ML20216J842

Applicants Response in Opposition to Atty General Js Shannon (Mass Ag) Motion for Partial Summary Disposition on Town of Hampton Revised Contention Viii,Seacoast Anti-Pollution League Contention 16....* Certificate of Svc Encl

ML20216J842
Person / Time
Site:	Seabrook
Issue date:	06/29/1986
From:	Lewald G PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
References
CON-#387-3904 OL, NUDOCS 8707070046
Download: ML20216J842 (8)

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ETEr. l DOC

n. K.g 1 Dated: June 29, 1986

'87 11 -1 P2 :36 ,

UNITED STATES OF AMERICA NUr, LEAR REGULATORY COMMISSION h before the ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of )

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PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL ,

NEW HAMPSHIRE, et al. ) 50-444-OL Off-site Emergency l

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l (Seabrook Station, Units 1 and 2) ) Planning Issues j

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l APPLICANTS' RESPONSE IN OPPOSITION TO ATTORNEY GENERAL JAMES S. SHANNON'S (MASS. A.G.) MOTION FOR PARTIAL

SUMMARY

DISPOSITION ON TOA REVISED CONTENTION VIII, SAPL CONTENTION 16 AND NECNP CONTENTION RERP-8 l

I Mass. A.G.'s instant Motion for Partial Summary Disposition on TOH Revised Contention VIII, SAPL Contention 16 and NECNP Contention RERP-8 of June 11, 1987, without an acknowledging reference, repeats, word for word, his March 25, 1987 Motion for Partial Summary Disposition on these TOH and SAPL " Sheltering" Contentions. NECNP

" Sheltering" Contention RERP-8, for reasons undisclosed, was omitted from the earlier motion. Mass. A.G.'s instant summary disposition motion otherwise differs from his hDR07070046 860629 G ADOCK 05000443 PDR

earlier motion only to offer a rebuttal argument to the Applicants' response to his earlier motion and to interlace the arguments of his earlier motion with FEMA interrogatory responses. Mass. A.G.'s Statement of Material Facts Not in i I

Dispute which accompanies the instant motion is but a I photocopy of the Statement filed with his earlier motion.

1 Applicants say that Mass. A.G.'s instant summary j judgment motion should be denied. Insofar as Mass. A.G.'s instant motion simply copies Mass. A.G.'s earlier motion, his instant motion should be denied for reasons as are I

advanced in Applicants' response of April 10, 1987 to his earlier motion which response Applicants incorporate herein by reference. The "new" materials added to the earlier j motion, viz: Mass. A.G.'s rebuttal argument and selected FEMA interrogatory responses, do not in and of themselves demonstrate that the Board should rule other than it has on three prior occasions that the sheltering contentions present litigible issues and reject once again a Mass. A.G.

summary disposition " Sheltering" motion. See, ASLB Memorandum and Order (April 24, 1987) at p. 1.

Mass. A.G., in support of his present motion, relies l

upon his construction of NHRERP, FEMA's December, 1955 '

observations 2, a selective culling from NHRERP Vol. 162.6 2

See Response of the Federal Emergency Management Agency to Massachusetts Attorney General James M.

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. i (Protective Action Responses), Vol. 4, Appendix F and Vol. i l

4A, Appendix U (Precautionary and Protective Action Design Criteria), Vol. 4, Appendix G (EBS and Non-EBS Messages),

certain State of New Hampshire Interrogatory answers and upon those possible inferences considered to favor his motion. There is no demonstration of the absence of any j I

genuine issue of material fact. In fact, rather than j demonstrate the absence of any genuine issue of material l

fact in respect to the sheltering contentions, Mass. A.G. {

has highlighted issues as to how the plan is to be read and I

implemented and ultimately that of its adequacy. d l

For example, the second numbered " material fact" in )

Mass. A.G. " Statement of Material Facts Not in Dispute" is cast as though it is a provision in the plan in the nature j i

of a command, a construction with which Applicants have {

j taken sharp issue. Indeed that this is an issue in dispute j i

is recognized in Mass. A.G. 's motion which Mass. A.G. seeks I 1

to argue away at pp. 6-7.

The remainder of Mass. A.G.'s " Statement of Facts Not in I Dispute", except perhaps the first numbered, are so worded that they do not present statements of fact at all but are l pure and simple arguments tacking on and intertwining precautionary actions uith protective actions.  !

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Shannon's Off-Site Emergency Preparedness Interrogatories and Request for Production of Documents to FEMA (Set No. 2). Appendix C.

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I Sheltering simply cannot be read out of the Plan and'its l l

implementation as a protective action response even for beach transients as Mass A.G. is wont to do. See NHRERP Vol.'1 $ 2.6, Vol. 4, Appendix F, Vol. 4A, Appendix U, Vol.

4, Appendix G. See also, Affidavits of Richard H.-Strome-and William T. Wallace on Sheltering, dated and filed in this proceeding on March 25, 1987, in connection with Applicants' Motion for Summary Disposition and incorporated j l

herein by reference; Applicants Answers to Mass. A.G.

Interrogatories (Set 2) No's. 36, 37, 43, 44, 45,'49; State i of New Hampshire Answers to Mass. A.G. Interrogatories (Set

2) No. 45. However, the real issue here, as raised by the i contentions themselves, is not the absence of sheltering in.

l the Plan but that of its adequacy. This issue, as the Board has ruled, and for the reasons stated, hardly lends itself i l

to summary disposition.

But summary disposition motions which attack a Radiological Emergency Response Plan for reason of its I alleged inadequacy are inappropriate in the context here in any event. A RERP has been made an integral part of an Applicant's license application by the Commission. As such a RERP is an evolving document as is the application itself. l It represents a continuing effort to achieve and keep current an effectiveness as a protective action plan. No purpose is served, except perhaps, to offer occasions for i litiguous exercises in furtherance of a quest for battle by l

e ongoing efforts to knock out the Plan in the course of its evolving process prior to licensing hearings.

By their attorneys,-

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/ cq< -

,,N Thomas G. Dignan, Jr.

George H. Lewald Deborah S. Steenland 1 Ropes & Gray i 225 Franklin Street Boston, MA 02110 (617) 423-6100 l

00% ii o .y CERTIFICATE OF SERVICE I I, George H. Lewald, one of the attorneys for the '87 JUL -1 P2 :36 Applicants herein, hereby certify that on June 29, 1987, I made service of the within document by depositing copies- 1 thereof with Federal Express, prepaid, for delivery tom (orp q where indicated, by depositing in the United States mail, 1 first class postage paid, addressed to):

Administrative Judge Helen Hoyt, Robert Carrigg, Chairman Chairperson, Atomic Safety and Board of Selectmen ,

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 Judge Gustave A. Linenberger Diane Curran, Esquire j Atomic Safety and Licensing Andrea C. Ferster, Esquire j Board Panel Harmon & Weiss  !

U.S. Nuclear Regulatory Suite 430 {

Commission 2001 S Street, N.W.

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East West Towers Building Washington, DC 20009 1 4350 East West Highway j 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 l East West Towers Building 25 Capitol Street i 4350 East West Highway Concord, NH 03301-6397 i Bethesda, MD 20814

• 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 Commission Washington, DC 20555 Tenth Floor 7735 Old Georgetown Road Bethesda, MD 20814

• Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Board Panel 116 Lowell Street U.S. Nuclear Regulatory P.O. Box 516 Commission Manchester, NH 03105 Washington, DC 20555

4 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 RFD 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 j Office of General Counsel RFD Dalton Road I 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

.n 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 J Post Office Square Boston, MA 02110 '

Boston, MA 02109 Charles P. Graham, Esquire McKay, Murphy and Graham 100 Main Street Amesbury, MA 01913

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k? 41 George H. Lewald 1

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

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