ML20196A376

New England Coalition on Nuclear Pollution (Necnp) Reply to Applicant & NRC Staff Response to Necnp Contentions on Spmc.* Certificate of Svc Encl

ML20196A376
Person / Time
Site:	Seabrook
Issue date:	06/22/1988
From:	Curran D HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	Atomic Safety and Licensing Board Panel
References
CON-#288-6565 OL, NUDOCS 8806300024
Download: ML20196A376 (7)

Text

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@6&Sfo June 22, 1988 00 KEi 0 gg UNITED STATES NUCLEAR REGULATORY COMMISSION 2 & N P1 :37 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of )

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Public Service Company of )

New Hampshire, et al. ) Docket Nos. 50-443 OL

) 50-444 OL (Seabrook Station, Units 1 & 2) ) OFFSITE EMERGENCY

) PLANNING

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NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S REPLY TO APPLICANTS' AND NRC STAFF'S RESPONSES TO NECNP'S CONTENTIONS ON SPMC Introduction The New England Coalition on Nuclear Pollution ("NECNP") hereby replies to Applicants' and the NRC Staff's responses to NECNP's contentions on the SPMC. Our arguments with respect to each con-tention are presented below. In addition, NECNP supports and adopts the "Reply of the Massachussetts Attorney General to the Responses of the NRC Staff and the Applicants to the First Six Contentions Filed by the Massachussetts Attorney General," which addresses in great detail many of the legal issues raised by NECNP's contentions.

Contention 1 This contention asserts that "Due co the unique features of the Seabrook Emergency Planning Zone ('EPZ'), adequate emergency planning for the Seabrook is inherently impossible. Therefore Applicants cannot satisfy 10 CFR S 50.47(a)." The basis of the contention lists a number of factors, including the high beach 8806300024 800622 3 4 PDR ADOCK 0500 $p'/

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. o population, lim $ted roadways, lack of shelter, and lengthy evacuation timet, which combine to preveat the undertaking of an an adequate emergency response for Seabrook.

Both Applicants and the NRC Staff oppose this contention, on the ground that the Commission has ruled that there is no minimum dose savings thet must be achieved by emergency planning.

Obviously, the NRC has a great deal of discretion with respect to the way it measures the adequacy of emergency planning. However, neither the emergency planning rule nor the Atomic Energy Act given the Commission the discretion to avoid taking any objective measurement or adequacy. That measurement must be taken against s

some articulated standard of risk avoidance,_not a shifting stan-dard of what is achievable under the circumstances.

As discussed in NECNP's contentions a't page 1-2, the Staff, on behalf of the Commission,.has stated in a federal court that the impossibility of achieving adequate emergency planning is open to challenge in a licensing proceeding under the new rule.

That statement .;arries the assumption that there exists an intrinsic standard of adequacy thtt may not be met in every case.

The NRC cannot take away in this licensing proceeding what it has pledged in federal court. NECNP has presented a contention with a factual basis to show that an "adequate" level of protection cannot possibly be achieved in an emergency at Seabrook, because huge numbers of people would remain unprotected during an acci-dent at Seabrook. The contention should be admitted for litiga-ti(n.

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Contention 2 This contention charges that "Applicants have failed to identifythoseportionsoftheSPMCfor[khichtheyinvokethe provisions of 10 CFR $ 50.47 (c) (1) ." As basis for this conten-tion, NECNP asserts that Applicants have failed to identify "those elements" of regulatory compliance "for which state and local non-participation makes compliance infeasible" and the specific measures that are "designed to' compensate for any deficiencies resulting from state and/or local nonparticipation."

10 CFR S 50.47 (c) (1) (iii) (A) , (B) . Moreover, for those elements of 5 50.47(b) with which they do not comply, Applicants have not shown that the noncompliance "is wholly or substantially the result of the non-participation of state and/or local govern-ments." S 50.47 (c) (1) (ii) . In short, it is impossible to determine the standard (s) which Applicants seek to fulfill through submission of the SPMC. Absent a specific identification of what portions of the plan'are addressed to what standards, Applicants have not satisfied the requirements for invoking the provisions of 5 50.47(c).

Applicants and the NRC Staff oppose this contention on the ground that the regulations imposes no duty to identify the por-tions of the plan for which Applicants invoke 10 CFR S ,

50. 47 (c) (1) . Applicants and Staff ignore the specific steps set forth in the rule for the identification of the reasons for non-compliance with the planning standards in S 50.47(b) ; and for

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. identification of the specific deficiencies that compensatory measures are designed to address.

J' The need for such specificity is clear. By their very nature, "compensatory" measures are discreet actions necessary to overcome specific deficiencies in a system that is essentially whole and adequate. One can understand the Applicants' wish to generalize away these deficiencies without specifically identify-ing either the deficiencies or the measures designed to overcome them. However, the rule was designed to prevent such vagueness.

The parties are entitled to know exactly what standards Applicants ar attempting to address, and what portions of the-plan are intended to satisfy each specific standard. To require any less would not only violate the regulations, but would turn the litigation into a pointless muddle.

Contention 3 This contention asserts that "Applicants'have not met the requirements of 10 CFR S 50.47(a) (1) to provide a "reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency" at Seabrook because they have failed to show what emergency response measures will be taken by the Massachussetts state and local governments in the event that Mode 1 of the SPMC is followed."

Both the Applicants end the Staff oppose this contention, on the ground that it must be presumed under the rule that Massachu-ssetts will follow the SPMC. According to Applicants, the i

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. o 5-presumption can only be rebutted by Massachussetts' submittal of its own plan. As discussed in Massachussatts' reply brief

, regarding its contentions, however, the NRC's Solicitor General 4

has expressly stated to the U.S. Court of Appeals that this is not the only means by which the presumption can be rebutted.

NECNP intends to rebut the presumption by showing that the SPMC is not capable of effective implementation by the Commonwealth of Massachussetts during an emergency. The contention contains ade-quate assertions of factual basis to support it -- namely the lack of specific procedures or provisions for the Massachussetts government. It should be admitted.

Contention 4 This contention asserts that "To the extent that Mode 2 of the SPMC contemplates the substitution of Applicants for state and local governments in carrying out an emergency response, it violates the emergency planning rule and Massachussetts state law. Moreover, to the extent that it contemplates integration of the utility's functions with state and local emergency response functions, it does not corpensate adequately for the lack of preparedness of State and local officials to respond to a radiological emergency at Seabrook."

Applicants and NRC Staff characterize this contention as a challenge to the rule. As with contention 3, the presumption that the state government will follow the utility plan can be rebutted by evidence other than the submittal of a state plan.

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Here, NECNP has made an initial showing, adequate for purposes of admitting a contention, that Mode 2 does not provide the basis for'a workable response to an accident. The NRC may not use the presumption to wave away legitimately raised criticisms regarding the barriers to implementation posed by state law and the cumber-some and confusing character of Applicants' proposal to integrate a utility-state response. The contention should be admitted.

Respectfully submitted, f

D' ne Curran

. HARMON & WEISS 2001 "S" Street N.W. Suite 430 Washington, D.C. 20009 (202) 328-3500 June 22, 1988 CERTIFICATE OF SERVICE I certify that on June 22, 1988, copies of the foregoing pleading were served by hand, overnight mail, or first-class mail on all parties to this proceeding, as designated on the attached service list, i t.)

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Diane Curran

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LMXEiLO SE.A BROOK SERVICE LIST - OFFSITE LICENSING BOARD

'cIvan W. Smith, Chairman Rye,New Hampshire 01870 U.S. NRC US. NRC Washington, D.C,20555 (POCH) '$ M 24 P1 :37 Boston,MA 02109 Washington, D.C. 20555 Richard E. Sullivan, Mayor .' m. x.' . __ ,

City Hall R. Scott Hill.Whilton Sandra G

'cDr. Jerry Harbour U.S. NRC Newburyport,MA 01950 Lagoulis, Clark, Hill-Whilton & McGuire

.RFD 1 Bo h" NtMY Eut Kensington,NH Ob27 3EdVICI

' Washington, D.C. 20555 Alfred V. Sargent, Chairman 79 State Street Board of Selectmen Newburyport, MA 01950 Charles P. Graham, Esq.

Gustave Linenberger Town of Salisbury, MA 01950 McKay. Murphy and Graham U.S. NRC H. Joseph Flynn, Esq. 100 Main Street WashLigton, D.C. 20555 Senator Gordon J. Humphrey Office of General Counsel Amesbury,MA 01913 U.S. Senate FEMA Atomic Safety and Licensing Washington, D.C. 20510 500 C Street S.W.

Board Panel (Attn. Tom Burack) Washington, D.C. 20472 U.S. NRC " By Overnight Mail Washington, D.C. 20555 Selec: men of Northrmpton George Dana Bisbee, Esq.

Northampton, New Hamp- Geoffrey M. Huntington, Esq.

Atomic Safety and Licensing shire 03826 Office of the Attorney General Appeal Board Panel State House Annex U.S. NRC Senator Gordon J. Humphrey Concord,NH 03301 Washington, D.C. 20555 1 Eagle Square, Ste 507 Concord, NH 03301 Allert Lampert Docketing and Senice '

. Civil Defense Director U.S. NRC Michael Santosuosso, Town of Brentowood Washington, D.C. 20355 Chairman Exeter,NH 03833 Board of Selectmen Mrs. Anne E. Goodmaa Jewell Street, RFD # 2 Richard A. Hampe, Esq.

Bo rd of Selectmen _

South Hampton,NH 03842 Hampe and McNicholas 1315 New Market Road 35 Pleasant Street

- Durham, NH 03842 Judith H. Mizner, Esq. Concord,NH 03301 Silverglate, Gertner, et al.

Willi .m S. Lord, Selectman 88 Broad Street Gary W. Holmes, Esq.

Town Hall Friend Street Boston, MA 02110 Holmes & Ellis Amesbury,MA 01913 47 W'mnacunnent Road Rep. Roberta C. Pevear Hampton,NH 03842 Jane Doughty Drinkwater Road SAPL Hampton, Falls, NH 03844 William Armstrong 5 Muket Street Civil Defense Director Portsmouth,NH 03S01 Phillip Ahrens, Esq. 10 Front Street Assistant Attorney General Exeter,NH 03833 Carol S. Sneider, Esquire State House, Station # 6

Assistant Attorney General Augusta, ME 04333 Cahin A.Canney 1 Ashburton Place,19th Floor City Manager Boston, MA 02108 "Thomas G. Dignan, Esq. City Hall R.K. Gad II, Esq. 126 Daniel Street Stanley W. Knowles Ropes & Gray Portsmouth,NH 03801 Bo.rd of Selectmen 225 Franklin Street P.O. Box 710 Boston, MA 02110 Matthew T. Brock, Esq.

North Hampton, NH 03826 Shaines & McEachern Robert A. Backus, Esq. P.O. Box 360 J.P. Nadeau Backus, Meyer & Solomon Maplewood Ave.

Town of Rye 111 Lowell Street Portsmouth, NH 03801 155 Washington Road Manchester,NH 03105 Edward A. Thomas "Sherwin E. Turk, Esq. FEMA Ollice of General Counsel 442 J.W. McCormack i