ML20154L495

Response Opposing New England Coalition on Nuclear Pollution,Commonwealth of Ma & Towns of Rye,Hampton,South Hampton,Kensington & Hampton Falls Contentions Re Radiological Emergency Response Plan.W/Certificate of Svc

ML20154L495
Person / Time
Site:	Seabrook
Issue date:	03/06/1986
From:	Bisbee G NEW HAMPSHIRE, STATE OF
To:	NRC COMMISSION (OCM)
References
CON-#186-347 OL, NUDOCS 8603110496
Download: ML20154L495 (12)

Text

_. -

g31(M 00CKETEP

'JSNHC

'. UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '86 MAR -7 PI2 :41 Before the Nuclear Regulatory Commission GFFitt . .. ..

00CdET!% % i .p.,

BRANCH

)

In the Matter of ) Docket Nos. 50-443-OL

) 50-444-OL PUBLIC SERVICE COMPANY )

OF NEW HAMPSHIRE )

(Seabrook Station, Units I and II )

)

THE STATE OF NEW HAMPSHIRE'S RESPONSE'TO CONTENTIONS FILED BY NECNP, THE COMMONWEALTH OF MASSACHUSETTS, THE TOWNS OF RYE, HAMPTON, SOUTH HAMPTON, KENSINGTON, AND HAMPTON FALLS ON THE NEW HAMPSHIRE RADIOLOGICAL EMERGENCY RESPONSE PLAN Introduction The State of New Hampshire responds below to certain of the contentions on the New Hampshire Radiological Emergency Response Plan (hereinafter referred to as the NHRERP or State Plan)1 . The State's response herein pertains primarily to the issues raised by the parties relating to the planning process itself, as opposed to the adequacy of the plan. As to the numerous other issues raised in the contentions filed by the eight parties on February 24, 1986, the State of New Hampshire disputes in many instances erroneous factual allegations and assertions contained in these contentions. At appropriate stages in the litigation of these contentions, the State

' will detail its further responses.

1The New Hampshire Radiological Emergency Response Plan consists of some thirty-eight volumes, nineteen of which include specifically the emergency plans for the localities in the Seabrook EPZ. These volumes are intended as one comprehensive State Plan and 4

must be viewed as such in reviewing the adequacy of State and local radiological emergency planning.

8603110496 860306 PDR ADOCK 05000443 PDR c "

G JC. D'

Several of the contentions filed on February 24, 1986 relate to portions of the NHRERP, which nad not yet been made available to the parties. See, for instance, NECNP Contention RERP-9, SAPL Contention 14, SAPL Contention 15, SAPL Contention 13. This will advise the Board and parties that the following material has been submitted to FEMA by.the State, and has been or will soon be served on the Board and parties:

- New Hampshire Compensatory Plan;

- Additional Letters of Agency to be included in Volume 5 of the NHRERP;

- Voluine 6 of the RERP (pertaining to Evacuation Time Estimates);

- Draft public information material.

Town of Hampton Contentions I and II &

In these two contentions, the Town of Hampton contends in essence that the planning process failed to comply with state and federal law. . In response to these contentions, the State first flatly rejects the suggestion that 'he State has ignored concerns raised by the Town of Hampton and has failed to cooperate wit; the Town in developing the NHRERP, including the Town of Hampton local plan.

Moreover, issues relating to the adequacy of the planning process are irrelevant to the issue before this Board as to whether the plan itself satisfies federal requirements. The Town's assertion in Contention I that the planning process was violative in some fashion of FEMA regulations and the Town's allegation in Contention II that the planning process was inconsistent with state law are not litigable issues in this proceeding.

a 4

r

[' '

NECNP Contentions HERP-1 and NHLP-1 NECNP asserts in these two related contentions that the NHRERP

! is inadequate because some municipalities have not approved or adopted the plans, and have refused to participate in testing of the ,

j plans. As'noted above with regard to the Town of Hampton Contentions

'I and II, such allegations do not raise issues regarding the adequacy of the plans themselves, but relate only to the way in which the

.j plans were developed. Consequently, these two contentions, in and of themselves, do not raise litigable issues in tnis proceeding.

In response to NECNP's suggestion that local governments must approve the-NHRSRP, including their own local plans, the State

! invites the Board's' attention to the case of Vernet, et al. v. Town .

of Exeter, Rockingham County Superior Court, No. 86-E-06 (February '

i 14, 1986). A copy of the Court's decision in that case is attached I hereto as Appendix A. As the Board will note in reviewing that I

decision, the Court squarely held in that case that there is no state requirement for Town approval of the radiological emergency response

plans.

! HECNP Contention RERP-8 NECNP in this contention alleges generally that sneltering is not an " adequate protective measure" for Seabrook, and that tne NdRERP does not provide " adequate criteria" for the choice of protective measures.

'As NECNP correctly points out, however, sheltering is only one of the protective actions available in the event of a radiological emergency at seabrook station. It is the adequacy of all protective

measures taken together which is the relevant inquiry of this Board in reviewing the NHRERP. Consequently, NECNP's assertion that sheltering is insufficient does not set.forth a litigable issue.

NECNP Contention NHLP-2(e)

In subpart (e) to its contention NHLP-2, NECNP asserts that "each emergency response for organization shoulo be surveyed to determine whether they intend to stay in the EPZ to implement the plan during an emergency". This contention does not state a deficiency in the NHRERP or any of its local plans. Moreover, there is no requirement for each emergency response organization to conduct j such a survey. As stated, therefore, this contention does not raise-a litigable issue.

i j

NECNP Contention NHLP-3(a)

NECNP concludes in this contention that a dedicated telephone line from Public Service Company to each Town's emergency response organization is required. Insofar as there is no regulatory 4

requirement for such a dedicated telephoto line, this contention i

i raises no litigable issue.

NECNP Contention NHLP-3(b) l In this contention NECNP asserts that"ln]otification of any plant malfunction should be mechanically communicated to an offsite entity." Insofar as there is no regulatory requirement for such a i

j mechanical notification system, there is no regulatory basis for this I

contention.

l i

l l

I

F

-S-Contention of Attorney General Francis X. Bellotti Relative to Emergency Planning for the New Hampshire Beach Communities Attorney General Bellotti has refiled his contentions relative to the Emergency Planning for the New Hampshire Beach Communities, which he initially filed on September 9, 1983. Tne contention raises generally the issue of the adequacy of sheltering and evacuation as protective actions for the beach area transient population in the Towns of Seabrook, Hampton, North Hampton and Rye. To the extent that Attorney General Bellotti asserts in his contention that the protective actions of evacuation and sheltering must ensure complete protection to the transient beach population under all circumstances, then it sets forth no regulatory basis.

Hampton Falls Contention 1 With regard to Hampton Falls' assertion in its Contention 1 that Town approval :Us necessary for implementation of the NHRERP, including the Hampton Falls local plan, please refo: to the State's response to NECNP Contentions RERP-1 and 14HLP-1 above.

Town of Rye Contention 3 To the extent that the Town of Rye asks the Licensing Board in this contention to declare that the local plan for tne Town of Rye is void and of no effect, the Town raises no issue which is litigable in this proceeding. As to the Town's assertions relating to the process by which the NHRERP was developed, please refer to the State's response to NECNP Contentions RERP-1 an NHLP-1 and Town of Hampton's Contentions I and II.

7_.

e i-Town of Kensington Contention 11' In this contention, the Town of Kensington asserts that its local plan should provide'for communications with federal emergency

- response organizations. Neither of the citations prompted by the Town, however, (10 CFR: 550.47, Appendix E, (E)(9)(u) and NOREG 0654 SII, F.1.c. requires such a communications link between tne Town and federal emergency response organizations. Consequently, there is no regulatory basis for thi's contention.

Town of South Hampton Contentions 1 and 3 The Town of South Hampton in these two contentions asserts that i

I the NHRERP is inadequate because it lacks generally letters of agreement with local emergency response agencies and volunteer emergency workers. Insofar as the Town claims that letters of agreement are necessary for individual emergency workers, the contention fails to set forth a regulatory basis.

l Respectfully submitted, THE STATE OF NEW HAMPSHIRE STEPHEN E. MERRILL ATTORNEY GENERAL Dated: March 6, 1986 By _A '

George Daha Bisbee \>

Assistant Attorney General Environmental Protection Bureau Of fice of ttua Attorney General 3

25 Capitol Street Concord, NH 03301-6397 Telephone (603) 271-3678

[- . .

APPENDIX A TIJe # tate of Seto ll?ampsfjire ROCEINGHAM. SS.

SUPERIOR COURT

PENNY VERNET, ET AL *

v.

• 86-E-06 TOWN OF EXETER, NEW HAMPSHIRE

• DECISION There are two issues presented by this petition.

First, whether the citizens of a town,- by vote of the town meeting, may prohibit town officials or agencies from implement- '

ing a nuclear emergency response plan prepared by or for the -*

community under the direction of the State Civil Defense Agency.

They may not.

Second, whether the citizens may require the selectmen to present any such plan to the town meeting for approval by majority vote. They may.

Under New Hampshire law the Governor is authorized and empowered to prepare a comprehensive plan and program for the civil defense of the state. He is also authorized and empowered to coordinate the preparation of plans and programs for civil defense by the political subdivisions of the state. This authority includes responsibility for studying, planning and implementing a nuclear

2-emergency response plan which provides adequate protective measures i

, in'the event of an emergency at Seabrook.

RSA 107, RSA 107-B.

In accordance with the law, the Governor has delegated civil defense authority to the State Civil Defense Agency and its director.

RSA 107:3. In the _ exercise of his responsibilities, the director is required to seek and has sought the cooperation and participation of local units of government. There is no state or federal , requirement, however, that the selectmen or the citizens of towns approve nuclear emergency response plans.

Local refusal to cooperate or to approve plans cannot prevent the civil defense director from carrying out his duty to initiate and implement a nuclear emergency response plan. A reasonable interpretation of the relevant statutes and decisions does not' support the conclusion that the legislature intended to permit a local unit of government either by vote of the selectmen or vote of

~

the town meeting to defeat the clear purpose of the legislation.

Parker-Young Co. v. S ta te , 83 N.H. 551, 557 (1929). The' powers conferred by RSA 41:8, RSA 107, RSA 107-B clearly establish a statutory scheme for nuclear emergency response planning which cannot be over-ridden by a town.

While it is true that in New Hampshire town meetings the voters are sovereigns and their will when duly expressed is supreme, the power of the town meeting is not limitless. Attorney General v.

Fulsom, 69 N.H. 556, 557 (1899). The town meeting, then, is 7

w e

• 4 without authority to control the selectmen in the exercise of those i

powers which are specifically conferred on them by the legislature.

. ~

Moulton v. Beals, 98 N.H. 461, 463 (1954). ~ Town meeting is also  ;

without authority to enact any provision which conflicts with state statute. Piper v. Meredith,,110 N.H. 291~(1970).

Authority for civil defense in the towns is conferred by statute upon the selectmen, rendering them " state officers" and not agents or servants of the town in matters of civil defense. As officers of the state they must carry out the state civil defense director's plans. (See Moulton v. Beals , supra.) As agents of the ~ town they must also represent the town in the planning process to the extent that participation does not interfere with their duties as state officers.

Approving radiological emergency plans does not constitute

! " ordinary business of the town." Rich v. Errol, 51 N.H. 350, 354 l (1871). Approval of such plans, therefore, is not within the scope l

! of selectmen authority to " manage the prudential af fairs of the town."

! RSA 41:8; Moulton v. Beals, suora. Nor does state or federal law give authority to selectmen to approve these plans.

Even. without a requirement for town approval of the plan, the Nuclear Regulatory Commission and the State Civil Defense , Agency.

i do solicit and consider local comment and response to the plans.

t (Defendant's Exhibit C,~ letter, New Hampshire Civil Defense Agency i

to Exeter Town Manager.)

While citizens of a town cannot interfere with the state '

director's_ activities, and cannot prohibit selectmen from implement-ing the director's orders, that restraint does not foreclose them from considering plans at a town meeting._ It is not inconsistent

/

with selectmen duties as state officers that they be required to present. such plans at town meeting when directed to do so by the voters. Or that they do so on their own initiative.

New Hampshire has an historic tradition.of town meeting. From the resolution of local problems to the discussion of national issues, town meeting has served for hundreds of years as an open forum for citizen debate. There may not be in this century an issue for the ,

citizens of Exeter with more impact upon their peace, welfare and

' interest than the emergency nuclear response plan.

To the extent the state and federal governments place importance on an expression of approval or disapproval of the plan by the town, the citizens of the town may validly seek to provide that expression by vote at the town meeting.

"The Exeter plan is, in fact, going to be the Exeter plan. We are not going to impose anything on Exeter."

(State Civil Defense Director to the citizens of Exeter, February 15, 1984.)

So ordered.

\Me k

'J seph ). Nadeau, Presiding Justice Dated: 2-14-86

i .

e

• CERTIFICATE OF SERVICE C0(.ME T ED I, George Dana Bisbee, one of the attorneys for the Applican't98kC herein, hereby certify that on the 5th day of March, 1986, I made servi e of the.within document by mailing copies thereof, poggagg ,.

LFFICE de ;n.: . ...

Administrative Judge Helen Hoyt Administrative Judge ShcM 6WiUir;fdacf Wolfe, Chairman BRANCH Chairperson Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board Panel ~

U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Dr. Emmeth A. Luebke Dr. Jerry Harbour Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Philip Ahrens, Esquire Thomas J. Dignan, Jr.,' Esquire Assistant Attorney General R. K. Gad, III, Esquire Department of the Attorney General Ropes & Gray State House Station 6 225 Franklin Street Augusta, ME 04333 Boston, MA 02110 Jo Ann Shotwell, Esquire Sherwin E. Turk, Esquire Assistant Attorney General Deputy Assistant Chief Department of the Attorney General Hearing Counsel One Ashburton Place, 19th Floor Office of the Executive Counsel Boston, MA 02108 Director U.S. Nuclear Regulatory Commission Ms. Diana P. Randall Washington, DC 20555 70 Collins Street Seabrook, NH 03874 Robert A. Backus, Esquire Backus, Meyer & Solomon Diane curran, Esquire 116 Lowell Street Harmon & Weiss P. O. Box 516 20001 S Street, N.W. Manchester, NH 03105 Suite 430 Washington, DC 20009 Anne Verge, Chairperson Board of Selectmen Town IIall South Hampton, Nil 03827

r O

Paul McEachern, Esquire Matthew T. Brock, Esquire Mr. Patrick McKeon Shaines & McEachern Selectmen's Office 25 Maplewood Avenue 10 Central Road P. O. Box 360 Rye, NH 03870 Portsmouth, NH 03801 Mr. Calvin A. Canney Ms. Roberta C. Pevear City Manager The Town of Hampton Falls City Hall Drinkwater Road 125 Daniel Street Hampton Falls, NH 03844 Portsmouth, NH 03801 Mrs. Sandra Gavutis Mr. Angie Machiros Tne Town of Kensington Chairman of the RFD 1 Board of Selectmen East Kingston, NH 03827 Town of Newbury Newbury, MA 01950 Senator Gordon J. Humphrey Mr. Richard E. Sullivan U.S. Senat'e Mayor Washington, DC 20510 City Hall (Attn: Tom Burack) Newburyport, MA 01950 Senator Gordon J. Humphrey Town Manager's Office 1 Pillsbury Street Town Hall Concord, NH 03301 Friend Street (Attn: Herb Boynton) Amesbury, MA 01913 Mr. Thomas Powers Brentwood Board of Selectmen Town Manager RFD Dalton Road Town of Exeter Brentwood, NH 03833 10 Front Street Exeter, NH 03833 Gary W. Holmes, Esquire Holmes & Ells H. Joseph Flynn 47 Winnacunnet Road Assistant General Counsel Hampton, NH 03841 office of General Counsel Federal Emergency Management Richard A. Hampe, Esquire Agency Hampe & McNicholas 500 C Street, S.W. 35 Pleasant Street Washington, DC 20472 Concord, NH 03301 f%

J George' Dana Bisbde'