ML20151A671

Applicant Response to Proposed Findings & Rulings of Other Parties.* Certificate of Svc Encl

ML20151A671
Person / Time
Site:	Seabrook
Issue date:	07/13/1988
From:	Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:
References
CON-#388-6748 OL, NUDOCS 8807200082
Download: ML20151A671 (10)

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67Y2' DOCKETED JIfh13, 1988 UNITED STATES OF AMERICA NUCI,7AR REGULATORY COMMISSION OFricE ? m i.-

before the UM[j,fe..t C I ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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PUBLIC SERVICE COMPANY ) Docket Nos. 50-443-OL OF NEW HAMPSHIRE, XI AL. ) 50-444-OL

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(Seabrook Station, Units 1 ) (Offsite Emergency and 2) ) Planning Issues)

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APPLICANTS' RESPONSE TO PROPOSED FINDINGS AND RULINGS OF OTHER PARTIES 1 Introduction Herein, Applicants exercise their right to reply to the proposed findings and rulings filed by other parties with respect to all issues save the so-called "beach shelter" issue. Egg 10 CFR S 2.754(3). As indicated from the brevity of this filing, Applicants are of the view that their proposed findings previously filed have anticipated the points sought to be made by those in opposition to the licensing of Seabrook. The decision not to revisit issues l

and not address particular findings or any particular legal co.1clusion or argument is in the interest of a manageable record and should not be deemed to indicate acquiesence by 10n July 8, 1988 the Board orally granted an extension of time for the filing of this document to July 13, 1988.

The requ t was not opposed by any party.

8807200082 880713 PDR ADOCK 05000443 G PDR Sb I

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the Appl!. cants to any of the points suggested by those in opposition. Indeed, Applicants believe that a verbatim recitation of the propor4 d findings and rulings filed by the Applicants is the proper decision in this matter.

Applicants confine this reply for the most part to particular arguments made or impliedly mada by those in opposition to the licensing.

I. REPLY TO MASS AG

a. Lieberman Credibility Mass AG has launched a lengthy attack on the credibility of the Applicants' witness Mr. Lieberman based upon the fact that Mr. Lieberman may stand to gain additional consultant fees for revising the ETE over the years if Seabrook is licensed.2 We leave to the Board the comparison of the Applicants' ETE witness' credibil: ty with those of Mass AG 3 but the idea that an expert witness of a utility must be disbelieved because licensing will likely result in him or her gaining additional business is a time worn absurdity. If it were true, then virtually any witness who testifierl for a party before this commission or elsewhere must be disaelieved

( 2 Massachusetts Attorney General James M. Shannon's Proposed Findinas of Fact and Rulinas of Law at 14-17.

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3It would be tempting, but unnecessary in light of the proposed findings already filed by Applicants, Egg Nos.

6.1.15 - 6.1.52 in particular, to once again rehash the i

extraordinary performance of Dr. Ceder under cross

! examination whose own references not only did not support his testimony, but, in many cases directly refuted it. Perhaps

! realizing this, Mass AG has the good judgment not to make to much of Dr. Ceder in his filing.

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1 by reason of possible enhancement of further employment opportunities. Many such witnesses are utility employees whose future employment requires licensing. In addition, the natur.a of the operation of a nuclear power plant and many other regulated activities is such that any number of outside experts who testify almost assuredly will be again retained during the term of operation. "The fact that a witness is employed by a party, or paid by a party, does not disqualify the witness from testifying or render the testimony valueless." Louisiana Power and Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1091 (1983). Accord MetroDolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1210-11 (1984).

b. The "Source Code" Matter Mass AG argues at length that the alleged refusal of the Applicants to give the "Source Code" to Mass AG's vitnesses has had a number of sinister effects.4 It is argued that the lack of source code handicapped the Massachusetts witnesses.

The short, easy answer to this entire line of attack is that Mass AG simply never pressed the production of the source code. The source code was requested, refused under the discovery rules, and the refusal was never pressed to a decision by the Licensing Board. If the source code was so critical to his case, a proposition which we find difficult 4 Mass AG Prop. Find. Nos. 6.1.248 at agg.

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1 to credit, Mass AG should have taken the steps necessary to obtain it tnder the discovery rules. The decision not to pursue the matter it would appear was the considered judgment that woce could be gained by arguing the source code's unavailability than by using it. Having failed to press for it, he cannot be heard to complain at this time.

c. Human Behavior in Emeraencies Mass AG's proposed findings and rulings with regard to "Human Behavior in Emergencies" are solely directed to an effort to confound and refute Applicants' evidence offered through its witness, Dennis S. Mileti, Ph.D., in response to intervenor contentions as they related to human behavior. No findings or rulings whatsoever are sought by Mass AG on the basis of the testimony and evidence proffered by his witnesses on the subject. Indeed, Mass AG's only acknowledgement of his "Human Behavior" witnesses is to identify them.5 The means employed by Mass AG to confound Applicants' evidence and the stated record through the vehicle of proposed findings range from a misreading of Dr. Mileti's testimony or changing its context, to misstating it. Of 1

l course, the record speaks for itself and no purpose would be served by its duplication here as to each related Mass AG finding, nor, as previously noted, is it the intention of this response to do so.

l S Mass AG Prop. Find. No. 6.1.32 at 17-18.

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I II. REPLY TO SAPL

a. As to LOAs SAPL makes certain arguments with respect to Letters of Agreement (LOAs) which bear some response.6 To begin with it

- is apparently suggested that the lack of LOAs for the New Hampshire National Guard and thc New Hampshire Department of Transportation is a deficiency in the plan.7 These are state agencies; the State is not required to enter into LOAs with itself.

SAPL also complains of the fact that FEMA has not reviewed the ICAs that were introduced during the course of the hearing separate and apart from NHRERP Rev. 2 (App. Ex.

5). This is simply a rerun of the argument made throughout the proceeding to the effect that there can be no reasonable assurance finding by NRC with respect to the planning for a facility absent a FEMA sign-off on all the constituent parts of the plan. This is not the law. Cincinatti Gas & Electric Co. (Wm. H. Zimmer Nuclear Power Station, Unit No. 1), ALAB-727, 17 NRC 760, 770 (1983); The Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-730, 17 NRC 1057, 1066 (1983); Louisiana Power and Licht Company (Waterford I

Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1103-04 (1983); Pacific Gas and Electric Company (Diablo Canyon 6 Seacoast Anti Pollution Leaaue's ProDosed Findinas of Fact. Rulinas of Law and Conclusions ef Fact at 3-11.

7 1d. at 8.

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Nuclear Power Plant, Units 1 and 2), A LAB-7 7 6, 19 NRC 1373, 1378 (1984); Pacific Gas and Electric Comoany (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-781, 20 NRC 819, 828 (1984); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-808, 21 NRC 1595, 1601 (1985);

Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), CLI-85-13, 22 NRC 1, 3 (1985).

b. As to Response Personnel Adecuacy In its proposed findings on Response Personnel Adequacy,8 SAPL suggests that there must be a showing that State Police can man the necessary TCPs within one half hour.9 There is no citation given for this proposition, if, indeed, it is being made. In any event there is no such requirement.

SAPL also asserts that the State must provide for lack of personnel in the six nonparticipating towns.10 While NHRERP does do this, it is very questionable that this has to be demonstrated any longer in light of the rule issued with respect to utility sponsored plans. 52 Fed. Reg. 42078 (Nov.

3, 1987). The municipalities involved have had a plan 81d. at 13-30.

9 Egg findings nos. 3.1.19 - 3.1.22 in conjunction with no. 3.1.23. "NUREG-0654 indicates" that there can be a release within one-half hour. . . . Actually NUREG-0654 does not purport to give any views on what can or cannot happen at a nuclear power plant. It merely sets forth a planning basis to be utilized in emergency planning.

101d. at 31, No. 3.3.1.

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l drafted for them by the state. Just as it is presumed that a State will act to protect its citizens and will in a real emergency utilize the utility sponsored plan as the only one available, so too should it be presumed that the nonparticipating towns will act to protect their citizens and the general public, and, will, for lack of any other plan follow the NHRERP local plan written for them.

III. REPLY TO NECNP Applicants rely upon their proposed findings and rulings as filed with respect to NECNP.

IV. REPLY TO TOH Applicants rely upon their proposed findings and rulings as filed with respect to TOH.

V. REPLY TO TOK Applicants rely upon their proposed findings and rulings as filed with respect to TOK.

Respectfully submitted, m ,/ ff 5-

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Th6maslG. D,fpn , J r .

George H. Mwald Kathryn A. Selleck Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 Counsel for Aeolicants 7

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- 00LKliE0 usNRC 88 JL 18 P4 :20 CERTIFICATE OF SERVICE ggg g , g;,i.Y

/ 0006EitHG A WE I, Thomas G. Dignan, Jr. , one of the attorneys for theANC4 Applicants herein, hereby certify that on July 13, 1988, I made service of the within Jocument by depositing copies thereof with Federal Express, prepaid, for delivery to (or, where indicated, by depositing in the United States mail, first class postage paid, addressed to):

Administrative Judge Ivan W. Smith Robert Carrigg, Chairman Chairman, Atomic Safety and Board of Selectmen Licensing Board Panel Town Office U.S. Nuclear Regulatory Atlantic Avenue Commission North Hampton, NH 03862 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Judge Gustave A. Linenberger Diane Curran, Esquire Atomic Safety and Licensing Andrea C. Ferster, Esquire Board Panel Harmon & Weiss U.S. Nuclear Regulatory Suite 430 Commission 2001 S Street, N.W.

East West Towers Building Washington, DC 20009 4350 East West Highway Bethesda, MD 20814 Dr. Jerry Harbour Stephen E. Merrill Atomic Safety and Licensing Attorney General Board Panel George Dana Bisbee U.S. Nuclear Regulatory Assistant Attorney General Commission Office of the Attorney General East West Towers Building 25 Capitol Street 4350 East West Highway Concord, NH 03301-6397 Bethesda, MD 20814 Adjudicatory File Sherwin E. Turk, Esquire Atomic Safety and Licensing Office of General Counsel Board Panel Docket (2 copies) U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building One White Flint North, 15th Fl.

4350 East West Highway 11555 Rockville Pike Bethesda, MD 20814 Rockville, MD 20852

• Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Board Panel 116 Lowell Street U.S. Nuclear Regulatory P. O. Box 516 Conmission Manchester, NH 03105 Washington, DC 20555

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Philip Ahrens, Esquire Mr. J. P. Nadeau Assistant Attorney General Selectmen's Office  !

Department of the Attorney 10 Central Road General Rye, NH 03870 Augusta, ME 04333 Paul McEachern, Esquire Carol S. Sneider, Esquire Matthew T. Brock, Esquire Assistant Attorney General Shaines & McEachern Department of the Attorney 25 Maplewood Avenue General P.O. Box 360 One Ashburton Place, 19th Fir.

Portsmouth, NH 03801 Boston, MA 02108 Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall Route 107 126 Daniel Street Kensington, NH 03827 Portsmouth, NH 03801

• Senator Gordon J. Humphrey R. Scott Hill-Whilton, Esquire U.S. Senate Lagoulis, Clark, Hill-Washington, DC 20510 Whilton & McGuire 8.

(Attn: Tom Burack) 79 State Street Newburyport, MA 01950

• Senator Gordon J. Humphrey Mr. Peter J. Matthews One Eagle Square, Suite 507 Mayor Concord, NH 03301 City Hall (Attn: Herb Boynton) Newburyport, MA 01950 Mr. Thomas F. Powers, III Mr. William S. Lord Town Manager Board of Selectmen Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 H. Joseph Flynn, Esquire Brentwood Board of Selectmen Office of General Counsel RFD Dalton Road Federal Emergency Management Brentwood, NH 03833 Agency 500 C Street, S.W.

l Washington, DC 20472 l

Gary W. Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03841 Concord, NH 03301

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Mr. Ed Thomas Judith H. Mizner, Esquire FEMA, Region I 79 State Street, 2nd Floor 442 John W. McCormack Post Newburyport, MA 01950 Office and Court House Post Office Square Boston, MA 02109 Charles P. Graham, Esquire Leonard Kopelman, Esquire Murphy and Graham Kopelman & Paige, P.C.

33 Low Street 77 Frt.nklin Street Newburyport, MA 01950 Boston, MA 02110 Ashod N. Amirian, Esquire 376 Main Street Haverhill, MA 01830 s &,skf n '

Thomas,G M gnan, Jr.

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

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