) LBP-81-22, 14 NRC 150, _ _ _ _ _ _ _ _ _ - _ _ _ - _ _ _ _ _ _ _ _ _
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(
I 154 (1981); Boston Edison comoany, (Pilgrim Nuclear Generating Station, Unit No. 2), LBP-76-7, 3 NRC 156.(1976).
j CONCLUSION i
l For the reasons stated above, the Board should dismiss l
l Joint Intervenor Contentions 15, 59, and 34 Basis E.
l l
l By their attorneys, NY
._ Thomas
[D n, Jr.
George ald Kathryn A. Selleck Jeffrey P. Trout Jay Bradford Smith Geoffrey C. Cook Ropes & Gray one International Place Boston, MA 02110 (617) 951-7000 i
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CERTIFICATE OF SERVICE I, Geoffrey C. Cook, one of the attorneys for'66hdEAhhhiEadk5 herein, hereby certify that on March 15, 1989, I made service of the within document by depositing copies thereof with Federal.
Express, prepaid, for delivery to (or, where indicated,mby depositing in the United States mail, first class postage paid, addressed to):
Administrative Judge Ivan W. Smith Administrative Judge Peter B.
Chairman, Atomic Safety and Bloch, Chairman, Atomic Licensing Board Safety and Licensing Board U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 Administrative Judge Richard F.
Cole Dr. Jerry Harbour Atomic Safety and Licensing Board Atomic Safety and Licensing U.S.
Nuclear Regulatory Commission Board East West Towers Building U.S.
Nuclear Regulatory 4350 East West Highway Commission Bethesda, MD 20814 East West Towers Building 4350 East West Highway Bethesda, MD 20814 l
Administrative Judge Kenneth A.
Administrative Judge Emmeth A.
McCollom Luebke 1107 West Knapp Street 4515 Willard Avenue Stillwater, OK 74075 Chevy Chase, MD 20815 James H. Carpenter, Alternate Robert R.
Pierce, Esquire Technical Member Atomic Safety and Licensing Atomic Safety and Licensing Board Board U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission l
Commission East West Towers Building I
East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 I
Adjudicatory File Sherwin E. Turk, Esquire Atomic Safetl and Licensing Office of General Counsel Board Panel Docket (2 copies)
U.S. Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission East West Towers Building One White Flint North, 15th Fl.
4350 East West Highway 11555 Rockville Pike l
Bethesda, MD 20814 Rockville, MD 20852 i
l I
l
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- Atomic Safety and Licensing Robert A.
Backus, Esquire Appeal Board 116 Lowell Street U.S. Nuclear Regulatory P. O.
Box 516 Commission Manchester, NH 03105 Washington, DC 20555-1 Philip Ahrens, Esquire Mr. J. P. Nadeau j
Assistant. Attorney General Selectmon's Office Department of the Attorney 10 Central Road General Rye, NH 03870 Augusta, ME 04333 I
Paul McEachern, Esquire John Traficonte, Esquire Shaines & McEachern Assistant Attorney General 25 Maplewood Avenue Department of the Attorney P.O.
Box 360 General Portsmouth, NH 03801 One Ashburton Place, 19th Fl.
Boston, MA 02108 Mrs. Sandra Gavutis Mr. Calvin A.
C6nney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall-Route 107 126 Daniel Street Kensington, NH 03827 Portsmouth, NH 03801 q
l
- Senator Gordon J. Humphrey R. Scott Hill-Whilton, Esquire U.S.
Senate Lagoulis, Hill-Whilton &
Washington, DC 20510 Rotondi t
(Attn:
Tom Burack) 79 State Street Newburyport, MA 01950
- Senator Gordon J. Humphrey Leonard Kopelman, Esquire One Eagle Square, Suite 507 Kopelman & Paige, P.C.
Concord, NH 03301 77 Franklin Street (Attn:
Herb Boynton)
Boston, MA 02110 Mr. Thomas F.
Powers, III
'Mr. William S.
Lord Town Manager Board of Selectmen Town of Exeter Town Hall Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 H. Joseph Flynn, Esquire Charles P. Graham, Esquire Office of General Counsel Murphy and Graham 1
Federal Emergency Management 33 Low Street l
Agency Newburyport, MA 01950 500 C Street, S.W.
l Washington, DC 20472 1,
L_______._________________
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Gary:W. Holmes-Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47'Winnacunnet Road 35 Pleasant Street Hampton, NH 03842 Concord, NH 03301-Mr. Richard R. Donovan Judith H.'Mizner, Esquire'
.(
Federal Emergency Management 79 State Street, 2nd Floor.
l Agency Newburyport, MA 01950 l
Federal Regional Center
'130 228th Street, S.W.
Bothell, Washington -98021-9796 i
Ashod N. Amirian, Esquire Robert Carrigg, Chairman 145 South Main Street Board of Selectmen P.O.' Box 38 Town Office, Atlantic Avenue Bradford, MA 01835 North Hampton, NH 03862 Diane Curran, Esquire John P. Arnold, Esquire-Andrea C.
Ferster, Esquire Attorney General Harmon, curran &~Tousley George Dana Bisbee, Esquire Suite'430 Assistant Attorney General 2001 S Street, N.W.
Office of the Attorney General Washington, DC 20009
- 25. Capitol Street Concord, NH 03301-6397 l
k At $ W b b d-Geoffrey
. fook
(*= Ordinary U.S. First Class Mail) l 1
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