ML20078P696
| ML20078P696 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/31/1983 |
| From: | Dignan T, Gad R PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| TAC-46115, TAC-46116, NUDOCS 8311080194 | |
| Download: ML20078P696 (14) | |
Text
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Dated:
Octobor 3Y, 1983
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BOCMETED 6
'83 ilW -7 N0:33 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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PUBLIC SERVICE COMPANY OF NEW
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Docket Nos. 50-443 HAMPSHIRE, et al.
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50-444
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(Seabrook Station, Units 1 & 2)
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APPLICANTS' RESPONSE TO MOTION OF ATTORNEY GENERAL BELLOTTI FOR
SUMMARY
DISPOSITION ON MASSACHUSETTS CONTENTIONS I, II, III, IV.A AND IV.G, SAPL CONTENTION 5 AND NECNP CONTENTIONS 3, 4,
5, 7,
12 AND 13 RELATIVE TO EMERGENCY PLANNING FOR THE STATE OF NEW HAMPSHIRE The Motion Under date of October 7, 1983, the Attorney General of Massachusetts (hereafter " Mass. AG") has filed a motion for summary disposition of a number of contentions relative to emergency planning for the State of New Hampshire.
The 8311080194 831031 PDR ADOCK 05000443 C
PDR a
motion is not based upon any affidavits, it is rather based upon the drsft of the New Hampshire Radiological Emergency Response Plan (hereafter "RERP") which has been submitted by the State of New Hampshire ("NH") to FEMA for review, letter Strome to Sparks (May 16, 1983), and which in turn has forwarded it to NRCOELD, letter Thomas to Lessy (May 18, 1983) which then distributed it to the Board and parties, letter Lessy to the Board (May 23, 1983).
The theory of the motion is that this draft RERP omits certain items " clearly required by the Commission's regulations, which omission is clear on the face of the RERP."
Motion at 1.
Therefore says Mass. AG "There are no material issues of fact remaining for litigation relative to these contentions and the RERP is, as a matter of law, inadequate."
Motion at 2.
General Principles Before engaging in any detailed refutation of the points argued in this motion, it might be well to review a few basic principles seemingly lost sight of by Mass. AG, each of which, we submit, dictate denial of the motion.
To begin with, a motion for summary disposition may be granted in NRC practice only "if the filings on the proceeding, depositions, answers to interrogatories and admissions on file, together with the statements of the parties and the affidavits, if any", 10 CFR S 2.749(d), show I l i
there is no genuine issues as to any material fact.
Now whatever it is, the draft RERP is not a deposition, an answer to interrogatories or an affidavit.
As it stands, it is not anyone's admission, the author (NH) did not offer it as anything but something for FEMA to review.
It is doubtful that it rises to the dignity of a " filing in the proceeding"; all it is, is an enclosure to a letter by staff counsel distributing it to the Board and parties.
It is not a " statement of a party" in response to or support of the motion.
In short, in its present " draft, submitted to FEMA for comment" status, it is not anything on which a motion for summary disposition can be based.
Another principle seemingly lost sight of by Mass. AG is that in the emergency planning portion of an NRC licensing proceeding, a state RERP is of the nature of the application (ESAR) submitted by the applicant.
That is to say it is a dynamic document ever changing even as the hearing process begins and progresses.
The object is not to find an error in the RERP, to label it and go home; the object is, if an error exists, to direct its correction and thus assure that the plan is appropriate.
The situation is not unlike that dealt with in Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), LBP-74-36, 7 AEC 877 (1974).
There l
the intervenors filed a motion for summary disposition on
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the theory that the application (PSAR and ER) did not adequately describe the ultimate heat sink and alternatives for the cooling system.
The Board agreed with the Staff and Applicants that summary disposition did not lie on the basis of alleged inadequacy of a dynamic document:
"While the Intervenors can make an argument that the Applicant could re-file the application with further information on the cooling water design, to accept that position would involve a misunderstanding of the agency review process.
In the Board's viaw, an amendment of an application, even a substantial amendment, is not only permissible but in fact is often a necessary consequence of the review process conducted by the Staff.
It would not be appropriate for the Applicant to be subject to dismissal of the application in each instance where the review process undercovers a substantial area requiring design modification.
Such a result would have the effect of virtually eliminating the review by making it a menial, detail seeking scrutiny with no substantive impact.
7 AEC 879.
The same rationale is applicable to a State RERP.
- Indeed, that amendment and change in the RERP is contemplated by the regulations is clear from the fact that what 10 CFR 9 50.47 (a)(2) " contemplates is a licensing decision based on the best available current information on emergency preparedness."
Cincinnati Gas & Electric Company (Wm. H.
Zimmer Nuclear Power Station, Unit No. 1), ALAB-727, 17 NRC CCH Nuclear Reg. Rep. 1 30,783 at p. 30,790 (May 2, 1983) (emphasis supplied). l
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Third, it is also clear that abstract statements as to what the guidelines set out in 10 CFR S 50.47(b) require are simply of no assistance.
The decisions of the Appeal Boards and the Commisison have made clear that if an RERP complies with the criteria set out in NUREG-0654, Rev. 1 that constitutes compliance with the regulations.
- See, e.g.,
Metropolitan Edison Co.
(Three Mile Island Nuclear Station, Unit No. 1), CLI-83-22, 18 NRC CCH Nuclear Reg. Rep. 1 30,807 at p. 32,938 (Sept.
8, 1983); Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 &
3), CLI-83-10, 17 NRC 528, 535-36 (1983); Louisiana Power &
Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC CCH Nuclear Reg. Rep. 1 30,796 at p.
30,878 (June 29, 1983); Detroit Edison Co.
-ico Fermi Atomic Power Plant, Unit 2), ALAB-730, 17 CCH Nuclear Reg.
Rep.
30,791 at p.
30,848 (June 2, 1983); Metropolitan Edison Co.
(Three Mile Island Nuclear Station, Unit No. 1),
ALAB-638, 16 NRC 1290, 1298-99 (1982).
This is important in considering the motion at bar which is based solely on the theory that there are things missing from the RERP.
However, certain of the items allegedly missing, although possibly required to be dealt with on some bases are not required to be in the RERP itself.
Motion as to Massachusetts Contention I
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Massachusetts Contention I, as reworded, states:
"The New Hampshire Radiological Emergency Response Plan does not satisfy the requirements of 10 C.F.R.
5 So.47(b)(1), (8),
(9), or (12) because there has been no assessment of the State's emergency response needs and resources or satisfaction or its resources requirements in the following areas:
A.
Overall emergency transportation; B.
Transportation for special facilities, schools, and people with special needs or without private transportation; C.
Emergency medical transportation; D.
Medical treatment for contaminated injured individuals; E.
Radiological monitoring and assessment equipment.
F.
Dosimeters and respiratory equipment for emergency workers; G.
Manpower for traffic management and access control; H.
Manpower for emergency transportation; I.
Manpower for security operations; J.
Manpower for emergency maintenance of evacuation routes and response to abandoned vehicles, traffic accidents, and other obstructions to evacuating traffic flow; and K.
Manpower for staffing of emergency response facilities.
In the absence of an assessment and satisfaction of the State's requirements in these areas, there can be no ' reasonable assurance that adequate protective measures can and will be taken' to protect persons present in the State of New Hampshire in the event of a radiological emergency at Seabrook Station, as required by 10 C.F.R.
6 50.47(a)(1)."
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i When first made, this contention was objected to by the Applicants on the basis that no " assessment" was required.
The Board overruled the objection stating that:
"The regulatory requirement that ' adequate' staff and equipment exist is not inconsistent with an assessment of the resources that would be needed in the event of an emergency."
ASLB Order of Aug. 30, 1983 at 16.
The Board did not rule that the assessment had to be contained within the four corners of the RERP.
No ruling was necessary on thic question becauss, as stated, the contention was not that the assessment should be contained in the RERP; Mass.
AG merely contended that "there has been no assessment."
And, indeed, had the Board ruled that such an assessment had to be set out in the RERP itself, the ruling would have been wrong because the relevant portions of NUREG-0654 do no so require.
The guideline regulations Massachusetts relies upon in this contention are subsections (1), (8), (9) and (12) of 10 CFR $ 50.47(b).
The relevant evaluation criteria are set out in SS A, H, I and L of Part II of NUREG-0654 Rev.
1.
A review of these will nowhere reveal a command to list the number of given items the state in fact has.
Put l
another way, if Mass. AG has a good contention, for example, that there is insufficient transportation in New Hampshire to carry cut the RERP, just showing that the number of buses,
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and cars available are not listed in the RERP does not prove his case.
The RERP is not the place to list such things.
Rather that contention, if valid, can be summarily disposed of only on an affidavit of a competent witness which establishes, e.g.,
that there are only X buses in New Hampshire and that more than X are necessary to carry out Y attribute of the RERP.
As part of this portion of its motion, Mass. AG seeks summary disposition of SAPL Contention 5 and NECNP Contentions 3, 12, and 13.
SAPL 5 reads as follows:
The NHRERP fails to make an adequate showing that 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> per day capability exists to determine the doses received by emergency personnel and hence fails to comply with 10 CFR S 50.47(b)(ll) and NUREG-0654 K 3.
Contention II.K.3.a is covered by Section 2.7.2 of the RERP.
To the extent SAPL demands capability i.e.,
a listing of the number of dosimeters, that need not be in the RERP.
NECNP 3 reads:
"The New Hampshire Radiological Emergency Response Plan violates 10 CFR S 50.47(b)(3) as implemented by NUREG-0654 at II.C.l.b. in that the state has not specifically identified areas in which it requires federal assistance; nor has it made arrangements to obtain that assistance; nor has it stated the expected time or arrival of Federal assistance at the Seabrook site or EPZ." l
We suggest tht Section 1.4.4-1.4.7 fully covers Criterion II.C.1.b as it reads (though not perhaps as NECNP claims it reads).
NECNP 12 reads:
"The New Hampshire RERP violates 10 CFR S 50.47(b)(9) in that it fails to demonstrate that ' adequate methods, systems, and equipment for assessing and monitoring actual or potential offsite consequences of a radiological emergency condition are in use.'"
The RERP criterion for meeting the guidance set out in 10 CFR S 50.47(b)(9) is set out in NUREG-0654 Rev.
1.
$$ I.7-I.11.
These are met in SS 1.4.5 and 2.5.3 of the RERP.
NECNP 13 reads:
"The New Hampshire RERP violates 10 CFR 50.47(b)(12) in that it does not provide adequate arrangements for medical services for contaminated injured individuals."
We suggest tht RERP SS 2.8.3, 2.8.4 and 4 meet the relevant criteria which are $$ II.L.1, 3, 4 in NUREG-0654 Rev.
1.
Motion as to Massachusetts Contention II Massachusetts Contention II reads:
"The New Hampshire Radiological Emergency Response Plan does not satisfy the requirements of 10 CER S 50.47(b)(4) because there is no emergency action level scheme for an emergency at the Seabrook Station."
There is such a scheme set out in RERP $ 1.5.
Motion as to Massachusetts Contention III
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Massachusetts Contention III reads:
"A. The New Hampshire Radiological Emergency Response Plan does not satisfy the requirements of 10 C.F.R. 550.47(a)(1) or (b)(5) in that it does not establish procedures for notification of emergency personnel by the response organizations in the state.
"B. The New Hampshire Radiological Emergency Response Plan does not satisfy the requirements of 10 C.F.R. 550.47 (a)(1) or (b)(6) in that it does not demonstrate that provisions exist for prompt communications among principal response organizations to emergency personnel or to the public."
The relevant criteria are NUREG-0654 Rev. 1 $$ II E.
1.2.5.6.7.
and F1.2.3.
These are covered in RERP $$ 2.1 and 2.2.
Mass. AG also seeks summary disposition of NECNP Contentions 4 and 7 also on the basis of the same argument
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he makes as to Massachusetts Contention III.
Motion at 6.
NECNP 4 states:
"The State of New Hampshire RERP has not provided for nor asured the functioning of prompt communications among principal response organizations to emergency personnel,' in violation of 10 CFR S 50.47(b)(6), and NUREG-0654."
Again, we suggest the criteria are those set out in NUREG-0646 Rev. 1 $ F.
They are complied with in RERP $ 2.2.
NECNP 7 reads: l l
"The RERP for the State of New Hampshire violates 10 CFR $ 50.47(b)(4) in that it fails to establish means to provide early notification and clear instructions to the populace within the plume exposure EPZ.
In this respect, the RERP also violates Part IV.D.2 and 3 of Appendix E to Part 50, and NUREG-0654 Sections E.5, 6,
and 7.
The relevant criteria are those set out in NUREG-0654 Rev. 1
$$ II. E.
5, 6,
7.
These are covered in RERP $ 2.1.
Motion as to Massachusetts Contentions IV.A and IV.G i
Massachusetts contentions IV.A and IV.G read
" Protective actions for emergency workers have l
not been sufficiently developed pursuant to 10 C.F.R. $ 50.47(b)(10).
Specifically:
A.
No evacuation routes, traffic access or control points, or reception centers have been established; G.
The plan lacks adequate provisions for controlling the radiological exposure of emergency response personnel."
The relevant criteria are NUREG-0654 Rev. 1 SS II J.2, 9,
and 10.
The RERP covers these criteria in $$ 2.1, 2.6, 2.7, 4.0, and 7.0.
On the same arguments Mass. AG seeks summary judgment on NECNP 5 which reads:
"The State of New Hampshire RERP violates 10 CFR S 50.47(b)(10) in that relocation centers for evacuees have not been established."
Fig. 2.6.7 of the RERP states these are to be deferred.
That every "i" is not yet dotted and every "t" is not yet l t
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e a
x a.
O crossed is no basis for summary disposition.
See ALAB-727, supra.
Summary and Conclusion The motion is premature and probably of a nature that it always will be.
It is premised on a misunderstanding of the concept of emergency planning and the requirements for RERP's (as opposed to overall considerations for emergency planning).
It should be denied.
Respectfully subnitted, C [v -
/
A&
Thomas G.
Dignan, Jr.
R.
K. Gad III Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 12-
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CERTIFICATE OF SERVICE I, Thomas G. Dignan, Jr.,
one of the attorneys for the Applicants herein, hereby certify that on October 31, 1983, i
I made service of the within document by mailing copies thereof, postage prepaid, to:
1 Helen Hoyt, Chairperson Ms. Diana P.
Randall Atomic Safety and Licensing 70 Collins Street Board Panel Seabrook, NH 03874 U.S.
Nuclear Regulatory Commission Washington, DC 20555 Dr. Emmeth A.
Luebke William S.
Jordan, III, Esquire Atomic Safety and Licensing Harmon & Weiss Board Panel 1725 I Street, N.W.
U.S.
Nuclear Regulatory Suite 506 Commission Washington, DC 20006 Washington, DC 20555 Dr. Jerry Harbour G. Dana Bisbee, Esquire Atomic Safety and Licensing Assistant Attorney General Board Panel Office of the Attorney General U.S.
Nuclear Regulatory 208 State House Annex Commission Concord, NH 03301 Washington, DC 20555 Atomic Safety and Licensing Roy P.
- Lessy, Jr.,
Esquire Board Panel Office of the Executive Legal U.S.
Nuclear Regulatory Director l
Commission U.S.
Nuclear Regulatory Washington, DC 20555 Commission Washington, DC 20555 Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Board Panel 116 Lowell Street U.S. Nuclear Regulatory P.O.
Box 516 i
Commission Manchester, NH 03105 l
Washington, DC 20555
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Philip Ahrens, Esquire Anne Verge, Chairperson i
Assistant Attorney General Board of Selectmen Department of the Attorney Town Hall General South Hampton, NH 03827 Augusta, ME 04333
(
David R.
Lewis, Esquire Jo Ann Shotwell, Esquire Atomic Safety and Licensing Assistant Attorney General Board Panel Environmental Protection Bureau U.S. Nuclear Regulatory Department of the Attorney General Commission One Ashburton Place, 19th Floor Rm. E/W-439 Boston, MA 02108 Washington, DC 20555
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Charles Cross, Esquira Brentwood Board of Selectman 1
Shcines, Madrigan & McEachern RFD Dalton Roed 25 Maplewood Avenue Brentwood, NH 03833 P.
O.
Box 366 Portsmouth, NH 03801 Ms. Roberta C. Pevear Mr. Patrick J. McKeon Designated Representative of Selectmen's Offici the Town of Hampton Falls 10 Central Road i
Drinkwater Road Rye, NH 03870 i
Hampton Falls, NH 03844 Mrs. Sandra Gavutis Mr. Calvin A.
Canney Designated Representative of City Manager the Town of Kensington City Hall RFD 1 126 Daniel Street East Kingston, NH 03827 Portsmouth, NH 03801 Senator Gordon J. Humphrey Mr. Angie Machiros U.S.
Senate Chairman of the Washington, D.C.
20510 Board of Selectmen (Attn:
Tom Burack)
Town of Newbury Newbury, MA 01950 Senator Gordon J. Humphrey Mr. Richard E.
Sullivan 1 Pillsbury Street Mayor Concord, NH 03301 City Hall (Attn:
Herb Boynton)
Newburyport, MA 01950 Mr. Donald E. Chick Town Manager's Office Town Manager Town Hall Town of Exeter Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 Brian P. Cassidy, Esquire Regional Counsel Federal Emergency Management Agency - Region I 442 POCH Boston, MA 02109
'Bnomas' G.
Dignan, Jr.
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