ML20214C702

Answer to Town of Hampton 861031 Contentions to State of Nh Radiological Emergency Response Plan (Nhrerp),Rev 2. Reiteration of Nhrerp Does Not Confer Unfettered Right to File New Contentions.Certificate of Svc Encl

ML20214C702
Person / Time
Site:	Seabrook
Issue date:	11/14/1986
From:	Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	HAMPTON, NH
References
CON-#486-1568 OL, NUDOCS 8611210204
Download: ML20214C702 (10)

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'86 Nml 19 P5 :06 Dated: November 14,~ 1986 GFF! ~

UNITED STATES OF AMERICA .

NUCLEAR REGULATORY COMMISSION

• before the ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

)

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

)

)

APPLICANTS' ANSWER TO CONTENTIONS OF THE TOWN OF HAMPTON TO NEW HAMPSHIRE RADIOLOGICAL EMERGENCY RESPONSE PLAN REVISION 2 Under date of October 31, 1986, the Town of Hampton

("TOH") submitted, inter alia, " Contentions of the Town of Hampton to New Hampshire Radiological Emergency Response Plan Revision 2." Herein the Applicants respond to these proffered contentions.

At the outset we note that each iteration of NHRERP does not confer on TOH, or any other participant, what amounts to an unfettered right (or any concomitant duty) to file new contentions. As the Board noted in its recent Memorandum 8611210204 861114 PDR ADOCK 05000443 Q PDR gg]

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and Order any new offsite emergency planning contentions must be " based solely on new material contained in Revision 2."1 CONTENTIONS I, II, V, VII i TOH begins by realleging its Contentions, I, II, V, and VII which TOH previously filed in February of 1986.2 These contentions have now been rejected by this Board on two separate occasions.8 They should be again for the reasons previously given by the Board.4 1

MEMORANDUM AND ORDER (Ruling on Summary Disposition Motions of Applicants and State of New Hampshire and Establishing a Date for Filing of Late-Filed Contentions Arising out of Revision 2 of the New Hampshire Radiological Emergency Response Plan (Nov. 4, 1986)

(hereafter referred to and cited as ASLB Nov. 4 Memo) at 37.

a TOH references a November 1985 filing. However the prior contentions which were ruled on were filed under date of February 21, 1986 together with an appearance of counsel dated February 18, 1986.

3 MEMORANDUM AND ORDER (Ruling on Contentions and Establishing Date and Location for Hearing) (April 29, 1986) at 1-2, 5-6, 7; MEMORANDUM AND ORDER (Ruling on Contentions of the Town of Hampton to Revised Radiological Emergency Response Plan and to Compensatory Plan for Town of Hampton, New Hampshire) (Mcy 22, 1986) at 4.

See ASLB Nov. 4 Memo at 37.

a i

REVISED CONTENTION III TO REVISION 2 "The Evacuation Time Estimate Study (ETE) prepared by KLD Associates, Inc.,

Revision 2, Volume 6, is based upon inaccurate and biased factual data and unreasonable or misleading assumptions, fails to comply with NRC regulations, and fails to provide reasonable assurance that adequate protective measures can and will be taken, or that adequate facilities, equipment, or personnel will be provided to the Town of Hampton, in the event of radiological emergency. 10 CFR S 50.47(a)(1),

(b)(1)(10); NUREG-0654, App. 4."

This contantion should be excluded. All that the NRC regulations require is the preparation of ETEs by Applicants. "The nuclear power reactor operating license applicant shall also provide an analysis of the time required to evacuate and for taking other protective actions for various sectors and distance within the plume exposure pathway EPZ for transient and permanent populations." 10 C.F.R. Part 50, App. E, 9 IV (introductory paragraph). ETEs are not mentioned in 10 C.F.R., 5 50.47. Such ETEs were ,

prepared in connection with the Applicants' radiological

• emergency response plans, and the Applicants' ETEs were litigated in the August, 1983 hearings. While New Hampshire may determine to employ its own ETEs, this Board is limited to litigation of matters required by the Commission's regulations; in any respect in which the state determines to go beyond the requirements of the Commission's regulations the plans present no litigable issue. See Pacific Gas and 4

Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-781, 20 NRC 819, 829-33 (1984).

The requirement that Applicants prepare and submit ETEs is mirrored in the Staff / FEMA guidance document, NUREG-0654, Rev. 1, Criterion J-8. While the apparent assumption was the state and local plans would employ the Applicants' ETEs

{ (or such portion of them that was relevant) in the plans for state and local action, there is nothing that constrains New Hampshire to use one set of ETEs over another. Any 4

contention that ETEs must be litigated twice must, of necessity, rely on NUREG-0654 as supplying such a

! requirement. It is well-established, however, that NUREG-0654, which has never been promulgated as regulation, 4 imposes no regulatory requirements. Even more plainly, NUREG-0654 must yield to the duly promulgated regulation where the regulation expressly addresses a topic. Thus, prescinding entirely from whether the various ETEs differ, the only set that is fair game for litigation in these

! proceedings is the set that has already oeen litigated.

REVISED CONTENTION IV TO REVISION 2 l

I TOH Revised Contention IV reads as follows:

I " Revision 2 fails to provide for adequate emergency equipment, fails to demonstrate that adequate protective responses can be implemented in the

event of radiological emergency, and

! fails to correct deficiencies in emergency response capabilities apparent f

1

s

'I from the emergency exercise. 10 CFR $

50.47(1)(8)(10)(14)."

As drafted this contention should be excluded. The presently admitted Hampton Contention IV reads as follows:

"The Revised Hampton RERP and Compensatory Plan fail to provide adequate emergency equipment to support an evacuation in the event of a radiological emergency. 10 CFR $

50.47(b)(8)."

The new contention begins by referencing Revision 2. This expands the contention to cover the whole NHRERP rather than just the TOH portion thereof. The issuance of Revision 2 does not supply good cause for this type of change. Had Hampton wished to challenge the entire plan it could have done so at the outset. In addition, the new iteration of the contention (a) does not restrict the concept of inadequate equipment to the problem of evacuation, (b) adds the concept of " adequate response" and (c) adds the allegation about failure to correct deficiencies observed during the exercise. Only the last of these three additions can be said to arise solely out of Revision 2. TOH gives no reason why the other additions could not have been alleged as contentions long ago and there appears to be .no good reason.

In addition, it is to be noted that TOH in its statement of basis appears to be trying to " shoehorn" certain issues into this case which have already been removed by the ASLB Nov. 4 Memo. For example, at Page 20 of its filing TOH 4

complains about the special needs survey. The method of surveying was well known prior to Revision 2 issuing. More importantly, this Board has granted Summary Disposition with respect to the Special Needs Survey Issue. ASLB Nov. 4 Memo at 15-17. TOH also seeks once again to inject into the case the issue of individual bus drivers having to sign agreements. TOH Contentions at 22-23.

The contention should be excluded.

f REVISED CONTENTION VI TO REVISION 2 Applicants object to this contention which is identical t to the contention already admitted as Hampton VI except that

" Revision 2" has been substituted for "The Revised Hampton RERP." The reason for the objection is that the contention, as worded now runs to the whole NHRERP and is not confined to the TOH portion thereof.

REVISED CONTENTION VIII TO REVISION 2 1

Revised Contention VIII to Revision 2 reads as follows:

" Revision 2 fails to provide adequate t

emergency equipment, facilities, or personnel to support an emergency response and fails to demonstrate that adequate protective responses can be implemented in the event of radiological emergency. 10 CFR 50.47(1)(8)(10)."

Prior to this attempt at revision, Hampton Contention 8 read as follows:

"The Revised Hampton RERP and Compensatory Plan fail to provide for adequate emergency facilities to support

4 an emergency response." [ Citing 10 CFR 50.47(b)8}

As with other contentions discussed earlier the change in wording which substitutes " Revision 2" for "The Revised Hampton RERP and Compensatory Plan" expands the contention well beyond the one already admitted and Revision 2 does not supply any " good cause" for doing so. In addition, whereas the contention as presently admitted refers only to a failure to provide for adequate " emergency facilities," the new iteration alleges inadequate emergency " equipment" and emergency " personnel" as well. There is no reason that these assertions could not have been made much earlier than the day on which Revision 2 was issued. In addition, the new wording would include within the ambit of the contention the adequacy of the protective response which can be implemented.

For the foregoing reasons the contention should be excluded.

Respectfully submitted,

/f-Thomas T. Di g , Jr.

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

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DOCXETEE '

UERC i CERTIFICATE OF SERVICE i

f 16 EN 19 P5:07 I, Thomas G. .Dignan, Jr. one of the attorneys for the i i Applicants herein, hereby certify that on November 144 1986, i I made service of the within document by mailing cop g 7y{;f3 j,.g thereof, postage prepaid, to:

i BR A NC'!

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Administrative Judge Helen Hoyt, Stephen-E. Merrill, Esquire n i Chairperson Attorney General

+

Atomic Safety and Licensing George Dana Bisbee, Esquire.

Board Panel Assistant Attorney General ,

j U.S. Nuclear Regulatory Office of the Attorney General 1 Commission 25 Capitol Street Washington, DC 20555 Concord, NH 03301-6397 l

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

Wasnington, DC 20555 Washington, DC 20555 ,

Robert Carrigg, Chairman Diane Curran, Esquire  ;

i 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 i Board Panel Office of the Executive Legal

U.S. Nuclear Regulatory Director i

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 >

l U.S. Nuclear Regulatory 116 Lowell Street

! Commission P.O. Box 516 l 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 L

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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 Kensington, NH 03827 126 Daniel Street Portsmouth, NH 03801 Senator Gordon J. Humphrey Mr. Angie Machiros U.S. Senate Chairman of the l Washington, DC 20510 Board of Selectmen (Attn: Tom Burack) Town of Newbury Newbury, MA 01950 Senator Gordon J. Humphrey Mr. Peter S. Matthews 1 Pillsbury Street 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 i

Gary W. Holmes, Esquire Richard A. Hampe, Esquire s

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 Office and Court House 88 Broad Street Post Office Square Boston, MA 02110 Boston, MA 02109 4

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

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

Thofas G. A6J6an, Jr.