ML20212K656

Applicant Response to Contention of Atty General Fx Bellotti & Motion to Admit Late Filed Contention,Reopen Record in Onsite Emergency... & Alternative Motion for Summary Disposition.* W/Certificate of Svc

ML20212K656
Person / Time
Site:	Seabrook
Issue date:	01/22/1987
From:	Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20212K660	List: ML20212K656 ML20212K684
References
CON-#187-2295 OL-1, NUDOCS 8701290143
Download: ML20212K656 (11)

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'~ UNITED STATES OF AMERICA '87 JM127 P2 71  :

4 NUCLEAR REGULATORY COMMISSION

,, be4cro the ATOMIC SAFETY AND LICENSING BOARD y

l In the Matter of i )

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

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

- ) and Safety Issues) {

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APPLICANTS' RESPONSE TO " CONTENTION OF ATTORNEY GENERAL FRANCIS X. BELLOTTI AND MOTION TO ADMIT LATE-FILED CONTENTION, REOPEN THE RECORD IN THE ON-SITE EMERGENCY PLANNING PHASE OF THIS PROCEEDING, AND CONDITION THE ISSUANCE OF A LICENSE FOR OPERATION NOT IN EXCESS OF 5% RA,TED POWER ON APPLICANTS' COMPLIANCE WITH 10 CFR 50. 47 (b) (5) " AND ALTERNATIVE MOTION FOR

SUMMARY

DISPOSITION Intreduction

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Under date of January 12, 1987, the Attorney General of The Commonwealth of Massachusetts (MASS AG) filed a document entitled " Contention of Attorney General Francis X.

Bellotti and 110 tion to Admit Late-Filed Contention, Reopen th,e Reco,rd in thc On-Site Energency Planning Phase of This I /

Proceeding, and Condition the Issuance of a License for 3

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V Operation not in Excess of 5% Rated Power on Applicants' Compliance With 10 CFR 50.47(b)(5)." The pleading is accompanied by the affidavit of one Ronald R. Jordan (hereafter " Jordan Affidavit") who is the Chairman of the Board of Selectmen of the Town of Merrimac in The Commonwealth of Massachusetts.

The thrust of the filing is to question whether or not there will exist in the Town of Merrimac sufficient means of providing the populace with notification in the event of an emergency at Seabrook Station during low power. operation as the result of certain alleged facts set forth in the Jordan Affidavit. According to Mr. Jordan, the Applicants originally sought to put three sirens in the Town of Merrimac as part of the Seabrook Station warning system (this is true); only two of the three sirens have been installed (this also is true);

none of the sirens (including the one not yet installed) has "an electrical hook-up," Jordan Aff. para. 7 (also true), "and none are therefore capable of operation," id., (a statement which is just plain false).

Accompanying this reply is an affidavit by James A.

MacDonald, the Radiological Assessment Manager at Seabrook i Station (hereafter "MacDonald Affidavit"). In his affidavit, Mr. MacDonald demonstratcc that operation of the sirens is not dependent upon the availability of an AC electrical hook-up as 2

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Mr. Jordan apparently assumed. It is helpful if an AC electrical hook-up is available in order to " trickle-charge" the siren batteries, but the unavailability is easily overcome by the simple procedure of putting freshly charged batteries in the sirens every two weeks. As Mr MacDonald recites, this is the procedure that has been followed since July, 1986, in the Town of Merrimac. In addition, an operability test every two weeks and the tests have demonstrated that the sirens are fully operative. MacDonald Aff, para. 4.

Further, the MacDonald Af fidavit recites that the Applicants' have done a study as to the effect of not having i

all three sirens, and the results of that study confirm that all relevant criteria are met even without the third siren.

Id.

For the reasons set forth below, the Applicants believe that the late-filed contention should be rejected under the "five factors" test set forth in 10 CFR 2.714; that the motion to reopen should be denied pursuant to the criteria set out in 10 CFR 2.734 (as added, 51 Fed. Reg. 19535 (May 30, 1986); and, in the alternative, if the Board holds j that the evidentiary record should be reopened and the contention admitted on the showing made, that, as suggested by the Attorney General in his moving papers, MASS AG Motion at 5-6, this Board treat this reply with its accompanying 3

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affidavit as a Motion for Summary Disposition and dispose of the contention summarily under 10 CFR 2.749. For purposes of 10 CFR 2.749(a), the Applicants say that the following facts are undisputed:

a. The sirens in the Seabrook Station warning system are battery operated and they can operate in an emergency with no AC power hook-up.

b. There is adequate coverage with only the two installed sirens in Merrimac; absence of the third siren does not result in the system not meeting the relevant criteria.

ARGUMENT I. MASS AG Has Not Satisfied the "Five Factors" Test f or Admission of a Late-Filed Contention A. Good Cause For Failure to File on Time MASS AG claims that he has good cause for the late filing because, "no adequately based contention could have been filed earlier." Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-806, 21 NRC 1183, 1190 (1985). The situation at bar is much different than that presented in ALAB-806, cited and quoted by MASS AG. There the intervenors were filing contentions challenging an emergency plan that had just come into existence. Thus, there could be no adequate statement of basis prior to that time for

! a contention challenging the plan. Here the facts which form i

the basis of the contention, i.e., lack of AC power hook-ups 1

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'o and lack of a thirc siren, have been in existence and were known, or should have been known, by MASS AG for a long time.

What MASS AG is really claiming is that he was lulled into not filing the contention by the Applicants' representations that, in fact, the system would be cperable befcre criticality was achieved. Prescinding from the 4act that, as is clear from the MacDonald Affidavit, the Applicants have, in fact, kept that promise, the law is that one may not avoid the consequences of failing to make a timely filing on the theory that the failure to make the timely filing resulted from a mistaken belief as to what would occur in the future. See Gulf States utility Co. (River Bend Station, Units 1 and 2),

ALAB-444, 6 NRC 760, 796-98 (1977); Duke Power Co. (Cherokee Nuclear Station, Units 1, 2 and 3), ALAB-440, 6 NRC 642, 645 (1977). In short, everything was known many mcnths ago which would have, at the time, given a basis for the contention as framed. Had tne contention been made in the summer of 1986, a motion pointing out that the sirens are battery operated and the third siren was unneeded would promptly have resolved the j

contention. There is no good cause for having filed this late, and there is real harm to the Applicants if a licensing decision is held up to resolve a contention that could have been made last summer and would then have been quickly resolved.

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i B. Availability of Otner Means to Protect Interest The Applicants concede that this factor weighs in favor of the filer of the contention as it almost always does.

C. Assistance in Developina a Sound Record "When a petitioner addresses this criterion it should 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. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-204, 16 NRC 1725, 1730 (1982). Accord, CommonNealth Edison Co, (Braidwood Nuclear Power Station, Units 1 and 2), CLI 8, 23 NRC 241, 245 (1986). The only witness named by MASS AG is Mr. Jordan whose affidavit establishes unequivocally that he does not understand how the sirens work and that his knowledge of the facts is less than outstanding.

D. Representation of-Interest by Other Parties The Applicants concede that this factor weighs in favor of the filer of the contention as it almost always does.

E. Broadenino of Issues and Delav MASS AG concedes that the contention will broaden the issues. The admission of the contention will also delay the proceeding which is sub judice this Board.

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F. Sum nary As is almost always the caso, the second and fourth factors weigh in favor of the movant; the first, third and fifth factors do not weigh in favor of MASS AG. The late filed contention should be rejected under 10 CFR 2.714.

II. The Motion To Reopen Does Not Satisfy the Criteria of 10 CFR 2.734 Since June 30, 1986, Motions to Reopen a closed evidentiary record have been governed by 10 CFR 2.734, as added 51 Fed. Reg. 19535, 19539 (May 30, 1986). Three enumerated criteria must be met. To begin with, the motion must be " timely", 10 CFR 2. 734 (a) (1) , which the Commission has stated should be determined by an inquiry as to "whether the issues sought to be presented could have been raised at an earlier stage." 51 Fed. Reg. at 19536, citing Vereont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),

ALAB-136, 6 AEC 520, 523 (1973). As discussed in Part I.A.

hereof the issues here presented most certainly could have been raised at an earlier stage snd should have been.

The second criteria is that the issue sought to be raised must be a "significant safety ... issue." 10 CFR 2.734(a)(2). Given the revelations in the MacDonald 7

t Affidavit, the issue nas no significance. Similarly, the MacDonald Affidavit makes clear that litigation of the new contention and the issues arising thereunder would not give rise to a materially different result in this proceeding and thus the third relevant criterion set forth in 10 CFR

2. 734 (a) (3) is not satisfied. In connection with the immediately foregoing discussion, it also should be noted that, while arguably the MacDonald Affidavit cannot be considered in this Board's deliberations as to whether the proffered late-filed contention is acmissible, there is no reason why this Board cannct consider it in deciding whether or not to reopen the evidentiary record.

CONCLUSION The Board should reject the late-filed contention and deny the Motion to Peopen; in the event the Board does grant the motion and admit the contention, the Board should grant Summary Disposition of the contention under 10 CFR 2.749.

I Respectfully submitted, W

d&O/-

Thomas GI. Bf'M"an, g Jr.

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

l Counsel for Applicants i

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DCLKEILO

< s CERTIFICATE OF SERVICE umPC I, Thomas G. Dignan, Jr., one'of the.attorgysh{ $9g Applicants herein, hereby certify that on Janu My 12, 987,2 I made service of the within document by depositing copies thereof with Federal Express, prepaid, for delkveryptoi.(ort' where indicated, by depositing in the United Sthtes.lyailibd 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. Forster, 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

, East West Towers Building 25 Capitol Street i 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

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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 Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03105 i

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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 RED 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 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 H. Joseph Flynn, Esquire Brentwood Board of Selectmen Office of General Counsel RED 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 l

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3 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 m,

"Jffoina's %gnan, Jr.

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

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