ML20207S583

Applicant Answer to Motion of Atty General,Jm Shannon to Reconsider late-filed Contention W/Revised Basis & to Reopen Record.* Advises That Motion to Reconsider late-filed Contention Should Be Denied.Certificate of Svc Encl

ML20207S583
Person / Time
Site:	Seabrook
Issue date:	03/13/1987
From:	Selleck K PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20207S584	List: ML20207S583 ML20207S588
References
CON-#187-2822 OL-1, NUDOCS 8703200065
Download: ML20207S583 (9)

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00CKETED USNRC Dated: March 13, 1987 _

'87 NW 18 P3 :46 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION GFFICE 00ChE y F , 2 aC/,"c:/

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r ,. . . a before the ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of )

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PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL-1 NEW HAMPSHIRE, et al. ) 50-444-OL-1

) (Onsite Emergency Planning (Seabrook Station, Units 1 and 2) ) and Safety Issues)

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APPLICANTS' ANSWER TO MOTION OF ATTORNEY GENERAL JAMES M. SHANNON TO RECONSIDER LATE-FILED CONTENTION WITH REVISED BASIS AND TO REOPEN THE RECORD Introduction Under date of March 3, 1987, the Attorney General of the Commonwealth of Massachusetts has filed yet another motion to reopen the record in the above-captioned proceeding together with a motion for the Board to Reconsider its earlier ruling of February 6, 1987, insofar as that ruling refused admission of a late-filed contention concerning the Seabrook siren system, hD DO K 5 j3 m d:903

The thrust of the new motion is that the background measurements that the Applicants made in response to the first motion were taken in the wrong octave band for the siren involved, a fact which the Applicants concede as set forth in the accompanying Affidavit of Anthony M.

Callendrello (hereafter "Callendrello Affidavit"). However, as also set forth in the Callendrello Affidavit, new measurements have now been made and they confirm what the Applicants' consultants intuitively knew, i.e. that in the areas of concern the sound pressure level of the sirens exceeds the background ambient level by 10 dB. In light of the contents of the Callendrello Affidavit, and for the further reasons set forth below, the Applicants say the motion at bar should be denied.

Argument I

As is apparent from the Callendrello Affidavit, the Applicants' response to the prior motion of the Massachusetts Attorney General reflected an inadvertency.

Incorrect information was given to the consultants, HMM Associates, as to the frequency of the sirens at issue, and the measurements were taken in the wrong band. As pointed out in the Affidavit of Mr. Konig which accompanied the Attorney General's Motion, the sirens of concern have an l

actual fundamental frequency of 680 Hz. Thus, ambient sound level measurements in the standard 1000 Hz band were inappropriate.

The next issue is what band is appropriate. As set forth in the attachments of the Callendrello Affidavit, the appropriate band in this situation is the 630 Hz 1/3 octave band. As Mr. Konig acknowledges in his affidavit, NUREG-0654 (Appendix 3, Section C3f) does not specify the band width (octave, 1/3 octave, 1/10 octave, etc.) which is to be utilized. Konig Aff. at 2, 1 5. FEMA-REP-10, which gives guidance on siren systems, is also silent on the band width to be used. However, that current (Nov., 1985) guidance document states on its cover page that it

" supersedes FEMA-43/ September, 1983, Which May Be Used."

(Emphasis added.) As stated by the experts at Wyle Laboratories (see Attachment "C" to the Callendrello Affidavit), utilization of the appropriate 1/3 octave band is the correct procedure. As shown by Attachment "B" to the Callendrello Affidavit for the area of concern the appropriate 1/3 octave band is the 630 Hz octave band and the measurements made by HMM's experts show that the 10 dB above ambient background is met. This being the case it is clear that the reopening of this matter to consider the contention proposed by the Attorney General would not lead to a different result, nor does it involve a significant safety question as seen below.

Motions to reopen a closed evidentiary record are now governed by 10 CFR 2.734 as added 51 Fed. Reg. 19539, corrected, 51 Fed. Reg. 23523 (1986). That section requires

that a motion to reopen satisfy the criteria of being

" timely," addressing a "significant safety . . . issue,"

and, most importantly, demonstrating "that a materially different result would be or would have been likely had the newly proffered evidence been considered initially." 10 CFR 2.734(a). In addition, where, as here, the motion seeks to inject a new contention into the proceeding, the movant "must also satisfy the requirements for non-timely contentions in" 10 CFR 2.714(a)(1)(i-v). 10 CFR 2.734(d).

Prescinding from the question of " timeliness" for the moment, but see infra, the information in the Callendrello Affidavit makes clear that a materially different result would not obtain after a hearing on this issue. It may be argued that because EEMA-REP-10 states that the measurements should be made in the summer, that all the criteria are not satisfied. But these measurements are sufficient for the present and new measurements can be made this summer and adjustments made, if necessary. Callendrello Affidavit at 11 7, 9.

All of the foregoing also highlights why the criterion that a "significant safety . . . issue" be involved is not met. Because it involves measurements against wholly objective criteria, the audibility and operability of siren systems has long been viewed as a matter committed to Staff oversight. Louisiana Power and Light Company (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076,

1104-05 (1983); Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LBP-84-18, 19 NRC 1020, 1071 (1984); Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-82-46, 15 NRC 1531, 1535-36 (1982). The Staff is perfectly capable of assuring that adequate siren coverage is in effect.

There simply is no significant safety issue to be litigated.

Finally, the Attorney General's motion is not timely.

At a time when the siren system had yet to be designed and constructed, Massachusetts showed no interest at all in raising a contention about the sirens of any kind. We have now been faced with two motions seeking to litigate minutiae of the system for one town during low power testing. The siren issue transparently has become simply a vehicle which Massachusetts hopes to utilize to further the avowed purpose of certain of its public officials to consign many billions of dollars in the form of Seabrook to the scrap heap. It is too late now to become interested in sirens. Especially is this so when the matters being complained of can be easily and fully dealt with by the Staff using objective criteria.

Massachusetts is not left without remedy; it is always free to file a 10 CFR 2.206 petition with the Staff if it truly believes there is a concern now or later with the siren coverage in the Town of Merrimac.

Conclusion The motion should be denied.

Thomas G. Dignan, Jr.

R. K. Gad III Kathryn A. Selleck Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 Counsel for Applicants i

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e DOCKETED USNRC CERTIFICATE OF SERVICE I, Kathryn A. Selleck, one of the attorneys foh7 dgR t 18 P3 :46 Applicants herein, hereby certify that on March 13, 1987, I made service of the within document by depositing gopie,s n ,,.j ;gg y thereof with Federal Express, prepaid, for deliver $0CtFl(or,WViCL where indicated, by depositing in the United States mailjNCH first class postage paid, addressed to):

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 Dr. Emmeth A. Luebke Diane Curran, Esquire Atomic Safety and Licensing Andrea C. Ferster, Esquire Board Panel Harmon & Weiss U.S. Nuclear Regulatory Suite 430 Commission 2001 S Street, N.W.

East West Towers Building Washington, DC 20009 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 i East West Towers Building 25 Capitol Street 4350 East West Highway Concord, NH 03301-6397 Bethesda, MD 20814 i

• Atomic Safety and Licensing Sherwin E. Turk, Esquire i Board Panel Office of the Executive Legal U.S. Nuclear Regulatory Director Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Tenth Floor 7735 Old Georgetown Road i Bethesda, MD 20814 l

• Atomic Safety and Licensing Robert A. Backus, Esquire l Appeal Board Panel Backus, Meyer & Solomon

U.S. Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03105 1

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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 Route 107 126 Daniel Street Kensington, NH 03827 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 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 l 10 Front Street Amesbury, MA 01913 -

l 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 l 500 C Street,.S.W.

i Washington, DC 20472 l 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 Charles P. Graham, Esquire McKay, Murphy and Graham 100 Main Street Amesbury, MA 01913 Kathryn A. Selleck

(*= Ordinary U.S. First Class Mail.)

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