ML20247E040
| ML20247E040 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 07/20/1989 |
| From: | Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#389-8936 OL, NUDOCS 8907260059 | |
| Download: ML20247E040 (9) | |
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7/20/89'
e PDCKETED UMHC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
- 89 JJL 21 P4 29 BEFORE THE ATOH C SAFETY AND LICENSING BOARD Doce },
In the Matter of
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Docket No. 50-443 OL PUBLIC SERVICE COMPANY OF
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50-444 OL NEWHC1PSHIRE,etal.
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Offsite Emergency Planning
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(Seabrook Station, Units I and 2)
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NRC STAFF'S RESPONSE TO THE MASS AG'S MOTION FOR THE BOARD TO ACCEPT AN EXHIBIT 4
On June 30, 1989, the Massachusetts Attorney General (Mass AG) filed a " Motion for the Board to Accept an Exhibit" (" Motion"), in which he urged the Board to admit, without any sponsoring witness, certain letters written by a lawyer employed by the Commonwealth of Massachusetts which i
purportly indicate that four letters of agreement (LOAs) for emergency i
ambulance service to be provided by certain out-of-state ambulance companies are in violation of Massachusetts law.
In general, the letters assert that the arrangements contemplated by LOAs between the Applicants and the four out-of-state ambulance companies require a license under Massachusetts law, and they threaten criminal sanctions against the four companies if the arrangements are not terminated within five days. The l
NRC Staff opposes the Motion and recommends that it be denied, for the j
following reasons.
1.
The Exhibit Is Beyond the Scope of the Admitted Contentions.
1 The Mass AG states that the proposed exhibit relates to an " issue raised in Contention JI 55" (Motion at 1). This assertion is incorrect.
1 Nowhere in Contention JI 55 is an issue raised as to the legality of 00
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letters of agreement for ambulances. On the contrary, Basis C of that contention asserts that certain ambulance companies have overstated their capabilities and that the Applicants' have placed too much reliance on the capabilities of certain ambulance companies -- but the only issue as to the legality of the Applicants' LOAs is expressly limited to certain other companies, relating to ambulettes. Under the well known legal maxim, "expressio unius est exclusio alterius" (the expression of one thing is the exclusion of another), the Mass AG cannot now argue that the legality of these four ambulance LOAs is within the scope of Contention JI 55.
Moreover, the Mass AG states that he didn't even know the ambulance LOAs might be illegal until May 1989 (Motion at 2) -- thus negating any suggestion that this issue was somehow intended to be encompassed within the contention filed one year earl..r. Having failed to seek leave file a late-filed ',ontention raising this issue, and having failed to even attempt to demonstrate a favorable balancing of the factors specified in 10 C.F.R. Q 2.714(a) for late #iled contentions,' the instant Motion should be denied.
2.
Failure to Produce a Proper Sponsoring Witnes_s_.
4 Second, even if the exhibit did relate to an issue admitted for litigation (which it does not), the Mass AG has failed to provided a proper sponsoring witness who cork' be cross-examined oa the exhibit.
Such cross-examination, for instance, could have probed (1) the motivation behind the letters' issuance; (2) the correctness of the interpretation of law contained therein; (3) the correctness of the assertion that a letter of agreement for emergency services, which in all likelihood will never 1
materialize, constitutes a " regular g eration" within the meaning of the 1
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l statute; (4) the ease with which an otherwise fully capable ambulance company, duly licensed in other States, could obtain a license to operate j
in Massachusetts -- particularly where its business activity is ~ limited solely to the unlikely occurrence of a radiological ~riergency in which public health and safety is threatened; (5) the reasons for the delay in 4
issuance'of the letters, and whether those reasons include doubt as to the correctness of the letters' interpretation of lew; and (6) the existence of other facts and circumstances, such as prior agency practice and experience, which might affect the Board's consideration of the relevance of the proposed exhibit.
Absent' a proper sponsoring witness who could stand for cross-examination, the letters should be excluded as unreliable.
10 C.F.R.
$ 2.743(c); Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1088 n.13 (1983); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant Unit 2), ALAB-27, 4 AEC 652, 658-59 (1973). This is particularly true in light of the fact that the letters were written by a lawyer for the Commonwealth of Massachusetts, a determined opponent of Seabrook's licensing and an active litigant in this proceeding.
Further, in light of the Mass AG's failure to produce a proper sponsoring witness qualified to stand for cross-examination on questions such as those set forth above -- the production of which witness is totally within the Mass AG's control -- the Licensing Board is entitled to preswne that the answers to such questions
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would be unfavorable to the Mass AG.
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-471, 7 NRC 477, 498 (1978).
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. i Finally. it should be.noted that the Mass AG's fai?ure to proffer a I
proper sponsoring witness as part of his Motion is most surprising, in i
light of the fact that the Mass AG at one time indicated his willingness to do so (Tr. 28097). ' The Mass AG's failure to include such a proffer in his Motion, despite having been directed by the Licensing Board to include all of his arguments therein (Tr. 28101-02), provides further support for an inference that the testimony of such a witness would be unfavorable tc
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the Mass AG.
3.
The Proposed Exhibit Is of Questionable Relevance and Materiality.
j As noted above, the letters were written by a lawyer employed by the Commonwealth of Massachusetts, an active litigant and advocate in this
' proceeding. At no time has the Mass AG sought to obtain a judicial opinion sustaining the writer's assertion as to the illegality of.the letters of agreement here at issue, nor has he proffered any such opinion arising in any other case from which it may reliably be inferred that the writer's legal interpretation is likely to be upheld in the circumstances present here.
Indeed, it is quite possible that -- despite the Mass AG's self-serving insistence to the contrary -- a court presented with the issue would determine that the LOAs at issue here do not establish a
" regular business operation" within the meaning of the Massachusetts regulations; that the arrangements contemplated by the LOAs are of a
" backup" nature and are thus lawful even in the absence of a license, pursuant to 105 CMR 5 '170.296; II that the regulation's legislative intent 1/
See Attachment F to " Applicants' Rasponse to Mass AG's Motion for the
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B5ard to Accept An Exhibit (Ambulance Licensing)", dated July 10,
- 1989, i
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does not support the writer's interpretation; or that there are other compelling legal or public policy reasons to decline to interpret tl.c regulation in the manner suggested by the Commonwealth. Accordingly, the letters are of little, if any, relevance and materiality, wholly apart
'from their unreliability as set'forth above.
4.
The Mass AG's Proffer of the Proposed Exhibit Is Untimely.
Finally, the Mass AG has failed to provide any satisfactory reason for his proffer of the proposed exhibit so late in the proceeding (initially presented on the afternoon of ' June 29,1989). virtually hours before the announced time at which the evidentiary record was to close.
The letters of agreement at issue here have been available to the ' ass AG M
since at least March 1988, some 15 months prior to.the filing of the Motion. At no time did the Mass AG raise this issue in his cross-axam' nation of other witnesses or in direct testimony of his witnesses, during the extensive litigation of LOA issues which occurred during the past several mcnths. Nor did he take any legal action during that 15-month period to support his position. Remarkab.y, the Attorney Generalnowclaimsjgnoranceofthelawasanexcuseforhislateraising of the matter (Motion at 2). This excuse, of course, is legally insufficient -- nor can it support the actions of a sovereign State or its Attorney General, the highest law enforcement official in the Commonwealth of Massachusetts, charged with knowing and enforcing the laws of the sovereign.
Further, the Mass AG has failed to explain satisfactorily why a full montii elapsed from the time he claims to have discussed the issue with the Department of Public Health, before the cease and desist letters were issued; and why he failed to advise the
-Board and parties in the proceeding of the potential pendency of this issue at once, without waiting for the issuance of those letters --
regardless of the weight which would properly attach to such a communi-cation (see Motion at 6-7).
In sum, the Mass AG's Motion is untimely in the extre:ne, and was filed in disregard of the fact that all witnesses on LOA issues had iong been excused from the proceeding.
Further, despite the Mass AG's assertions to the contrary, it would appear that the Motion was unnecessarily delayed until the record was on the verge of closing. The Mass AG's late filing of the Motion is without good cause, and it should be denied.
CONCLUSI0_N I
for the reasons set forth above, the Staff opposes the Mass AG's
" Motion for the Board to Admit an Exhibit", and recommends that it be denied.
Respectfully submitted, bl4W L Sherwin E. Turk Senior Supervisory Trial Attorney Dated at Rockville, Maryland this 20th day of July, 1989
e UWljLD UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Mattre of
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DocketNos.50-4hdLNiv,U j
l Off-site Emergency Planning PUBLIC SERVICE. COMPANY OF
- 50-444 OL.
I NEW HAMPSHIRE, g al.
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(Seabrook Station, Units 1 and 2)
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CERTIFICATE OF SERVICE I'hereby certify that copies of "NRC STAFF'S RESPONSE TO THE MASS AG's MOTION FOR THE BOARD TO ACCEPT AN EXHIBIT" 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, by. deposit in the Nuclear Regulatory Commission's internal mail system, this 20th day of July 1989:
Ivan W. Smith, Chairman (2)*
Philip Ahrens, Esq.
Administrative Judge Assistant' Attorney General Atomic Safety and Licensing Board Office of the Attorney General U.S. Nuclear Regulatory Canmissien State House Station Washington, DC 20555 Augusta, ME 04333 Richard F. Cole
- John Traficonte, Esq.
Administrative Judge Assistant Attorney General Atomic Safety and Licensing Board Office of the Attorney General U.S. Nuclear Regulatory Comission One Ashburton Place,19th Floor Washington, DC 20555 Boston, MA 02108 Kenneth A. McCollom Geoffray Huntington, Esq.
Administrative Judge Assistant Attorney General 1107 West Knapp Street Office of the Attorney General Stillwater, OK 74075 25 Capitol Street Concord, NH 03301 Thomas G. Dignan, Jr., Esq.
Robert K. Gad, III, Esq.
Diane Curran, Esq.
Ropes & Gray Harmon, Curran & Tousley One International Place 2001 S Street, NW Boston, MA 02110-2624 Suite 430 Washington, DC 20009 Robert A. Backus, Esq.
Backus, Meyer & Solomon 116 Lowell Street Manchester, NH 03106
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-H. J. Flynn, Esq.
Judith-H. Mizner, E::q.
- Assistant General Counsel 79 State' Street Federal. Emergency Management Agency Newburyport, MA vl950 500 C Street, S.W.
.-Washington, DC 20472 Robert Carrigg, Chairman Board of Selectmen Paul McEachern, Esq.
Town Office Shaines & McEachern Atlantic Avenue 25 Maplewood Avenue North Hampton, NH 03862 P.O. bc.v 360-
' Portsmouth, NH 03801 William S. Lord Board of Selectmen Charles P. Graham, Esq.
Town Hall - Friend Street McKay, Nurphy'& Graham Amesbury, MA 01913
.100 Main Street i
'Amesbury, MA 01913 Mrs. Anne E. Goodman, Chairman Board of Selectmen Sandra Gavutis, Chairman 13-15 Newmarket Road Board of Selectmen Durham, NH 03824 RFD #1, Box 1154 Kensington, NH 03827 Kensington, NH 03827 Hon. Gordon J.-Humphrey Calvin A. Canney United States Senate City Hall 531 Hart. Senate Office Building 126 Caniel Street Washington, DC 20510 Portsmouth, NH 03801 Richard R. Donovan.
i R. Scott ' Hill-Whilton, Esq.
Federal Emergency Management l
Lagoulis, Clark, Hill-Whilton Agency
& McGuire Federal Regional Center 79 State Street 130 228th Street, S.W.
Newburyport, MA 01950 Bothell, Washington 98021-9796 Allen Lampert Peter J. Matthews, Mayor Civil Defense Director City Hall j
Town of Brentwood Newburyport, MA 01950 20 Franklin Exeter, NH 03833 Michael Santosuosso, Chairman Board of Selectmen William Armstrong South Hampton, NH 03827
~ Civil Defense Director Town of Exeter Ashod N. Amirian, Esq.
10 Front Street Town Counsel for Merrimac Exeter, NN 03833 145 South Main Street P.O. Box 38 Gary W. Holmes, Esq.
Bradford, MA 01835 Holmes & Ellis 47 Winnacunnet Road Barbara J. Saint Andre, Esq.
Hampton, NH 03842 Kopelman and Paige,-P.C.
i 77 Franklin Street Boston, MA 02110 i
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Ms. Spinne Breiseth.
J. P. Nadeau
-Board of Selectmen Board of Selectmen Town of Hampton Falls 10 Central Street Drinkwater Road Rye, NH 03870 Hampton Falls, NH 03844 Atomic: Safety and Licensing Robert R. Pierce, Esq.*
Board Panel (1)*
Atomic Safety and. Licensing U.S. Nuclear Regulatory Commission Board Panel
' Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Samuel J. Chilk.
Office of the Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Commission
-Appeal Panel (5)*-
Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Docketing and Service Section*
- -Office of the Secretary
.U.S. Nuclear Regulatory Commission Washington, DC 20555 f
l Sherwin E. Turk Counsel for NRC Staff
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