ML20062H984

Responds to Applicant 820802 Reply to Commonwealth of Ma Brief Supporting Commonwealth Contentions 2,3 & 4. Contentions State Litigable Issues Firmly Based on Commission Regulations.Certificate of Svc Encl

ML20062H984
Person / Time
Site:	Seabrook
Issue date:	08/10/1982
From:	Shotwell J MASSACHUSETTS, COMMONWEALTH OF
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8208160230
Download: ML20062H984 (9)

Text

, ,

} ..

4 00CKETED August 10, 1982 . -

usHRc UNITED STATES OF AMERICA 22 NE 13 m):02 ^

• ~

NUCLEAR REGULATORY COMMISSION OFFICE OF SECRETABY before the C0cKEttas & sERvlCE SRANCH ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

)

PUBLIC SERVICE COMPANY OF NEW ) Docket Pos. 50-443-OL HAMPSHIRE et al. ) 50-444-OL

)

(Seabrook Station, Units 1 & 2) )

)

RESPONSE OF THE COMMONWEALTH OF MASSACHUSETTS TO " APPLICANTS' REPLY TO BRIEF OF THE COMMONWEALTH OF MASSACHUSETTS IN SUPPORT OF ITS CONTENTIONS" On August 2, 1982, the Applicants first stated certain objections to the admission of the Commonwealth's second, third, and fourth contentions in a document entitled

" Applicants' Reply to 'Brief of the Commonwealth of Massachusetts in Support of its Contenti,ns'" [ hereinafter,

" Applicants' Reply *]. The Commonwealth responds briefly to these objections below.

I CONTENTION II In response to this contention regarding EPZ boundaries Applicants argue, in effect, that compliance with an express requirement of the Commission's regulations would be a l

l l

~

8208160230 820810 PDR ADOCK 05000443

' O PDR M3

/

" patently foolish waste of time." See Applicants' Reply, at

4. This argument must be rejected as a challenge to the Commission's emergency planning regulations. Furthermore, it is clear from a review of the Applicants' response to a similar contention filed by NECNP that there is no way in which intervenors can satisfy Applicants' demands with respect to this contention. Given that the Applicants have not conducted the required study of local factors and their impact on EPZ boundaries, intervenors are left with the options of drawing new boundaries without the benefit of that study, in which event Applicants will object to the contention as lacking basis i

! (see " Applicants' Reply to NECNP Supplemental Filing on l Energency Planning Contentions," at 4), or continuing to object i

to the Applicants' failure to conduct the required review, in which event Applicants will claim that the contention lacks both specificity and basis (see Applicants Reply, at 5).

The Commission's requirement for review of local factors is not a waste of time. The Applicants cannot refuse to comply with that requirement and then use that refusal to the prejudice of the intervenors. Applicants are correct that there will not be much to litigate on this point if they continue to refuse to comply with the Commission's regulation.

l The Board will be obliged to find such noncompliance on summary disposition.

e The Commonwealth's second contention states a litigable issue firmly based in the Commission's regulations and specifying the nature of the violation alleged . It should be admitted.

CONTENTION III If the Applicants are correct in their response to this contention, then Section 50.47(a)(1) of the Commission's regulations has no meaning or effect to the extent it purports to require assurance that " adequate protective measures can

. . . be taken in the event of a radiological emergency."

Applicants argue that this regulatory provision can have no effect because the area which it seeks to regulate is already covered by 10 C.F.R. Part 100. See Applicants Reply, at 6-12.

And they further seem to suggest that the Commission intended the provision to have no effect -- a remarkable suggestion for which the Applicants have provided no basis or authority. Ibid.

It is an elementary proposition, requiring no citation, that no provision of a statute or regulation may be deemed superfluouc or meaningless. Section 50.47(a)(1) of the Commission's regulations requires " reasonable assurance" that persons within the Emergency Planning Zones surrounding any plant can be adequately protected in the event of a radiological emergency. This is a separate regulatory requirement from those set forth in Part 100 and is'id no way

precluded by those other provisions,1/ whether or not it can properly be characterized as a " site suitability" criterion.

See Applicants' Reply, at 7. A comparable requirement must now be satisfied before a construction permit may be granted. See 10 C.F.R. Part 50, Appendix E, Section III, as amended 46 Fed.

Reg. 28838 (May 29, 1981) ["The plans submitted must include a description of the elements set out in Section IV for the Emergency Planning Zones (EPZs) to an extent sufficient to demonstrate that the plans provide reasonable assurance that adequate measures can and will be taken in the event of an emergency."]2/ Again, this requirement is in addition to those set forth in Part 100.

1/ 10 C.F.R. Part 100 clearly provides that it is an " interim guide," based on " insufficient experience" and intended "to identify a number of factors considered by the Commission in the evaluation of reactor sites." 10 C.F.R. S100.1. [ Emphasis supplied] Part 100 does not, therefore, purport to contain all Commission requirements which may lead to the denial of a license to construct or operate a facility at a given site.

2,/ It is notable that the Commission engaged in " extensive debate" over the use of the word " adequate" in describing the protective measures which must be available, rather than the word " appropriate." See 46 Fed. Reg. 28838 (May 29, 1981).

Clearly, the Commission was concerned that there be reasonable assurance that the public would in fact be adequately protected, and not simply that appropriate types of protective action would be taken. See also 45 Fed. Reg. 55403 (August 19, 1980) ["In order to discharge effectively its statutory responsibilities, the Commission must know that . . . adequate protective actions in response to actual or anticipated conditions can and will be taken."] The Applicants would now read the requirement for such assurance out of the Commission's regulations.

~

It is possible that application of the standard set forth in 10 C.F.R. 550.47(a)(1)(or the comparable provision for construction permit applications) could lead to denial of a license to construct or operate a facility at a particular site. However, that result would follow only if the Licensing ,

Board concluded that there were no additional accident f mitigation devices or other measures (such as improved access routes for use in evacuation, additional or improved sheltering facilities, or even shutting down the station or operating it at reduced power during certain months) which could raise the level of protection available to members of the public to i acceptable limits. Thus, Applicants are not correct in characterizing the Commonwealth's third contention as relating exclusively or necessarily to site suitability. See Applicants' Reply, at 6 et seg.

In any event, Applicants' argument amounts to a suggestion that the Commission has intentionally deceived the public by promulgating a rule which by its terms appears to assure that no plant will be licensed unless the public can be protected in the event of a radiological emergency but which, in fact, adds nothing in this respect to pre-existing regulatory requirements

-- requirements which the Commission found inadequate in light of the accident at Three Mile Island. See 45 Fed. Reg. 55403 i

(August 19, 1980).5/ With its new emergency planning regulations the Commission now requires that emergency planning take place within Emergency Planning Zones, rather than the smaller Low Population Zone, and that there be proof of the feasibility of adequately protecting all persons within the larger zones. Applicants would have this Board enforce the Commission's requirement that plans be prepared within the larger area, but ignore the requirement that those plans must be able to provide an adequate level of protection to the public. It is disturbing, to say the least, that Applicants feel the need to limit the Board to such meaningless review.

Applicants' response to this contention further demonstrates the critical need for review of whether the public can be adequately protected in the event of a radiols.;ical emergency at the Seabrook site.

3/ One of the respects in which the criteria of Part 100 have been found inadequate is addressed by the Applicants in their Reply. As Applicants note, the criteria of Part 100 allow for contraction of the area within which evacuation must be demonstrated to be feasible for purposes of that regulation (i.e., the LPZ) on the basis of the addition of engineered safeguards. See Applicants' Reply, at 10-11. Thus, that rule allows consideration of accident probabilities to affect the area within which feasibility must be demonstrated. As the Applicants again note, that is not possible under the Commission's emergency planning regulations. Once established on the basis of relevant local f actor s, the Emergency Planning Zones for a given facility are fixed and, regardless of any estimates as to the probability of accidental releases, there must be a demonstration that all persons within that zone can be adequately protected in the event of an accident.

e' CONTENTION IV Applicants suggest that the Commonwealth, in rewriting this contention, has ignored advice given at the last prehearing conference as to the proper effect of NUREG documents and Regulatory Guides. See Applicants' Reply, at 12-13. The Commonwealth's fourth contention, as rephrased, is in complete accord with the position taken by the Applicants on this point at the prehearing conference.1/ Thus, while sometimes referring to NUREG documents or Regulatory Guides as one means by which the Applicants could have satisfied a regulatory requirement, each subpart of this contention references a specific regulatory requirement and asserts that the Applicants have in no way satisfied that requirement. This contention should, therefore, be admitted in its entirety.

THE COMMONWEALTH OF MASSACHUSETTS By: N" hCf JgVANN SHOTWELL Assistant Attorney General Environmental Protection Division Public Protection Bureau Department of the Attorney General One Ashburton Place, 19th Floor Boston, Massachusetts 02018 (617 ) 727-2265 4/ Counsel for the Commonwealth does not recall that the Board ruled on this question, as Applicants have suggested.

CERTIFICATE OF SERVICE I, Jo Ann Shotwell, Esquire, hereby certify that a copy of the foregoing Response has been mailed this 10th day of August, 1982, first class mail, postage prepaid, to:

Helen Hoyt, Chairwoman

• 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 Dr. Oscar H. Paris

• E. Tupper Kinder, Esquire Administrative Judge Assistant Attorney General Atomic Safety and Licensing Office of the Attorney General Board Panel 208 State House Annex

' U.S. NRC Concord, NH 03301 Washington, D.C. 20555 Rep. Nicholas J. Costello Lynn Chong ist Essex District Bill Corkum Whitehall Road Mary McCool Amesbury, MA 01913 Box 65 Plymouth, NH 03264 Tomlin P. Kendrick 822 Lafayette Road Roy P. Lessy, Jr., Esquire P.O. Box 596 Office of the Executive Legal Hampton, NH 03842 Director, 10205 MNBB U.S. NRC William S.; Jordan, II, Esquire Washington, D.C. 20555 Ellyn R. Weiss, Esquire Lynne Bernabei Robert A. Backus, Esquire Diane Curran 116 Lowell Street Harmon & Weiss P.O. Box 516 1725 I Street, N.W.

Manchester, NH 03105 Suite 506 Washington, D.C. 20006 Rep. Arnie Wight State of New Hampshire Philip Ahrens, Esquire House of Representatives Assistant Attorney General Concord, NH 03301 State House, Station #6

, Augusta, ME 04333 l Paul A. Fritzche, Esquire l Public Advocate Donald L. Herzberger, MD State House, Station #12 George Margolis, MD Augusta, ME 04333 Hitchcock Hospital Hanover, NH 03755 i

• By Express Mail, 8/10/82 l

l l

l L

w.

o 4 Wilfred L. Sanders, Esquire Edward J. McDermott, Esquire Sanders and McDermott Sanders and McDermott 408 Lafayette Road 408 Lafayette Road Hampton, NH 03842 Hampton, NH 03842 Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Panel Board Panel U.S. NRC U.S. NRC Washington, D.C. 20555 Washington, D.C. 20555 Docketing and Service Sec. Robert L. Chiesa, Esquire Office of the Secretary Wadleigh, Starr, Peters, U.S. NRC Dunn & Kohls Washington, D.C. 20555 95 Market Street Manchester, NH 03101 Ms. Patti Jacobson 3 Orange Street David A. Repka, Esquire Newburyport, MA 01950 counsel for NRC Staff U.. S . NRC Cooperative Members for Washington, D.C. 20555 Responsible Investment Box 65 Thomas G. Dignan, Jr., Esquire **

Plymouth, NH 03264 Robert K. Gad, III, Esquire Ropes and Gray 225 Franklin Street Senator Robert L. Preston Boston, MA 02110 State of New Hampshire Senate Chambers Beverly Hollingworth Concord, NH 03301 7 A Street Hampton Beach, NH 03842 Robert G. Perlis Office of the Executive Legal Director, 10205 MNBB U.S. NRC Washington, D.C. 20555 36----

%_,_ m_ O

/

Jg'ANNSHOTWELL

• • By Hand, 8/11/82