ML20024D225
| ML20024D225 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 08/01/1983 |
| From: | Patterson W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8308030335 | |
| Download: ML20024D225 (10) | |
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August 1,1983 e
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 HAMP3 HIRE, et al, 50-444 OL (Seabrook Station, Units 1 and 2)
NRC STAFF RESPONSE OPPOSING ADMISSION OF " CONTENTION OF ATTORNEY GENERAL FRANCIS X. BELLOTTI RELATIVE TO APPLICANTS' EVACUATION TIME ESTIMATES FOR BEACH AREAS" f
I.
INTRODUCTION On July 15, 1983, the Attorney General of the Comonwealth of i
Massachusetts (hereinafter, "MassAG"5 proposed admission of a contention challengingtheadequacyoftheApplicants'evacuationtimeestimates.1/
i As discussed below, the NRC sts/f opposes the admission of this late-filed contention.
II. DISCUSSION
[
A.
Rules Governing Admission of Late-Filed Contentions As an " interested state " the Comonwealth of Massachusetts must observe the procedural requirements applicable to other participants.
I Gulf States Utilities Company (River Bend Station, Units 1 and 2),
t ALAB-444, 6 NRC 760, 768 (1977).
In order to obtain admission of a
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The Comonwealth has made its proffer of this contention conditional on the Board's interpretation of its June 30, 1983 Memorandum and Order l
as precluding testimony on the adequacy of the assumptions and metho-j dology underlying the Applicants' evacuation time estimates (beyond the two areas stated in the restated contention). The Staff believes that U
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late-filedcontention,10C.F.R.I2.714(a)(3)requirestheMassAGto i
convince this Board that late admission is warranted by a balancing of the fol, lowing factors listed in 10 C.F.R. I 2.714(a)(1):
(1) Good cause, if any, for failure to file on time; (ii) The availability of other means whereby the petitioner's interest will be protected; (iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record; (iv) The extent to which the petitioner's interest will be represented by existing parties; and (v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
Failure to show good cause for late filing increases a petitioner's burden as to the other factors. See eg.: Virginia Electric and Power j
Company (NorthAnnaStation, Units 1and2),ALAB-289,2NRC395,398 (1975); Project Management Corporation (Clinch River Breeder Reactor Plant),
ALAB-354, 4 NRC 383, 389 (1976); MetropolitanEdisonCompany(ThreeMile Island Nuclear Station, Unit 2), ALAB-384, 5 NRC 612, 615 (1977); Duke Power Company (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-431, 6 NRC460,462(1977).
As will be shown in Part II.B. infra, the balancing of these factors weighs heavily against the admission of this contention.
l B.
Balancing the i 2.714(a)(1) Factors i
The contention profferred by the MassAG asserts that:
- o "The Applicants' evacuation time estimates for 360*
evacuations within two and five miles of the site are inadequate and lack utility for emergency planning and management because they are based on erroneous assumptions and faulty methodology. The estimates suffer from the
,i following specific deficiencies:
. (1) The demand forecast from transient population is understated by a margin so wide as to render the estimates unreliable; (2,) The characteristics of the road network in the beach area makes movement singularly vulnerable to the consequences of accidents and breakdowns, yet no analysis of the time effects of such incidents has been made; (3) The estimates fail to reflect the travel impedance in the beach area resulting from non-evacuating traffic, such as persons returning to homes within the EPZ, milling about, or passing through the area; (4) There is inadequate analysis of the time demands for evacuating the transit-dependent population, including beach visitors; and (5) There is no analysis of the effect of adverse weather on beach evacuation.
In addition, the wide variances in the evacuation time estimates for these areas developed by the Applicants and by others demonstrate that the predictive ability of the Applicants' simulations is too poor for them to be relied l
upon as a planning or management aid."
" Contention of Attorney General Francis X. Bellotti Relative to Applicants' i
Evacuation Time Estimates For Beach Areas " at p. 4 (hereinafter, f
" Contention at p.
").
So stated, the proposed contention challenges I
the assumptions and methodology underlying Applicants' evacuation time estimates.2_/
Initsonlyefforttoaddressanyofthei2.714(a)(1) factors,the MassAG argues that "there is good cause for admission of this contention at this time" because the testimony supporting it would have been " clearly
.j admissible testimony under previously accepted contentions" prior to the i
2/
To the extent that the last paragraph of the contention is not j
challenging the assumptions and methodology underlying the Applicants' estimates, it is nonsensical, since the fact that others' estimates
'l differ from those of Applicants' does not in and of itself lead to the conclusion that the Applicants' estimates are inaccurate.
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. Board's Memorandum and Order of June 30,1983.M Contention at p. 5.
The contentions under which the testimony supporting this proposed contention would.h. ave been " clearly admissible" are, of course, NECNP 111.12 and III.13, which were the objects of the Applicants' summary disposition motion partially granted by the Board in its Memorandum and Order of i
June 30, 1982. Those contentions were restated by the Board as follows:
NECNP III.12/III.13: Evacuation Time Estimates The evacuation time estimates provided by Applicants in Appendix C of the Radiological Energency Plan are deficient in failing to include an estimate of:
1.
the times for evacuation during adverse weather conditions developing on a busy sumer weekend; and i
2.
the times for simultaneous evacuation of beach areas lying NE to SSE of the Seabrook site.
I, Order at p. 15. The Board ruled that "[a]11 other issues and avements, including NECNP's professed skepticism as to the accuracy of Applicants' i
demographics and efficacy of their model... are dismissed." Thus, the reason that Massachusetts' testimony challenging Applicants' assumptions f
and methodology is not clearly admissible subsequent to the Board's June 30 Order is because that Order sumarily disposed of those portions of NECNP III.12 and III.13 which challenged the Applicants' assumptions and metho-dology, except as to the simultaneous evacuation and adverse sumer weather scenarios.
From the foregoing discussion it is clear that the late-filed contention
'l now proffered for the first time by the MassAG is a vehicle by which it seeks to litigate issues that have been sumarily disposed of by this Board. As 3/
Memorandum and Order (Seabrook Station, Units 1 and 2), June 30, 1983 (hereinafter, " Order").
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such, it is in essence a motion for reconsideration of the Board's June 30 Order.
If the MassAG wished to protect its interest in offering testimony under NECNP 111.12 and III.13 as originally admitted, the way to do so under the Comission's rules was to argue in opposition to sumary dispo-sition. The MassAG, however, did not oppose Applicants' motion for sumary disposition of NECNP III.12 and III.13, and consequently cannot offer as good cause for late filing the fact that the Bor-d's ruling on Applicants' motion has narrowed the scope of the contention so as to render inadmis-sible certain testimony that it.m ~ishes to offer.
In ruling that an interested state is not entitled to appeal the decision by a Licensing Board on an issue as to which the state did not participate, the Atomic Safety and Licensing Appeal Board has stated that "[a]n administrative hearing would be a meaningless charade if those with ample opportunity to participate were allowed to stand idly by and then, nevertheless, demand a replay when they do not like the result." Pacific Gas and Electric I
i Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-583, 11NRC447,448(1980). Exactly analogous is the instant situation, in I
which the MassAG, having had ample opportunity to protect its interest by opposing sumr.ary disposition of contentions in which it now claims interest, chose nevertheless to stand idly by while this Board considered the l
arguments for and against sumary disposition of NECNP III.12 and III.13.
The Board granted partial sumary disposition, whereupon the MassAG now l
seeks, by means of a contention filed on the virtual eve of the hearing, to
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reintroduce and relitigate the issues previously ruled upon by the Board.
As discussed above, the MassAG, having chosen to take no part in i }
the deliberations leading to the Board's Order, has not shown good cause I
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for its late filing of a contention which in essence seeks reconsideration of that Order. Nor has the MassAG made any effort whatsoever to shoulder its burden as to the other four factors required to be considered under 62.714(a)(3),eventhoughthatburdenismadeheavier,underNorthAnna, et al., supra, by its failure to show good cause for late filing. Although the MassAG's failure to address the remaining factors is fatal to its argument in the absence of a showing of good cause, the Staff has chosen i
nonetheless to brief the Board on these factors.
Two of the remaining factors are:
(ii) the availability of other means whereby the petitioner's interest will be protected; and (iv) the extent to which the petitioner's interest will be represented by existing parties. Although it may be true that there are no other means by which the MassAG's interest in litigating the issues that are the subject of this contention will be protected, and that no other existing parties will be able to represent that interest, such a conclusion does l
not end the analysis.
If the admission of this late-filed contention 1
l is, indeed, the only way in which the MassAG's interest in litigating the issues therein can be protected, such is the inevitable predicament into which the MassAG has placed itself by sleeping on its right to oppose summary disposition of NECNP 111.12 and III.13. To argue, however, that this self-imposed predicament is a reason for the Board to admit this contention would be absurd. Further, the MassAG's present l
expression of interest in litigating these issues is contradicted by its previous failure to take part in the deliberations resulting in their dismissal; in this case, the MassAG's inaction speaks more convincingly than its words.
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. 4 Factor (iii) of 9 2.714(a)(1) is the extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record., The Staff cannot know on what basis the MassAG would have relied had it chosen to press this factor as one favoring admission of its contention.
If, however, that basis had been expertise, the MassAG would have been required to present a bill of particulars delineating its relevant expertise under Detroit Edison Company (Greenwood Energy Center,
)
Units 2 and 3), ALAB-476, 7 NRC 759, 764 (1978).
As to the fifth and final factor -- the extent to which the petitioner's participation will broaden the issues or delay the pro::eeding -- scarcely could it be maintained that the admission of this contention will not significantly broaden the issues in this proceeding.
It is clear from the foregoing discussion that a balancing of the factors to be considered in deciding whether to admit a late-filed contention requires rejection of the contention profferred by the MassAG.
1 III. CONCLUSION
'l For the reasons discussed above, the NRC staff opposes the admission i
of the proposed " Contention of Attorney General Francis X. Bellotti Relative
'l to Applicants' Evacuation Time Estimates for Beach Areas."
i i
Respectfully submitted,
,f.
i William F. Patterson, Jr.
Counsel for NRC Staff Dated at Bethesda, Maryland this 1st day of August,1983 i
w.
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 (SeabrookStation, Units 1and2)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE OPPOSING ADMISSION OF
" CONTENTION OF ATTORNEY GENERAL FRANCIS X. BELLOTTI RELATIVE TO APPLICANTS' EVACUATION TIME ESTIMATES FOR BEACH AREAS" 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, through deposit in the Nuclear Regulatory Commission's internal rail system, this 1st day of August,1983:
Helen Hoyt, Esq., Chairnan*
Dr. Emmeth A. Luebke*
Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board Panel Panel I
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Dr. Jerry Harbour
- Jo Ann Shotwell, Asst. Attorney 1
Administrative Judge Office of the Attorney General i
Atomic Safety and Licensing Board Environmental Protection Division Panel One Ashburton Place, 19th Floor U.S. Nuclear Regulatory Commission Boston, MA 02108 Washington, D.C.
20555 i
Hicholas J. Costello 1
Beverly Hollingworth 1st Essex District i
7 A Street Whitehall Road l
Hampton Beach, NH 03842 Amesbury, MA 01913 Edward L. Cross, Jr., Erq.
Sandra Gavutis George Dana Bisbee, Esq.
Town of Kensington, New Hampshire Environmental Protection Division RFD 1 Office of the Attorney General East Kir.gston, NH 03827 i
State House Annex Concord, NH 03301 I
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. Calvin A. Canney, City Manager City Hall Edward F. Meany 126 Daniel Street Town of Rye, New Hampshire Portsmouth, NH 03801 155 Washington Road Rye, NH 03870 Roberta C. Pevear Town of Hampton Falls, New Hampshire Mr. Robert J. Harrison Drinkwater Road President and Chief Executive Officer Hampton Falls, NH 03844 Public Service Co. of New Hampshire P.O. Box 330 Manchester, NH 03105 William S. Jordan, III, Esq.
Robert A. Backus, Esq.
Ellyn R. Weiss, Esq.
116 Lowell Street Harmon & Weiss P.O. Box 516 1725 I Street, N.W.
Manchester, NH 03105 Suite 506 Washington, D.C.
200 %
Brian P. Cassidy Regional Counsel Phillip Ahrens, Esq.
FEMA, Region I Assistant Attorney General John W. McConnack Post Office &
State House Station #6 Courthouse Augusta, ME 04333 Boston, MA 02109 I
Senator Gordon J. Humphrey Donald L. Herzberger, MD U.S. Senate Hitchcock Hospital Washington, D.C.
20510 Hanover, NH 03755 (Attn: TomBurack)
Sen. Robert L. Preston Thomas G. Dignan, Jr., Esq.
State of New Hampshire Senate Ropes & Gray Concord, NH 03301 225 Franklin Street Boston, MA 02110 Atomic Safety and Licensing Board Panel
- l Atomic Safety and Licensing U.S. Nuclear Regulatory Commission i
Appeal Panel
- Washington, D.C.
20555 U.S. Nuclear Regulatory Consnission Washington, D.C.
20555 John B. Tanzer Town of Hampton, New Hampshire l
Jane Doughty 5 Morningside Drive Field Director Hampton, NH 03842 Seacoast Anti-Pollution League i
5 Market Street Letty Hett Portsmouth, NH 03801 Town of Brentwood RFD Dalton Road Brentwood, NH 03833
. Docketing and Service Section*
Office'of the Secretary U.S. Nuclear Regulatory Commission Patrick J. McKeon t!ashington, D.C.
20555 Chairman of Selectmen, Rye, New Hampshire David R. Lewis, Esq.
10 Central Road Law Clerk to the Board Rye, NH 03870 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Anne Verge, Chairperson Washington, D.C.
20555 Board of Selectmen Town Hall Dr. Mauray Tye South Hampton, NH 03842 209 Summer Street Haverhill, MA 01830 Mr. Maynard B. Pearson Town of Amesbury, Mass.
Town of North Hampton 40 Monroe Street North Hampton, New Hampshire 03862 Amesbury, MA 01913 R. K. Gad III, Esq.
Senator Gordan J. Humphrey Ropes & Gray 1 Pillsbury St.
225 Franklin Street Concord, NH 03301 Boston, MA 02110 (Attn: HerbBoynton) i I,
Sk &
William F. P'tterson a
Counsel for NRC Staff i
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