ML20204B772

Memorandum & Order Affirming New Hampshire Radiological Emergency Response Plan Hearing Schedule in Entirety.* Served on 870323

ML20204B772
Person / Time
Site:	Seabrook
Issue date:	03/20/1987
From:	Hoyt H Atomic Safety and Licensing Board Panel
To:
References
CON-#187-2894 82-471-02-OL, 82-471-2-OL, OL, NUDOCS 8703250146
Download: ML20204B772 (5)

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UNITED STATES OF AMERICA USYHC NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD '87 MAR 23 A11:40 Before Administrative Judges: OFF E Of m a,a Helen F. Hoyt, Chairperson 00CKETINGT Iiw T~

Gustave A. Linenberger, Jr. SRMcH Dr. Jerry Harbour SERVED MAR 231987 In the Matter of ) Docket Nas. 50-443-0L

) 50-444-OL PUBLIC SERVIC't COMPANY (ASLBPNo. 82-471-02-0L) 0F NEW HAMPSHIRE, e_t,al_.

t (Offsite Emergency Planning)

(Seabrook Station, Units 1 and 2) ,

March 20, 1987 MEMORANDUM AND ORDER (Affirming the New Hampshire Radiological Emergency Response Plan (NHRERP)

Hearing Schedule in Its' Entirety)

Intervenors Town of Hampton (T0H), Seacoast Anti-Pollution League (SAPL), New England Coalition on Nuclear Pollution (NECNP) and the Connonwealth of Massachusetts filed on February 25, 1987 a joint motion seeking an extension of four months for the discovery period and for all other items in the hearing schedule ordered by this Board on January 9, 1987. In a separate motion on March 2, 1987,I Attorney General James M.

1 Attorney General Shannon also made known the list of admitted contentions on the NHRERP in which the Commonwealth's representative intends to participate. These contentions are TOH's Revised Contention III, Revised Contention IV, Revised Contention VI, Revised Contention VIII; NECNP Contention RERP-8; and SAPL's Revised Contention 31, Reasserted SAPL Contention 8, Contention 8A, (Footnote Continued) g32%h $ p 39

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Shannon, in addition to his joinder with the above-named Intervenors, sets out additional consideration or objections which in his opinion calls for a revision of the Board's hearing schedule. The Attorney General objects to the hearing commencement date of June 1,1987 because it does not provide sufficient time between the filing of the written testimony and the commencement of hearings for parties to review the direct testimony. The Attorney General wants at least 30 days between the submission and commencement of hearings and submission of rebuttal testimony.2 The Attorney General also moves the Board.to provide for a prehearing conference. While we have considered Attorney General Shannon's motion in this instance, we find that parties should, in the future, elect to stand on either their joinder or file a separate pleading. It appears to this Board that multi-pleadings on the same subject matter by the same party places an undue burden upon those parties who must respond. We note that, except for the affidavit of Dr. Thomas J. Adler, the joint motion and that of the Massachusetts

' Attorney General are based upon the same or closely related grounds.

(FootnoteContinued)

Reassertad SAPL Contention 16, Contention 33 and Contention 34.

Town of Amesbury joined in the Intervenors' Motion on February 27, 1987.

Rebuttal testimony has not been provided for and indeed we find no benefit to the proceeding if we did require it in this instance.

The filing of testimony simultaneously serves to promote fairness for all parties.

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Applicants answered the joint motion on March 5,1987, opposing it

• on the grounds that the Intervenors had the KLD ETE since the fall of 1986(September). In short, Applicants say Intervenors' position is that "they had no obligation to undertake any preparation or spend any money until the contentions were actually admitted." The Commonwealth of Massachusetts' claim of limited resources in particular, Applicants maintain, " rings hollow."

In a response to Attorney General Shannon, also on March 5,1987, Applicants take issue with the separate and additional. motion stating that the Board's schedule has the testimony in the hands of the parties on a date certain, thus giving assurance that the contemplated ten days will be available to prepare for the hearing. The second ground Applicants' address in the Attorney General's assertion that a prehearing conference is required, Applicants are aware of no authority that requires such a conference.

NRC Staff opposes the joint motion and Attorney General Shannon's separate motion insofar as it addresses reconsideration of the hearing schedule, filing of testimony and requirement of a prehearing conference. The Staff does not oppose Attorney Genera 1'Shannon's participation in litigation of the newly admitted contentions.

On March 12, 1987, the State of New Hampshire filed its response to both the joint motion and Attorney General Shannon's separate motion.

The State of New Hampshire apparently supports a beginning date for the hearings of June 22, 1987, the second of two presently scheduled weeks of hearing on the NHRERP. In addition, New Hampshire supports a

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4 prehearing conference or a written solicitation of the views of the parties. Finally, the state proposes that the ETE issues be scheduled for the latter stages of the hearings on the NHRERP contentions.

The Board denies the joint motion of the Intervenors and the separate motion of Massachusetts Attorney General Shannon insofar as it seeks to delay these hearings. The Board finds that Attorney General Shannon's participation in these hearings had been recognized when the Commonwealth of Massachusetts through its Attorney General was granted status as a 10 CFR 2.715(c) party. Certainly, it is our intent to permit proper participation by Attorney General Shannon on these newly admitted contentions. However, we deny a further request of the Commonwealth's representative that Applicants and FEMA file their testimony before other parties to this proceeding. We believe that the previously directed simultaneous filing of testimony fosters fairness to all parties and that to change direction would work an undue burden on Applicants and FEMA.

- The Board carefully considered the schedule at the time it was issued. We have not received any persuasive argument that would require us to alter it. Indeed, from September 1986 until June 1,1987, when these hearings will begin, hardly could be said to be so brief a period that four months would be needed to complete discovery. There is no justification in any of these Intervenors' statements as to why these additional months are needed. Certainly Dr. Adler's affidavit does not enlighten us. Dr. Adler gives us no insight as to why he will require until July 1987 before filing his testimony since he has been identified

5 as the Town of Hampton's expert witness since November 1986. (TOH Supplement, November 19,1987). As the Staff has noted, the Attorney General of New Hampshire has for many months filed periodic reports on the status of the NHRERP and the revisions of the KLD ETE. The Intervenors cannot choose to ignore the abundance of information available to them and now expect the Board to grant a prolonged extension because they did not choose to prepare their case on the very issues they had raised. One must actively prepare the case or be left at the gate when the bell rings. As the Staff has pointed out, not even the claim of financial burden to have gone forward with preparation for hearing prior to admission of the contentions would constitute a denial of due process.

FOR THE AJ0 HIC SAFETY AND LICENSING BOARD

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f. t Helen F. Iloyt, Chairperson Administrative Judge Dated at Bethesda, Maryland this 20th day of March 1987.