ML20205M782
| ML20205M782 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 04/11/1986 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#286-769 OL, NUDOCS 8604150377 | |
| Download: ML20205M782 (11) | |
Text
,
Dated:
AprQgg'C 'g,1986 USHR UNITED STATES OF AMERICA GFFICE cr :
NUCLEAR REGULATORY COMMISSION 00CHEpf; g eiU HO!
before the ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
)
)
PUBLIC SERVICE COMPANY OF
)
Docket Nos. 50-443-OL NEW HAMPSHIRE, et al.
)
50-444-OL
)
Off-site Emergency (Seabrook Station, Units 1 and 2) )
Planning Issues
)
)
APPLICANTS' BRIEF WITH RESPECT TO (1) THE MASS AG CONTENTION AND (2) THE S0-CALLED " MULTIPLE ETEs" ISSUE During the second session of the recent prehearing conference on the above-entitled matter, this Board directed l
(R. 2325-28) the Applicants to file an additional brief on two matters:
(1) The admissibility of the single contention proposed by the Attorney General of the Commonwealth of Massachusetts (" Mass AG"); (2) the issue of whether an evacuation time estimate (ETE) adopted by a State which is not the same as that provided by the Applicants pursuant to 10 CFR 50 App.
E, 5 IV, may be the subject of litigation in 8604150377 860411 PDR ADOCK 05000443 ~
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an Operating License proceeding.
Herein, the Applicants i
respond to that direction.
I.
THE CONTENTION OF THE ATTORNEY GENERAL OF THE COMMONWEALTH OF j
MASSACHUSETTS SHOULD BE EXCLUDED Mass AG has submitted but a single contention for litigation in the current phase of this proceeding dealina i
with the New Hampshire emergency plan.
This contention is:
i "The draft. radiological emergency response plans for the Towns of l
Seabrook, Hampton, North Hampton, and Rye do not provide reasonable assurance j
that adequate protective measures can and will be taken in the event of a radiological emergency at the Seabrook
'l Station, as required by 10 C.F.R. 5 50.47(a)(1), because in the event of a l
severe accident on a summer weekend some i
or all of the beach area transient populations within those communities cannot under many plausible
'l i
meteorological conditions be protected i
by means of evacuation even from early j
death and because there are not adequate j
plans or provisions for sheltering the beach area transients within those communities."
i, In their response 1 to this contention,.the Applicants l
l characterized it as one which sought to assert that the regulations were to be read as requiring the Applicants to
)
demonstrate that the emergency plan was capable of assuring l
that no potential for injury to the general public exists.
l l
1 Applicants' Response to Off-Site EP Contentions Submitted by Massachusetts Attorney General (New i
Hampshire-State and Local Plans), Dkt. Nos. 50-443-OL; 50-444-OL (March 5, 1986).
j
This is, of course, directly contrary to the principle that
"[a]bsolute protection of the public against all radiation doses cannot be guaranteed and is not required for all-possible accident scenarios."
Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 NRC 644, 782 (1985).
In addition, the Applicants argued that the regulation did not require a demonstration that a particular level of protection was to be attained.
On these bases the Applicants urged rejection of the contention.
The Staff on the other hand, while concurring that, inter alia, "the assertion that emergency planning must assure any particular level of dose protection for the general public"2 does not present a litigable issue, went on nevertheless to suggest a possible interpretation of the Mass AG contention as enveloping within it a contention that
" adequate plans and provisions for sheltering of coastal beach populations (in Seabrook, Hampton, North Hampton and Rye), have not been provided",3 which contention the Staff argued would be admissible.
In short, the Staff in essence, proposed a rewording of Mass AG's contention into a form that the Staff could support as being admissible.
2 Staff Response to Mass AG at 2 (March 14, 1986).
3 Staff Response to Mass AG at 1.
1 4
Prescinding from the question of whether the Staff's rewrite can be supported by the original wording of the contention when read against the acc'ompanying statement of basis, the fact is that Mass AG has by both the written
- and 5
8 spoken word rejected the rewrite.
In his written response to the Staff's and Applicants' objection, Mass AG states he will not be limited as the Staff suggests:
"The Staff and Applicant would nevertheless argue that the contention is not admissible, as is, for the simple reason that the commission has never established a precise level of j
protection which emergency plans must meet.
It does not follow, however, that just because there is no absolute level of protection required for emergency plans, that no standard at all axists against which protective respcase actions must be judged.
See & plicants' Response at 15; Staff's Response at 3-4.
Commission regulations require that there be ' reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.'
10 C.F.R.
$ 50-47(a)(1).
Thus, there is a j
standard, a level of protection, which i
must be satisfied.
To say otherwise, i
would be to disregard the plain meaning 1
of the regulation which required
' adequate protection.'
Cf. Guard v.
NRC, 753 F.2d 1144, 1149 (D.C. Cir.
i 1
4 Answer of Attorney General Bellotti to the Staff's, Applicants' and State of New Hampshire's Responses to his contention relative to Emergency Planning for the New Hampshire Beach Communities (March 24, 1986).
5 Tr. 2254-59 (March 26, 1986) 6 n.
4, supra.
. f
~. - - -
1985).
The fact that the Commission has not particularized that standard by establishing a ' threshold number of unacceptable deaths or injuries' or otherwise further defined what constitutes ' adequate protection,' does not mean that a contention challenging the level of protection accorded in a l
given instance is inadmissible.
It means, rather, that any such contention i
is admissible and it is then up to the Board to determine whether the level of protection provided is adequate, thus meeting the regulatory standard."7 At the hearing, Mass AG's refusal to accept the Staff rewrite was again stated with admirable candor:
l "We don't want to be confined as the Staff suggested, just examining whether there is adequate sheltering in the area, because we suggest there may be other options.
NUREG-0654 says there i
has to be a range of protective options, range of protective responses, to respond to it, number of different types of accident sequences.
l "We say they must be adequate protective responses.
j l
"I don't know that evacuation sheltering
-- our evidence shows that in many l
instances it's not sufficient, that we have to look beyond that.
So we are not going to be limited to the issue of just
]
whether there is adequate shelter in the I
area.
We want to see some protective response that can protect this beach i
population, whatever that may be."8 In short, having been thrown a life raft in the form of a Staff rewrite, Mass AG has elected to reject the proffered 7
Id. at 3-4.
8 Tr. 2258-59..,.
6 help.
Mass AG has confirmed that Applicants' original reading of the contention is correct.
Thus, for the reasons
' stated in Applicants' ori.ginal response,' the contention should be rejected.
II.
THE " MULTIPLE ETEs" ISSUE In the regulations-of the Commission (as opposed to any regulatory guidance) there is only one reference to what have come to be known as " evacuation time estimates" (ETEs):
The nuclear power reactor operating license applicant shall also provide an analysis of the time required to evacuate and for taking other protective actions for various sectors and distances within the plume exposure pathway EPZ for transient and permanent populations."
10 CFR 50, App.
E, i IV.
The Applicants have prepared an ETE and it was litigated before this Board in August of 1983.
At the time the Applicants' ETE was litigated, there were also in existence other ETEs prepared for the State of New Hampshire.
These were in good agreement with the ETE prepared by the Applicants.
Since that time, there has been prepared yet another ETE under contract with the Commonwealth of Massachusetts (the so-called "KLD" study).
The question presented is whether, assuming that either New Hampshire or Massachusetts or both adopt the KLD ETE (or S
n.
1, supra.
some other ETEs) as the basis for protective action decisionmaking, does this mean the ETE so adopted must be litigated before this Board.
The answer, we believe, is no.
As noted above, under the regulations only the applicant must prepare and submit an ETE.
NUREG-0654 purports to state that the State Emergency Plans shall also contain ETEs though it does not state the source for such plans.
NUREG-0654, however, is not a regulation.
Metropolitan Edison So.
(Three Mile Island Nuclear Station, Unit No. 1),
ALAB-698, 16 NRC 1290,,1298-99 (1982);
Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2),
ALAB-819, 22 NRC 681, 709-10, aff'q LBP-85-14, 21 NRC 1219, 1228 (1985).
An applicant is not required to do more than mest the regulations.
Maine Yankee Atomic Co. (Maine Yankee A*.omic Power Station), ALAB-161, 6 AEC 1003, 1008 (1973).
Even if NUREG-0654 were a regulation, it would not require litigation of the KLD study in any event.
Appendix 4 of NUREG-0654 states (at p. 4-1):
"Because the evacuation time estimates will be used by those emergency response personnel charged with recommending and deciding on protective actions during an emergency, the evacuation time estimates should be updated as local conditions change (e.g. change in type or effectiveness of public notification system).
This shows that it has long been recognized that ETEs are
-not set in concrete and should not be.
A state is free to update or change an ETE as it sees fit.
If the Commission v
had wished to require litigation of a state-generated ETE or each ETE revision or update, it could have said so.
A better reading of the regulatory intent is that the Commission wished to assure that someone would do an ETE in each case and thus charged the applicant with the task.
When the applicant does one and it is found to be reasonable, that is the end of litigation on ETEs.
The fact that the State, in its wisdom, elects to make its decision on the basis of another or updated ETE is of no moment.
That -is its right.
As the Staff has suggested, a lack of commonality of ETEs between the States and the applicant may result in other contentions being fair game for litigation, but it does not require litigation of the State's selected ETE.
Respectfully submitted, Thomas G.
Dignan, Jr.
Thomas G.
Dignan, Jr.
R.
K. Gad III Ropes & Gray 225 Franklin Street Boston, MA 02110 Tel. (617) 423-6100 Counsel for Applicants __
CERTIFICATE OF SERVICE I, Thomas G. Dignan, Jr.,
one of the attorneys for the Applicants herein, hereby certify that on April 11, 1986, I made service of the within document 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):
Helen Hoyt, Chairperson Stanley W.
Knowles, Chairman Atomic Safety and Licensing Board of Selectmen Board Panel P.O.
Box 710 U.S. Nuclear Regulatory North Hampton, NH 03862 Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814 Dr. Emmeth A.
Luebke Diane Curran, Esquire Atomic Safety and Licensing Harmon & Weiss Board Panel 2001 S Street, N.W.
U.S. Nuclear Regulatory Suite 430 Commission Washington, DC 20009 East West Towers Building 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
4 i
- Atomic Safety and Licensing Sherwin E. Turk, Esquire Board Panel Office of the Executive Legal U.S. Nuclear Regulatory Director Commission U.S.
Nuclear Regulatory Commission i
Washington, DC 20555 Tenth Floor 7735 Old Georgetown Road Bethesda, MD 20814
- Atomic Safety and Licensing Robert A.
Backus, Esquire Appeal Board Panel 116 Lowell Street U.S. Nuclear Regulatory P.O.
Box 516 Commission Manchester, NH 03105 j
Washington, DC 20555 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 General 25 Maplewood Avenue One Ashburton Place, 19th Floor P.O.
Box 360 Boston, MA 02108 4
Portsmouth, NH 03801 Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall l
Kensington, NH 03827 126 Daniel Street
]
Portsmouth, NH 03801 I
- Senator Gordon J. Humphrey Mr. Angie Machiros U.S.
Senate Chairman of the Washington, DC 20510 Board of Selectmen (Attn:
Tom Burack)
Town of Newbury Newbury, MA 01950-
- Senator Gordon J.
Humphrey Mr. Peter J. Matthews i
1 Pillsbury Street Mayor Concord, NH 03301 City Hall (Attn:
Herb Boynton)
Newburyport, MA 01950 j
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Mr. Donald E. Chick 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.,
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 Mr. Ed Thomas FEMA, Region I John W. McCormack Post Office and Court House Post Office Square Boston, MA 02109
(*= Ordinary U.S. First Class Mail.)
Thomas G.
Dignan, Jr.
Thomas G.
Dignan, Jr.
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