ML20199B357

Responds to Town of Hampton Memorandum on 10CFR2.714(a)(1) & Revised Contention Iii.Recommends Admission of Hampton Revised Contention Iii,Limited to Particular Bases Provided by Town in Support of Contention.W/Certificate of Svc

ML20199B357
Person / Time
Site:	Seabrook
Issue date:	06/12/1986
From:	Sherwin Turk NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
CON-#286-585 OL, NUDOCS 8606170120
Download: ML20199B357 (10)

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NUCLEAR REGULATORY COMMISSION g} Q g (B BEFORE THE ATOMIC SAFETY AND LICENSING BO r i In the Matter of )  %

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

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(Seabrook Station, Units 1 and 2) )

NRC STAFF'S RESPONSE TO TOWN OF HAMPTON'S MEMORANDUM ON 10 CFR 12.714(a)(1) AND REVISED CONTENTION III On May 23, 1986, the Town of Hampton filed its Revised Contention III along with a memorandum addressing the late-filing requirements of 10 C.F.R. I 2.714(a)(1). 1 Therein , the Town of Hampton set out a revised Contention III addressing the adequacy of the evacuation time estimates that are currently being prepared by KLD Associates as part of the New Hampshire radiological emergency response plan; the Town's previously filed Contention III had been rejected as premature by the Licensing Board's Orders of April 1 and 29, 1986. A response to the Town's revised Contention III and its supporting memorandum was filed by the Applicants on June 5, 1986. 2,/ The NRC Staff hereby submits its

-1/ " Memorandum on 10 CFR $2.714(a)(1) and Revised Contention III of the Town of Hampton to Evacuation Time Estimate Report by KLD Associates, Inc. ," filed May 23, 1986.

-2/ " Applicants' Response to Memorandum on 10 CFR I 2.714(a)(1) and Revised Contention III of the Town of Hampton to Evacuation Time Estimate Reports by EU) Associates, Inc. " filed June 5, 1986.

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response to the Town of Hampton's revised Contention III and supporting memorandum.

. E DISCUSSION The Staff has previously discussed the standards governing the admissibility of contentions, in responding to the offsite emergency planning contentions filed in February 1986 in accordance with the Licensing Board's Order of January 17, 1986; b in the interest of avoiding unnecessary repetition, that discussion is incorporated by reference herein. In sum, to be admissible contentions must satisfy the basis and specificity requirements of 10 C.F.R 52.714, and must otherwise comply with the principles established in Commission case law. In addition , a late-filed contention must be supported by a favorable balancing of the five factors established in 10 C.F.R. 52.714(a)(1). The Staff's views with respect to these matters are as follows.

A. The Admissibility of the Town's Revised Contention III.

The Town of Hampton sets forth a single contention, concerning the KLD evacuation time estimates which the State of New Hampshire has indicated are to be adopted as a part of the State's radiological emergency response plan; portions of the KLD study were recently provided by the

-3/ "NRC Staff's Response to Contentions Filed by Towns of Hampton, Hampton Falls , Kensinprton , Rye and South Hampton, and by the Massachusetts Attorney General, NECNP and SAPL" (" Staff's Response"), dated March 14, 1986.

State of New Hampshire to the Board and parties, in the form of seven

" progress reports". O The revised contention asserts as follows:

Hampton hvised Contention III 7 The Evacuation Time Estimate Study (ETE) prepared by KLD Associates, Inc., and incorporated into the State of New Hampshire Radiological Emergency Response Plan (RERP), is based upon inaccurate factual data and unreasonable or misleading assumptions and thereby fails to provide reasonable assurance that adequate protective measures can be implemented, or that adequate facilities, equipment, or personnel will be provided to the Town of Hampton in the event of [a]

radiological emergency. 10 CFR 550.47(a)(1),

50.47(b)(1)[ sic](10).

Staff Response The Staff does not oppose the admission of this contention, provided its litigation is limited to the specific bases offered by the Town in support of the contention b

-4/ See letter from George Dana Bisbee, Esq. (Office of the New Ilainpshire Attorney General) to John De Vincentis (Yankee Atomic Electric Co.), dated April 7, 1986; and letter from George Dana Bisbee, Esq. to Docket and Service Secretary (NRC), dated May 5, 1986.

-5/ The Applicants oppose admission of this contention, in part, on the grounds that it asserts the ETE fails to provide " reasonable assurance" they adequate protective measures can be taken in an emergency. The Applicants assert that if the contention is admitted, it should be rewritten to reflect that the ETE is intended to be a tool for use by decision-makers, and is not intended, in and of itself, to provide " reasonable assurance." The Staff does not disagree with Applicants' assertion as to the intended use of an ETE, although we do not share the Applicants' view that the con-tention is defective. Nonetheless, we would not oppose a rewriting of the contention in the manner suggested by Applicants.

The Applicants' only other challenge to the contention relates to their assertion that a different ETE was contained in their onsite emergency plan , and that litigation of the State's ETE is not (FOOTNOTE CONTINUED ON NEXT PAGE) l

B. The Five Factors 10 C F.R. I 2.714(a)(1) provides that , with respect to untimely' 7 filings, the following five factors should be balanced:

(1) good cause, if any, for failure to file on time; (2) the availability of other means whereby the petitioner's interest will be protected; (3) the extent to which the petitioner's participation may be reasonably expected to assist in developing a sound record; (4) the extent to which the petitioner's interest will be represented by existing parties; (5) the extent to which the petitioner's participation will broaden the issues or delay the proceeding.

The Commission has indicated that these five factors must be considered by a Licensing Board in determining whether to admit late contentions for litigation. Commonwealth Edison Co. (Braidwood Station, Units 1 and 2),

CLI-86-08, 23 NRC (April 24,1986) (slip op. at 11-12).

With respect to the first factor listed above (" good cause"), the Commission noted as follows (Id., at 2):

It is well established in our case law that this first factor is a crucial element in the analysis of whether a late-filed contention should be admitted. If the proponent of a contention fails to satisfy this element of the test, it must make a " compelling" showing with respect to the other four factors. Cincinnati Gas and (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) required by NRC regulation. The Staff has already set forth its views concerning the litigability of the State's ETE, in which we noted our disagreement with the Applicants' position. See Staff's Response to llampton Contention III, filed March 14, 1986. In the interest of avoiding unnecessary repetition, that discussion is incorporated by reference herein.

. Electric Co. (William H. Zimmer Nuclear Power Station, Unit 1), LBP-83-58, 18 NRC 640, 66 (1983);

Mississippi Power and Light Co. (Grand Gulf Nuclear ,

3tation , Units 1 and 2), ALAB-704, 16 NRC 1725 . ._ -

T1982). -

In the present case, the Town of Hampton appears to have demon-strated good cause for its late filing of this contention. The Town had previously filed a contention addressing the KLD ETE, which contention was rejected by the Licensing Board as premature in April 1986. The Town's revised contention was filed within a short time after the State of New Hampshire transmitted KLD's seven progress reports, and the Town has not been dilatory in its filing of this contention. Accordingly, the first factor weighs in favor of the Town of Hampton b The second and fourth factors enumerated above are closely related, and may be considered together. Braidwood, supra, slip op, at 4. b To our knowledge, there are no other means available pursuant to which the Town's interests may be protected apart from its participation in this proceeding, nor does it appear that the other parties to this proceeding can or will represent its interests. Accordingly, these factors should also be viewed as weighing in favor of the Town.

With respect to the third factor , the Town has identified various Town officials whom it expects to call as witnesses with respect to this contention. In addition , the Town has briefly descriad the subjects upon which they are expected to testify. In our view, the Town has

'-6/ Indeed, the Applicants " concede that Hampton has made a sufficient showing under the ' late filed' criteria." Applicants' Response, at 1.

-7/ As noted by the Commission, these factors are accorded less weight than factors one, three and five. Braidwood, supra, slip op. at 4.

= _ _. . .

-G-made a minimal showing that it may be expected to contribute to the development .of a sound record. 8/ Accordingly, this factor weighs in favor of tb Town of Hampton. ~

7 With~ respect to the fifth factor, broadening and delay of the proceeding, the admission of the Town's revised Contention III may be expected to broaden the issues to be litigated. However, this contention replaces the Town's previous ETE contention, filed in February 1986, which the Licensing Board rejected as premature in its Orders of April 1 and April 29, 1986. The Staff submits -- as the Board recently noted in admitting certain other late-filed contentions -- that any delay which may result from the htigation of this contention most appropriately should be attributed to the late submission of the State's ETE. In addition, it should be noted that the admission of this contention is not likely to delay the proceeding, inasmuch as emergency plans have not yet been submitted for - the Commonwealth of Massachusetts. Accordingly, this factor should be viewed as weighing in favor' of SAPL.

l 8_/ With respect to this factor, the Commission has noted as follows:

j Our case law establishes both the importance of this third factor in the evaluation of late-filed contentions and the necessity of the moving party to demonstrate that it has special expertise on the subjects which it seeks to raise. Mississippi Power & Light Co. (Grand

Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC 1725, 1730 (1982). The Appeal Board has said:

"When a petitioner addresses this criterion it should set

, out with as much particularity as possible the precise

+

issues it plans to cover, identify its prospective witnesses, and summarize their proposed testimony."

Id.

Braidwood, supra, slip op. at 5.

l I 1 In sum, the Staff submits that a balaricing of the five factors specified in 10 C.F.R. 5 2.714(a)(1) supports the admission of the Town's revised C tention III. 7 CONCLUSION For the reasons set forth above, the Licensing Board should admit the Town of flampton's Revised Contention III, limited to the particular bases which have been provided by the Town in support of the contention.

Respectfully submitted,

, A.46Ik Sherwin E. Turk Deputy Assistant Chief Hearing Counsel Dated at Bethesda, Maryland this 12th day of June,1986

A UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

~

7 In the Matter of )

)

PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443 OL NEW IIAMPSHIRE, et al. ) 50-444 OL

)

(Seabrook Station, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO TOWN OF IIAMPTON'S MEf.lORANDUM ON 10 CFR 52.714(a)(1) AND REVISED CONTENTION III" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 12th day of June , 1986.

Helen lloyt, Esq. , Chairman

• Dr. Emmeth A. Luebke*

Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Jerry Harbour

• Ms. Carol Sneider, Esq.

Administrative Judge Assistant Attorney General Atomic Safety and Licensing Board Office of the Attorney General U.S. Nuclear Regulatory Commission One Ashburton Place,19th Floor Washington , D.C. 20555 Boston, MA 02108 Beverly Hollingworth Stephen E. Merrill 209 Winnacunnet Road Attorney General Hampton, NH 03842 George Dana Bisbee Assistant Attorney General Sandra Gavutis, Chairman Office of the Attorney General Board of Selectmen 25 Capitol Street RFD 1 Box 1154 Concord, NH 03301-6397 Kensington, NH 03827 Richard A. Hampe, Esq.

New Hampshire Civil Defense Agency 107 Pleasant Street Concord, NH 03301 i

Calvin A.: Canney, City Manager Allen Lampert City Hall Civil Defense Director 126 Daniel Street Town of Brentwood Portsmouth, NH 03801 20 Franklin Street "

. Exeter, NH 03833 7 Roberta C. Pevear State Representative Angie Machiros, Chairman Town of Hampton Falls Board of Selectmen Drinkwater Road 25 High Road Hampton Falls, NH 03844 Newbury, MA 09150 Mr. Robert J. Harrison Jerard A. Croteau , Constable President and Chief Executive Officer 82 Beach Road, P.O. Box 5501 Public Service Co. of New Hampshire Salisbury, MA 01950 P.O. Box 330 Manchester, NH 03105 Diane Curran, Esq.

Harmon & Weiss Robert A. Backus, Esq. 2001 S Street, N.W.

Backus, Meyer & Solomon Suite 430 116 Lowell Street Washington, D.C. 20009 Manchester, NH 03106 Edward A. Thomas Philip Ahrens, Esq.

Federal Emergency Management Agenty Assistant Attorney General 442 J.W. McCormack (POCH) Office of the Attorney General Boston, MA 02109 State House Station, #6 Augusta, ME 04333 H.J. Flynn, Esq. Thomas G. Dignan, Jr. , Esq.

Assistant General Counsel Ropes & Gray Federal Emergency Management Agency 225 Franklin Street 500 C Street, S.W. Boston, MA 02110 Washington, D.C. 20472 Jane Doughty Atomic Safety and Licensing Seacoast Anti-Pollution League Board

• 5 Market Street U.S. Nuclear Regulatory Commission Portsmouth, NH 03801 Washington, D.C. 20555 Atomic Safety and Licensing Paul McEachern, Esq.

Appeal Panel

• Matthew T. Brock, Esq.

U.S. Nuclear Regulatory Commission Shaines & McEachern Washington, D.C. 20555 25 Maplewood Avenue P.O. Box 360 Portsmouth, NH 03801

. Docketing and Service Section* William Armstrong Office of the Secretary Civil Defense Director U.S. Nuclear Regulatory Commission Town of Exeter Washingtorr, D.C. 20555 10 Front Street . ..._'

• Exeter, NH 03833 +

Maynard .L. Young, Chairman Doard of Selectmen Peter J. Matthews, Mayor 10 Central Road City Hall Rye, .NH 03870 Newburyport, MA 09150 Michael Santosuosso, Chairman William S. Lord Board of Selectmen Board of Selectmen South Hampton, NH 03827 Town Hall - Friend Street Amesbury, MA 01913 Mr. Robert Carrigg, Chairman Mrs. Anne E. Goodman, Chairman Board of Selectmen Board of Selectmen Town Office 13-15 Newmarket Road Atlantic Avenue Durham, NH 03824 North flampton, NH 03862 R. K. Gad III, Esq. Gary W. Holmes, Esq.

Ropes & Gray Holmes & Ellis 225 Franklin Street 47 Winnacunnet Road Boston, MA 02110 Hampton, NH 03842 y s V l Sherwin E. Turk Deputy Assistant Chief Hearing Counsel l

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