ML20062D589

Reply to Commonwealth of Ma Brief in Support of Contentions. Contentions Fail to Meet NRC Requirements & Should Be Excluded.Certificate of Svc Encl

ML20062D589
Person / Time
Site:	Seabrook
Issue date:	08/02/1982
From:	Dignan T, Gad R PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8208060151
Download: ML20062D589 (19)

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APPL 2 CANTS' REPLY TO "BRIEF OF THE

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Pending before thic Board is the Petition of the l lt Attorner , General of the' Commonwealth (the " Attorney- ,,

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' License proceeding. The Attorney General ceeks to, '

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intervane on the basis of four emergency planning- <

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In their initial response to the Attorney General's k ,

contentions, the Applicants took the position that they would interpose no objection to the admission of the i

Attorney General as a party under 10 C.F.R. 5 2.714 upon a single emergency planning-related contention as drafted by the Applicant. Contrary to the assertions of the Attorney General, the Applicants did not take this position because they believed the Attorney General's proposed contentions to be unobjectionable.

Rather, the Applicants' position was grounded in the assumption that, given the newness of the emergency planning regulations, more time would be saved than lost in the long run if the Applicants' approach were followed. It was not the Applicants' position that the specificity and basis requirements of 10 C.F.R. 5 2.714 are any less rigorous in the context of emergency planning-related contentions; it was the Applicants' intention to waive those requirements in the interest of long-term expedition.

This Board has not yet determined whether it will follow a course such as that proposed in the Applicants' response to the Attorney General's contentions or whether it will rule on the admissibility, under the rules of 10 C.F.R. 5 2.714 Q

strictly applied, of each of the Attorney General's contentions as the Attorney General has framed them.

The Attorney General, per leave given at the prehearing conference, has filed a pleading ("AG Brief")

consolidating his legal arguments in support of his original contentions; the Applicants now respond to that document.

Contention I.

The Attorney General proposes to withdraw his proposed Contention I; the Applicants have no objection to the withdrawal.

Contention II.

The Attorney General's proposed Contention II challenges not the Emergency Planning Zone ("EPZ")

boundaries as proposed by the Applicants in the FSAR, but rather the method by which those boundaries were selected. The Attorney General freely admits that the EPZ boundaries proposed by the Applicants (and to be approved by the Staff) may in fact be the proper boundaries: "[The Attorney Generall does not allege that the EPZ boundaries established [ sic] by the Applicants are necessarily inappropriate." AG Brief at

5. Presumably, therefore, the Attorney General would have the Applicants, the Intervenors, the Staff, and

this Board consume an unbounded amount of time and resources litigating the process by which, for all the Attorney General knows, the correct boundaries were chosen.1 Such is a patently foolish waste of time; fortunately, it is not required by the regulations of the NRC.

The EPZ regulations are not among those that elevate methodology over result. Unlike certain other regulations, they do permit an intervonor to challenge the application of the rule of thumb (i.e., 10 miles for the plume exposure pathway Emergency Planning Zone and 50 miles for the ingestion pathway Emergency Planning Zone), but in order to do so an intervenor must (1) contend that the Emergency Planning Zones

. proposed by the Applicant are deficient in fact, and (2) point to some concrete respect in which the Applicants' proposed Emergency Planning Zones fail 1"It may be that examination of all local factors relevant to emergency response needs and capabilities in the Seabrook vicinity [ undefined] will lead to the conclusion that no adjustments need be made in this case to the generic 10 and 50-mileones." AG Brief at 7.

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adequately to respond to demography, topegraphy, land

, characteristics, access routes, and jurisdictional l' .

boundaries. In the absence of either, the proposed contention lacks both a basis in the regulations and 1

the required specificity without which no one knows l

what is to be litigated.

There is nothing that is either novel or impermissible in the requirement that the emergency planning regulations impose upon invervenors who would challenge the EPZ boundaries that such intervenors carry at least a threshold burden of identifying a discrete alleged de'ect, f and stating a discrete basis for the alleged defect. See Vermont Nuclear Power Corp. v. NRDC, 435 U.S. 519, 549-54 (1978). This is not to say that, once someone has identified such an alleged defect in a form that permits litigation about it, that the Applicants do not possess the ultimate burden of persuasion that its view is correct. Before the Applicants can be required to carry an ultimate burden of persuasion as to a litigable issue, however, there must first be a litigable issue; given that "it is not clear from the Commission's regulations that the 10 and 50-mile radii are necessarily inappropriate and no such allegation has been made by the Commonwealth" (AG Brief at 7), no litigable issue has yet been raised

, by the Commonwealth.

The Attorney General does not contend that the Emergency Planning Zone boundaries proposed by the Applicants are wrong; nor does the Attorney General contend that, even after years of additional study, the Emergency Planning Zone boundaries would change. In the absence of such a contention, there is nothing to litigate. In the form submitted by the Attorney General, Contention II is not admissible.

Contention III By his proposed-Contention III, the Attorney General proposes to litigate, not whether or not any particular set of emergency plans regarding Seabrook is

. acceptable, but rather whether -- from an emergency planning perspective -- the Seabrook site is acceptable at all. The essential thrust of this proposed contention is that no set of emergency plans will ever be acceptable for the Seabrook site, and therefore the Operating License Application must be denied no matter what plans are prepared. By necessary implication, the Attorney General contends that the resources of the State of New Hampshire will prove to be completely inadequate to deal with an essential governmental

function (involving problems that state and local governments must deal with and plan for in a whole range of non-nuclear power plant contexts), and it means that the Attorney General contends that the resources of the Commonwealth of Massachusetts -- for which he himself is partially responsible -- will be similarly incompetent. It is, to say the least, a large task that the Attorney General assumes for himself in proposing this contention.

The proposed contention is, however, inadmissible, for the emergency p,lanning regulations of 10 CFR Part 50 are not " site selection" or " site suitability" criteria. Those emergency planning regulations do not tell you whether or not a proposed site is acceptable; they tell you what you must do once you have chosen a site (one that must meet other regulations which are explicit site suitability criteria). Thus the emergency planning regulations on which the Attorney General relies are found in 10 CFR Part 50 (and an Appendix incorporated thereinto), which is the chapter containing operating requirements. The chapter containing the NRC's site suitability criteria, i.e.,

10 CFR Part 100 (entitled " Reactor Site Criteria"),'

contains other emergency planning /evacuability

criteria. See 10 CFR 5 100.11. In brief, the Part 100

- criteria require that an applicant assume a " worst case" accidental release of radiation,2 and demonstrate that all persons who would require protective actions (including evacuation and shelter) in order to avoid receiving more than an. established exposure (25 rem whole body) can in fact be protected; that is to say, these regulations establish that a site is suitable if an applicant can demonstrate that in case of a " worst case" release no person would receive an exposure greater than a reference level. 10 CFR 55 100.3(a),

(b), 100.11(a)(2). See Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-390, l 5 NRC 733, 736-38 (1977); Southern California Edison i

l 2The accidental release assumed for this purpose is the ma'ximum credible possibility, involving a substantial melt-down: "The fission product release assumed for these calculations should be based upon a major accident, hypothesized for purposes of site analysis or postulated from considerations of possible accidental events, that would result in potential

. hazards not exceeded by those from any accident considered credible. Such accidents have generally been assumed to result in substantial melt-down of the core with subsequent release of appreciable quantities of fission products." 10 CFR S 100.11(a) n.1.

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0 Company (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-268, 1 NRC 383, 404-05 (1975):

"A low population zone must be of such a size that a person located at its outer boundary who is exposed to the postaccident radioactive cloud during the whole period of its passage overhead would not receive a radiation dosage in excess of certain ' reference' levels. . . .

Additionally, the situation in the interior of the zone must be such that persons located therein (a relatively low number) can be protected, by evacuation or otherwise, from receiving a large radiation dosage in the event of an accident."

Of course, the fact that a given site is susceptible of adequate planning for evacuation and other protective actions is by itself no guarantee that the planning necessary to utilitize the site's suitability will be undertaken. That function is the purpose of the Part 50 criteria. It is the difference between these two functions, and between the two different sets of criteria implementing the different functions, that the Attorney General has failed to appreciate and to understand.

Several things should be observed about emergency planning-related site suitability criteria. First, unlike the criteria of 10 CFR Part 50, the Part 100 criteria impose a measurable performance standard:

evacuation (or other protective measures) must be

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demonstrated to be adequate to protect persons against

. an explicit radiation exposure.2 The difference between the two criteria is no accident. The criteria of Part 100 are used for determining site suitability, and if a given site does not permit the required finding, then it will be rejected. On the other hand, the criteria of Part 50 require only that emergency plans be " adequate" given the site that has already been selected; " disapproval" under the Part 50 criteria leads to improvement in the plans, not rejection of the site. Second, the criteria of Part 100 allow for the expansion or contraction of the critical area (called the " low population zone" or "LPZ") wherein evacuation must be demonstrated to be feasible within particular 3Under the Part 100 criteria, an applicant first calculates the rate and extent of disperson that would produce exposures in excess of the reference levels, then he calculates the time required to evacuate (or the other protective actions required to prevent a larger exposure), then he demonstrates the feasibility of implementing the protective action places he has

. proposed. If successful, the applicant thus demonstrates that no one will receive an excessive exposure.

Since evacuation under Part 50 is, by definition, not necessary for the avoidance of exposures above the reference levels, there is no need for any similar performance criteria.

time constraints; where geographical or demographic factors make evacuation more difficult cr more time ,

l consuming, extra engineering features may be added to obtain site suitability. The areas of interest for l emergency planning purposes, on the other hand, are essentially fixed and do not fluctuate given the amount of engineering features and, hence, given the amount of or rapidity of dispersion of possible radiation ,

releases. Plainly there would be no point to adding the extra engineering safeguards in order to obtain site suitability un, der the site selection criteria of Part 100 if the site were to be subject to later rejection under the Part 50 criteria. To the contrary, the two sets of regulations must be consteued in an

. harmonious fashion, and the only construction that perserves a function for each set is that it is the Part 100 criteria that determine site suitability and the Part 50 criteria that determine operating requirements given a particular site.

Finally, it must be remembered that the Seabrook site has already been determined to be acceptable under the site suitability criteria of 10 CFR Part 100 and that issue is not open for relitigation. Public

Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-390, 5 NRC 733 (1977).

In an operating license proceeding, it is a legitimate contention that a particular set of emergency plans for a particular facility fail to discharga the planning function adequately. It is a legitimate contention that a particular set of emergency plans fail to recognize one or more factors or that the plans, having recognized a factor, fail to deal with it in an adequate fashion. In an operating license proceeding involving a site that has already ,

been adjudicated to be acceptable under the criteria of 10 CFR Part 100, it is not a legitimate contention that, because of perceived shortcomings of the site, no

. emergency planning will ever be adequate and therefere the site should be ruled unacceptable.

Contention IV The Attorney General has proposed rewording for his Contention IV in Appendix C to AG Brief. This proposed contention is in fact a series of separate contentions that, for the most part, seek to elevate the

specifications of NUREG-0654,4 NUREG-0696, or Reg.

Guide 1.97 into positive requirements the failure to meet which is (according to the proposed contention) per se a ground for disapproving the application.

Because none of these documents is a Commission f regulation, none may be used in this fashion. Arguably some of the arguments contained in the sub-parts of Contention IV could be reworded into viable contentions, but the Attorney General has now had four bites at the contention apple, and -- even more damning

-- he has proposed contentions in this fashion after this Board has already ruled (in the case of NECNP) that contentions thus framed will not be admitted.

Thus, sub-part "A" should be excluded because it depends upon NUREG-0654, Criterion A.3 being a positive requirement having the force of law, which it is not, and because 10 CFR 5 50.47(b)(1) on its face does not impose the requirement that the Attorney General Sub-part "B" should be denied because it

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desires.

• NUREG-0654 is. referred to in a footnoe to 10 CFR Part 50, App. E, but is referred to as for " guidance" only; it has not yet been given the force of law of a duly promulgated regulation.

similarly depends on NUREG-0654, Table B-1, and because on their faces neither 10 CFR 5 50.47(b)(1) nor (2) imposes specific numeric requirements. Sub-part "C" should be excluded insofar as it similarly depends upon NUREG-0654, Criterion B.3. Sub-part "D" should be excluded because it thus depends on NUREG-0654, f

Criteria B.2 and B.4, and because on its face 10 CFR $

50.47(b)(2) does not impose the specific requirements that the Attorney General desires. Sub-part "E" should be excluded because it similarly depends upon NUREG-0654, Criterion B.9, ,

and because on its face 10 CFR $

50.47(b)(2) does not impose the specific requirement the Attorney General desires. Sub-part "F" should be excluded insofar as it depends upon NUREG-0654, Criteria C.1.a., b., and c. having the force of a regulation. Sub-parts "G" and "H" are admissible contentions. Sub-part "I" should be excluded because it delpends upon NUREG-0654, Criterion F.1 having the force of a regulation, which it does not, and because on its face 10 CFR S 50.47(b)(6) does not impose the specific requirement the Attorney General desires.

Sub-part "J" is an admissible contention. Sub-part "K" should be excluded because it depends upon NUREG-0696 and NUREG-0654, Criteria H.5, H.6, H.7, H.9, H.11 and

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App. 2 having the force of. regulations, which they do.

not, and because on its face 10 CFR $ 50.47(b)(8) does not impose the specific equipment requirements the Attorney General desires. Sub-part "L" should be excluded because it similarly depends upon NUREG-0654, Criterion I and App. 2 and upon Reg. Guide 1.97, because it fails to specify the equipment that the Applicants do not propose to employ but which the Attorney General claims ought to be employed, and because it fails to offer any hint as to the Attorney General's basis for, concluding that each such piece of equipment renders the equipment proposed by the .

Applicants " inadequate" under the regulation. Sub-parts "M", "N" and "O" are admissible contentions.

Sub-parts "P" and "Q" should be excluded because the exercises required are not a licensing item pursuant to 10 CFR S 50.47(a)(2), as amended through 47 Fed. Reg.

30,232 (July 13, 1982): " Emergency planning exercises (required by paragraph (b)(14) of this section and Appendix E, Section F of this part) are part of the operational inspection process and are not required for i any initial licensing decision." Sub-part "R" should be excluded as phrased because 10 CFR Part 50, App. E, l

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$ IV(E)(3) does not impose the requirement described by the Attorney General upon operating license applicants.

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Conclusion For the foregoing reasons, the proposed contentions of the Attorney General fail to meet the pleading l

requirements of 10 C.F.R. $ 2.714 and should therefore be excluded.

l Respectfully submitted, s/ Thomas G. Dignan, Jr.

s/ R. K. Gad III s/ Ropes & Gray Thomas G. Dignan, Jr.

R. K. Gad III Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 Telephone: 423-6100 -

Counsel for the Applicants Dated: August 2, 1982.

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CERTIFICATE OF SERVICE I, Robert K. Gad III, one of the attorneys for the applicants herein, hereby certify that on August 2, 1982, I made service of the within docun.ents by mailing copies thereof, postage prepaid, to:

Helen Hoyt, Chairperson Cooperative Members for Atomic Safety and Licensing Responsible Investment Board Panel Box 65 U.S. Nuclear Regulatory Commission Plymouth, NH 03264 Washington, DC 20555 Rep. Nicholas J. Costello Dr. Emmeth A. Luebke Whitehall Road Atomic Safety and Licensing Amesbury, MA 01913 Board Panel U.S. Nuclear Regulatory Commission Donald L. Herzberg, M.D.

Washington, D.C., 20555 George Margolis, M.D.

Hitchcock Hospital Dr. Oscar H. Paris Hanover, NH 03755 Atomic Safety and Licensing Board Panel Rep. Beverly Hollingworth U.S. Nuclear Regulatory Commission Coastal Chamber of Commerce Washington, DC 20555 209 Winnacunnet Road Hampton, NH 03842 Atomic Safety and Licensing Board Panel Ms. Patti Jacobson U.S. Nuclear Regulatory Commission 3 Orange Street Washington, DC 20555 Newburyport, MA 01950 Atomic Safety and Licensing Appeal William S. Jordan, III, Esquire Board Panel Harmon & Weiss U.S. Nuclear Regulatory Commission 1725 I Street, N.W.

Washington, DC 20355 Suite 506 Washington, DC 20006

. Philip Ahrens, Esquire

. Assistant Attorney General E. Tupper Kinder, Esquire Department of the Attorney Assistant Attorney General General Office of the Attorney General Augusta, ME 04333 208 State House Annex Concord, NH 03301 Robert A. Backus, Esquire 116 Lowell Street Roy P. Lessy, Jr., Esquire P.O. Box 516 Office of the Executive Legal Manchester, NH 03105 Director U.S. Nuclear Regulatory Commission Washington, DC 20555

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^.. Robert L. Chiesa, Esquire Wadleigh, Starr, Peters, Dunn & Kohls 95 Market Street Manchester, NH 03101 Edward J. McDermott, Esquire Sanders and McDermott Professional Association 408 Lafayette Road Hampton, NH 03842 Mr. Robert F. Preston 226 Winnacunnet Road Hampton, NH 03842 Wilfred L. Sanders, Jr., Esquire Sanders and McDermott Professional Association 408 Lafayette Road Hampton, NH 03842 Jo Ann Shotwell, Esquire Assistant Attorney General Environmental Protection Bureau Department of the Attorney General One Ashburton Place, 19th Floor Boston, MA 02108 s/ R. K. Gad III R. K. Gad III I