ML20245L693

Applicant Motion to Dismiss Joint Intervenor Contentions & Bases That Have Been Abandoned.* Contentions Should Be Dismissed on Basis That Intervenors Have Not Addressed Contentions.W/Certificate of Svc

ML20245L693
Person / Time
Site:	Seabrook
Issue date:	05/01/1989
From:	Cook G PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
References
CON-#289-8563 OL, NUDOCS 8905080109
Download: ML20245L693 (8)

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I EO May 1, 1989' UNITED STATES OF AMERICA 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

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

) Planning Issues)

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APPLICANTS' MOTION TO DISMISS JOINT INTERVENOR CONTENTIONS AND BASES THAT HAVE BEEN ABANDONED Applicants hereby move that the Board dismiss JI Contentions 22, 27 Bases B.2 and E, 38, 45 Basis B, and MAG Ex-17, as well as Bases C, D, F, G, H, and part of A (as to road blockages) of JI Contention 2, on the ground that the Interveners have abandoned these contentions.1 1 The Attorney General for the Commonwealth of Massachusetts (" Mass AG") is the only party litigating JI Contentions 22 and 38 and MAG Ex-17. Mass AG also appears to be the only party litigating JI 27 Bases B.2 and E, JI 45 Basis B, and JI 2 Bases A, C, F, G, and H. It is Applicants' understanding that Town of Amesbury, which originally continued to litigate JI 2 Basis D under the mistaken belief thatt he famous " grassy median" was still being crossed, has abando.ed that contention as well, leaving Mass AG alone to litigata it. ,

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BACKGROUND In its Memorandum and Order of January 24, 1989, the Licensing Board set the hearing schedule for the Offsite Emergency Planning phase of the Seabrook licensing proceedings. The schedule required Interveners to file their testimony and trial briefs on " purely SPMC aspects" of the proceeding by February 21, 1989. Memorandum and Order (Settina Hearino Schedule), at 3 (January 24, 1989). The Board established April 3, 1989 as the date by which Interveners were required to file their testimony and briefs "with respect to the balance of the proceeding." Id. at 2-3.

In the course of the hearings, the Board extended Interveners' final filing deadline to April 10, 1989. Ir.

16535-37 (March 22, 1989).2 2 When Mass AG sought a full week's extension for filing, the Board noted, "We think that that request to defer from the 3rd to the loth 100 percent of all the filings that are due on the 3rd is an unnecessary request." II. 16383-84 (March 22, 1989). The Board, therefore, conditioned its grant of relief to the Mass AG upon the " understanding that a good faith effort will be made to file everything as soon as it's prepared no matter what category it falle in." II.

16535. Nevertheless, with the exception of the testimony on ETE issues, Mass AG did not file any testimony or briefs before April 10 on contentions involving the balance of the i proceeding.

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ARGUMENT A. " Group Two" Contentions i

When Interveners filed their trial briefs and testimony on April 10, they failed to address JI Contentions 22, 27 Basis B.2 and Basis E, 38, 45 Basis B, and MAG Ex-17. By  !

failing to comply with the Board's scheduling order on the-filing of testimony, Interveners have abandoned.these contentions and bases; they should therefore be dismissed.

See Carolina Power & Licht Company (Shearon Harris Nuclear Power Plant) LBP-85-49, 22 NRC 899, 915 (1985), aff'd, ALAB-843, 24 NRC 200 (1986) ; Texas Utilities Generatina Company (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-83-60, 18 NRC 672 (1983); Texas Utilities Generatina Comoany (Comanche Peak Steam Elecctric Station, Units 1 and 2), LBP--

81-22, 14 NRC 150, 154 (1981); Boston Edison Comoany (Pilgrim Nuclear Generating Station, Unit No. 2), LBP-76-7, 3 NRC 156 (1976).

The Commission has held that contentions for which testimony is not filed should "be considered in default by l virtue of the presumption of 10 C.F.R. 950.47 (a) (2) ." Long Island Lichtina Company (Shoreham Nuclear Power Station, Unit

1) , CLI-8 8-9, 28 NRC 567, 571 (1988). In this case, Interveners not only failed to file testimony but also neglected to mention these contentions and bases in any way in their trial briefs. Thus, Interveners cannot even argue

i that they have plcaned to make a case as to these contentions on cross-examination.3 B. ETE Bases In addition, Interveners have abandoned Bases C, D, F, G, H, and part of A (as to road blockages) of JI Contention 2.

During his cross-examination of FEMA witness Richard W.

Donovan, Mass AG conceded that the New Hampshire Partial Initial Decision has made some of the Bases to JI Contention 2 res iudicata. See Tr. 18088-89 (18043 and ff.) (April 6, 1989). The Board instructed Mass AG to " identify" such Bases, II. 18092, but the Mass AG has not expressly done so.4 The testimony of Mass AG's witness on ETE issues, Thomas J.

Adler, refers only to Basis A's concern for traffic control 3

Moreover, as to at least some of these contentions, Interveners have stated off the record that they are being withdrawn. geg Aeolicants' Final _ Trial Brief, at 79, 168.

Since several weeks have passed without the withdrawal occurring, Applicants move to dismiss those contentions and bases that have clearly been abandoned.

4 Nor did Mass AG include any discussion of the ETE contentions and testimony in his trial brief, thus depriving the Board and the parties of any guidance on his intentions as to those contentions.

The issue is given added urgency by the fact that Mass AG's identification of the res iudicata bases of JI 2 was supposed to be the preliminary to a motion by Applicants as to whether, and to what extent, the New Hampshire decision has rendered all the ETE contentions res iudicata. Given that Mass AG apparently intends to turn to the ETE " cluster" shortly after the hearings resume on May 15, the time to identify the areas of agreement between the parties and then to establish the areas of dispute is extremely short.

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personnel and to Bases B, E, and I of JI Contention 2.

Testimony of Dr. Thomas J. Adler On Behalf-Of James M. .l Shannon, Attorney General For The Commonwealth Of Massachusetts, Concernino Contentions JI-1, JI-2 (ETEs) and JI-3 (Data Collection), at 13-25 (April 3, 1.'89). Whether or not the reason why Interveners did not discuss the remaining bases is that Mass AG considered them to be res iudicata, by not addressing the bases in either their testimony or their briefs, Interveners have abandoned them. Those bases should therefore be dismissed.

CONCLUSION i

i For the reasons stated above, the Board should dismiss Joint Intervenor Contentions 22, 27 Basis B.2 and Basis E, 38, 45 Basis B, MAG Ex-17, and Bases C, D, F, G, H, and part of A (as to road blockages) of JI Contention 2.

By their attorneys,

,) s'

• 6 Thomais' G,/Dignan, Jr.

George H. Lewald Kathryn A. Selleck

, Jeffrey P. Trout Jay Bradford Smith Geoffrey C. Cook Ropes & Gray One International Place Boston, MA 02110 (617) 951-7000

' ii'd.[

CERTIFICATE OF SERVICE '89 MAY -4 P2 :07 I, Geoffrey C.' Cook, one of the attorneys for the Applicants herein, hereby certify that on May 1, 1989, I mad / service'ofithe within document by depositing copies thereof with(' Federal ~

Express, prepaid, for delivery to (or, where indicated, by hand delivery or by depositing in the United States mail, first class postage paid, addressed to):

Administrative Judge Ivan W. Smith Adjudicatory File i Chairman, Atomic Safety and Atomic Safety and Licensing Licensing Board Board Panel Docket (2 copies)

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 Robert R. Pierce, Esquire 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 Administrative Judge Kenneth A. Sherwin E. Turk, Esquire McCollom Office of General Counsel 1107 West Knapp Street U.S. Nuclear Regulatory Stillwater, OK 74075 Commission One White Flint North, 15th Fl.

11555 Rockville Pike" Rockville, MD 20852 John P. Arnold, Esquire Diane Curran, Esquire Attorney General Andrea C. Ferster, Esquire George Dana Bisbee, Esquire Harmon, Curran & Tousley Assistant Attorney General Suite 430 office of the Attorney General 2001 S Street, N.W.

25 Capitol Street Washington, DC 20009 Concord, NH 03301-6397

• 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

Philip Ahrens, Esquire Mr. J. P. Nadeau Assistant Attorney General Selectmen's Office i Department of the Attorney 10 Central Road General Rye, NH 03870 Augusta, ME 04333 Paul McEachern, Esquire ** John Traficonte, Esquire Shaines & McEachern Assistant Attorney General 25 Maplewood Avenue Department of the Attorney l P.O. Box 360 General l Portsmouth, NH 03801 One Ashburton Place, 19th Fl.

Boston, MA 02108 Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall Route 107 126 Daniel Street Kensington, NH 03827 Portsmouth, NH 03801

• Senator Gordon J. Humphrey R. Scott Hill-Whilton, Esquire U.S. Senate Lagoulis, Hill-Whilton &

Washington, DC 20510 Rotondi (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 Federal Emergency Management 33 Low Street Agency Newburyport, MA 01950 500 C Street, S.W.

Washington, DC 20472 Gary W. Holmes, Esquire Ricnard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03842 Concord, NH 03301 w - ~ _ _ _ _ .- - .. . . . _ _ . . .._ -

.b.

f Mr. Richard R. Donovan Judith H.'Mizner, Esquire Federal Emergency Management 79 State Street, 2nd Floor Agency. _

Newburyport, MA 01950 Federal Regional Center 130 228th Street, S.W.

Bothell, Weshington 98021-9796 Ashod N. Amirian, Esquire 145 South Main Street P.O. Box 38 Bradford, MA 01835

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'sj6t')<'Yyf, M+f Geoff(eyC[ Cook '

(*= Ordinary U.S. First Class Mail)

(**= Hand Delivery)

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