ML20247L594

Applicant Response to Intervenors Motion to Admit Reply to Applicant & Staff Responses to Intervenors Motion to Admit Contention Or,In Alternative,To Reopen Record & Request for Hearing.* Motion Should Be Denied.W/Certificate of Svc

ML20247L594
Person / Time
Site:	Seabrook
Issue date:	09/11/1989
From:	Trout J PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
References
CON-#389-9174 OL, NUDOCS 8909250020
Download: ML20247L594 (10)

Text

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'89 SEp 14 P3 :37 Septemg Ip,119Ef93:37 UNITED STATES'OF'

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NUCLEAR REGULATORY COMMISSION before'the ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of )

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PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL NEW' HAMPSHIRE, et al. ) 50-444-OL

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

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APPLICANTS' RESPONSE TO INTERVENERS'

" MOTION TO ADMIT REPLY TO APPLICANTS' AND STAFF'S RESPONSES TO INTERVENERS' MOTION TO ADMIT CONTENTION OR IN THE ALTERNATIVE TO REOPEN THE RECORD AND REQUEST FOR HEARING"

.Under date of September 1, 1989, the Attorney General for The Commonwealth of Massachusetts, the Seacoast Anti- 4 Pollution League, and the New England Coalition on Nuclear Pollution (hereinafter collectively "Intervanors") filed a document styled as " Motion to Admit Reply to Applicants' and 1

Staff's Responses to Interveners' Motion to Admit Contention or in the Alternative to Reopen the Record and Request for Hearing" (hereinafter " Reply Motion"). Accompanying the Reply Motion were about 50 pages of additional pleadings and attachments (hereinafter " Reply"). To the extent that the 8909250020 890911 PDR o

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4 Reply' addresses the issue of Igg iudicata, Applicants do not 1

L oppose the Reply Motion. With respect to all other aspects of the Reply, however, the Reply Motion should be denied.

ARGUMENT A. Res Judicata In their answer to Interveners' first motion to admit a contention relating to low power testing,1 Applicants noted that the issues raised in Interveners' proffered contention had been decided long ago in Applicants' favor and hence were outside this Board's jurisdiction due to the operation of the doctrine of Igg iudicata.2 Applicants also noted that Interveners would have the right, under NRC case law, to reply to'the new argument that rga iudicata applied.3 The Reply, in the second full paragraph on page 10, does purport to address that issue. Accordingly, to the extent that the Reply Motion asks the Board to accept for consideration that single paragraph, Applicants do not object.

i B. Eggggnse on Remainino Issues With respect to the balance of the Reply, however, j Interveners have made no showing that would warrant its 1

acceptance. The Reply Motion offers five justifications for 1 Applicants' Answer to Interveners' Motion to Admit Contention, or, in the Alternative, to Reopen the Record, and Request for Hearing (August 7, 1989).

2 Id. at 26-28.

3 Id. at 28 n. 68; 333, g.,.g. , Public Service ComDany of New Hamnshire (Seabrook Station, Units 1 and 2), LBP-89-3, 29 iRC 51, 56 n. 14, aff'd, ALAB-915, 29 NRC 427 (1989).

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the proffer, at this late date, of another 50 pages of material by Interveners. None of these five arguments has merit.

1. " Significance" Interveners argue that their original motion and 1

contention raised "significant issues as to Applicants' incompetence". Assuming arcuendo that this be true,4 it has f

no relevance to the issue of whether a reply should be allowed. Section 2.734 of 10 C.F.R. required the  !

l Interveners, in their initial motion, to show that their l proffered contention raised a significant safety issue. If i that initial filing was deficient in that regard, as the Applicants and Staff have argued that it was, then Interveners' notion must fail. In essence, the Reply Motion l

argues that 5 2.734 automatically creates a right for movants to file replies, since by definition any issue raised under that section must be alleged to be a significant safety question. That is simply not the law of this agency.5 )

2. " Tradition"

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. Next, Interveners argue that "[i]n this proceeding, l

interveners have traditionally been afforded the opportunity I

4 Interveners' claim of a "significant issue" has to be treated with some skepticism in light of the fact that they q have so characterized every issue raised by them in these a proceedings, from the size of Applicants' traffic cones to the amount of time it takes a person to visit the restroom.

5 Eg.g, e,q,, Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-89-3, 29 NRC 51, 52 n.3, aff'd, ALAB-915, 29 NRC 427 (1989).

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L to. reply to Applicants' and. Staff's responses to b contentions." .The flaw in'this argument is'that the l

Applicants and Staff' responded only to Interveners' motion

-for admission, not to Interveners' contention'itself. 'Again Interveners;seem^to be arguing, in slightly different' guise, that i 2.734 automatically entitles them to a response.

Moreover, Interveners' reference to prior practice.in these proceedings is, at best, a two-edged sword. It is true that what has " traditionally"' occurred in these proceedings is that' the Interveners have habitually filed what they wanted and when they wanted, with scant regard for orderly procedure'or the rules of practice. This habit has already driven one licensing board to distraction,6 and should not be countenanced by another. There comes a. time, even in licensing proceedings, when consideration must be given to Applicants' due process rights, in the face of the special treatment to which the Interveners constantly arrogate themselves.

3. "New Issues" Interveners further allege that "[b]oth Applicants and i

Staff have raised new issues not addressed in the July 21 Motion". With the exception of rga iudicata, discussed 6

Memorandum and order (unpublished) at 3 n.2 (October 12, 1988) (" Hereinafter, where it is clear that, as in the instant case, the movant could and should have presented fully all arguments in the original motion, we vill deny any request by the novant to file a reply brief. Our patience is at an end.").

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P" above,:this allegation is patently false. All that the

( Applicants and Staff did in their filings was to respond to Interveners' arguments, and apply the regulations and case

, law invoked by Interveners to Interveners' pleading. In particular, Interveners' objection to the Staff's analysis of the ECE case, to the effect that USE only recognizes hearing rights invoked late in the proceedings when a " fundamental flaw" is at issue, is particularly ill-taken in light of Interveners' own extensive -- and novel -- analysis of MCE.

Interveners' real complaint is not that the Applicants and Staff raised new issues, but rather that their opponents did not meekly accede to Interveners' analysis of the issues which Interveners themselves raised. clearly, however, a party does not have an automatic right to reply whenever his arguments are refuted.

4. - "Assistina the Board" Predictably, Interveners assert that the Reply "will assist the Board by providing a more complete record for decision." This argument amounts to little more than a claim by Interveners that their present filing will repair the numerous deficiencies in their initial motion. In fact, the Reply adds nothing of substance to the prior filing.

Prescinding from that fact, however, Interveners simply are

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f not allowed, under 10 C.F.R. 5 2.734, multiple opportunities to "get it right".7 l

5. "Timina"  !

Finally, Interveners argue that the Staff's answer was not received until August 22. How this fact could create a f right of reply is a complete mystery.

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7 - Moreover, it is disingenuous, at best, for Interveners to assert that they are " assisting" the Board by dumping 50 pages of irrelevant material on it, as a time when the Board is trying to wade through nearly six hundred pages of Interveners' improperly margined, misleadingly cited, and generally overwritten proposed findings on the SPMC and Graded Exercise. Indeed, one is tempted to speculate that overloading the Board, and thus delaying a ruling on the merits of the Interveners' last open set of issues, is at least one reason for the continuing blizzard paper from Interveners.

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, e; CONCLUSION For the reasons noted'above, the Reply Motion should-be denied except as to Interveners' paragraph on rga iudicata.

Respectfully submitted,

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l Thomas G. Dignan, Jr.

George H. Lewald Jeffrey P. Trout Jay Bradford Smith Geoffrey C. Cook William L. Parker Ropes & Gray One International Place Boston, MA 02110-2624 (617) 951-7000 i

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yarm PSC 89 EP 14. P3 :37 CERTIFICATE OF SERVICE pc T,: J I,JeffreyP.-Trout,oneoftheattorneys.fopXUhhSApplEck}'ntsL herein,-hereby certify that on September 11, 1989,' I m'a'de service

.of the within document by' depositing. copies,thereof with Federal Express, prepaid, for delivery to.(or, where' indicated, by' depositing in~the United States-mail, first' class postage paid, addressed to):

Administrative Judge Ivan W. Smith Adjudicatory File 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 H 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. J 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 i Concord, NH 03301-6397

• Atomic Safety and Licensing Robert A. Backus, Esquire j Appeal Board 116 Lowell Street {

U.S. Nuclear Regulatory P. O. Box 516  ;

Commission Manchester, NH 03105  !

Washington, DC 20555

l'i Philip Ahrens, Esquire Mr. J. P. Nadeau Assistant Attorney General Selectmen's Office

[ Department of the Attorney 10 Central Road l 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 P.O. Box 360 General 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 Barbara J. Saint Andre, Esquire One Eagle Square, Suite 507 Kopelman and 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 Judith H. Mizner, Esquire I Office of General Counsel 79 State Street, 2nd Floor Federal Emergency Management Newburyport, MA 01950 Agency l 500 C Street, S.W.

Washington, DC 20472 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 l

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Mr. Richard R.~ Donovan Federal' Emergency Management Agency Federal Regional Center'

'130 228th Street, S.W.

Bothell, Washington 98021-9796 Ashod N. Amirian, Esquire 145 South' Main Street P.O. Box 38' Bradford, MA 01835 L/f S, Ng :^,' .L Jeffrey P. Trout

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

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