ML20247L902

Applicant Response to Motion of Commonwealth of Ma Atty General for Leave to File Reply to Certain Applicant Responses to Proposed Findings.* Motion Factually Incorrect & Should Be Denied.W/Certificate of Svc

ML20247L902
Person / Time
Site:	Seabrook
Issue date:	09/15/1989
From:	Trout J PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
References
CON-#389-9188 OL, NUDOCS 8909250085
Download: ML20247L902 (9)

Text

ls f

4 E03ETED September 15, 1989 U#

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

) Off-site Emergency  ;

(Seabrook Station, Units 1 and 2) ) Planning Issues l

)  !

) ,

APPLICANTS' RESPONSE TO " MOTION OF THE MASSACHUSETTS ATTORNEY GENERAL FOR LEAVE TO FILE A REPLY TO CERTAIN APPLICANTS' RESPONSES  ;

TO HIS PROPOSED FINDINGS" l Under date of September 11, 1989, the Attorney General I for The Commonwealth of Massachusetts (" Mass AG") filed a document styled as " Motion of the Massachusetts Attorney j General for Leave to File a Reply to Certain ApplicantE' Responses to His Proposed Findings" (" Motion"). Accompanying the Motion is the replyl which Mass AG seeks to have admitted. Because it is supererogatory in nature, procedurally improper, and factually incorrect, the Motion should be denied.

1 " Massachusetts Attorney General's Reply to Certain Applicant Responses to His Proposed Findings" (" Reply").

8909250085 DR 890015 ADOCK 05000443 i .

EOR yo3

U.

"s ARGUMPRT

1. Procedural Imorocriety The Regulations do not accord Mass AG any right to respond to Applicants' responsa to Interveners' response to Applicants' proposed findings. 10 C.F.R. E 2.754(a).

Indeed, the Rules of Practice do not provide even for seeking leave of the Board to file a reply in these circumstances.

While 10 C.F.R. 5 2.730(c) gives the presiding officer discretion to allow the filing of a reply to a reply to a motion, no such provision seems to exist with respect to motions for a response to a response to a response to proposed findings.

Moreover, even in those circumstances where it is permissible to seek leave to file a reply, "the reply brief should not be attached to the motion but should only be submitted after permission to file is granted." Public Service Comoany of Oklahoma (Black Fox Station, Units 1 and 2), LBP-76-38, 4 NRC 435, 441 (1976). In light of these procedural infirmities, the Motion should be rejected out of hand.

2. Lack of Factual Merit Mass AG argues that his Motion should be granted because: (1) certain of Applicants' responses are so

" egregious" that each " demands a reply," and "[t]he Mass AG could not have anticipated and responded" to those arguments i - . . . - _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

l l

l I

i A

in his prior filing.2 A review of the five specific replies 1

made by Mass AG demonstrates that, in each case, both of these allegations are demonstrably false.

I (a) TT 2.1.36.N-O j i

Mass AG himself admits that "the original employment i

data obtained from the 1404 respondents has not been made a l

part of the record in this proceeding,n3 which is all that l

Applicants' supposedly " egregious" response asserted. Mass AG's failure to cite to the data itself in his proposed findings, rather than to Applicants' summary of Dr. Adler's summary and extrapolation of the data, indicates that Mass AG knew, at the time of his August 14 filing, that the data was not in the record.

(b) T 3.1.31.H Mass AG claims that this proposed finding is

" unquestionably" within the scope of JI-4 Basis B and

" practically identical to . . . JI-3, Basis D. . . .

"4 However, no matter how closely those contentions and the interrogatory responses given pursuant to them5 -- or any of the rest of Interveners' contentions -- are read, one simply cannot find any indication that Mass AG intended to argue 2 Motion at 1.

3 Reply at 2.

4 Presumably Mass AG means JI-2 Basis D.

Id. at 3.

5 Sag, e,q., App. Ex. 66 at 19 (Int. 23), 32-33 (Int.

51).

k that evacuees should be redistributed among the reception centers. Mass AG knew, when he made his August 14 filing, that he had already conceded that the scope of his contentions.was limited by his discovery responses. Tr.

18687-88. Moreover, Mass AG's failure to include even a single transcript cite in this proposed finding suggests that he knew that he was raising the issue for the very first time on August 14.

(c) TT 3.1.31.L-M.

Nowhere in JI-4 Basis B, Interrogatory Answer 46,6 or anywhere else in the contentions or discovery responses, is there any hint thrA Mass AG intended to argue, as .he does in MAG P.F. 3.1.31.L, that Applicants' traffic guides were not recruited from the correct geographic area. Likewise, no contention, basis, or discovery response contains Mass AG's assertion, in P.F. 3.1.31.M, that traffic guides can only be assigned a four-hour shift.7 As noted above, Mass AG knew that his discovery responses limited his contentions.

(d) T 9.1.78.I.

Mass AG cites MAG Ex. 120, in his P.F. 9.1.78.I, for the proposition that INPO guidelines call for the frisk detector to move at a rate of aless than 2 inches per second," and then bases P.F. 9.1.78.J and the findings which follow on 6 App. Ex. 66 at 31.

l 7 EAS, e.c., App. Ex. 66 at 32 (Int. 50), 55 (Int.

94), 70-71 (Int. 116).

t

o i

b this " crucial" fact.8 Mass AG expressly offered the exhibit, I

unsuccessfully, for oreciselv that purpose at Tr. 25885:

l

" JUDGE SMITH: . . . But you are offering this document }

for the proposition that you have to monitor for inhaled particulate contamination.

MR. FIERCE: It had three reasons and that was one. f JUDGE SMITH: And the rate.

l MR. FIERCE: I had the inhalation; I had the rate of less than two inches per second."

This Board expressly rejected it for that purpose at Tr.

25887:

" JUDGE SMITH: And the very same ruling, the purpose for which you intend to offer the information is irrelevant.

~

Now, if you're still on that purpose. If you are continuing to do that for your original purposes, then that's our ruling."

This Board then went en to observe, at Tr. 25888:

" JUDGE SMITH: Now, if you succeed in that and we receive the document in evidence for that purpose [i.e.

historical purposes, as a reference cited in Applicants' document) and ycu cite the document for another purpose, I hope the carties will look 12 this exchance right now and say that that will be a fraudulent citation."

(Emphasis added.)

Far from being surprised by Applicants' response Mass AG could not have been more completely forewarned.9, 8

Mass AG's insistence on making this citation to MAG Ex. 120 is remarkable in light of the fact, as pointed out by counsel for the NRC Staff, that it is unnecessary. See Tr. 25888-89.

b Mass AG goes on to charge that "[t]he only possible explanation for this conduct [i.e. Applicants' objection to a citation that the Board had already flagged as fraudulent) was a conscious decision by Applicants to: 1) assert a baseless claim against the Mess AG; 2) hope that the Mass AG did not file or was not permitted to file a reply to this l

. 1 e

b l

(e) 1 9.1.78.N l

Nowhere in Mass AG's interrogatory responses pursuant to {

I JI-56 Basis A10 (or in any other responses) did he raise the ]

~

(

hardware issue posited in P.F. 9.1.78.N. As noted above, Mass AG knew the limits he had placed on his own contentions.

3. _S_uoerfluity Depending on whether or not one counts Mass AG's August 14 filing as a response to Applicants' proposed findings, the Reply Mass AG now seeks is either sur-rebuttal or sur-sur-rebuttal. Mass AG has already filed more than 400 pages of proposed findings on the SPMC and Graded Exercise,11 with another 148 pages from the other Interveners. Enough is enough.

claim; and 3) anticipate that this Board would not take the time necessary to check the record citations." Reply at 6 (emphasis added). Applicants leave it to the Board to judge whether this charge, and also Mass AG's prior claims of

" sandbagging" -- sag, e.g., Mass AG P.F. 2.1.14.V -- more accurately characterize Mass AG's own conduct, rather than Applicants'. " Suspicion always haunts the guilty mind."

Henry VI, Part III, Act V, scene vi.

10 App. Ex. 66 at 132-34 (Ints. 255-258).

11 Presumably in order to appear to comply with the 350-page limitation for proposed finding set by the Board, Mass AG simply disregarded the margin requirements of 10 C.F.R. 52.708(b). If Mass AG had used proper margins at the top and bottom of his pages, then the length of his findings would have been 389 pages [(17,023 total Mass AG lines - 6916 original Applicant lines) + 26 lines /page]. Further adjustment of the right-hand margin to eliminate Mass AG's encroachments there pushes the total to over 400 pages.

'04 CONCLUSION For the reasons noted above, the' Motion should be denied.

Respectfully submitted, 0N" Thodas 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 c__ _ ___-______-- -- _- .. .]

t h

m.

CERTIFICATE OF SERVICE '89 59' 18 R2 :59 I, Jeffrey P. Trout, one of the attorneys for the Applicants herein, hereby certify that on September 15, 1989, I made service of the within document by mailing'bopies, thereof, postage prepaid, to:

Administrative Judge Ivan W. Smith, John P. Arnold, Esquire '

Chairman Attorney General Atomic Safety and Licensing George Dana Bisbee, Esquire Board Assistant Attorney General U.S. Nuclear Regulatory Office of the Attorney General Commission 25 Capitol Street Washington, DC 20555 Concord, NH 03301-6397 Administrative Judge Richard F. Mr. Richard R. Donovan Cole Federal Emergency Management Atomic Safety and Licensing Agency Board Federal Regional Center U.S. Nuclear Regulatory 130 228th Street, S.W.

Commission Bothell, Washington 98021-9796 Washington, DC 20555 Administrative Judge Kenneth A. Judith H. Mizner, Esquire McCollom 79 State Street, 2nd Floor 1107 West Knapp Street Newburyport, MA 01950 Stillwater, OK 74075 Diane Curran, Esquire Robert R. Pierce, Esquire Andrea C. Ferster, Esquire Atomic Safety and Licensing Harmon, Curran & Tousley Board Suite 430 U.S. Nuclear Regulatory 2001 S Street, N.W. Commission Washington, DC 20009 Washington, DC 20555 Adjudicatory File Sherwin E. Turk, Esquire Atomic Safety and Licensing Office of the Executive Legal Board Panel Docket (2 copies) Director U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 l Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Board Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03105

I (v

l g-

. Philip Ahrens, Esquire Mr. J. P. Nadeau Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central Road j General Rye, NH 03870 L

. Augusta, ME 04333 i Paul McEachern, Esquire John Traficonte, Esquire  !

Shaines & McEachern Assistant Attorney General l f 25 Maplewood Avenue Department of the Attorney P.O. Box 360 General Portsmouth, NH 03801 One Ashburton Place, 19th Flr.

Boston, MA 02108 Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall Kensington, NH 03827 126 Daniel Street 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 Ashod N. Amirian, Esquire Office of General Counsel 1145 South Main Street Federal Emergency Management P.O. Box 38 Agency Bradford, MA 01835 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 a < , , - - -

• /, l 4

• Jeffrey P. Trout