ML20066H002

Licensee Response to Appeal Board Order of 910204.* W/Certificate of Svc

ML20066H002
Person / Time
Site:	Seabrook
Issue date:	02/08/1991
From:	Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#191-11407 OL, NUDOCS 9102200142
Download: ML20066H002 (8)

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UNITED STATES OF AMERICA  ;

NUCLEAR REGULATORY COMMISSION  ;. .g before the ATOMIC SAFETY AND LICENSING APPEAL BOARD J

In the Matter cf PUBLIC SERVICE COMPANY Docket Nos. 50-443-OL OF HEW HAMPSHIRE, 21 A1 50-444-OL (Seabrook Station, Units 1 (Offsite Emergency and 2) , Planning Issues)

LICENSEES 8 RESPONSE TO APPEAL BOARD ORDER OF FEDRUARY 4, 1991 Under date of February 4, 1991, this Appeal Board issued an order directing the Licensees to provide it with a list of eight issues currently in appellate litigation which Licensees believe may have been resolved by planning changes or other events as well as a full explanation of the basis for Licensees' view, and also to " address the Mass AG's observation that (Licensees) did not inform us during briefing (or at oral argument) that the-rejection on jurisdictional grounds of Basis A of his contention No. 56 had become moot by reason of changes in the Seabrook Plan for Massachusetts Communities (SPMC)."

Turning to the second direction first. It is said that there are three acceptable answers in the military: "Yes Sir!",

ALAB2-4R.58 9102200142 910200 PDR ADOCK 05000443 0 PDR g

"No Sirl", and "No excuse Sirl". The answer here has to be "No excuse Sir!H. At no time have counsel attempted systematically to run the myriad appellate points made in this case against plan changes, or, in the case of contention exclusion, against subsequent record development. The reason for this is fairly straightforward. Until recently, there has been essentially no  ;

indication from any Seabrook intervenor of any desire to settle, without litigation, any appellate issue which has been preserved.

As to the particular issue involved here, the argument made in our brief was made on the basis of the record as we saw it, which was an argument that the contention being asserted had, in fact, been addressed by the "Onsite Board."1 As so joined, the issue was not " mooted" by subsequent record development. Obviously, y the Appeal Board did not' agree that the contention was one as to EALs alone,'as we characterized it'in the brief, but we had no way of knowing that would be the resolution until ALAB-942

-issued. Prescinding from the foregoing, however, the fact is that, even had we joined issue in~a different manner, the mootness point-would not have been made in the absence of a periodic and systematic checking procedure, which,-concededly; was.not er. gaged in in light of the fact that " settlement" has not been.a hallmark of the'Seabrook litigation until recently..

Turning to the second direction,.the eight issues are discussed below in the following eight numbered paragraphs.

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Anolicants' Brief at 38 citing Public Service Comoany of New Hamnshire-(Seabrook Station, Units-1 and 2), LBP-87-10, 25 NRC 177, 190-94 (1987).

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1. The former Attorney General of The commonwealth (MAG)  !

I complained of the fact that the Licensing Board had not required l

that a revised ETE be published prior to the authorizing of an I operating license.2 The updated ETE was published in December, 1989, and included all of the Licensing Board conditions and commitments made in the Licensees testimony.

2. MAG complained of the fact that the Licensing Board had found that State and Local Police could be relied upon to identify road impediments and to assist traffic guides.3 he believe that recent evidences of State and local participation in planning assures that the cooperation assumed by the Licensing Board (correctly as a matter of law) will, in fact, take place.

3. MAG complained that the Licensing Board did not require that certain changes be made in the SPMC prior to authorizing the license, which changes would enhance notification to special facilities. The modifications were made and submitted in December, 1989.

4.- MAG argued that it was error to find that the Westborough facility was a suitable facility for special needs persons because FEMA had never reviewed that facility for use for that purpons. FEMA has conducted a further survey and found the facility to be adequate.

'Mhg Dr. at 55.

3 H&Q gr. at 59.

'tHgi Dr. at 66.

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"* 5. MAG argues that the Holy Cross facility is inadequate .

l for the reasons, intar AllA, that there is inadequate staffing to f care for the children and there is no guaranty that the facility will only be used for a short time.S The recent stipulation resolving .the remand in ALAB-937 has settled these issues.

6. MAG complains of the lack of a FEMA review of the use of Haverhill as a staging area and that there is no showing.that it can be used in a drill or exercise.' The 1990 drill program '

exclusively used the Haverhill staging area for three major combined functional drills as well as numerous smaller drills.

It was also used during the 1990 graded exercise and evaluated by: .

FEMA.

7. ' MAG argues that there were not sufficient ambulances available under the SPMC.7- The most recent update to the SPMC shows a supply of 107' ambulances against a need for 87.6 i

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S ti&Q Br.:at 70. .

$Ud1 Br. at 70.

7 12d1 Br.'at 72.

aL icensees intend to reduce.the number under contract to 95.

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MAG argues-that there is no record support for the fact that 31 bedbuses will, in fact, be available.' Licensees have placed in the field 35 bus conversion kits and have, under contract, over 70 buses that report for conversion under the SPMC.

Respectfully submitted,

-62 221-1 Thomas G..DTgnan, Jr. ,

George.H. Lewald '

Kathryn Selleck Shen Ropes & Gray one International-Place

-Boston, MA ' 02110-2624 (617) 951-7000 Counsel for Licensees d'

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'EM Br. at 74.

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CERTIFICATE OF SERVICE I, Thomas G. Dignan, Jr. , one of the attorneykI Eh f d$e P3 :05 Licensees herein, hereby certify that on February 8, 1991, I made service of the within document by depositing copies;,. u,.y 3

-thereof with Federal Express, prepaid, for delivery (to .(or,to where indicated, by depositing in the United States ma'l1','

first class postage paid, addressed to):

Alan S. Rosenthal, Chairman Mr. Howard A. Wilber Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Appeal Fanel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Fifth Floor Fifth Floor 4350 East-West Highway 4350 East-West Highway Bethesda, MD 20814 Bethesda, MD 20814 Mr. Thomas S. Moore Mr. Richard R. Donovan Atomic Safety and Licensing Federal Emergency Management Appeal Panel Agency U.S. Nuclear Regulatory Federal Regional Center Commission 130 228th Street, S.W.

Fifth Floor Bothell, Washington 98021-9796 4350 East-West Highway Bethesda, MD 20814 Administrative Judge Ivan W. H. Joseph Flynn, Esquire Smith, Chairman, Atomic Safety Office of General Counsel and Licensing Board Federal Emergency Management U.S. Nuclear Regulatory Agency Commission 500 C Street, S.W.

East West Towers Building Washington, DC 20472 4350 East West Highway Bethesda, MD 20814 Administrative Judge Richard F. Gary W. Holmes, Esquire Cole Holmes & Ells Atomic Safety and Licensing Board 47 Winnacunnet Road U.S. Nuclear Regulatory Commission Hampton, NH 03842 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Administrative Judge Kenneth A. Judith H. Mizner, Esquire McCollom- 79 State Street, 2nd Floor 1107 West Knapp Street Newburyport, MA 01950 Stillwater, OK 74075

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John P. Arnold, Attorney General Robert R. Pierce, Esquire George Dana-Bisbee, Associate Atomic Safety and Licensing Attorney General. Board Office of the Attorney General U.S. Nuclear Regulatory 25 Capitol Street Commission Concord, NH 03301-6397 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Mitzi A. Young, Esquire Diane curran, Esquire Edwin J. Reis, Esquire Andrea C. Ferster, Esquire Office of the General Counsel Harmon, curran & Tousley U.S. Nuclear Regulatory Commission Suite 430 One White Flint North, 15th Fl. 2001 S Street, N.W.

11555 Rockville Pike Washington, DC 20009 Rockville, MD 20852 Adjudicatory File Robert A. Backus, Esquire Atomic Safety and Licensing 116 Lowoll Street Board Panel Docket (2 copies) P.O. Box 516 U.S. Nuclear Regulatory Manchester, NH 03105 Commission East West Towers Building ,

4350 East. West Highway H Bethesda, MD 20814

• Atomic Safety and Licensing Suzanne P. Egan, City Solicitor Appeal Panel Lagoulis, Hill-Whilton &

U..S.-Nuclear Regulatory Rotondi

. Commission 79 State Street Mail Stop EWW-529 Newburyport, MA 01950 Washington, DC- 20555 Philip Ahrens,--Esquire Leslie Greer, Esquire

' Assistant Attorney General Matthew Brock, Esquire Department of the Attorney- Massachusetts Attorney General General One Ashburton Place Augusta, ME 04333 Boston, MA 02108 l Paul McEachern, Esquire Barbara J. Saint Andre, Esquire Shaines & McEachern Kopelman and Paige, P.C.

25 Maplewood Avenue 101 Arch Street P.O. Box 360 Boston, MA 02110 Portsmouth,.NH 03801 R. Scott Hill-Whilton, Esquire .

Ashod N. Amirian, Esquire Lagoulis,' Hill-Whilton-& 145 South Main Street

'Rotondi P.O. Box 38 79 State Street Bradford, MA 01835 Newburyport, MA- 01950 l

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• Senator Gordon J. Ilumphrey

• Senator Cordon J. Humphrey U.S. Senate one Eagle Square, Suite 507 Washington, DC 20510 Concord, Nll 03301  :

(Attnt Tom Burack) (Attnt Herb Boynton)

G. Paul Bollverk, III, Chairman George Iverson, Director Atomic Safety and Licensing N.H. Office of Emergency i Appeal Panel Management U.S. Nuclear Regulatory commission State House Office Park South Fifth Floor 107 Pleasant Street 4350 East-West Highway Concord, Hll 03301 Bethesda, MD 20814 Mr. Jack Dolan Federal Emergency Management Agency Region I J.W. McCormack Post Office &

Courthouse Building, Room 442 Boston, MA 02109 f"S~y;;

c- }y Thomas G. Dig 6 ant Jr.

(*= Ordinary U.S. Tirst Class Mail.)

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