ML20212C901

Applicants Response to Seacoast Anti-Pollution League'S Contention & Motion to Admit late-filed Contention,Reopen Record on Onsite Emergency Planning & Condition Issuance of License Up to 5% of Rated....* Certificate of Svc Encl

ML20212C901
Person / Time
Site:	Seabrook
Issue date:	02/23/1987
From:	Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	SEACOAST ANTI-POLLUTION LEAGUE
Shared Package
ML20212C904	List: ML20212C901 ML20212C984
References
CON-#187-2625 OL-1, NUDOCS 8703040023
Download: ML20212C901 (13)

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e 2/23/97 UNITED STATES CF AMERICA D0py{IED NUCLEAR REGULATORY COMMISSION before the

. ATOMIC SAFETY AND LICENSING BOARD S 1

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In the Matter of )

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

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

) and Safety Issues) 1

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APPLICANTS' RESPONSE TO SEACOAST ANTI-POLLUTION LEAGUE'S CONTENTION AND MOTION TO ADMIT LATE-FILED CONTENTION, REOPEN THE RECORD ON ON-SITE EMERGENCY PLANNING, AND CONDITION THE ISSUANCE OF A LICENSE LP TO 5*/. OF RATED POWER ON APPLICANTS' COMPLIANCE WITH 10 CFR 50.47(b) (5)

Introduction Under date of February 6, 1987, Seacoast Anti-Pollution League (SAPL) has filed a motion to reopen the l

recore and a late-filed contention in the above-captioned proceeding. The gravamen of the motion is a test which was recently run of the strens in East Kingsten, New Hampshire.

It is accompanied by the Affidavit of Frederick H. Anderson, Jr. who purports to detail various problems and malfunctions that ec:urroc during the test. In addition, SAPL makes 0703040023 B70223 ADOCK 05000443 g.h 3 PDN ,

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rederence to the fact that a recent decision of tne Supericr Court of New Hampshire has held that the siren poles in two New Hamoshire towns must be removed. It is not clear whether SAPL is actually relying on this latter event oecause it ackncwlecges that the decision may be turned over on appeal, but goes on to say that this would make no difference to the validity of its contention. SAPL Motion at 2.

On the basis of these occurrences SAPL seeks to have the record herein recpened and to have admitted a late filed centention which SAPL characterizes as: "a broad-based centention including the issues of the reliability of operation of the siren system and its legality." The contentien, wnich SAPL has denominated a6 "SAPL Contention No. 38" reads as follows:

" Applicants have not complied with the provisions of 10 CFR 50.47(b)(5) and Appendix E, IV, D.1 and 3 and Part 50 of the Commission's regulations ord NUREG-0654 II.E.6 and Appendix 3 because the siren system for public alerting and instruction is unreliable, not properly audible, and does not convey properly intelligible messages and does not, therefore, ensure prompt alerting and notification of the public.

Furthermore , the installation of the

! siren systems has been found illegal by a New Hampshire Superior Court." SAFL Motion at 6.

Applicants herein respond to the SAPL Motion. In addition to this response, the Applicants have filed herewith 2

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9 an A441 davit of Antheny M. Callendrello who is the Manager of Emergency Planning at Brabrook Station. Attached to the Callendrello Affidavit is the Investigation Foport which has been done by tne Applicants with respect to the East Kingston stren test held on January 31, 1987. This report sets forth an analysis of the cause of the difficulties and outlines the corrective actions which have been taken to solve the problems revealed by the test.

Set forth below are the reasons wny the Applicants believe that the SAPL Motion should be censed.

ARGLMENT

1. The Criteria For Reecca.no Are Not Met Motions to recpen a closed evidentiary recced are now governed by 10 CFR 2.734 as added 51 F.R. 19539: corrected 51 F.R. 20523 (1786). That section requires that a motion to recper satisfy the criteria of seing " timely," addressing "a significant safety . . . issue," and, most importantly, demcnstrating "that a materially didferent result would be or woul d have oeen likely had the newly prof f ered evidence been consicured initially." 10 CFR .704fa). In addition, where, es here, the motion seeks to inject a now contention irto the case, the movant "must also sati sf y the -ecuirements for non-timely contentions in" 10 CFh 2.714 (a) (1) (1-v) . 10 CFR 2.704(d). As seen in Section 2 of this argument below, this 3

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e contention does not withstand scrutiny under the "five facters" late-filed centention test.

Turning first to the criteria set out in 10 CFR 2.734(a), cne can begin by assuming arguendo that the motion is " timely" at least insofar as it is filed within a reasonable time after the events upon which it is predicated f.e., the East Kingston test and the New Hampshire Superior Ccurt decision and also that the siren system's viamility is a significant safety issue. Such an assumption would mean that the first two of the three criteria were satisfied. However, this still leaves the third ceitorion which, we respectfully submit, has nct been, and cannet be, satisfied.

To begin with, it is important to note the setting in wnich this motion is made. The siren system was up and operable and East Kingston decided to conduct a test. The test presumably was conducted, inter alia, to ascertain whether there were any problems in the system. Certain problems were uncovered, and, as pointed out in the investigation report attached to the Callendrello Affidavit, corrective action has been taken. If the law be that in this sett190 the evidentiary record should be reopened then this means that whenever an / test uncovers a problem in any saf ety system in a nuclear power plant that is still anywhere in the licensing process, the evidentiary roccrd must be reopened.

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This would be so even iJ the problem was a cracked valve which was replaced after the test was completed. Nothing in the SAPL filing, which is bereft of any expert witness affidavit, suggests that the problems uncovered in East Kingston are incapable of solution, and, certainly nothing in the filing addresses the solutions articulated in the investigation report.

Prescinding from the' foregoing, there remains another reason why this latest evidence wculd not have changed the result and would, even if known, not nave requirec evidentiary hearings. The New Hampshire Superior Court decision is purely a legal matters the decision is stayed while on appeal as we have advised the Board in prior correspondence. The operability and audibili.ty of a stren system is classically a matter to be committed to Staff oversight. Loulsfana Power and L29ht Coepany (Waterf ord Steam Electric Station, Unit 3) ,

ALAB-732 17 NRC 1076, 1104-05 (1c83): Phsladelphia flectric Company (Limerick Generating Station, Units 1 and 2), LBP 10, 19 NRC 1020, 1071 (1994). In circumstances not dissimilar to that at bar where a motion to reopen to allow consideration and cross-owamination of resul ts of steen tests was rejected, a Licensing Board made the following, extremely apt, observations i

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a "CIntervenor] argues that the results of the siren tests should be submitted to the parties for' review and for cross-examination at a hearing. As matters now stano, these results are being analyzed against objective criteria by the NRC Staff. If significant deficiencies are found, the Staff will require that they be fixed or that adequate interim arrangements be made, arran"ements which we have already found to be ava61able. Although the siren adequacy determinations might be the subject of some Jabate were a hearing convened, they are -elatively straight forward and objecti>e -- e.g., whether a particular stren door or does not produce a 60dB sound at a certain dt' stance. Absent special circumstances indicating a particular need, an opportunity for cross-examination on such determinations is not necessary. . . . And wher 4, as here, any deficiencies can be readily cured by interim arrangaments, there is no realistic possibility that reopening would change the result." Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-82-46, 15 NRC 1531, 1535-36 (1982).

The result should be no different here, given the fact that corrective actions to deal with the problems uncovered have been taken and further steps which may provide even further assurance are under active and timely consideration.

2. The " Late-Fil ed" Cri teri a Are Not Met

a. The First Factor The first factor to be considered with respect to a late-filed contention t u whether there is good cause f or the f ailure to file the contention on time. SAPL takes the position that it has good cause because the contention is 6

o be:ng filed within a few weeks of the East Kingston test which, says SAPL, is the first happening that gave it the necessary basis to file. Had SAPL filed a contention restricted solely to the siretis in East Kingston, the argument SAPL makes might have at least surface appeal. However, as noted above, SAPL itself describes its contention as " broad based" and encompassing an attack on the entire siren system.

I The filing of such a contention did not have to await the East ,

Iingston test. The stren system was not even under construction when the initial filings of contentions took place in'this matter many years ago in 1981. A broad-based centention could have been filed due to the fact the system was not even then designed. With respect to the concept that the New Hampshire Superior Court decision created a situaticn which presented the necessary changed circumstances, SAPL cites no case, and we are aware of none, where a decision by a

! court or administrative agency on a question of first j impression has been constre.ed as creating " good cause for

1. ailure to film on time." This is not a situation where there I

has been a change in the statutory law or the regulations, see e.g., Cincinnatl Gas & Electric Co. (William H. Zimmer l Nuclear Station), LBP-80-14, 11 NRC 570, 572-74 (1990). Had

. SAPL wished to raise the legality of the system under New Hampshire law it could have done so well before the recent a

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Suoerior Court cecisien. In short. "goed cause for faiEure to ,

tile on time" h as not been shown , and thus, SAPL's burden on the other factors is heavier. Metropolitan' Edison Co. (Three Mile Island Nuclear Station, Unit 2), ALAB-304, 5 NRC 612, 615 <

(1977); Duke Power Co. (Perkins Nuclear Power Statien, Units 1,2 and 3), ALAB-431, 6 NRC 460, 462 (1977). C'

b. The Second and Fourth Fqctors The second and fourth factors to be considered are -

whether there are other means available to prot ect the petitioner's interewt and the extent to which cather parties will represent the petitioner's interest. These factors, as is almost always the case, favor the admission of the contention. However, these far. tors are entitled to less weight than the other factors. Commonweylth Edison Company (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-6, 23 NRC 241, 245 (1986); South Carolina Electric and Gas Co. ,  ;

(Virgil C. Summer Nuclear Station, Unit 2), ALAB- 642, 13 NBC.

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881, 895 (1981).

c. The th i r d J_ ggt;,q.,

"When a petitioner addresses this crit.erion it shoule set out with as much particularity as possible the precise issues it plans to cover, identify its prospective witnesses and summarize their proposed testimony." Mississippi Power &

Light Co. (Gand Gulf Nuclear Station, Units 1 & 21, ALAD-704, 8

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O 16 NRC 1725, 1730 (1932), q0oted with approval, CLI-86-8, supra, 23 NRC at 246. SAPL has filed the affidavit of a fact witness who SAPL states will testify as to the facts in his affidavit. In addition,/SAPL says it "is furtner looking into

.~ the possibility of securing an expert witness" on the issues.

y SAPL Motion at 3. This is essentially the same posture that the Commonwealth of Massachusetts was in when it filed its January 12, 1987 motion to reopen on the basis of alleged

, deficiencies with respect to the strans located in Merrimack,

<.- Massachusettu. This Board held that in such circumstances the third factor "cannot be weighed in favor of [the intervenor3."

HEMORANDUM AND ORDER (Denyin g Mass. Motion of January 12, 1367) at 5 (Feb. 6, 1987). The result should be the same here,

d. The Fifth Factor s The fifth factor to be considered is the extent to which the admission of the contention would broaden the issue or delay th.: proceeding. The admission of the contention would create the issue, and SPPL concedes that it would delay the proceeding. SAPL Motion at 4.

e. M garv of Factors The two least important factors weigh, as usual, in favor of admitting the contuntion. The remaining, more important, factors weigh against.

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B, dONCLUSION The motion should be denied.

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- ssr- u r 1, Thomas D. D#tf g , Jr.

s i. R. K. Gad III;

( Kathryn A. Selleck Ropes & Gray 225 Franklin Street 5' Boston, MA 02110

, (617) 423-6100 Counsel for Applicants

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DOLVEIEF CERTIFICATE OF SERVICE I, Thomas G. Dignan, Jr. one of the attorneys f4W 44B 27 P3 :54 Applicants herein, hereby certify that on February 23, 1987, I made service of the within document by mailing cogies ..

thereof, postage prepaid, to: hghg j;. ,,

Administrative Judge Sheldon J. Stephen E. Merrill,E'qNires Wolfe, Esquire, Chairman 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 Dr. Emmeth A. Luebke 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 ,

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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 i 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 '

e (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 i

Office of Gen..ral Counsel RFD Dalton Road Federal Emergency Management Brentwood, NH 03833 Agency 500 C Street, S.W.

Washington, DC 20472 i

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 i

Mr. Ed Thomas. Judith H. Mizner, Esquire FEMA, Region I Silverglate, Gertner, Baker 442 John W. McCormack Post Fine, Good & Mizner i Office and Court House 88 Broad Street Post Office Square Boston, MA 02110 1

Boston, MA 02109 i

Charles P. Graham, Esquire e McKay, Murphy and Graham-100 Main Street Amesbury, MA 01913 i

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Thom'as G.' Digpdh,6Jr.

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