ML20209G623

Town of Hampton Brief in Response to Commission Order CLI-87-02.* Rejection of Util Plan & Preservation of Status Quo Recommended Due to Obstacles to Emergency Planning. Certificate of Svc Encl

ML20209G623
Person / Time
Site:	Seabrook
Issue date:	04/28/1987
From:	Brock M, Mceachern P HAMPTON, NH, SHAINES & MCEACHERN
To:	NRC COMMISSION (OCM)
Shared Package
ML20209G594	List: ML20209G589 ML20209G623
References
ALAB-853, CLI-87-02, CLI-87-2, OL, OL-1, NUDOCS 8705010027
Download: ML20209G623 (10)

Text

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UNITED STATES OF AMERICA before the NUCLEAR REGULATORY COMMISSION In The Matter of ) Docket No. 50-433-OL

)

PUBLIC SERVICE COMPANY ) (Off-site Emergency Planning)

OF NEW HAMPSHIRE, et al )

) -and-(Seabrook Station, )

Unit 1) ) Docket No. 50-433-OL-1 (On-site Emergency Planning and Safety Issues)

TOWN OF HAMPTON BRIEF IN RESPONSE TO THE COMMISSION'S ORDER CLI-87-02 On April 9, 1987, the Commission reversed ALAB-853 and held that 10 CFR 550.33(g) requires that Applicant file an emergency response plan for all communites within the EPZ, including the six Massachusetts towns, prior to commencement of low power operation. The Commission ordered a stay of all nuclear operation at Seabrook. CLI-87-02.

On the eve of the Commission's issuance of CLI-87-02, Applicant filed what purported to be a " utility emergency plan for that portion of the EPZ that lies in Massachusetts." CLI-87-02 Page 2 Note 1. Applicant filed a suggestion of mootness which claimed that the filing of the utility emergency plan, so-called, satisfied the requirements of 10 CFR 550.33(g), and that the Commission shonld lift its stay to permit low power operation at Seabrook Station.

The Commission reserved decision on this issue. The Town of Hampton submits this brief in opposition to Applicant's suggestion of mootness.

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ARGUMENT I

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Applicant's utility emergency plan fails to comply with Commission regulations under 550.33(g) for licensing applications.

10 CFR 550.33(g) provides in relevant part:

The applicant shall submit radiological emergency response plans of state and local governmental entities in the United States that are wholely or partially within the plume exposure pathway emergency planning zone (EPZ).

The terms of S50.33(g) are clear and unambiguous. Applicant shall submit plans of state and local governmental entities. In CLI-87-02, the Commission correctly noted that the submission by Applicant constituted a " utility emergency plan," Page 2 Note 1 (emphasis supplied). It is undisputed that Massachusetts has never approved any emergency response plan for the six Commonwealth towns located within the EPZ or authorized submission of an RERP to FEMA.

Although the Commission may have authority to promulgate regulations to permit consideration of a utility plan as satisfying licensing application requirements, see In the Matter of Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1),

Docket No. 50-322-OL-3, July 25, 1986 at Page 6 (re: NRC Authorization Act), the Commission has never exercised that authority through rulemaking. The Commission is therefore bound to act within its existing regulations and, as a matter of law, must reject Applicant's 2

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. 1 proferr:d cubmic= ion of c utility plan es inndequnto under 550.33(g).

ARGUMENT II Even if a utility plan, in some circumstances, may satisfy the requirements of S50.33(g), Applicant's proferred utility plan should be rejected as both facially and substantively deficient.

By letter dated April 24, 1987, Applicant filed a " clarification" of the utility plan submitted for the Commonwealth of Massachusetts.

The enclosure included with that letter provides:

Collectively, these plans and procedures describe a total program of response ( by the Commonwealth, the six towns within the Seabrook Station EPZ and the two host communities) to an incident at Seabrook Station. These plans were developed to meet the guidelines of NUREG-0654/ FEMA-REP-1.

These statements are inaccurate and misleading since:

1. There is no means in the " utility plan" to compensate for the avowed non-participation of state and local governmental entities.

Applicant can only state that "NHY is prepared to develop and implement reasonable and effective measures to compensate for this lack of 2

cooperation." 4/24/87 Enclosure at Page 4.

1 As further support for its position, the Town of Hampton notes the provisions of 10 CFR S50.47 (a) (2) require that "the NRC will base its finding on a review of the Federal Emergency Management Agency (FEMA) findings and determinations as to whether state and local emergency plans are adequate and wehther there is reasonable assurance that they can be implemented." (Emphasis supplied). Again, no provision is made for utility plans as an acceptable alternative to satisfey licensing requirements under the Commission's regulations.

2 The Town of Hampton notes the coincidental filing by Applicant of a

" utility plan" for Massachusetts immediately prior to the Commission's decision in CLI-87-02, which required the filing of off-site plans for the entire EPZ. Applicant's haste in filing, however, has apparently led to the facial deficiencies in the " utility plan" noted herein.

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FEMA, however, requires that a compensatory plan be prepared "to anticipate the non-participation of any of the local jurisidictions in the Seabrook plume EPZ." FEMA, Final Exercise Assessment 6/2/86 Page 44. Applicant's admitted failure to include a plan to compensate for the lack of state or local participation, in the face of the avowed refusal of the Commonwealth and EPZ communities to review, train for, or implement Applicant's RERP, thereby renders the plan facially deficient and precludes a finding that " adequate emergency planning (for Massachusetts) is at least in the realm of the possible." CLI-87-02 at Page 7.

Applicant has further failed to include a utility role in its

" utility plan." Accordingly, that plan may not reasonably be considered as a state, local, or utility plan, as referenced in the Commission's Shoreham decision, CLI-86-13, but is rather an outdated and rejected draft plan, inadequate under Commission regulations.

2. FEMA has never reviewed the utility plan submitted by Applicant, and has never approved any RERP for the Commonwealth of Massachusetts or the six Massachusetts EPZ towns. To the extent it previously conducted any review of prior drafts of Massachusetts plans, that review was based upon the assumption, ,

since disproved, that Massachusetts state and local response organizations would participate in the review, preparation,  ;

training, and implementation of the RERP. By subsequently disavowing )

i any such planning or participation, the Commonwealth and affected l

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4-4 local. communities have eliminated a fundamental premise upon which FEMA conducted even its cursory and informal review and renders irrelevant any prior FEMA findings on the adequacy of the utility plan submitted for Massachusetts.

Again,. Applicant's utility plan cannot satisfy the threshold

! requirements of S50.33(g) since that plan fails to demonstrate that " adequate emergency planning is at least in the realm of the possible."

CONCLUSION The Commission should reject Applicant's utility plan as j well.as Applicant's efforts to foul its own nest through low power operation, and preclude reasoned consideration of conversion l

i options. Substantial, perhaps insurmountable, obstacles to emergency planning should prompt the Commission to preserve the i status quo at this time.

i The Commission has recognized that the issues raised in Applicant's suggestion of mootness include "a question of regulatory policy." The Town of Hampton respectfully requests the Commission to exercise its policy judgment and continue the stay, at least until Applicant complies with the provisions of 550.33(g).

i l Respectfully submitted, j The Town of Hampton

, By Its Attorneys i SHAINES McEA E , P. .

I Dated: April 28, 1987 By

/ Paul McEachern

\ ^ _+ A hm 4 By V  %" N

' Matthew T. Brock 1

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- _ ___~ - .

CERTIFICATE OF SERVICE I, Matthew T. Brock, one of the attorneys for the Town of Hampton herein, hereby certify that on April 28, 1987, I made service of the following document, TOWN OF HAMPTON BRIEF IN RESPONSE TO THE COMMISSION'S ORDER CLI-87-02 by depositing copies thereof with Express Mail, prepaid, for delivery to (or, where indicated, by depositing in the United States mail, first class postage paid, addressed to):

• Lando W. Zech, Jr.

Chairman US NRC Washington, DC 20555 g s r.

ojo

• Thomas M. Roberts y" g y US NRC gg" sg Washington, DC 20555 h,4

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@ 5;

• James K. Asselstine US NRC

?5 2j.:,

Fishington, DC 20555 00

• Frederick M. Bernthal US NRC Washington, DC 20555

• Kenneth M. Carr US NRC Washington, DC 20555

• Docketing and Service U.S. Nuclear Regulatory Commission Washington, DC 20555 Mrs. Anne E. Goodman Board of Selectmen 13-15 Newmarket Road Durham, NH 03842 William S. Lord, Selectman Town Hall Friend Street Amesbury, MA 01913 Jane Doughty Seacoast Anti-Pollution League 5 Market Street Portsmouth, NH 03801 Rep. Roberta C. Pevear Drinkwater Road Hampton Falls, NH 03844 SHAINES 6s McEACHERN . PROFE550NAL A5500ATBDN 25 MAPLEWOOD AVENUE P O box 360 PORT 5 MOUTH. N H 03801

• Philip Ahrens, Esq.

Assistant Attorney General Office of the Attorney General State House Station 6 Augusta, ME 04333

• Thomas G. Dignan, Esq.

R.K. Gad II, Esq.

Ropes & Gray 225 Franklin Street Boston, MA 02110 Robert A. Backus, Esq.

Backus, Meyer & Solomon 111 Lowell Street Manchester, NH 03105

• Sherwin E. Turk, Esq.

Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Tenth Floor 7735 Old Georgetown Road Bethesda, MD 20814 Mr. Angie Machiros, Chairman Board of Selectmen Newbury, MA 01950 H. Joseph Flynn, Esq.

Office of General Counsel Federal Emergency Management Agency 500 C Street, S.W.

Washington, DC 20472

• George Dana Bisbee, Esq.

Stephen E. Merrill, Esq.

Office of the Attorney General State House Annex Concord, NH 03301

• Carol S. Sneider, Esq.

Assistant Attorney General Department of the Attorney General One Ashburton Place 19th Floor Boston, MA 02108 Stanley W. Knowles Board of Selectmen P. O. Box 710 North Hampton, NH 03862 1

2 5HAINES 6: McEACHERN - PROFESSIONAL ASSOGATION 25 MAPLEWOOD AVENUE P O. Box 360. PORTSMOUTH. N M 0380t

J.P. Ni:d =u, Selectman Selectmen's Office 10 Central Road Rye, NH 03870 Richard E. Sullivan, Mayor City Hall Newburyport, MA 01950

- Alfred V. Sargent, Chairman Board of Selectmen Town of Salisbury Salisbury, MA 01950 Senator Gordon J. Humphrey ,.

U.S. Senate Washington, DC 20510 (Attn: Tom Burack)

Michael Santosuosso, Chairman

• Board of Selectmen Jewell Street RFD 2 South Hampton, NH 03827 Allen Lampert Civil Defense Director Town of Brentwood Exeter, NH 03833 Richard A. Hampe, Esq.

Hampe and McNicholas 35 Pleasant Street Concord, NH 03301 Gary W. Holmes, Esq.

Holmes & Ellis 47 Winnacunnet Road Hampton, NH 03842 William Armstrong Civil Defense Director 10 Front Street Exeter, NH 03833 Calvin A. CAnney City Manager

- City Hall 126 Daniel Street Portsmouth, NH 03801 3

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. . _ _ _. - . . _ _ _ .~. _

• Edward A. Thomas Federal Emergency Management Agency 442 J.W. McCormack (POCH)

Boston, MA 02109 Sandra Gavutis Town of Kensington RFD 1, Box 1154 East Kensington, NH 03827 Charles P. Graham, Esq.

McKay, Murphy & Graham 100 Main Street Amesbury, MA 01913

• Diane Curran, Esq.

Andrea C. Ferster, Esq.

Harmon & Weiss Suite 430 2001 S Street, N.W.

Washington, DC 20009-1125 Robert Carrigg, Chairman Board of Selectmen Town Office Atlantic Avenue North Hampton, NH 03862 Senator Gordon J. Humphrey One Eagle Square, Suite 507 Concord, NH 03301 (Attn: Herb Boynton)

Mr. Thomas H. Powers, III Town Manager Town of Exeter 10 Front Street Exeter, NH 03833 Mr. Peter Matthews Mayor City Hall Newburyport, MA 01950 4

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Brentwood Board of Selectmen RFD Dalton Road Brentwood, NH 03833 Judith H. Mizner, Esq.

Silvergate, Gertner, Baker, Fine, Good & Mizner 88 Broad Street Boston, MA 02110 W

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k*s Matthew T. Brock

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• NEXT DAY' AIR 5

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