ML20246H247

Commonwealth of Ma Atty General Opposition to NRC Staff Motion for Extension of Time in Which to File Brief in Response to Intervenors Briefs on Appeal from LBP-88-32.* Motion Untimely & Lacks Good Cause.W/Certificate of Svc

ML20246H247
Person / Time
Site:	Seabrook
Issue date:	05/04/1989
From:	Fierce A MASSACHUSETTS, COMMONWEALTH OF
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#289-8576 LBP-88-32, OL, NUDOCS 8905160047
Download: ML20246H247 (9)

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-UNITED STATES'OF AMERICA WE NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOA b ap !D .1 ,

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

) 50-444-OL PUBh1C SERVICE COMPANY )

OF NEW HAMPSHIRE, EI AL. -)

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(Seabrook Station, Units 1 and 2) ) May 4, 1989

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MASSACHUSETTS ATTORNEY GENERAL'S OPPOSITION TO NRC STAFF'S MOTION FOR AN EXTENSION OF TIME IN>WHICH TO FILE ITS BRIEF IN RESPONSE TO

__ INTERVENERS' BRIEFS ON APPEAL FROM LBP-88 *s2 _

l The NRC Staff has filed a motion seeking an extension of the due date of its brief in the appeal of the Licensing Board's Partial Initial Decision ("PID") pertaining to-he New Hampshire plans. The Massachusetts Attorney General (" Mass

'AG") opposes this motion on the grounds that it fails to demonstrate " good cause" why this extension should be allowed.

o See 10 C.F.R. 2.711(a). The motion is also untimely, and it therefore should not be allowed absent a showing of

" extraordinary and unanticipated circumstances." 10 C.F.R. Part 2, App. A, SIX (d)(4). No attempt has been made to make

( such a showing.

A. Lack of "Gog4_C.nwip,"

While the Mass AG may appear to be particularly ungenerous in objecting to the NRC Staff's request for an extension of the due date for its brief after having received the Staff's l

8905160047 890504 PDR ADOCK 05000443-O PDR t

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Concurrence in the Mass AG's own. request for an extension, the ~

L fact of the matter.-is that the Mass AG had overwhelming good cause.for its extension while the Staff has little, if any, good cause justifying its request. Staff's effort to analogize the two situations--the burdens facing the Interveners at the ,

time their briefs were.due and those facingLthe Staff'during this period--is so. lacking in merit that the Mass AG is l' compe1' led to object.

Prior'to comparing'those two situations, however, we note

-that the rules have already built in extra time (10 days more than~-the 30 days given to the other appellees) for the NRC Staff;to file a brief in response to the appellants' briefs.

10 C.F.R. 2.762(c). If al'1 owed, Staff's request for 23 additional days on top of the 10 additional days the rules

'already prov' ids would result in the Staff having 33 more days

-to respond to Interveners' briefs than the Applicants here had.1' Applicants were able to meet their 30-day deadline without an extension, despite having to carry a much heavier.

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burden during the recent litigation of the utility-sponsored emergency plan for Massachusetts. There is no justification for the Staff to need over twice as long.

1/ Staff's motion does not allege that the Staff disagrees with the positions taken by the Applicants, and the motion does ,

I not claim that additional time is needed to respond to matters raised in Applicants' brief. The single target in the Staff's brief appears to be the arguments raised by the Interveners in their briefs.

We also note that the NRC Staff has no fewer staff attorneys working on Seabrook matters than the Mass AG or the Applicants do. At least six (6) Staff attorneys have recently worked on the case, as a quick check of the various pleadings Staff has filed will confirm. They include Sherwin Turk, Elain Chan, Gregory Barry, Stephen Berquist, Joseph Scinto, and Edwin Reis.

We also note that the NRC Staff has not indicated how long a brief it intends to file. It has dBt requested an extension of the 70-page limit. Conceivably, the Staff may be relying on large portions of the Applicants' brief and will seek only to add marginally to what Applicants have argued. This is precisely what the Staff did when it filed Proposed Findings of Fact on the New Hampshire plans on July 1, 1988, and August 26, 1988. Absent some statement of intention in this regard, Staff's brief here may well add little of substance to the arguments that have already been framed by the Interveners and the Applicants in their briefs. The " good cause" requirement  !

should be deemed unmet unless the party requesting the extension of time describes the brief it intends to file in terms of its expected length and content and then justifies its need for additional time to write that brief. Reference to a brief of unspecified length and content should not suffice.

As to the " good cause" that is described in the motion, the Staff makes essentially two arguments, each without merit.

First the Staff (in $2) argues that Interveners' briefs total 250 pages, raise many issues, and require a " lengthy review of the record." The simple response to this argument is that the Applicants, with no more staff attorneys than available to the NRC Staff, and with far greater responsibilities for filing testimony and cross examining witnesses at the currently ongoing hearings, was able to complete its brief within 30 days. Staff should be able to write its responsive brief on the same issues, incorporate Applicants' arguments on many points, and do so within the time alloted. No lengthy review of the entire record is required at this stage, given the detailed proposed findings filed by all parties and the multitude of PID cites to the proposed findings and the record. Reading the record could and should have been done long ago.

Second, the Staff (in 13) attempts to demonstrate how gravely overburdened the Staff has been in recent weeks. The argument is ludicrous on its face, let alone in comparison to what the other parties (Interveners and Applicants) have been doing. The Staff asserts that it has been "substantially involved" in evidentiary hearings on Massachusetts emergency planning contentions. This is substantial hyperbole. While a single NRC staff attorney has been attending the hearings, the main players by far have been the Mass AG, the Applicants, and FEMA. Not one NRC witness has testified. While the NRC l

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i attorney does usually ask a few questions of each witness, the questioning has been extremely limited in scope. The Staff also claims it has been burdened by the fact that it has had to i

prepare two pieces of prefiled testimony, one on ETEs and one of a single exercise contention which challenged the pars issued to offsite officials by the utility emergency response organization. By contrast, the Interveners have filed about 26 pieces and the Applicants have filed about 21 pieces in the same time period. NRC staff lawyers have absolutely no basis i

to claim burdensomeness in this regard.

Finally, the Staff motion points to a single deposition that the Mass AG has scheduled for May 9. We simply fail to  !

see how attendance by a single NRC staff lawyer for a one-day deposition on May 9, the day after the NRC claims its brief is due, gives any cause for extending the due date of a brief due  !

on May 8. ,

The Mass AG asks the Appeal Board to re-examine the Mass  !

AG's February 3, 1989 pleading on its motion for directed l

certification of the scheduling order of January 24, 1989.

That pleading describes the situation facing the Mass AG at the time its brief on appeal was initially due. There is simply no comparison between the burdens facing the Mass AG then and those facing the NRC staff now. No " good cause" exists to justify the staff's request for an extention.

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B.. The Staff Brief is Overdug We. note-that the language in 10 C.F.R. 2.762(c) requires that responsive briefs'are due within 30. days (or 40 for the

' Staff) "after the period has expired for the filing and service

.of'the briefs of all appellants." This language stands in contrast to that in the " motion rule," 10 C.F.R. 2.730(c),

which permits answers to motions to be' filed "[w]ithin 10 days after service." We readEthis distinction to be a meaningful one which requires the appellant to file and serve an initial brief on a given day and the appellees to file 30 (or 40 if Staff) days later. The conflict with part 2, App. A SIX(c)(3) is resolved in favor of S2.730. See footnote at beginning of App. A. The NRC Staff brief was due on May 3, 1989. Thus, Part 2, App. A, SIX(d)(4) requires that " extraordinary and unanticipated circumstances" be shown before this motion can be allowed. This has not even been attempted.

The motion should be denied.

Respectfully submitted,

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Allan R. Fierce h )

Assistant Attorney General Nuclear Safety Unit  ;

(617) 727-2200 i Dated: May 4, 1989 3

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. e UNITED STATES OF AMERICA ilMi il NUCLEAR REGULATORY COMMISSION UW' ATOMIC SAFETY AND LICENSING APPEAL BOARg) ggy _g g)) ;pg j

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• In the Matter of ) Docket Nos. 50-4ddfIS.,4,,

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) 50-444-OL" PUBLIC SERVICE COMPANY )

OF NEW HAMPSHIRE, ET AL. )

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(Saabrook Station, Units 1 and 2) ) May 4, 1989

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CERTIFICATE OF SERVICE I, Allan R. Fierce, hereby certify that on May 4, 1989, I made service of the within MASSACHUSETTS ATTORNEY GENERAL'S OPPOSITION TO NRC STAFF'c MOTION FOR AN EXTENSION OF TIME IN WHICH TO FILE ITS BRIEF IN RESPONSE TO INTERVENERS' BRIEFS ON APPEAL FROM LBP-88-32 by first class mail or by telefax as indicated by (*) to:

Ivan W. Smith, Chairman Kenneth A. McCollom Atomic Safety & Licensing Board 1107 W. Knapp St.

U.S. Nuclear Regulatory Commission Stillwater, OK 74075 { ,

East West Towers Building 4350 East West Highway f Bethesda, MD 20814 Dr. Richard F. Cole Robert R. Pierce, Esq. ,

Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 Docketing and Service Thomas G. Dignan, Jr.

U.S. Nuclear Regulatory Commission Ropes & Gray Washington, DC 20555 One International Place Boston, MA 02110

• Sherwin E. Turk, Esq. Richard Donovan  !

U.S. Nuclear Regulatory Commission FEMA Region 10 Office of the General Counsel 130 228th Street, S.W.

11555 Rockville Pike, 15th Floor Federal Regional Center Rockville, MD 20852 Bothell, WA 98021-9796

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H. Joseph'-Flynn,'Esq.

• Atomic Safety & Licensing Assistant General Counsel- Appeal Board Office of General Counsel U.S. Nuclear Regulatory Commission Federal Emergency Management Washington, DC 20555 Agency 500 C Street, S.W.

Washington, DC 20472

. Robert A. Backus, Esq. Atomic Safety & Licensing Board

.Backus, Meyer & Solomon U.S. Nuclear Regulatory Commission 116 Lowell Street Washington, DC 20555 P.O. Box 516 Manchester, NH 03106 Jane Doughty Dianne Curran, Esq.

Seacoast Anti-Pollution League Harmon, Curran & Towsley Five Market Street Suite 430 Portsmouth, NH 03801 2001 S Street, N.W.

Washington, DC 20008 Barbara St. Andre, Esq. Judith Mizner, Esq.

Kopelman & Paige, P.C. 79 State Street 77 Franklin Street Second Floor Boston, MA 02110 Newburyport,-MA 01950 Charles P. Graham, Esq. R. Scott Hill-Whilton, Esq.

Murphy & Graham Lagoulis, Hill-Whilton & Rotondi 33 Low Street 79 State Street Newburyport, MA 01950 Newburyport, MA 01950 Ashod N. Amirian, Esq. Senator Gordon J. Humphrey 145 South Main Street U.S. Senate P.O. Box 38 Washington, DC 20510 Bradford, MA 01835 (Attn: Tom Burack)

Senator Gordon J. Humphrey John P. Arnold, httorney General One Eagle Square, Suite 507 Office of the Attorney General Concord, NH 03301 25 Capitol Street (Attn: Herb Boynton) Concord, NH 03301 Phillip Ahrens, Esq. William S. Lord Assistant Attorney General Boar'd of Selectmen Department of the Attorney General Town Hall - Friend Strtet Augusta, ME 04333 Amesbury, MA 01913

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Alan S. Rosenthal, Chairman Thomas S. Moore Atomic Safety & Licensing Atomic Safety & Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 10555 Washington, DC 10555 Howard A. Wilber Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, DC 10555 Respectfully submitted, JAf7S M. SHANNON ATTORNEY GENERAL W

Allan R. Fierce Assistant Attorney General Nuclear Safety Unit One Ashburton Place >

Boston, MA 02108 i (617) 727-2200 Dated: May 4, 1989

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