ML20206T225

NRC Staff Response to Joint Intervenor Appeal by Motion for Directed Certification.* Petition for Directed Certification Should Be Denied Since Deprivation of Procedural Due Process Not Demonstrated.W/Certificate of Svc

ML20206T225
Person / Time
Site:	Seabrook
Issue date:	04/16/1987
From:	Berry G NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#287-3204 OL, NUDOCS 8704230139
Download: ML20206T225 (23)

Text

ON T DAYt Y-A/-97 33 e

s UNITED STATES OF . AMERICA NUCLFAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPFAL BOARD

-l In the Matter of )

) Docket Nos. 50-443-OLAI

• , PURLIC SERVICE COMPANY OF ) 50-444-OL g NEW HAMPSHIRE, et al. )

) (Off-site Emergency Planning)

(Seabrook Station, Units 1 and 2) )

NRC STAFF RESPONSE TO JOINT INTERVENOR APPEAL BY MOTION FOR DIRECTED CERTIFICATION Gregory Alan Berry Counsel for NRC Staff f

.. APdl 16, 1987 l

8704230139 870416

> DR ADOCK 05000443 PDR

UNITED STATES OF. AMERICA NUCLPAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPFAL BOARD

- In the Matter of )

) Docket Nos. 50-443-OL-1 PUBLIC SERVICE COMPANY nF ) 50-444-OL-1

• NEW HAMPSHIRE, et al. )

) (Off-site Emergency Planning)

(Seabrook Station, Units 1 and 2) )

NRC STAFF RESPONSE TO JOINT INTERVENOR APPEAL BY MOTION FOR DIRECTED CERTIFICATION l

Gregory Alan Berry Counsel for NRC Staff April 16,1987

TABLE OF (IAT!NIE 6

PAGE(S)

I. TABLE OF AUMRITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. I hTGUCT !W . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 III. IW N R I N) ............................................. 2

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VI. D I SGES ICN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

, A. Legal Standards Governing Petitions for Di rec t ed Ce r t i fi cat i on . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. De Board's Scheduling Order Does Not Deprive Joint Intervenors of Procedural Dtte Process ........................................ 5

1. Inadequate Discovery .......................... 6

2. Absence of M!MA and Staff Position Q1 he Adequacy Of Re NEERP . . . . . . . . . . . . . . . . . 9

3. Inadequate Time For Preparation Of Testimony .................................. 11

4. Other Deficiencies Alleged By Joint Intervenors .......................... 13

5. Relief Requested By %e Joint Intervenors .... . 14 IV. OCNCLUS im . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 l

l

_i_

s TABLE OF AUDDtlTIES PAGE(S)

NRC NO AEC ADJUDICATIONS Arizona Public Service Co. ................................... 4

- (Palo Verde Nuclear Generating Station, thits 2 and 3),

18 NRC 380, AIAB-742 (1983)

Louisiana Power and Light Oc. ................................ 12 ih'aterford Steam Electric Station, thit 3),

17 NRC 1070, AIAB-732 (1983)

B kmorandian and Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,2,6,7 Gkxlifying Board Orcer of Decenber 4,1986)

(.ianuary 9, 1987)

Memorandun and Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8, 14 (Ih111ng on Contentions - Revision 2, New Hanpshire Radiological Bnergency Response Plan)

(February 18, 1987)

Memorandun and Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3 (Affinning the New Ilanpshire Radiological Bnergency itesponse Plan Hearing Schedule In Its Entirety)

Glarch 20, 1987).

Po t miac E l ec t r i c Powe r Co . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11 (Douglas Point Nuclear Generating Station, Units 1 and 2),

1 NRC 539, AIAB-277 (1975)

Public Service Canpany of Indiana ........................... 4 (Marble 11111 Nuclear Generating Station, thits 1 and 2),

5 NRC 1190, AIAB-405 (1977)

Public Service Canpany of New Hanpshire ..................... 4 (Seabrook Station, Units 1 and 2),

1 NRC 478, AIAB-271 (1975)

Public Service Cmpany of New Hanpshire ..................... 3, 4 (Seabrook Station, Units 1 and 2),

- 25 NRC , AIAB-858, slip op. (January 15, 1987)

' 5, 6 Sou thern Ca l i forni a Edi son Co . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(San Onofre Nuclear Generating Station, Units 2 and 3),

7 ABC 986, AIAB-212 (1974) 4

6 PAGE(S)

Tennessee Valley Authority . . . . . . . . . . . ....................... 12 (Hartsville Nuclear Plant, Units IA, IB, 2A, 2B),

7 M1C 341, ALAB-463 (1978)

Virginia Electric Power Co. .................................. 4 (North Anna Nuclear Power Station, Units 1 and 2),

11 MiC 451, ALAB-584 (1980)

RIXUIATINS:

10 C.F.R. Part 2, Appendix A, I I n.2. ....................... 3 10 C.F.R. I 2.710 ............................................ 13 10 C.F.R. I 2.712(c) ......................................... 13 10 C.F.R. I 2.718(h) ......................................... 14 10 C.F.R. I 2.718(i) ......................................... 3 10 C.F.R. I 2.730(f) ......................................... 3 10 C.F.R. I 2.732 .......................'....................

. 12 10 C.F.R. I 2.740a ........................................... 8 10 C.F.R. I 2.740b ........................................... 7 10 C.F.R. I 2.743(b) ......................................... 11, 13 10 C.F.R. I 2.752 ............................................ 14 10 C.F.R. I 2.785(b)(1) ...................................... 3 10 C.F.R. I 50.47(a)(1) ...................................... 10 t

10 C.F.R. I 50.47(a)(2) ...................................... 11 e

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UNITED STATES OF AMERICA ,\

NUCLEAR REGULATORY COMMISSION  !

\

BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD l

In the Matter of )  ;

) Docket Nos. 50-443-OL-1 PUBLIC SERVICE COMPANY OF ) 50-444-OL-1 NEW HAMPSHIRE, et al. ) i

) (Off-site Emergency Planning) '

(Seabrook Station, Units 1 and 2) )

\

URC STAFF RESPONSE TO JOINT INTERVENOR (

APPEAL BY MOTION FOR DIRECTED CERTIFICATION I. INTRODUCTION ,

\

On March 27, 1987, the Commonwealth of Massachusetts, the Town of Hampton, the Seacoast Anti-Pollution League, and the New Enl gland Coalition on Nuclear Power (collectively " Joint Intervenors") filad a petition for directed certification. The Joint Intervenors seek appellate review of a scheduling order issued by the Licensing Board on January 9, 1987. 1 According to the Joint Intervenors, the Board's scheduling order "is so compressed that it will deny the parties to this proceeding a fair trial" in contravention of 10 C.F.R. I 2.718 of the Commission's procedural regulations and the due procesa guarantee of the United States Constitution. Joint Intervenor Appeal By Motion For Directed Certific.ation at 2 (March 27,1987) (" Joint Appeal"). The Joint Intervenors therefore request that the Appeal Board grant their petition 1/ Memorandum and Order (Modifying Board Order of December 4,1986)

(January 9, 1987), reconsideration denied , Memorandum and Order (Affirming the New Hampshire adiological Emergency Response Plan (NHRERP) Hearing Schedult in Its Enirety) (March 20, 1987)

(" January 9 Order"). Copies of the Board's orders are appended to this response. ,

and issue an order: (i) vacating the current hearing schedule established by the Board; (ii) directing that the Board (a) hold a prehearing conference and (b) comply with the Commission's regulations "concerning time periods"; and (iii) providing guidance as to an appropriate hearing schedule, to include at a minimum a four month extension of all current deadlines. Addendum to Joint Appeal at 2.

The NRC Staff opposes the Joint Intervenor's petition. Interlocutory review of the Board's January 9 Order is not warranted. The January 9 Order is a scheduling order which neither threatens Joint Intervenors I "with immediate and serious irreparable harm which could not be remedied by a later appeal" nor "affects the basic structure of the proceeding in a pervasive or unusual manner." Thus, the order does not deprive the Joint Intervenors of procedural due process. Accordingly, Joint Intervenors' petition for directed certiScation should be denied.

II. BACKGROUND l This phase of the Seabrook operating license proceeding focuses on

. the adequacy of off-site emergency planning. On January 9,1987, the Board issued a scheduling order. See January 9 Order, supra. That order provided a 21-day discovery period commencing February 13, 1987 M . at 2. The parties were required to file their written testimony so that it would be received by May 21, 1987. M. The order also provided that the hearing was to commence not sooner than May 28, 1987. Id. A commencement date of June 1,1987, was later set. Sea Memorandum and Order (Ruling on Contentions - Revision 2, New Hampshire Radiological Emergency Response Plan) at 6 (February 18, 1987). On February 25,

i 1987, Joint Intervenors requested the Board to reconsider the January 9 Order and extend by four months each of the deadlines established thercin. Intervenor Joint Motion To Extend Hearing Schedule (Fe.bruary 25, 1987). U Both the Staff and Applicant opposed Joint Intervenors' motion. NRC Staff's Response To Motions To Extend The

. Ilearing Schedule (March 16, 1987). On March 20, 1987, the Board issued a order denying the Joint Intervenors' motion and affirmed the hearing schedule in its entirety, ffemorandum and Order (Affirming the New Hampshire Radiological Emergency Response Plan Hearing Schedule In Its Entirety) (March 20, 1987). On March 27, 1987, the Joint Intervenors' petitioned the Appeal Board to direct certification of the Bocrd's scheduling order.

III. DISCUSSION A. Legal Standards Governing Petitions for Directed Certification Appeals of interlocutory orders are prohibited by the Commission's procedural regulations. 10 C.F.R. I 2.730 (f). 3_/ Ilowever, pursuant to 10 C.F.R I 2.718(i) and 2.785(b)(1), one may petition the Appeal Board to exercise its discretion to review interlocutory rulings. This appellate 2/ The Appeal Board noted the Licensing Board's scheduling order in its decision on Intervenor's earlier stay request. Public Service Co.

, of New Hampshire (Seabrook Station, Units 1 and 2), ALAD-858, 25 NRC , slip op. at 7, n.12 (January 15, 1987).

l

-3/ An " interlocutory appeal" is one that seeks review of a " ruling made by the board during the time between the issuance of a notice of hearing and the issuance of the initial decision." 10 C.F.R. Part 2, Appendix A, I I n.2.

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review of interlocutory licensing board orders "is disfavored and will be undertaken as a discretionary matter only in the most compelling circumstances." Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 2 and 3), ALAB-742, 18 NRC 380, 383 (1983)

(footnotes omitted); accord Public Service Company of New Hampshire

, (Seabrook Station, Units 1 and 2), ALAB-271,1 NRC 478, 484-86 (1975).

In a previous decision in this case this Board made it plain that a petition for directed certification of an interlocutory order will not be granted in the absence of a showing that the order complained of " threatens the party adversely affected with immediate and irreparable harm which could not be remedied by a later appeal" or "affects the basic structure of the proceeding in a pervasive or unusual manner." Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-858, 25 NRC ,

slip op. at 5 (January 15, 1987); accord eg. , Public Service Company of Indiana (Marble Hill Nuclear Generating Station ,

Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977). In fact the very schedule now complained of was noted by this Board in ALAB-858. b Where the interlocutory order involves scheduling matters, the Appeal Board has stated that directed certification ordinarily will not be granted in the absence of "a showing that the schedule deprives the complaining party of its right to procedural due process." ALAB-858, slip op. at 5-6; see also Virginia Electric Power Co. (North Anna Nuclear Power Station , Units 1 and 2), ALAB-584, 11 NRC 451, 467 (1980).

Sound practical reasons underly the Appeal Board's reluctance to enter 4_/ See ALAB-858, slip op. at 7, n.12.

the scheduling thicket. In Southern California Edison Co. (San Onofre -

Nuclear Generating Station, Units 2 and 3), ALAB-212, 7 AEC 986, (1974), the Appeal Board explained why it was " entirely disinclined to assume the role of a post hoc overseer of the discharge by licensing

- boards of their scheduling functions":

Of necessity, licensing boards must be vested with considerable discretion in determining the course of the proceedings which they are called upon to conduct. A potential for substantial mischief would be created were appellate bodies to make a general practice of Monday morning quarterbacking the disposition of such matters as how evidentiary hearings should be scheduled and the precise stage at which a party should be compelled to

'present its affirmative evidence on particular i issues. Very few of the myriad procedural rulings which inevitably ensue during the progress of a sharply contested case would rest on more than quicksand should the reviewing tribunal regard itself possessed of an open license to substitute its judgment for that of the trial tribunal. Moreover, removed as far as we are from the field of trial battle , there is no certainty that (even with the advantage of hindsight and the opportunity for collegial consultation in a calm and deliberate post-trial atmosphere) we would make a better selection among the possible rulings which had been available to the licensing board, 7 AEC at 991 (citations omitted).

Joint Intervenors apparently recognize the considerations militating against review of the Board's scheduling order. Consequently, they assert that the Board's scheduling order deprives them of procedural due

. process . Joint Appeal at 2. As explained below , this assertion is without merit.

B. The Board's Scheduling Order Does Not Deprive Joint Intervenors of Procedural Due Process i Procedural due process is a fluid concept. As the Appeal Board has l

recognized, "[d]ue process questions cannot be scrutinized in the r

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b abstract but must be resolved in the context of the particular facts at hand." San Onofre, supra, 7 AEC at 994. The ultimate question is whether a party has been deprived of a fair chance to prepare and present its case on all of the issues ripe for adjudication. d.

The Joint Intervenors point to a number of factors which in their view operate to deny them a meaningful opportunity to participate in this I proceeding. Specifically, the Joint Intervenors contend that the Board's scheduling order: deprives them of any meaningful discovery; forces them to participate in the hearing on the adequacy of the New Hampshire Radiological Emergency Response Plan (NHRERP) even though the NRC Staff or the Federal Emergency Management Agency (FEMA) have yet to develop a position on the subject; affords them insufficient time to prepare their direct testimony; calls for the hearing to commence sooner than 15 days after the filing of written testimony; and fails to provide for a pre-hearing conference. Joint Appeal at 8-12. The Staff will address each of these points in turn.

1. Inadequate Discovery The Joint Intervenors assert that the Board's scheduling order denied them the opportunity to engage in any " follow up" discovery. 1d.5 at 9. The Joint intervenors are incorrect. The Board's scheduling order provided that d!scovery was to commence on February 13, 1987, the date by which the Board indicated it would issue its ruling regarding the I admission of :ontentions. See Memorandum and Order (Modifying Board Order of December 4,1986) at 2 (January 9,1987) (" January 9 Order").

The January 9 Order provided that discovery would remain open until

_ _ . _ _ . . _ _l

March 6,1987, a period of 21 days. Id. ' Each of the parties, including the Joint Intervenors had approximately 5 weeks (from January 9 through February 13, 1987) to craft their first set of discovery requests. O The '

January 9 Order contemplated that interrogatories and other discovery requests would be filed on or about the date upon which discovery was to commence. 6_/ Responses to these "first wave" discovery requests were required by regulation to be filed within 14 days of the date of sarvice.

Seo 10 C.F.R. I 2.740b. After receiving the responses to its first wave of discovery requests, each party would have until March 6,1987 to file i <

additional interrogatories, supplemental document requests, or notice and l

take depositions. See January 9 Order at 2. Thus, contrary to the Joint Intervenors' assertion, by its terms the Board's scheduling order j expressly afforded them the opportunity to engage in a second round of i

5_/ The January 9 Order did not contemplate that case preparation would come to a halt pending the Board's ruling on the admission of contentions. Indeed, the Board " encourage [d] the parties to respond to requests for information prior to the commencement of discovery on February 13, 1987, whenever possible." Id. at 2.

Nothing in the record indicates that Joint Intervenors took advantage of this opening or that either the Staff or Applicant failed to respond to any request for information made by any of the Joint ,

Intervenors during this period. l 1

C/ The Joint Intervenors do not offer any persuasive justification for their failure to take advantage of this five-week period to begin

! - work on their "first wave" or requests for information on contentions

! which they sponsored. The Joint Intervenors argued below that i they " reasonably could not be expected to have made substantial expenditures for expert consultations and assistance in framing discovery requests on [their] contentions until the Board admitted those contentions [.]" Intervenors' Joint Motion to Extend Hearing l Schedule at 3 (February 25, 1987). The Joint Intervenors have i abandoned that position in their instant petition for directed certification.

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i discovery. That the Joint Intervenors may not have taken advantage of the opportunity does not mean that the opportunity did not exist. U The Joint Intervenors also assert that the January 9 Order "did not provide an opportunity for depositions." Joint Appeal at 9. It is true that the January 9 Order did not expressly permit any of the parties to take depositions. It is also true, however, that the order did not by its terms preclude any party from taking any depositions. As the Joint Intervenors note correctly, " depositions are specifically authorized as a method of discovery by the Commission's Regulations. " .Id . The Commission's regulations expressly provide that depositions may be taken at any time during the discovery period "without leave of the Commission or the presiding officer. " 10 C.F.R. I 2.740a. Thus, the Joint Intervenors were not precluded by the Board from taking depositions.

Admittedly, under the January 9 Order, all discovery, including the taking of depositions, was to be completed within the 21-day discovery period ending on March 6,1987. The Joint Intervenors, however, have not shown that this schedule nrecluded them from taking the deposition of

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7/ The Joint Intervenors argue that due to the Board's failure to issue a ruling on their contentions by February 13, 1987, as provided in the Licensing Board Order of January 9, 1987, at 1, they were denied the full 21-day discovery period contemplated by that order.

. Joint Appeal at 3. It is true that the Board's ruling on the Joint Intervenors' contentions did not issue until February 18, 1987.

Memorandum and Order (Ruling on Contentions - Revision 2, New

- Hampshire Radiological Emergency Response Plan) (February 18, 1987). The appropriate remedy for the Joint Intervenors, however, was to have requested the Board to extend the hearing schedule by five days to compensate the parties for the time lost due to the Board's delay in issuing its ruling. The Joint Intervenors did not make this limited request. Instead, they sought a four month extension of the hearing schedule. The Board denied their request.

i any person deemed necessary by them to prepare their cases. Indeed, Joint Intervenors do not assert in their instant petition for directed l

certification that they would have utilized this discovery method, only that some of them "would have considered" it. Joint Appeal at 9. In the

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absence of a showing that the Joint Intervenors, or any of them, in fact

. would have taken depositions, the alleged denial by the Board to afford such an opportunity cannot not be deemed to have prejudiced any of the Joint Intervenors and cannot constitute a denial of due process.

2. Absence of FEMA and Staff Position On The Adequacy Of The NIIRERP Joint Intervenors claim that it is premature to proceed to hearing on the NHRERP under the current schedule because FEMA has yet to adopt a position regarding the adequacy of the NHRERP. Joint Appeal at 10.

The Staff does not agree. In the first place, hearings on the NHRERP hearings are scheduled to begin no earlier than June 1, 1987, approximately six weeks from the present. Indet.d the January 9 Order requires the Staff and FEMA to file written testimony by May 21, 1987.

. Thus, the Joint Intervenors will have notice of any position FEMA will take at the hearing by May 21, 1987 Second , FEMA's failure to have adopted a position regarding the adequacy of the NIIRERP by the time the hearings are held will not operate to prejudice the Joint Intervenors. Applicant, not the Joint Intervenors, has the burden of proof. Section 50.47(a) of the 1

Commission's regulations provides that no operating license may issue absent a finding "that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological 1

i

emergency." 10 C.F.R. I 50.47(a)(1). This NRC finding is to be based on a review of FEMA's " findings and determinations as to whether State {

l and local emergency plans are adequate and whether there is reasonable assurance that they can be implemented [.]" 10 C.F.R. I 50.47(a). In the absence of FEMA's position, the requisite finding cannot be made and no operating license for the Seabrook Station can issue. FEMA's failure to make the requisite findings (a failure which would prevent the NRC ,

from determining that the NHRERP is adequate) does not prejudice the Joint Intervenors whose position is that no license should issue.

Third , nothing in the Commission's regulations or the governing statutes requires that the commencement of a hearing on the adequacy of a radiological emergency response plan be deferred until FEMA adopts a position regarding the adequacy of the plan. In Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2),

ALAB-277, 1 NRC 530, 544 (1975), the Appeal Board holds that hearings on the applicant's construction permit application should go forward even though the Final Environmental Statement has not issued and construction of the proposed facility has been postponed for several years. The Appeal Board noted that an early hearing may reveal that the site of the proposed facility is unaccentable or inferior to alternative locations.

1NRC at 546, 549. Early consideration would alert "the applicant promptly of the need to find a better location for its plant" and the

" resultant benefit to the public (not just applicant) is manifest." Id.

at 546.

An analoguous situation is involved here. The hearing on the adequacy of the NIIRERP presently scheduled will not be futile even if

I FEMA has not yet developed a position by the time it commences. The hearing may reveal flaws in the NHRERP of sufficient dimension to overcome the presumption of adequacy that would otherwise be accorded the plan by a favorable FEMA finding. See 10 C.F.R. I 50.47(a)(2).

- Additionally, a hearing on the NHRERP will afford the Joint Intervenors the opportunity to expose and bring to FEMA's (and Applicant's) attention weaknesses in the plan of which FEMA may not now be aware. If this proves to be the case, "the resultant benefit to the public (not just applicant) is manifest." 1 NRC at 546. For these reasons, it is neither futile nor a waste of time and resources to go forward with the hearing on the adequacy of the NHRERP regardless of whether FEMA has adopted a final position by the time the hearing commences.

3. Inadequate Time For Preparation Of Testimony The Joint Intervenora next argue that the January 9 Order requiring the simultaneous filing of written testimony places them "in the nearly impossible position" of having to submit testimony to rebut that of the Staff and Applicant without having first reviewed the testimony of those parties. Joint Appeal at 11. The Joint Intervenors have mischaracterized the situation.

The Commission's regulations do not provide for the filing of written

. testimony on a staggered basis. See 10 C.F.R. I 2.743(b). Indeed, the simultaneous filing of written testimony in NRC proceedings is not unusual. The purpose in requiring a party to file in advance the direct testimony it intends to offer at the hearing is to notify the other parties of the proponent's position and expedite the hearing process. The

January 9 Order, in providing for the simultaneous filing of testimony, is

! consistent with these objectives.

Moreover, as noted earlier, Applicant, not the Joint Intervenors, bears the burden of proof in this proceeding. 10 C.F.R. I 2.732. It is Applicant which must show by a preponderance of the reliable, probative,

, and substantial evidence in the record considered as whole that there is reasonable assurance that the Seabrook facility can be operated without unduly endangering the public health and safety. Unlike Applicant, the Joint Intervenors are under no obligation to present an affirmative case; indeed , the Commission's case law makes clear that an intervenor can support its case with cross-examination. EJ. , Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 1B , 2A, 2B), ALAB-463, 7 NRC 341, 356, (1978). Thus, the Joint Intervenors are mistaken when they state that they must submit testimony to rebut that of Applicant and the Staff. Joint Appeal at 11. It is Applicant that must overcome or

" rebut" any evidence adduced by an intervenor through cross-examination or as part of its case in chief, not the other way around. See eg. ,

Louisiana o Power and Light Co. (Waterford Steam Electric Station, Unit 3),

ALAB-732, 17 NRC 1076, 1093 (1983). For these reasons, the requirement in the January 9 Order that all parties file written testimony simultaneously does not deprive the Joint Intervenors of procedural due

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process,b

8) Nor was it a denial of due process for the Board to reject the Joint Intervenors' request for a four month extension to enable their expert, Dr. Adler, to prepare his testimony. According to the Joint (FOOTNOTE CONTINUED ON NEXT PAGE)

4. Other Deficiencies Alleged By Joint Intervenors The Joint Intervenors also allege that the January 9 Order is defective because it falls to provide for a prehearing conference and

. provides less than fifteen days between the filing of written testimony and the commencement of the hearing. There is no merit to either of these allegations.

Section 2.743(b) states in pertinent part:

In any proceeding in which advance written testimony is to be used, each party shall serve 5 copies of its proposed written testimony on each other party at least fifteen (15) days in advance of the session o f the hearing at which its testimony is to be presented.

10 C.F.R. I 2.743(b). Unless otherwise specified by the presiding officer, written testimony and other pleadings may be served by regular mail. See 10 C . F. R . I 2.712(c). The Commission has recognized that service by regular mail can entail a lag of as much as five days between the date of mailing and the date of receipt. See 10 C.F.R. I 2.710.

t (FOOTNOTE CONTINUED FROM PREVIOUS PAGE)

Intervenors , a minimum of four months is required to enable Dr.

Adler to review the documents upon which his testimony will be based. See Affidavit of Dr. Thomas J. Adler, attached to Joint

! Appeal. Tnasmuch as the impending hearing is to be convened to

! consider the Joint Intervenors' contentions that the NHRERP is

, inadequate, it was not unreasonable for the Board to expect that the l period January 9, 1987 (the date the hearing schedule was first

announced) through May 21, 1987 (the date written testimony is scheduled to be filed) would be sufficient to enable the Joint i Intervenors to state the bases, if any, for their contentions; l

contentions which they themselves have introduced. The Joint l Intervenors' professed need of an additional four months to file written testimony appears to be a tacit admission that they are l unaware at present of any bases which support their contentions.

E. _ . _ _ . _ _ _ . - _ -: _ _ . _ _ _ _ _ _ _ _ . _ . _ _ . _ _ _ _ _ _ _ _

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Accordingly, the portion of section 2.743(b) quoted above properly should be read to guarantee that parties to a proceeding shall have available the written testimony of the other parties at least 10 days in advance of the hearing session at which the testimony is to be presented. The Januhry 9 Order affords each of the parties to this proceeding this

. guarantee. According to that order, written testimony is to be received (not mailed) by May 21, 1987; the hearing is scheduled to commence eleven days later, on June 1,1987. See Memorandum and Order (Ruling on Contentions -

Revision 2 New Ilampshire Radiological Emergency Response Plan) at 6 (February 18, 1987).

The Joint Intervenors do not cite any authority for the proposition that section 2.752 requires that a prehearing conference be held prior to commencement of hearings on each phase of a proceeding and the Staff is unaware of any. The regulation speaks of a single prehearing conference. 10 C.F.R. I 2.752. The required prehearing conference already has been held. To be sure, the Board in its discretion may convene another prehearing conference to consider such matters that may aid in the orderly disposition of the proceeding, see 10 C.F.R.

I 2.718(h), but is not required to do so.

5. Relief Requested By The Joint Intervenors The principal relief requested by the Joint Intervenors is the four

, month extension of all deadlines specified in the January 9 Order.

Addendum to Joint Appeal. As explained in this response, a licensing board has considerable latitude in determining the course of the proceeding it has been appointed to conduct. The course charted by the

Board does not preclude the .Toint Intervenors from engaging in adequate

, discovery, deprive them of the opportuninty to participate meaningfully in the upcoming hearing on the adequacy of the NHRERP, or otherwise operate to deny them procedural due process. Consequently, there is no

. basis for granting the four month extension sought by the Joint Intervenor. 8#-

IV. CONCLUSION For the reasons stated in this brief, the Joint Intervenors have not demonstrated that the January 9,1987 scheduling order deprives them of procedural due process. The petition for directed certification therefore should be denied.

lfrkeetfully submitte t 1 W

f GYegor Ala Berry l

7 Couns for flRC Staff Dated at Bethesda, Maryland this 16th day of April,1987 l

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9/ It should be noted that the Staff proposed a hearing schedule different from the one ultimately adopted by the Board. See NRC Staff Proposed Schedule For Hearings On The New Hampshire Radiological Emergency Response Plan (November 21, 1986). The Staff's proposed that the hearing commence on June 15, 1987, two wecks later than the June 1, 1987 commencement date currently scheduled.

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b UNITED STATES OF AMRRICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

) Docket Nos. 50-443 OL PUBLIC SERVICE COhiPANY OF ) 50-444 OL NEW HAMPSHIRE, et al. ) Off-site Emergency Planning

)

(Seabrook Station, Units 1 and 2 )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO JOINT INTERVENOR APPEAL BY MOTION FOR DIRECTED CERTIFICATION" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated (*) by deposit in the Nuclear Regulatory Commission's internal mail system, or as indicated by i

(**) overnight delivery, this 16th day of April,1987:

4 Helen Hoyt, Esq. , Chairman

• Gustave A. Linenberger, Jr.*

Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Dr. Jerry Ilarbour* Ms. Carol Sneider, Esq. **

Administrative Judge Assistant Attorney General Atomic Safety and Licensing Board Office of the Attorney General U.S. Nuclear Regulatory Commission One Ashburton Place,19th Floor Washington, DC 20555 ,

Boston, MA 02108 Beverly Hollingworth Richard A. Hampe, Esq.

209 Winnacunnet Road New Hampshire Civil Defense Agency

. Hampton, NH 03842 107 Pleasant Street Concord, NH 03301 Sandra Gavutis, Chairman Calvin A. Canney, City Manager Board of Selectmen City Hall RFD 1 Box 1154 126 Daniel Street Kensington, Nil 03827 Portsmouth, NH 03801

5 Stephen E. Merrill Paul McEachern, Esq.**

Attorney General Matthew T. Brock, Esq.

George Dana Bisbee Shaines & McEachern Assistant Attorney General 25 Maplewood Avenue Office of the Attorney General P.O. Box 360 25 Capitol Street Portsmouth, NH 03801 Concord, NH 03301 Roberta C. Pevear Angie Machiros, Chairman State Representative

- Board of Selectmen Town of Hampton Falls

. 25 High Road Drinkwater Road Newbury, MA 09150 Hampton Falls, NH 03844 Allen Lampert Mr. Robert J. Harrison Civil Defense Director President and Chief Executive Officer Town of Brentwood Public Service Co. of New Hampshire 20 FrankHn Street P.O. Box 330 Exeter, NH 03833 Manchester, NH 03105 Charles P. Graham, Esq. Robert A. Backus, Esq. **

McKay, Murphy and Graham Backus, Meyer & Solomon 100 Main Street 116 Lowell Street Amesbury, MA 01913 Manchester, NH 03106 Diane Curran, Esq.*

• Philip Ahren, Esq.

Harmon & Weiss Assistant Attorney General 2001 S Street, NW Office of the Attorney General Suite 430 State House Station #6 Washington, DC 20009 Augusta, ME 04333 Edward A. Thomas Thomas G. Dignan Jr. , Esq *

• Federal Emergency Management Agency Ropes & Gray 442 J.W. McCormack (POCH) 225 Franklin Street Boston, MA 02109 Poston, MA 02110 H.J. Flynn, Esq. William Armstrong Assistant General Counsel Civil Defense Director Federal Emergency Management Agency Town of Exeter 500 C Street, SW 10 Front Street Washington, DC 20472 Exeter, NH 03833 Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel

• Board *

, U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Jane Doughty ** Docketing and Service Section*

Seacoast Anti-Pollution League Office of the Secretary 5 Market Street U.S. Nuclear Regulatory Commission Portsmouth, NH 03801 Washington, DC 20555

Maynard L. Young, Chairman William S. Lord *

• Board of Selectmen Board of Selectmen 10 Central Road Town Hall - Friend Street South Ilampton, NII 03287 Amesbury, MA 01913 Michael Santosuosso, Chairman Peter J. Matthews, Mayor Board of Selectmen City IIall South Hampton, NH 03287 Newburyport, MN 09150 t Mr. Robert Carrigg, Chairman Judith H. Mizner, Esq.

- Board of Selectmen Silverglate, Gertner, Baker Town Office Fine and Good Atlantic Avenue 88 Broad Street North Ilampton, Nil 03862 Boston, MA 02110 R. K. Gad III, Esq. Mrs. Anne E. Goodman, Chairman Ropes & Gray Board of Selectmen 225 Franklin Street 13-15 Newmarket Road Boston, MN 02110 Durham, NH 03824 Gary W. Holmes, Esq. ** Honorable Gordon J. Humphrey Holmes & Ellis United States Senate 47 Winnacunnet Road 531 Hart Senate Building Hampton, NH 03842 Washi gton, DC 20510 b

Gre' gory dN) ry "

ah Beg Counsel i NRC\ Staff i

i 2

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