ML20080G711

Objection to ASLB 830830 Order Ruling on Admissibility of Contentions on State of Nh Radiological Emergency Response Plan & Motion for Reconsideration.Certificate of Svc Encl

ML20080G711
Person / Time
Site:	Seabrook
Issue date:	09/15/1983
From:	Backus R BACKUS, MEYER & SOLOMON, SEACOAST ANTI-POLLUTION LEAGUE
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20080G695	List: ML20080G694 ML20080G711 ML20083J950
References
NUDOCS 8309200329
Download: ML20080G711 (8)

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F1 LED: Septe g g , 1983 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION . .,

1L3 SEP 19 #1 :11 BEFORE THE ATDMIC SAFETY AND LICENSING -BOARD OFFICE OF SECRETnY In t he raa t t e r o f : 00CKETg}ERVict PUBLIC SERVICE CDMPANY OF Docket Nos. 50-443 OL NEW llAMPSHIRE, et al 50-444 OL 1

(Seabrook Station, Units I and 2)

SEACOAST ANTI-POLLUTION LEAGUE'S OBJECTIONS TO

' BOARD ORDER RULING ON ADMISSIBILITY OF CONTENTIONS ON THE NEW HAMPSHIRE RERP AND MOTION FOR RECONSIDERATION On August 30, 1983, this Board issued an Order ruling on the admissibili ty of content ions filed wi th respect to the New Hampshire State Radiological Emergency Response Plan for the Seabrook EPZ.

SAPL hereby objects to the Board's rejection of SAPL's Contentions l

1, 3, 4, 7 add 9 and moves for reconsiderat ion of the Board's Order.

, CONTENTION 1 j Both the Applicants and Staf f opposed Contention 1 on the grounds

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that . it was " vague" and "open-ended". Yet both parties state they would have no objection to-discrete contentions based on the specific

l. de f i ci encies se.t forth in SAPL's s tatement of basis. In other words,

-the parties found fault with the format, not the substance of the contention itself.

Implicitly, the Staff and ' Applicants expressed concern that allowing admission of such a " broadly" worded contention would run E contrary to the intent of the Peach Bot tom decision (supra) that the parties be in a position of knowing generally what it is they will have to defend.agains t or oppose. See Philadelphia Electric Company 8309200329 830915 PDR ADOCK 05000443 PDR 0

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(Peach Bot t om A tomi c Power S t a t ion , Un i t s 2 & 3), ALAB-216, 8 AEC 13, 20-21 (1974). .

In its response to these concerns, SAPL proposed deletion of the final contention sentence reading: ,

These are only a few of the many incompletions which preveit the NHRERP from providing a basis upon which reasonable assurance as required by the regulation can be established. (See SAPL Contentions on NHRERP, pg. 2, as well as SAPL's Response to Applicant and Staf f Response to SAPL Contentions on NHRERP, pg. 1), r' Instead, SAPL added seven (7) discrete, additional bases to those already filed in suppor t of the contention. The Board rejected SAPL's attempt at refining this statement of basis on the grounds that it fails to cure the " vagueness" and "overbreadth" problems with the contention itself.

SAPL is confused by the Board's decision on this point.

Throughout these proceedings, the Board has expressed a strong

' interest in litigation efficiency, including the implementation of mechanisms to increase that efficiency. Clearly, one means to f acili tate the management of content ions is to consolidate them where possible.

dpparently, none of the parties objects to the filing of eighteen

" discrete" contentions all focusing on i n comp l e t e ne s s,. Yet the Applicants and Staf f object to a consolidated contention which could easily be confined to those eighteen subject areas through appropriate discovery.

In the p&st, the Applicants have drafted their interrogatories

. to require detailed disclosure,of SAPL's dissatisf action with their per formance under the regulatory eriteria as set forth in the specific contention. With respect to this contention for example, SAPL could easily be required to detail each and every respect in which it ,

believes the NHRERP is incomplete. There is no reason why either the Applicants or Staff would be left with vagueness about the contention after discovery.

For this reason, SAPL moves the Board to reconsider its ruling on Contention 1. Acceptance of the Contention as worded along with SAPL's basis amendments is clearly a quaFity alternative in terms of judicial economy. Had SAPL revised its content ions in accordance wi th Applicant 's and Staf f 's sugges t ions, the result would have been an additional eighteen content ions. Instead, the Board's ruling has eliminated an important and viable issue in this proceeding solely on the basis of format.

CONTENTION 3 The Applicants had no objection to the admission of Contention 3 as worded. The Staff however found the contention to be overly broad, bu t acknowledged it s readiness to accep t addi t ional, separate contentions based on the specif.ics included in SAPL's Contenton 3 bases.

The Staff's position, and ultimately the Board's agreement, runs contrary to the Board's desire for judicial economy for the same reasons as those noted above. While it is true that the roles of many organizations are described in the NHRERP, those par ticular organizations not described are set forth in SAPL's basis, and the specifics of.SAPL's concerns can easily be nailed down through the

, appropriate mechanisms of discovery.

e CONTENTION 4 As stated by Staf f in i ts response to SAPL's contentions, SAPL ,

chose to def.er filing contentions on the evacuation time estimates

.un t il the NHRERP became available. SAPL has adhered to its position that a determination of time estimate accuracy is directly related to the adequacy and. completeness of state and local emergency plans.

It has been pointed out by Staff that the contention raises a proper, litigable issue at this time. Arruling by the Board that Content ion 5 is "beref t of any new issue" (see Board's Order, pg.14) is a de facto ruling on the merits of the contention. SAk)L is prepared to defend the contention against res judicata dismissal motions on the grounds that there are, in fact, numerous and substantial reasons why the August hearings are not dispositive of the issue.

Those defenses are based on the merits of the contention as it

' relates to the NHRERP, however, and they are presently irrelevant for purposes of ruling on the conten t ions acceptance. See Duke Power Co. (Amendment to Materials License SNM-1773-Transportation of Spent Fuel f rom Oconee Nuclear Station for Storage at McGuire Nuclear Station), ALAB-528, 9 NRC 146, 151 (1979); Peach Bottom, infra, 8 AEC at 20. ,

To the extent that the Board rejected the contention due to a lack.of specificity, SAPL raises the same objections as those noted above with respect to contentions 1, 3 and 4.

CONTENTION 7

- The Staf f has not objected, to the admission of this contention.

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The Applicants have objected on the basis that SAPL misstates the r eigu l a t o ry r equ i r emen t s . .

In its. Order, the Board disagreed with the Applicants citing its deference to NUREG-0654 as an appropriate interpretation of the regulations where there is no indication to the contrary. However, the Board rejected .the content ion based on i ts own analysis, in the first instance, that the contention was " overly broad and lacking specificity". (See Board Order, pg. 8.) r The raising of this issue sua sponte by the Board has made it impossible for SAPL to make a timely response in the way of proposing clarifying amendments to the contention as worded. If the Board is to raise objections at the time of its ruling in the first instance, it is depriving SAPL of its right to make good faith, appropriate responses. It also results in the unnecessary rejection of timely and litigable issues important to SAPL based only on the format of their presentation. SAPL strenuously objects to this procedure and urges the Board to reconsider its rejection of contention 7 or, in

-the alternative, to at least provide SAPL with an opportunity to bring the contention into conformance wi th the specifici ty threshold established by this Board.

00NTENT IO'1 9 ,

The substance of contention 9 is that the NHRERP fails to meet the requirements of 10 C.F.R. 050.47 (b)(10) as clearly and straightforwardedly interpreted by NUREG-0654 J.12. Although the Applicants objected on the basis that SAPL misstated the regulatory requi remen t , t he Board p roper ly,made no t e o f the NUREG-0654 regu la tory

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interpretation, and def erred to i t. In addition, however, the Board read into the Applicant's object ions an "implici t" concern about the specificity of the centention and its relationship to the statement of basis. .

For the same reasons as those stated above regarding the other SAPL contentions dismissed for lack of specificity, this contention should be admitted ptecisely as worded. SAPL has identified not only the regulatory requirement, but the' specific and narrowly construed interpretation of that requirement adopted by the Commission. SAPL has also provided specific examples of how the plans fall short of meeting that requirement in its statement of basis. Given that the NUREG-0654 interpretat ion of this requirement is specific and straightforward in itself, SAPL fails to see why a contention based directly on the language of that requirement is

" overly broad" in any way.

SUMVIARY Many if not all of the grounds for the Board's rejection of SAPL contentions have been based on concern with breadth and specificity. SAPL contends that consolidation of contentions is a reasonable and prudent mechanism and more ef ficient in handling this already extensive and complex litigation. As stated above, SAPL s e e's no reason why specifics of its case cannot be nailed down in discovery rather than being laid out in extensive detail at the very initiation of the proceedings.

Further, the practical result of insisting that SAPL draft numerous, narrow, and specific, contentions based on every element

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m a e of every statement of basis, is that the burden is shifted from the Applicants to the intervenors. It is not SAPL's responsibility to ,

draft these-emergency plans for the Applicants, yet the nature of the Board's ruling requires SAPL to do just that. While SAPL recognizes the impor tance of pu t t ing all par t ies to this proceeding on notice as to specifically what shall be litigated, the rejection of contentions based on consolidated pleadings provides a remedy already available through discovary. It ad'.o denies an oppor tuni ty for intervenors to raise and litigate important issues related to the public safety.

Therefore, SA?L respectfully requests that this Board reconsider its decision to reject the above cited contentions, and allow their admission as originally drafted.

Respectfully submitted, Seaconst Anti-Pollution League By its attorneys, BACKUS, SHEA & MEYER By f s ,4 A

R66'67 t' A. Backus 116 Lowell St., Box 516 Manchester, N.H. 03105 Tel: (603) 668-7272 September 14, 1983

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CERTIFICATE OF SERVICE 00LMETED Brian Cassidy Helen Hoyt, Chm. t@HFinas G. Dignan, Esq.

Fed. Fancrg. !Jgtt. Agcy. Admin. Judge Ropes and Gray .

Region I Atomic Safety & Lic. y Fi lin Street J.W.McConnack POCH Board - U.S. NRC g %d tdl, ' ,fA 02110 Boston, MA 02109 Washington, DC 20555 0FFICE OF SECRtitJ -

Sen. Gordon Humphrey Attn: Tcm Burack h,;)i {d hEfdt/ifdg ce of andthe Service SecretarySec.

Atomic Safety &Lic.

U.S. Senate '

U. S. NRC Washington, DC 20510 ngto[1 Wa hington, DC 20555

. a D 20555 Sen. Gordon Humphrey Roy P. Lessy, Jr., Esq.. Robert L. Chiesa, Esq.

Attn: Herb Boynton .

Office of Executive 95 Market Street 1 Pillsbury Street Legal Director Manchester, NH 03101 Concord,.NI 03301 U.S. NRC Washington, DC 20555

• Phillip Ahrens, Esq. Jane Doughty Asst. Atty. General Field Director Town Manager's Office State House, Station #6 SAPL Town Hall - Friend St. Augusta, ME 04333 5 Market Street Amsbury, MA 01913 Portsmouth, NH 03801 Donald E. Chick Anne Verge, 01airperson Board of Selectmen Dana Bisbee

'Iban Manager Attorney General's Office 10 Front Street Town llall S . Hampton, Mi 03842 S eo wH re Exeter, Ni 03833 Office of Selectmen #* Emme'h A. Luebke David R. Lewis Town of North Hampton Admin. oudge Atomic Safety & L'ic. Brd.

Atomic Safety & Lic. U.S. NRC - Rm. E/W-439 North Hampton, MI 03862 Board - U.S. NRC Washington, DC 20555 Washington, DC 20555 Anne Verge, Chm. Jo Ann Shotwell, Asst. AG Calvin A. Canney, Board of Selectmen One Ashburton Place, 19th City Mgr.-City Hall Town Hall Floor 126 Daniel Street .

South Hampton, NH 03842 Boston, MA 02108 Portsmouth, NH 03801 John B. 'Ibnzer Wil1iam S. Jordan, II, Esq. Mr. Angie Machiros, Chnnn.

. Town of Hampton Ellyn R. Weiss, Esq. Board of Selectmen 5 Morningside Drive 1725 I Street, N.W. Town of Newbury

.Hampton, NI 03842 Suite 506 Newbury, MA 09150 Washington, DC 20006

&lward Meany Dr. Muray Typ, President Sandra Gauvutis roan of Rye Sun Valley Assoc. Town of Kinsington 155 Washington Road 280 llaverhill Street RFD 1 3ye, NI 03870 Inwrence, MA 01840 East Kensington, MI 03827 41 fred Sargent, Chm. Richard E. Sullivan, Mayor Brentwood Board of Selectmen City Hall Joard of Selectmen RE Dalton Road Newburyport, MA 01950

'lbwn of Salisbury,MA 01950 '