ML20071E800

Answer Supporting New England Coalition on Nuclear Pollution 830303 Motion for Deferral of Consideration of Motions for Summary Disposition or for Dismissal.Ser Must Be Issued Before Ruling.W/Certificate of Svc.Related Correspondence

ML20071E800
Person / Time
Site:	Seabrook
Issue date:	03/08/1983
From:	Brisbee G NEW HAMPSHIRE, STATE OF
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20071E786	List: ML20071E782 ML20071E800
References
NUDOCS 8303140327
Download: ML20071E800 (8)

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REL'GED ccainspesppygg UNITED STATES OF AMERICA  ? " ;lf p.

NUCLEAR REGULATORY COMMISSION

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before the .. , I l

' ) ,g ATOMIC SAFETY AND LICENSING BOARD i

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In the Matter of )

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

50-444

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(Seabrook Station, Units 1 & 2) )

) March 8, 1983 ANSWER IN SUPPORT OF NECNP'S MOTION FOR DEFERpL OF CONSIDERATION OF MOTIONS FOR SUMMARfDISPOSITION OR FOR DISMISSAL Pursuant to 10 C.F.R. S2. 730 (c) New Hampshire files s

this answer in support of NECNP'S Motion to Defer Consideration of Summary Disposition Motions filed on March 3, 1983.

In its September 13, 1982, Memorandum and Order, this Board set forth its initial " Schedule For Proceeding". That schedule

, established the filing date of February 12, 1983 for summary disposition motions and a corresponding date of March 9, 1983 for answering any such motions. The Applicant filed most of its twenty-one motions for summary disposition by February 12, 1983, t

and the Staff to date has filed six such motions. Prior to ths B'oard's Order staying the obligation to answer these summary disposition motions by March 9, 1983, New Hampshire was attemptirig to prepare fully its answers to several of the motions. Due, however, to the unavailability of the Safety Evaluation Report 8303140327 830308 PDR ADOCK 05000443 C PDR

l (SER) and the incomplete state of discovery, New Hampshire was 1

not able to discern with finality the material issues relating ,

to the summary disposition motions. It is wholly appropriate, therefore, that the Board continue the stay until the SER has 1

been reviewed by the parties and until discovery on the relevant contentions is complete.

New Hampshire supports the position taken by NECNP in its March 3, 1983 motion with regard to the obligation to answer summary disposition motions before the SER has been issued and reviewed. It is fundamental that the parties to a licensing proceeding are entitled to a full review of the SER. That such a review is required before summary dispostion may be granted as to any safety related contentions is supported by principles of fairness and economy. The SER sets forth the NRC Staff's position on the Applicant's compliance with NRC regulations, and the in-

- formation and conclusions contained therein must, as a matter of fairness, be provided to the parties before any valid contentions can be summarily dismissed.

In addition, by deferring judgment on the summary disposition motions until after the issuance of the SER, the Licensing Board will avoid the potential for unnecessary pleadings and duplication 1

New Hampshire has learned that the Staff issued the SER yester-day, March 7, 1983. The issues discussed in this Answer are not moot, however, since the SER not only must have issued, but the parties must have an adequate opportunity to review the docu-ment before having to respond to summary disposition motions.

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of effort. Should the parties be required to answer the summary disposition motions without a full review of the SER, further pleedings may be necessary to address issues developed from the SER subsequent to the deadline for filing answers to the summary disposition motions.

New Hampshire also notes that the Licensing Board in Duke Power Company,(William B. McGuire Nuclear Station, Units 1,and 2)

LBP-77-20, 5 N.R.C. 680, 681 (1977), held without discussion that summary disposition of safety related contentions is inappropriate before the SER is issued.

That summary disposition is premature at the present time is also evident where discovery on the relevant contentions is in-complete. At the present time the Applicant has not provided completed responses to interrogatories propounded by New Hampshire

-wA Contentions NH-9 and SAPL Supp. i III. The Staff, furthermore,

- 7 has not answered any of the substantive interrogatories on Contention NH-21 and many of the interrogatories on NH-9 and SAPL Supp. - III.

The NRC rules of procedure contemplate that discovery be com-plete before summary disposition is appropriate. Where 10 C.F.R.

S2. 749 (d) permits parties to rely on answers to interrogatories to support their position on summary disposition, it is clearly improper for the Board to consider summary disposition until interrogatories have been fully answered. See Wisconsin Electric

Power Company (Point Beach Nuclear Plant) LBP-81-55, 14 N.R.C.

1017, 1021 (1981) (The Board stated that motions for summary

' disposition are generally filed after discovery is completed.)

Because the SER has not yet been issued and reviewed, and because discovery is not complete, it is New Hampshire's position that the Board could properly deny each of'the motions for summary

' disposition filed to date. New Hampshire suggests in lieu of this action that the Board continue to extend the deadline for filing and answering summary disposition motions until such date as the >

SER is issued and fully reviewed and discovery is substantially complete. This will allow all the parties to rely on the complete information to which they are entitled in formulating responses to the motions. This modification of the schedule will also avoid the possibility of duplicative filings.

The date for the next pre-hearing conference, scheduled by the Board's February 24, 1983 Order for March 17-18, 1983, should likewise be adjusted. The conference #'should~be defer' red at least until the SER has been thoroughly reviewed by the parties. Argu-ment on summary disposition motions as well as on newly-filed contentions based on the SER could then be heard. An appropriate pre-hearing conference date may be late April, by which time emergency planning contentions on many of the emergency plans will have been submitted by the intervenors. New Hampshire recognizes the need for clarification of the timing of emergency planning contentions, and suggests that a telephone conference or written

I motions will allow for adequate consideration of that question.

New Hampshire also would like to express its concern that the persons most affected by and interested in these proceed-ings be afforded the best opportunity to attend the pre-hearing conference. To this end, it is appropriate that all hearings be held at a site within or as close as possible to Seabrook Station. A hearing site in Massachusetts is, of course, perfectly acceptable but New Hampshire suggests that Bosten may be too distant to allow for the attendance of some interested persons in the Seabrook area.

For the above reasons, New Hampshire respectfully requests that the Board:

(a) Order that summary disposition is not appropriate until the SER has been issued and reviewed by the parties, and until discovery on the contentions at issue is complete; (b) Modify accordingly the schedule as it pertains to summary disposition; and

(c) Order such other relief as may be just.

Respectfully submitted, i

THE STATE OF NEW HAMPSHIRE GREGORY H. SMITH '

ATTORNEY GENERAL .

i Dated: March 8, 1983 By l Ge%c Georg( Dana Bisbk)

Attorney Environmental Protection Div.

Office of the Attorney General State House Annex Concord, New Hampshire 03301 Tel. 603/271-3678 CERTIFICATE OF SERVICE I, George Dana Bisbee, Esquire, do hereby certify that a copy of the foregoing ANSWER IN SUPPORT OF NECNP'S MOTION FOR DEFERRAL OF CONSIDERATION OF MOTIONS FOR

SUMMARY

DISPOSITION OR FOR DISMISSAL has been mailed this 8th day of March, 1983, by first class mail, postage prepaid, to:

Helen F. Hoyt, Chm. Dr. Emmeth A. Luebke Administrative Judge Administrative Judge Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board Panel' U.S. NRC U.S. NRC Washington, D.C. 20555 Washington, D.C. 20555

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! Dr. Jerry Harbour Jo Ann Shotwell, Asst. AG Administrative Judge Office of the Attorney General  !

Atomic Safety and Licensing One Ashburton Place, 19th Floor-l 4 Board Panel Boston, MA 02108 l U.S. NRC l j 4 Washington, D.C. 20555 Mrs. Beverly Hollingsworth

! 822 Lafayette Road I Roy P. Lessy, Jr., Esquire ~ P.O. Box 596 .

y . Robert Perliss, Esquire Hampton, New Hampshire 03842 l h Office'of Executive Legal Dir.

!j U.S. NRC William S. Jordan, II, Esquire ,

l j Washington, D.C.. 20555 Ellyn R. Weiss, Esquire 4

Harmon and Weiss- i i;

Robert A. Backus, Esquire 1725. I Street, N.W. l j 116 Lowell Street Suite 506 . l 3

P.O. Box 516 Washington, D.C. 20006 -

l Manchester , N.H. 03105  :

5 Phillip Ahrens, Esquire Sanders and McDermott ,

ij Assistant Attorney General 408 Lafayette Road I lj State House, Station #6 Hampton, N.H. 03842  ;

n Augusta, Maine 04333 li Atomic Safety and Licensing

! Robert K. Gad,' Esquire Board Panel i Thomas G. Dignan, Jr., Esquire U.S. NRC i Ropes and Gray Washington, D.C. 20555 225 Franklin Street i ); Boston, Massachusetts 02110 David R. Lewis, Esquire

• Atomic Safety and Licensing Office of Selectmen Board Town of Brentwood U.S. NRC - Room E/W - 439 Brentwood, New Hampshire 03833 washington, D.C. 20555 Office of Selectmen Rep. Roberta C. Pevear Town of Hampton Town of Hampton Falls

, Hampton, New Hampshire 03842 Drinkwater Road Hampton Falls, New Hampshire 03844 Office of Selectmen Ms. Sandra Gavutisson Town of Kensington Office of Selectmen Kensington, New Hampshire 03833 Town of East Kingston RFD 1

' East Kingston, New Hampshire 03848 i

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Mr. Calvin A. Canney Mr. Patrick J. McKeon City Manager Office of Selectmen  !

City of Portsmouth Town of Rye 126 Daniel Street 10 Central Road Portsmouth, New Hampshire 03801 Rye, New Hampshire 03870

, l j! George Dada Bisbee U  ;

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Dated: March 8, 1983  :

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