ML20214N447
| ML20214N447 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/27/1987 |
| From: | Brock M, Mceachern P HAMPTON, NH, SHAINES & MCEACHERN |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#287-3605 OL, NUDOCS 8706020178 | |
| Download: ML20214N447 (14) | |
Text
.
l l
00CKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'87 MAY 28 P4 :28 before the cyp.cc e --
ATOMIC SAFETY AND LICENSING BOARDg(fCESU*s Ir.r i: m.'O.
)
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
)
)
TOWN OF HAMPTON MOTION FOR RECONSIDERATION AND CLARIFICATION OF MAY 18, 19 87 MEMORANDUM AND ORDER NOW COMES the TOWN OF HAMPTON and moves this Board to reconsider and amend its MEMORANDUM AND ORDER dated May 18, 1987, which rejected certain bases for contentions filed by the Town of Hampton in this proceeding, including certain bases previously admitted for litigation by this Board.
The Town of Hampton requests the ORDER be amended to admit these rejected bases.
In support of this motion, the Town of Hampton states:
PROCEDURAL
SUMMARY
On Februa ry 18, 1987, this Board ruled on the admissibility of various contentions, with supporting bases, proferred by Intervenors in this proceeding.
The Order provided that "the Board will not accept any motion concerning these rulings prior to the Memorandum explaining the bases of its rulings."
2/ 1 8/ 87, MEMORANDUM AHD ORDER, at page 1.
8706020178 870527
~
gDR ADOCK 05000443 PDR 9
b s_.._._-..._.._.._....
I a
On May 18, 1987, this Board issued its MEMORANDUM AND ORDER "Providing Basis for and Revision to Board's Ruling on Contentions on Revision 2 of NHRERP."
The TOWN OF HAMPTON seeks reconsideration and amendment of these orders.
Tile LICENSING BOARD IMPROPERLY REJECTED CONTENTION BASES PREVIOUSLY ADMITTED EQ.B LITIGATION By its May 18,19 87 Order, this Board for the first time rejected certain bases for Town of Hampton contentions, including bases previously admitted for litigation in this proceeding.
In reversing itself on the admissibility of these bases, and without prior notice i
to the Town, this Board declared that the Town of Hampton would not be permitted to incorporate certain previously admitted bases as part of the Town's most recent contention filing.1 The effect of this ruling, issued almost 7 months after the Town filed its last contentions, is apparently to bar the Town f rom litigating material safety issues 1
l 1
SEE MEMORANDUM ON 10 CFR S2.714(a)(1) AND CONTENTIONS OF THE TOWN OF HAMPTON TO NEW HAMPSHIRE RADIOLOGICAL EMERGENCY RESPONSE PLAN REVISION 2, filed October 31, 1986.
(e.g. Town of Hampton Revised Contention III to Rev. 2: "The basis for Hampton Revised Contention III is hereby realleged and incorporated by ref erence herein".
p.
10.
I l
i i
i f
SH AINES & McE ACHERN.==ortss o%at assocestos a*+o=%ses j
7-,g.
2
-.m.
2 l-l l
timely raised in bases for Town of Hampton contentions, and previously adm'itted by this Board.2 As justification for this summary rejection of previously i
. admitted bases.for Town of Hampton contentions, this Board stated:
Thus we reiect TOH's attempt to incorporate the May 23rd bases in its October 31 contention on the ground that the Town has failed to provide sufficient notice to opposing parties just what it intends to litigate. in respect to.the. previous bases.
. 5/18/ 87 ' MEMORANDUM AND ORDER at page 14 (Re:. TOH Revised Contention III).
See also pp. 20-21 Re: TOH Revised Contention IV.
The TOWN OF HAMPTON submits that there is no regulatory basis for the Town to be compelled to provide " notice" or new justification for admission of contentions or bases, once admitted for litigation by the Licensing Board.
Plainly, the Applicants are on " notice" as tio the scope of the Town's previously admitted contentions and bases, which i
necessarily were deemed sufficiently specific for admission by this Board.
2 For example, the Town of Hampton would apparently be denied the right to litigate the inadequacy of Applicants' telephone survey, relied upon in the RERP to compute trip generation times, notification times, and EPZ population estimates.
See MEMORANDUM ON;10 CFR Sl.714 (a) (1) AND REVISED CONTENTION III OF THE. TOWN OF HAMPTON TO EVACUATION TIME ESTIMATE REPORT BY KLD ASSOCIATES, INC., dated May - 23, 1986.
By way of further example, the Town apparently would be denied the opportunity to litigate Applicants' unreasonable assumption that evacuation buses will be able to travel into the EPZ 'during an
-em'ergency at between 40 and 50 miles per hour, SEE MEMORANDUM ON 10 EEECFR S2.714(a) (1) AND REVISED CONTENTION III OF THE TOWN OF HAMPTON j
- TO EVACUATION. TIME ESTIM ATE REPORT BY KLD ASSOCIATES, INC., - dated May 23, 1986, at page 8, or that, according to Applicant, evacuation buses entering the EPZ will not encounter substantial delay in maneuvering -
through the tens of thousands of vehicles exiting the EPZ.
See CONTENTIONS OF THE TOWN OF HAMPTON TO - REVISED RADIOLOGICAL EMERGENCY r
RESPONSE PLAN FOR THE TOWN OF HAMPTON NEW HAMPSHIRE p. 4(e), April, 11, 1986.
(re TOH IV).
These examples are representative, not exclusive.
-3 i
sw4ises a uccacucas.
o..
.. oo.
.-o.s.,
~
t i
This Board has previously established 'a mechanism by which
!I admitted contentions may be eliminate'd for litigation where amendments 1
i to the plans have rendered the contentions moot, or otherwise
" circumstances have changed."
Deadline f or motions f or summary disposition on late-filed Rev. 2 Contentions admitted or for other 3
contentions as to which circumstances have changed such that summary disposition is now appropriate.
See May 4,1987 MEMORANDUM AND ORDER (Re: Hearing schedule)
Rather than requiring Applicants to assume the burden of moving for summary disposition on previously admitted contentions and/or bases, this Board has effectually granted Applicants summary disposi-tion without motion by Applicants, without notice to the Town of Hampton, without an opportunity for the Town to respond and without regulatory basis.
The Board's action has denied the Town its rights to due process and has substantially prejudiced the Town of Hampton by l
denying the Town an opportunity to litigate significant safety issues t
i 4
i SH AtNES & NCEACHERN. eaoerssio**m assoc.awos *~ east s
- t previously admitted by this Board, which remain unresolved and in 6
dispute under the present Revision 2 plans.3 By its May 18, 1987, ORDER, this Board additionally rejected new bases for the Town's contentions that allege further deficiencies in the KLD evacuation time estimate study.
These bases were previously admitted for litigation by the Board in its February 18 ORDER.
The Board rejected the subject bases "for lack of requisite specificity",'
notwithstanding the Staff's recommendation that the bases are suf ficiently specific for admission.4 It appears the Board objected to the Town's expressed intention to raise additional deficiencies in the KLD ETE "upon receipt of 3
See Note 2,
supra.
Additionally the Board's Order does not specifically state whether the Board intends to bar the Town f rom incorporating prior versions of TOH Revised Contention VI.
If so intended, the Town of Hampton would apparently be denied the right to litigate the issue of - Applicants' reliance upon the part-time and seasonal police officers for the Town of Hampton to implement the RERP.
From the outset of these proceedings, the Town has maintained that these individuals lack the requisite experience, training, or availability to properly and timely implement the RERP.
SEE-CONTENTIONS OF THE TOWN OF HAMPTON TO RADIOLOGICAL - EMERGENCY RESPONSE PLAN ~ 'FOR THE TOWN OF HAMPTON, NEW HAMPSHIRE NOVEMBER 1985.
The Town has continued to specifically assert this issue as a substantial deficiency in Hampton's RERP.
See TOWN OF HAMPTON ANSWER OPPOSING APPLICANTS' MOTION FOR
SUMMARY
DISPOSITION (TOH VI), dated April 15, 1987 ("Hampton part-time seasonal special police officers do not receive training in the NHRERP, including emergency and evacuation procedures.
Even if trained, these special of ficers typically do not-live within Hampton and are not reasonably available in the event of actual emergency." Janetos Affidavit).
4 See NRC STAFF RESPONSE TO TOWN OF H AM PTON' S FIRST AND SECOND SUPPLEMENTS TO ITS MEMORANDUM AND CONTENTIONS ON NHRERP REVISION 2 dated December 5,1986 ("we believe that the basis provided by Hampton is suf ficiently specific to permit admission of this issue for -litiga-tion at this time...")
5-SHAINES & McEACHERN. eersseau assoe a'm ano=sevs
I l
l! discovery."5 While the Town believes that regulations permit the Town to expand upon, or buttress, contentions f ollowing discovery, see C2mmonwealth Edison fa,. (Bradwood Nuclear Power Station. Units 1 and 21 LBP-85-11, 21 NRC 6 0 9, 617 (19 85), this Board need Dnt decide this issue to admit the subject bases.
The supplemental bases set forth in TOH IIIC(7) are, as presently drafted, relevant and reasonably specific, provide Applicants with clear notice of the issues the Town seeks to litigate through these bases, and should be admitted for litigation.
10 CFR S 2.714 (b).
For example, the proferred bases allege that KLD "apparently f ails to include the ' light' traf fic (ref erenced in the ETE) on many roads in its simulation model... and KLD apparently unreasonably assumes a substantial amount of passing by evacuating traffic to avoid disabled vehicles.
Such passing may be rendered impossible due to vehicle breakdown or disability on many of the narrow EPZ roads."
Id.
t at pages 2 and 3.
The Town suggests that the supplemental contentions set f orth in C(7) satisfy Commission regulations and are at least as l specific as those previously prof erred by nther parties and admitted for litigation by this Board.
Additionally, this Board again reversed itself and, under the May 18 ORDER, rejected TOH IV(C), which asserts that Applicants' special needs survey is grossly inadequate to compute the special needs l
5 See TOWN OF HAMPTON SUPPLEMENTAL TO MEMORANDUM ON 10 CFR S2.714(a)(1) AND CONTENTIONS OF THE TOWN OF HAMPTON TO NEW HAMPSHIRE !
RADIOLOGICAL EMERGENCY RESPONSE PLAN REVISION 2 dated November 19, 19 86 at page 2.
6 i
s
.,~c s. cr c co ~.
e.
..o~.,...oci.. e.-o.se.
. ~ -
i l population for the EPZ, including Hampton.
In support of the present I
l 5
j request for reconsideration on this issue, the TOWN OF HAMPTON relies l'
upon TOWN OF HAMPTON REPLY TO APPLICANTS' AND STAFF RESPONSES TO TOWN l
OF HAMPTON CONTENTIONS dated December 23, 1986 and in particular, as alleged therein, that RAC itself has concluded that there is not i
i statistical justification to support the special needs population I figures proferred by Applicants, in view of Applicants' arbitrary l
increase of those population figures by 50%.
See RAC review, August 1986,Section VI pages 5-6.
RAC theref ore provides new and signifi-cant justification for admitting this issue for litigation.
This Board further rejected TOH Revision Contention IV basis (A) i (3), although this basis was previously admitted under its February 18 l Order.
By this basis, the TOWN OF HAMPTON asserts a lack of adequate Letter Agreements demonstrating that the Teamsters Union will in fact provide drivers to implement the NHRERP in the event of emergency.
I i
David Laughton, who signed the single Letter Agreement on behalf of i
the 1500 Teamsters, admitted to Attorney Robert Backus that "I have no knowledge of the actual number of Teamsters that would be available at any particular time to drive buses into the 3eabrook evacuation zone in the event of a radiological emergency."
See SEACOAST ANTI-POLLUTION L E AG U E ' S RESPONSE TO APPLICANTS' MOTION FOR
SUMMARY
l DISPOSITION OF S APL CONTENTION NO. 37, with Affidavit of Robert A.
l Backus dated April 15, 1987 attached thereto.
Since on the present record there is no reasonable basis for j
finding that the Teamsters will in fact provide drivers as represented 7
4 SH AIN ES & Mc E ACHE RN...orreseo%., assec.anos - e.sc.s
I
)
9 1
t i
l in their one page Letter Agreement signed by David Laughton, this !
I Board should require, at least for purposes of the Teamsters Union, that individual Letter Agreements be signed by these Teamsters, if
- any, willing to act as drivers in the event of an emergency at Seabrook.6 SUPPLEMENTAL BASIS LQ IQH REVISED CONTENTION VIII PRESENTS A LITIGABLE ISSUE f_OB DECISION Q
By its May 18, 1987 Order, this Board rejected the supplemental basis to TOH Revised Contention VIII which alleged, inigI glia, the NHRERP f ails to show that the Seacoast Health Center is an adequate shelter for the elderly resident population, in the event this protective response is ordered.
The supplemental basis further indicates that there are not adequate personnel to evacuate the Seacoast He'alth Center in the event of emergency and that the trip generation times and ETE for this facility are unreasonably low.
The NRC Staf f did not object to inclusion of this supplemental basis to the previously admitted TOH's Revised Contention VIII.
Since this Board has previously ruled admissible the issues of ETE and inadequate sheltering f or the beach population, the Town of Hampton suggests it is equally appropriate that these issues be litigated for the elderly and disabled population of the Seacoast 6
The Town of Hampton continues to assert the view that individual Letter Agreements are required for all persons assigned an emergency response role under the NHRERP, including individual members of the I
Teamsters Union, EPZ teachers and health care workers.
I 8
l sH A!NES & McE ACHERN
=amssw.
- sex a+ m ame's
f t
l.
1 Health Center.
Supplemental basis f or TOH Revised Contention.VIII should be admitted for litigation.
I Respectfully submitted, THE TOWN OF HAMPTON By Its Att rneys, SHAINES cEA R,
P.
I l
By:[aulMcEachern i
T-N Dated:
May $7, 19 87 By:\\:
N' '
~
~.
s Matthew T.
Brock e.
9 i
SH AINES & MC E ACHERN...:*r**ma
- oc at os = ~casr**
n
CERTIFICATE OF SERVICE I,
Matthew T.
Brock, one of the attorneys for the Town of Hampton herein, hereby certify that on May 27, 1987 I made service of the following. document TOWN OF HAMPTON MOTION FOR RECONSIDERATION AND CLARIFICATION OF MAY 18, 1987 MEMORANDUM AND ORDER by depositing copies thereof in the United States Mail first class postage prepaid for delivery (or, where indicated, by Express Mail, prepaid) addressed to:
8%
o$
- Helen Hoyt, Esq., Chairman 93 Atomic Safety and Licensing Board 9"
gg 8
c U.S.
Nuclear Regulatory Commission x:
49 East West Towers Building k.-
S$
h3 4350 East West Highway a
Bethesda, MD 20814 1,_
][
65
- Judge Gustave A.
Linenberger, Jr.
os Atomic Safety and Licensing Board Panel U.S.
Nuclear Regulatory Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814
- Dr. Jerry Harbour Atomic Safety and Licensing Board Panel U.S.
Nuclear Regulatory Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814
- Atomic Safety and Licensing Board Panel U.S.
Nuclear Regulatory Commission Washington, DC 20555
- Atomic Safety and Licensing Appeal Board Panel U.S.
Nuclear Regulatory Commission 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 SHAINES Em McEACHERN. PROFESSIONAL ASSOOATION 25 MAPLEWOOD AVENUE P O BOX 360 PORTSMOUTH. N H 0 3210 1 I
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
- Philip Ahrens, Esq.
Assistant Attorney General Office of the Attorney General State House Station 6 Augusta, ME 04333
- Thomas G.
Dignan, Esq.
George H.
Lewald, Esq.
Kathryn A.
Selleck, 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 2
$HAINES & McEACHERN
- TROFESSONAL ASSOOATION 25 MAPLEWOOD AVENUE P O BOX 360 - PORTSMOUTH. N H 03801
E' s.
- George Dana Bisbee, Esq.
Stephen E.-Merrill, Esq.
Office of the Attorney General State House Annex Concord, NH 03301
- Carol S.
Sneider, Esq.
Donald S.
Bronstein, Esq.
Allan R.. Fierce, Esq.
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
~
J.P. Nadeau, Selectman Selectmen's Office i
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 4
Salisbury, Fm 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 3
SHAINES & McEACHERN. PROFE55 TONAL ASSOCIATION 25 MAPLEWOOD AVENUE - p O BOX 360. PORTSMOUTH, N H 03eos
Richard A.
Hampe, Esq.
Hampe and McNicholas 35-Pleasant Street Concord, NH 03301 Gary W. Holmes, Lsq.
Holmes & Ellis 47 Winnacunnet Road Hampton, he 03842 William Armstrong Civil' Defense Director 10 Front Street Exeter, NH 03833 Calvin A.
Canney City Manager City Hall 126 Daniel Street Portsmouth, NH 03901
- 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 4
SMAINES & McEACHERN. PROFESSIONAL ASSOOATION 25 MAPLEwOOD AVENUE P O BOM 360 PORTSMOUTH. N M 03ect
~
v
.+.
s, 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 Brentwood Board of Selectmen RFD Dalton Road Brentacod, NH 03833 Judith H. Mizner, Esq.
Silvergate,.Gertner, Baker, Fine, Good & Mizner 88 Broad Street Boston, MA 02110
\\ 'l CS i
w Matthew T.
Brock
- UPS NEXT DAY AIR 1
i e
i 5
f SHAINES & McEACHERN. PROFESSIONAL ASSOCIATsDN 25 MAPLEWOOD AVENUE. P O BOX 360 - PORTSMOUTM N H 03801
.r
-