ML20205D891
| ML20205D891 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 09/19/1988 |
| From: | Trout J PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#488-7357 OL-1, NUDOCS 8810270241 | |
| Download: ML20205D891 (15) | |
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'58 DOT 25 P5 N7 Lepte'abe r '19 ', ~1988' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIOP before the ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-44 3-OL-1 NEW MAMPSHIRE, et al.
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50-444-OL-1
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On-site Emergency (Seabrook Station, Units 1 and 2)
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Planning and Safety
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Issues
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APPLICANTS' RESPONSE TO IATE-FILED SIRENS CONTENTIONS OF MASS AG CONCraMINC "DISCOMFORT" AND SIREF. OSCILIATION on October 11, 1988, the Attorney General for the Commonwealth of Massachusetts ("Mass AG") filed his "Answer.
in opposition to Applicants' Motion for Summary Disposition of Amended Contention on Notification System"
("the Answer").
In nost respects, the Answer and its supporting af;idavits and documents confine themselves to the issues raised in Mass AG's Amended Contention on Notification System.1 Applicants do n21 herein reply to the arguments which 1
Mass AG advances in support of his already-admitted bases.
Rather, App} icants solely address -- as they are entitled to do -- the ntM contentions concealed within Mass AG's pleading.
9810270241 000919 hM3 PDR ADOCK ObOOO443 G
PDR y
O At two places in the Answer, however, Mass AG advances now, late-filed contentions, in the quise of arguments concerning already-admitted bases.
Specifically, Mass AG now argues for the first time that Applicants' sirens might cause "discomfort" to passers-by, Answer at 19-22, and in addition attempts to resurrect his previously-abandoned assertion that the rotation of Applicants' sirens might somehow create gaps in coverage, Answer at 22-23.
For the reasons set forth below, these two arguments should L, treated as late-filed contentions, and as such should be rejected as untim21y.
I.
THE ARGUMENTS CONSTITUTE LATE-PILED CONTFETIONS.
Mass AG casually treats his arguments concerning "discomfort" and siren oscillation as though they fit within l
l the bases which he previously had filed.2 This transparent ploy should ba brushed aside.
Mass AG's first new contention asserts that NUREG-0654 forbids Applicants fron employing sirens that are so loud as possibly to cause "disruption and physical discomfort" to pacsers-by.
Answer at 20.
Mass AG makes this assertion in 2
In his prior attempt to add new, late-filed siren contentions, Mass AG had characterized his new assertions as t
"directly related to bases already admitted for hearing", and had stated that it was "on}y by way of caution that the Mass AG files this motion requesting leave to amend the bases."
F.stion to Amend Bases at 2 (September 8, 1988).
In this second attempt, however, Mass AG apparently has thrown i
caution to the winds, since he does not even acknowledge that he is raising new issues, let almte address the five-f actor test for late-filed contentions. - - - - - - -
i l
L
{
defense of his admitted Basis A.7, which in its entirety reads:
r "At a sound level of 134 dBC anyone within 100 feet i
of the siren during its operation will suffer severe hearina damage."
(Emphasis added).
In the plain meaning of language, "severe hearing damage" is materially different from "discomfort".
But, in this instance, we need not rely on plain meaning, since Mass AG himself goes to great lengths to distinguish "discomfort" from any type of "hearing damage", whether "severe" or otherwist.3 113, 3 4,, Answer at 20 (NUREG-0654 says about permanent hearing damage or temporary "nothing.
hearing loss"); 14. ("the 123 dB limit was designed to avoid discomfort as well as injury"); id. at 21 ("123 dB is a discomfort, not an injury, limit").
It is axiomatic that the scope of a contention or basis is to be derived from its wording as stated when it is adzitted.
Public Service ceneany of New Hamoshirs (Seabrook Station, Units 1 and 2), ALAB-899, 28 NRC __, Slip op, at 7-8
- n. 11 (August 23, 1988).
Mass AG has himself established that his allegations concerning "discomfort" are distinct 3
Presumably Mass AG draws this distinction in an wetempt to discount Applicants' undisputed testimony that the VANS sirens do not cause "sovere hearing damage" or even temporary hearing loss.
Answer at 19-20 (citing Kryter affidavit).
Br' ) since Mass AG's contention solely addressed "severe hearing damage", it is Mass AG and not Dr. Kryter who "misses the point".
I 1
[
i from his prior admitted basis concerning "severe hearing damage".
Accordingly, the new allegations are untimely and amount to a late-filed contention which should be subjected to the five-factor test.
Mass AG's second new contention represents an even more egregious effort at sleight-of-hand.
The new assertion reads as follows:
"Rather than the circular coverage patterns at the 60 dB(c) and 70 dB(c) levels claimed by the l
Applicants, siren levels will in fact drop for listeners at different times during siren rotation to as little as 34 dB(C) and 44 dB(C) respectively."
This assertion appears to be squarely based upon the second sentence of Mass AG's Basis A.8, with reads "the oscillation of the speaker assembly will cause gaps in coverage when the siren is used on its tone alert mode."4 However, the rub is that Mass AG has excressiv withdrawn th_is sentence of his Basis A.8.
Egg Massachusetts Attorney General's Response to first Set of Interrogatories Regarding the Massachusetts Attorney General's Amended contention on Notification System at 16 (July 12, 1988) (hereinafter "First Response") ("The Mass AG withdraws the assertion that "the oscillation of the speaker assembly will cause gaps in coverage when the siren 4
The first sentence of Basis A.8 deals with "sound irregularities", which Mass AG asserted would be caused by "the large size of the intended dispersion angle (60 degrees)" of the VANS sirens.
In his Answer, Mass AG makes no attempt to rebut Applicants' factual showing that such "sound irregularities" would not be generated by the sirens, t
especially not when used in tone alert mode.
i i __.__
is used in its tone alert mode.").
Having withdrawn the assertion -- and thus denied Applicants the opportunity to take discovery concerning it or to address it in their motion for summary disposition -- Mass AG can only revive it by meeting the standards for late-filed contentions.
II.
NEITHER CONTENTION MEETS THE FIVE-FACTOR TEST Section 2.714 (a) (1) of 10 C.F.R. establishes the five-l factor test which a lata-filed contention must meet in order to be admitted.
Mass AG does not even make reference to the l
let alone address its criteria.5 For that five-factor test, reason alone, the two new contentions should be summarily rejected.
Georcia Power Cat (Vogtle Electric Generating Plant, Units 1 and 2), LDP-84-499, 24 NRC 901, 927-928 (1986), affld, ALAB-872, 26 NRC 127 (1987).
Moreover, even if he had addressed the fivo factors, Mass AG would not have prevailed upon a balancing of them, sin:e all five weigh l'
against admission of either contention.
5 Nor should Mass AG be allowed to remedy this another untimely filing, especially given deficiency with yet that this is the second time in little more than a month that Mass AG has attempted to smuggle new contentions into these proceedings without addressing the requirements of 10 C.F.R. 6 2. 714 (a) (1).
See Memorandun and Order (Granting Mass.
Request to File A Reply Denying Mass. Motion to Amend) at 3 n.2 (October 12, 1988).
A.
Good cause, If Any, for Failure to File on Time.
Mass AG does not offer any explanation for waiting until after discovery had closed and after Applicants October 11, had filed their motion for summary judgment, to raise these I
two new contentions.
Nor does it soam possible that any explanation could excuse the delay in these instances.
With regards to the "discomfort" assertion, Mass AG's interrogatory responses reveal that he was aware at least as i
early as July 12, 1988 that NUREG-0654 mentions "discomfort".6 Firs" Response at 14.
Yet, Mass AG still waited at least three months before raising the issue.
With regards to siren rotation (i.e., oscillation), the delay again is at least three months, running from Mass AG's withdrawal of his original assortion on July 12, 1988.
First Response at 16.
Indeed, since Mass AG first raised the issue of siren rotation in his April 15, 1988 Amended Contention, the delay should be counted as running from that earlier date.
In these circumstances, the delay of three or more months should weigh heavily against admission of the two late-filed contentions.
Moreover, in light of that delay, Mass AG would ce required to make a compelling showing on the 6
Indeed, more than two months prior to that, Mass AG was advised that his allegations of "severe hearing damage" lacked any factual basis.
Egg letter of Gregory C.
Tocci to Steven (sic) Jonas, May 5, 1988, attached horeto as Exhibit 1.
~6-
l remaining four factors in order to prevail.
Memorandum and order (Granting Mass Request to File A Reply; Denying Mass.
Motion to Amend) at 8-9 (October 12, 1988).
This he cannot i
do.
I B.
The Availability of Other Means whereby the l
Petitioner's Interest Will be Protected.
Mass AG did not address this factor either, but it also With weighs against admission of the two new assertions.
i regard to siren rotation, Mass AG himself had the means for fully litigating that issue, through the second sentence of l
o his original Basis A.8.
Mass AG deliberately renounced t' tat j
opportunity.
Likewise, any material issue that Mass AG cared f
i to raise with regards to siren volume could have been
[
I addressed in the context of his Basis A.7.
The idea that t
this Board should be called upon to litigate inconvenience or "discomfort", as opposed to genuine injury, frankly belittles the licensing process, f
I The Extent to Which the Petitioner's Participation C.
May Recsenably Be Expected to Assist in Developing a sound P'
- rd.
l This f acto'. p,, weighs against Mass AG, with regard to both of the late-ft' 2 contentions.
Mass AG offers no inkling as to what witnesses and testimony (if any) he could or would offer in support of his assertion that the VANS sirens would cause "discomfort".
Nor is the scope of the l
issue clarified -- Mass AG does not state what he means by "d iscomf ort (other than that it is DQ1 injury), or how much "discomfort" he alleges that the sirens would cause.
He thus fails to meet the requirements of this factor.
912 Commonwealth Edison comoany (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 246 (1986).
The Extent to Which the Petitioner's Interest Will D.
Be Re,'esenteo By Existing Parties.
As noted above, Mass AG still has the opportunity to litigate all material issues as to siren volume under Basis A.7 as it stands, i.e., the allegation of "severe hearing damage".7 And Mass AG had the opportunity to litigate siren rotation, but instead abandoned the issue.
Accordingly, this factor weighs against admission of the new contentions.
The Extent to Which the Petitioner's PLrticipation E.
Will 'droadan the Issues or Delay the Procceding, These proceedings have already reached the stage where i
all parties have filed their summary disposition papers.
Admission of these two contentions would, at best, delay hearingd on the sirens issues and greatly expand their scope necessitate hearings on a set of issues that or, at worst, otherwise could now be summarily resolved.
In either case, 7
That Mass AG has apparently concluded that no material issue exists under A.7, and instead relies exclusively on his "discomfort" theory, is entirely his own choice.
k l
Mass AG is again silent as this factor, and it should be found to weigh against him.
III.
CONCLUSION Despite the approach of Halloween, Mass AG's attempt to mask his two new contentions as arguments under existing bases should not pass undetected.
Given that Mass AG failed to satisfy the procedural prerequisites for filing late contentions, and given that each of the five factors would weigh against their admission if Mass AG had bothered to address them, the Board should see through the ephemeral coa'ch and four and reject these two new contentions for the pumpkins they are.
Further, the Board shculd strike all reference to them from Mass AG's response to Applicants' summary disposition motion.
Respectfully submitted, h,h Thomas G. Dignan, Jr.
Georgo H.
Lewald Kathryn A. Gelleck Jeffrey P. Trout Jay Bradford Smith Ropes & Gray 225 Franklin Street Boston, MA 09110 (661) 423-6100 Counsel for Aeolicants 1
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.gu 6es.*A se g g ggg N 00%\\ 4 L k.4 FL 5 May 5, 1988 Mr. Steven Jonas Departwent of the Attorney General One Ashburton Place Boston, MA 02108-1698
Dear Steve,
About 2 weeks ago we discussed the possibility of hearing damage associated with short term exposure to VANS energency warning sound levels as high as a 132 dBA.
At that time I indicated that even a single incident of brief exposure to sound this loud could result in permanent hearing damage.
I also mentioned that available criteria for permanent hearing threshold
- shifts, as for hearing damage is most commonly referred, are only available the work place where sound level exposure occurs on a day to day basis.
I also mentioned that we would pursue this further with Dr.
Josoph Sataloff, M.D. who is a well known expert in this area.
Tom Beuliane of our office discussed this matter with Dr.
Sataloff who responded uith tha attached letter dated April 29, Since his letter was rather vaque with respect to criteria
- 1988, for hearing damage associated with single brief exposures to high Dr.
sound levels, I called Dr. Sataloff to discuss this furtr.er.
Sataloff wr.n more specific when I spoke with him and indicatad that there are currently no available criteria upon which to base the likelihood of pormanent hearing threshold shifts associated with single, brief exposures to levels as high as those expected to be produced by the VANS system.
Moreover, Dr. Sataloff went further to say that the likelihood of possible hearing damage under these circumstances was not significant.
- Hence, we believe that the Department of Attorney General comments regarding hearing damage of the general populace resulting from the VANS system should emphasize the need for prudence in the use of the system and ask for clarification on procedures for avoiding excessive exposure.
4 AI E M B E R N ATION AL COU NCIL O F ACO U STIC A L CON SU L T A N T 5
9 Mr. Sterin Jonas Page 2 provide any further detail, please do not hesitate If I
can contacting me.
Sincerely yours, CAVANAUGH TOCCI ASSOCIATES, INC.
Gregory lC.
occi Cc!
enc 1:
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O JOSEPH SATALOFF.M D.
021 P!NE statti PMILA ct L#t41 A, P A 19103 215 545 3322 April 29, 1988 Thomas G.
Bouliane Consultant Cavanaugh Tocci Associates. Inc.
327 F Boston Post Road Sudbury. MA 01776 Dear Mr. Boulianet Thank you for letting me review the information describing the VANS systes proposed to alert listeners to a threat to their safety.
First I would preface my comment that the technical methods used for this alarm are somewhat surprising.
There has been so much experience in the United States and London to alert individuals to air raids.
I have seen auch more effective systems and I somewhat wonder about this rather strange idea.
If the ears of human beings are exposed to over 120 decibels (dB) over periods of time from a loud speaker system, there can result high frequency sensorineural hearing loss boch temporarily and permanently.
I do not believe the damage can be severe but it can definitely be present and has been recorded in instances from exposure to rock and roll ausic of such lesser intensity.
but probably longer duration.
If such an alara systen goes off during sleeping hours, it may not damage hearins quite as much because individuals are a greater distance away.
However, it can have a rather disturbing shock experience and I feel certain that there are other ways to resolve the situation besides this type of loud speaker system.
Thank you very much.
I will be pleased to discuss it in greater detail with you.
Very sincerely.
d aw e no t.,,%
seph Sataloff.
M.D.
JS/rg Enclosure
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I4Y 0 2. 32 3
COCK! R D UE a
'E8 DCT 25 P5 M7 CERTIFICATE OF SERVICE jP':.
one of the attorneys I$b'the'.
I, Jeffrey P. Trout, Applicants herein, hereby certify that on october 191988, I made service of the within document by depositing copies thereof with Federal Express, prepaid, for delivery to (et where indicated, by depositing ir the United States mail, first class postage paid, addressed to) the individuals listed below.
Administrative Judge Sheldon J.
Robert Carrigg, Chairman Wolfe, Esq., Chairman, Atomic Board of Selectmen Safety and 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 Administrative Judge Emmeth A.
Diane Curran, Esquire Luebke Andrea c. Forster, Esquire 4515 Willard Avenue Harmon & Weiss Chevy Chase, MD 20815 Suite 430 2001 S Street, N.W.
Washington, DC 20009 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 Cepitol Street 4350 East West Highway concord, NH 03301-6397 i
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 Connission One White Flint Ncrth, 15tn Fl.
Eant West Towers Building 11555 Rockville Pike 4350 East West Highway Rackville, MD 20852 Bethesda, MD 20814
- Atomic Safety and Licensing Robert A.
Backus, Esquire Appeal Board Panel Backus, Meyer & Solomon U.S. Nuclear Regulatory 11(. Lowell Street Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03105 i
O Philip Ahrens, Esquire Mr. J.
P.
Nadeau Assistant Attorney General ~
Selectmen's Office 10 Central Road Department of the Attorney 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 General 25 Maplewood Avenue One Ashburton Place, 19th Floor P.O.
Box 360 Boston, MA 02108 Portsmouth, NH 03801 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-Whilton &
Washington, DC 20510 McQuire (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 0192.3 l
Exeter, NH 03833 H. Joseph Flynn, Esquire Charles P. Graham, Esquire i
Office of General Counsel Murphy and Graham Federal Emergency Management 33 Low Street l
Agency-Newburyport, MA 01950 S00 C St'reet, S.W.
Washington, DC 20472 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 /
o 4
Judith H. Mizner, Esquire Mr. Richard R.
Donovan 79 State Street Federal Emergency Management Second Floor Agency Federal Regional Center Newburyport, MA 01950 130 228th Street, S.W.
Bothell, WA 98021-9796 E'lb,., hl ' M N J/ffrpy P. Trout
(*= Ordinary U.S. First Class Mail.)
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