ML20206S990

Applicants Response to Town of Hampton Motion for Summary Disposition.* Response Opposing Town of Hampton Motion for Summary Disposition,Certificate of Svc Encl

ML20206S990
Person / Time
Site:	Seabrook
Issue date:	04/10/1987
From:	Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20206S995	List: ML20206S990 ML20206T061 ML20206T143
References
CON-#287-3182 OL, NUDOCS 8704230092
Download: ML20206S990 (7)

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09CXETED USNRC i- Dated: April 10, 1987 5i AMI 17 P258 UNITED STATES OF AMERICA 0FFICE OF SECRETARY NUCLEAR REGULATORY COMMISSION 00CKEilNG & SERVICf.

BRANCH before the ATOMIC SAFETY AND LICENSING BOARD l

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In the Matter of )

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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 l

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APPLICANTS' RESPONSE TO TOWN OF HAMPTON MOTION FOR

SUMMARY

DISPOSITION Under date of March 25, 1987 the Town of Hampton (TOH)

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has filed a summary disposition motion seeking summary L disposition of the following issue:

"The NHRERP Revision 2 fails to demonstrate that adequate personnel have been assigned, identified, or are available, to implement protective responses for the Hampton students and for those with special needs and thereby fails to provide reasonable assurance that adequate protective measures can and will be taken for these people in the event of a radiological emergency at Seabrook, in violation of 10 CFR Section 50.47(a)(1)(b)(1), NUREG. 0654 FEMAREP1 Revision 1 at pages 31-33."

8704230092 870410 PDR ADOCK 05000443 0 PDR 350

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In support of the motion there is filed a portion of an affidavit 1 filed by the New Hampshire Director of Civil Defense Agency in a State Court proceeding in which the Director stated that "NHRERP compels no one to carry out any activity."2 Also filed in support of the motion is an affidavit of a New Hampshire High School Teacher who circulated a petition stating:

"We are the teachers who work at schools in communities within the ten mile EPZ of Seabrook Station. We DO NOT accept the conflicting duty which the emergency response (evacuation) plan assigns us. .

"We believe it is inappropriate to I expect us to provide emergency support for our students during a nuclear accident which would simultaneously place our f atnilies in danger. "

Attached to the affidavit are what appear to be copies of l

the petition bearing signatures of numerous teachers.3 The affidavit also states that of the "several hundred teachers" 1

The failure of TOH to include the entire affidavit is l inexplicable, voids the affidavit as a sworn document, and requires denial of the motion on that basis alone, a As we understand it, one of the issues in the State Court case was whether the NHRERP operated to conscript persons against their will into doing things.

3 It is interesting to note that the language of the petition, perhaps deliberately, does not say that the signatory will abandon the students in his or her

charge. Rather the signatory does not accept a duty and l believes it is " inappropriate" to expect that a teacher will provide support for students when the accident also threatened families.

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D he has spoken to regarding issues in the petition two indicated they would carry out their duties.* In the motion TOH combines these affidavits with an allegation that NHRERP provides no compensatory personnel for teachers who may deleine to carry out their duties to get a conclusion that summary disposition should issue in TOH's favor on the above-quoted issue. For the reasons set forth below the motion should be denied.

ARGUMENT Reference is made to the affidavit of Dennis S. Mileti entitled " Affidavit Three - Emergency Worker Role Abandonment" filed with the Applicants' Motion for Summary Disposition in this docket. That affidavit, by a leading expert on human behavior in emergency situations, demonstrates that empirical evidence shows that persons with duties in emergencies do not abandon their posts, Mileti Affidavit No. 3 at 4-12, and he explains why even though some workers, as the teachers herein, will say they do intend to abandon their duties, id. at 12-18. This clearly creates a factual dispute with respect to the issue at hand.

Prescinding from the foregoing, the major premise of the motion is, as a' matter of law, not viable due to the realism

• We are left in the dark as to how many, if any, said they would not.

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4 doctrine as articulated in Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), CLI-86-13, NRC

, CCH Nuclear Reg. Rep. 1 30,975 (July 24, 1986). TOH seeks to avoid this doctrine in a footnote pointing out that the emergency workers at issue, teachers and persons charged with the care of those with special needs, "have no legal duty to assume civil defense functions and the state has l admitted same." TOH Motion n.l. But the sweep of the realism doctrine is not as narrow as TOH would have it. The Commission stated "The State and County officials would be obligated to assist both as a matter of law and as a matter j of discharging their public trust." CLI-86-13, supra, CCH

Nuclear Reg. Rep, at pp. 32012-13. There is no greater I

public trust than that given teachers over our children; similarly those licensed to care for the sick, elderly, or infirm also have a great public trust. The doctrine applies to these persons in full force.

CONCLUSION The motion should be denied.

Respectfully submitted, m

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//MP Thomas 7. DQ nan, Jr.

George H. Lewald Kathryn A. Selleck Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 Counsel for Applicants

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00CKETED CERTIFICATE OF SERVICE I, Thomas G. Dignan, Jr., one of the attorneys fB1 AMb17 P2 :48 1 Applicants herein, hereby certify that on April 10,'1987, I made service thereof, of the postage withinto:

prepaid, document by mailing copiggkET DOC G$kNfik BRANCH Administrative Judge Helen Hoyt, Stephen E. Merrill, Esquire Chairperson Attorney General Atomic Safety and Licensing George Dana Bisbee, Esquire Board Panel Assistant Attorney General U.S. Nuclear Regulatory Office of the Attorney General Commission 25 Capitol Street Washington, DC 20555 Concord, NH 03301-6397 Judge Gustave A. Linenberger, Jr. 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 Robert Carrigg, Chairman Diane Curran, Esquire Board of Selectmen Andrea C. Ferster, Esquire Town Office Harmon & Weiss Atlantic Avenue Suite 430 North Hampton, NH 03862 2001 S Street, N.W.

Washington, DC 20009 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 Washington, DC 20555 Commission Washington, DC 20555 Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Board Panel Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03105 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 Portsmouth, NH 03801 Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall Kensington, NH 03827 126 Daniel Street Portsmouth, NH 03801 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 S. 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 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 Judith H. Mizner, Esquire FEMA, Region I Silverglate, Gertner, Baker 442 John W. McCormack Post Fine, Good & Mizner Office and Court House 88 Broad Street Post Office Square Boston, MA 02110 Boston, MA 02109 j.

s Charles P. Graham, Esquire McKay, Murphy and Graham 100 Main Street Amesbury, MA 01913

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Thomas G. Defputi, Jr.

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