ML20247M134
| ML20247M134 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 09/14/1989 |
| From: | Lisa Clark NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#389-9201 OL, NUDOCS 8909250137 | |
| Download: ML20247M134 (7) | |
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20 9/14/89
-4 DGCKUD U%c UNITrn STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'89 SEP 22 m a BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
{
In the Matter of.
)
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Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF
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50-444 OL NEWHAMPSHIRE,etal.
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Off-site Emergency Planning
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(Seabro6k Station, Units 1 and 2)
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NRC STAFF RESPONSE TO MOTION TO ADMIT REPLY TO APPLICANTS' AND STAFF'S RESPONSES TO INTERVENERS MOTION TO ADMIT CONTENTION OR IN TO ALTERNATIVE TO REOPEN THE RECORD AND REQUEST FOR HEARING On September 1, 1989, Interveners filed a motion asking this Board to admit a reply to Applicants' and Staff's responses to their motion to admit a contention or, alternatively, to reopen the record. II The motion should be denied for lack of oood cause.
Under 10 C.F.R. 5 2.730, a moving party has no right to reply.
Nevertheless, Interveners ask that they be permitted to do so in this instance because (1) their motion raises significant safety issues, (2) they were allowed to reply to Applicants' and Staff's responses to their contentions, (3) the Applicants' and Staff's responses raised new issues (4) their reply will help provide a more complete record, and (5) their reply has been filed promptly.
1/
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, September 1,1989.
(" Motion").
1 8909250137 890914 PDR ADOCK 05000443 0]
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4 2-The simple answer to Interveners' claim that a reply should be permitted because they have raised significant safety issues and the record should be clarified is that they have already had the opportunity to make their case. The fact that they would like another chance to do so does not justify deviation from Commission practice of allowing only a motion and an answer. Indeed, if parties were allowed to reply every time they wished to reargue their position, the stream of pleadings would be endless.
Contrary to the suggestion of the Interveners, neither the Staff nor the Applicants raised any new issues in their responses. While Interveners disagree with the Staff's application of the " fundamental flaw" standard, along with nearly all the other legal conclusions reached by the Staff and the Applicants, the issues addressed by the Staff _/ and the 2
Applicants I are fundamentally the same ones raised by the Interveners in their original motion. I In that motion, for example, Interveners argued that they are entitled to a hearing under i 189(a) of the Atomic Energy Act because the alleged inadequacies are relevant and material to the grant of a full power license in light of UCS v. NRC, 735 F.2d 1437 (1984). Motion at 2/
NRC Staff Response to Interveners' " Motion to Admit Contention, or in the Alternative, to Reopen the Record, and Request for Hearing",
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August 18, 1989.
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Applicants' Answer to Interveners' Motion to Admit Contention, or, in the Alternative, to Reopen the Record, and Request for Hearing,
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August 7, 1989.
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Interveners' Motion to Admit Contention, or, in the Alternative, to Reopen.the Record, and Request for Hearing, July 21, 1989.
. 8-10.
The Staff's utilization of the " fundamental flaw" standard in examining that argument is simply a logical application of established case law arising from UCS. El As such, the Staff did not raise a new issue'but simply applied existing case law in a manner which did not i
comport with the position of the Interveners. The fact that in doing so the Staff adopted a position at odds with that of the Interveners does not constitute a basis for permitting a reply.
The fact that Interveners have been allowed to reply to responses in the past also fails to mitigate in favor of Interveners' motion. Rather, it demonstrates the reason that replies should be permitted sparingly, and only upon a showing of good cause.
In the course of this proceeding.
Interveners have made numerous requests to make unauthorized filings. 0/
While some have been entertained despite the resulting delay, Interveners have not shown good cause for delaying the proceeding even further by 5/
See, e.g., Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1) ALAB-903, 28 NRC 499, 505-07, in which it is recognized that emergency planning contentions, which are akin to those in other areas, must allege significant or pervasive deficiencies.
6/
Motion of Massachusetts Attorney General for Leave to File a Document Not Authorized by the Commission's Rules of Practice, September 9,
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1988; Motion of Massachusetts Attorney General for Leave to File a Document Not Authorized by the Commission's Rules of Practice, September 15, 1988; Request to File Reply of Massachusetts Attorney General to Applicants' Answer to Motion to Amend Basis Filed by Massachusetts With Respect to Siren Contentions, September 21, 1988; Motion of Massachusetts Attorney General for Leave to File a Document Not Authorized by the Commission's Rules of Practice, November 25, 1988; Reply of Massachusetts Attorney General James M. Shannon to the Filings of the Staff and the Joint Applicants in Response to his November 2,1988 Motions Under 10 C.F.R. G 2.734 to Reopen the Record, November 25, 1988.
. permitting an additional round of pleadings on this issue. E As the Commission has observed, because litigation of emergency planning issues can be a lengthy process the Board must take steps to bring it to a close within a reasonable time frame. Memorandum, February 3, 1989.
Because Interveners have failed to demonstrate any good cause for permitting the proffered reply, it should be rejected. No useful purpose would be served by allowing the Interveners to reiterate arguments that were or should have been made in their original filing.
Respectfully submitted, OJb Lisa B. Clark Counsel for NRC Staff Dated at Rockville, Maryland this 14th day of September 1989 7/
This is particularly true since it appears that the Board will have to contend with a flurry of such pleadings. Already, Interveners have expressed their intention to make further unauthorized filings in the form of additional bases or additional contentions based on expected information.
Interveners' Motion for Leave to Add Bases to Low Power Testing Contention filed on July 21, 1989 and to Admit Further Contentions Arising From Low Power Testing Events or, in the Alternative, to Reopen the Record and Second Request for Hearing at 5.
L: 'J i :,
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARg9 SEP 22 A11 :44 In the Matter of
)
0FO;.
)
Docket Nos. 501443fDL., ' '
PUBLIC SERVICE COMPANY OF
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50-444 OL NEWHAMPSHIRE,etal.
)
Off-site Emergency Planning (Seabrook Station Units 1 and 2)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO MOTION TO ADMIT REPLY TO APPLICANTS' AND STAFF'S RESPONtr% TO INTERVENERS MOTION TO ADMIT CONTENTION OR IN TO ALTERNATIVE TO REOPENT THE RECORD AND REQUEST FOR HEARING" 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 14th day of September 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 Commission 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. Nutlear Regulatory Commission One Ashburton Place, 19th Floor Washington, DC 20555 Boston, MA 02108 Kenneth A. McCollom Geoffrey Huntington, Esq.
Administrative Judge Assistant Attorney General 1107 West Knapp Street Office of the Attorney General l
Stillwater, OK 74705 25 Capitol Stt-eet Concord, NH 03301 l
Thomas G. Dignan, Jr., Esq.
Robert K. Gad, III, Esq.
Diane Curran, Esq.
I 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 l
l L____
l
H. J. Flynn, Esq.
Judith H. Mizner, Esq.
l Assistant General Counsel 79 State Street Federal Emergency Management Agency Newburyport, MA 01950 500 C Street, S.W.
Washington, DC 20472 Robert Carrigg, Chairn.an Board of Selectmen Town Office L
Paul McEachern, Esq.
Shaines & McEachern Atlantic Avenue 25 Maplewood Avenue North Hampton, NH 03862 P.O. Box 360 Portsmouth, NH 03801 William S. Lord Board of Selectmen Charles P. Graham, Esq.
Town Hall - Friend Street McKay, Murphy & Graham Amesbury, MA 01913 100 Main Street 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. Gor ton J. Humphrey Calvin A. Canney United States Senate City Hall 531 Hart Senate Office Building 126 Daniel Street Washington, DC 20510 Portsmouth, NH 03801 Richard R. Donovan R. Scott Hill-Whilton, Esq.
Federal Eme%ency Management 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 Town of Brentwood Newburyport, MA 01950 20 Franklin Exeter, NH 03833 Michael Santosuosso, Chainnan 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, NH 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.
77 Franklin Street
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Boston, MA 02110 I
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. Ms. Suzanne 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 Comission Board Panel Washington, DC 20555 U.S. Nuclear Regulatory Comission Washington, DC 20555 Samuel J. Chilk*
Office of the Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Comission Appeal Panel (6)*
Washington, DC 20555 U.S. Nuclear Regulatory Comission Washington, DC 20555 l
Docketing and Service Section*
Office of the Secretary l-U.S. Nuclear Regulatory Comission Washington, DC 20555 i
Zdo Lisa B. Clark Counsel for NRC Staff