ML20235D610

Applicants Response to Motions of Town of Amesbury,Town of Hampton & Seacoast Anti-Pollution League for Reconsideration of Boards Memorandum & Order of 870518.* Motions Should Be Denied.Certificate of Svc Encl

ML20235D610
Person / Time
Site:	Seabrook
Issue date:	07/07/1987
From:	Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
References
CON-#387-3953 OL, NUDOCS 8707100236
Download: ML20235D610 (10)

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"Y J d "- Y fil g 8 7 UNITED STATES OF AMERICA ~r NUCLEAR REGUL ATORY COMMISSION before the ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of )

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PUBLIC SERVICE COMPANY ) Docket Nos. 50-443-OL OF NEW HAMPSHIRE, ET AL. ) 50-443-OL

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(Seabrook Station, Units 1 ) (Offsite Emergency and 2) ) Planning Issues)

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APPLICANTS' RESPONSE TO MOTIONS OF TOWN OF AMESBURY, TOWN OF HAMPTON, AND SEACOAST ANTI-POLLUTION LEAGUE FOR RECONSIDERATION OF BOARD'S MEMORANDUM AND ORDER OF MAY 18, 1987 Fursuant to permission granted by the Board in its Memorandum and Order of June 25, 1987, the Applicants herein reply to the Motions for Reconsideration filed by the Town of Amesbury (TOA), the Town of Hampton (TOH) and Seacoast Anti-Pollution League (SAPL) with respect to The Memorandum and Order issued by the Board on May 18, 1987 Providing Basis for and Revision to Board's Rulings on Contentions on Revision 2 of NHRERP (hereafter referred to and cited as " Board Order"). The Motions are dealt with serintim below.

TOWN OF AMESBURY TOA seeks reconsideration of he Board Order insofar 8707100236 870707 PDR hO G

ADOCK 05000443 PDR

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i as it excluded TOA Contentions 7 and 8. These contentions, .

l as well as all other contentions proffered by TOA were '

I excluded, inter alia, on the basis that TOA had not made the necessary showing under 10 CFR 2.714(a) to permit the late filing. In addition, these two contentions were 1 excluded for other reasons as well. Board order at 7. The instant motion for reconsideration addresses itself only to I

rearguing the ruling with respect to " late filing," nothing I in argued to overcome the additional reasons given by the 1

l Board for excluding these contentions beyond an unadorned i assertion to the effect that the Board has incorrectly apprehended the thrust of the contentions. The Board has not; the contentione should rennin excluded. The Motion of-TOA should be denied.

TOWN OF HAMPTON 1

The motion filed by TOH is, to say the least, somewhat t

unstructured in its approach. There is no simple statement l 1

of exactly what relief is sought which serves only to

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further confuse a somewhat confused set of contentions '

already in the case.2 As we understand it, TOH's first complaint is with respect to the Board's ruling that it would not permit TOH to make a wholesale incorporation of bases previously 1 Applicants acknowledge the painstaking efforts of the Staff to parse out of the TOH Motion exactly what matters are the subjects of the Motion, but we answer the Motion herein on its own tanfused terms.

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stated with respect to a modified contention. There is i l

nothing unusual in such a ruling, and certainly TOH has put nothing in this latest motion which serves to vitiate the Board's initial ruling. The argument that the bases had been previously admitted simply is unsupported by the record. The various bases stated in the May 23, 1987 filing on TOH Contention III were not the subject of any I

ruling prior to the one at bar. i I

TOH complains of the rejection of basis (C)7 for  !

Contention III. The reason for the rejection is that all that was set forth in that basis, by its terms, was a set q of flaws etc. which "will become apparent" after discovery f l

was had. This is not a statement of an existing basis as

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the Board noted in ruling it out; it is rather a promise to

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come up with a basis for the proffered contention at a future time.

TOH next complains that the Board should have admitted an issue which would have arisen in the event that Basis C for its revised Contention IV had not been rejected. The j issue is whether or not the special needs survey being done by the State of New Hampshire is adequate. That issue has been decided in a Board ruling on Summary Disposition handed down on November 4, 1986. After summary disposition has been granted upon an issue it would seem that a party, 9 s ),

in order to reinject that issue should at least have to satisfy the criteria for reopening ti.e record of a i

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i proceeding. 10 CFR 2.734. Otherwise there is no degree of finality at all that would attach to a summary disposition. j i

All that TOH does in its present motion is recite a number of after occurring events which it says warrants a ,

1 reopening of this issue. Yet there has been no attempt to l l

show that the issue is, indeed, a significant one or that ]

l the actual taking of evidence would in fact yield a result I materially different than that awarded on the motion for I summary disposition.

l Next, TOH complains as to the exclusion. of basis (A)(3) by the Board. This exclusion removed from the case i i

the issue of letters of agreement from individual

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teamsters. The settled law of this case is that LOA's are not required from individual employees, agents or other actors on behalf of an organization which has supplied a I

LOA. l Finally TOH complains that the Board improperly I i

excluded an issue which would have been litigated had certain bases for TOH Contention VIII been adopted. The i i

contention as pleaded by TOH and admitted by the Board alleges a failure "to provide adequate emergency equipment, facilities or personnel" to accomplish certain things. TOH in its revised basis wants to raise issues as to certain assumptions made by the State of New Hampshire as to loading times for a particular health care center.

The Board correctly ruled that this new basis was not 4

I within the four corners of the contention. The exclusion was proper; intervenors " are bound by the literal terms of their contention." Texas Utilities Electric Co. (Comanche )

Peak Steam Electric Station, Unit 1), ALAB-868, 25 NRC (June 30, 1987) Slig Op. at 37 n.83. Bases outside the i I

scope of the contention are irrelevant.2  !

For all of the foregoing reasons the Motion of TOH should be denied.

SEACOAST ANT-POLLUTION LEAGUE l l

SAPL first complains of the rejection of revised bases for SAPL Revised Contention 7. These bases raise issues as to Letters of Agreement. SAPL's motion makes clear that the Board was correct when it stated that SAPL had failed to identify the specific services as to which it was contending letters of agreement would be necessary. In essence SAPL argues that the Board should have been able to divine what services SAPL meant. SAPL has no right to i replead. Having failed to give the required specificity the first time, SAPL cannot now be heard to complain.

SAPL next reasserts its view that the Board should 2 The Staf f, in its reply to the TOH motion, came up j with the ingenious theory that the portion of the stated J

contention after the word "and" which reads: fails to demonstrate that adequate protective measures can be implemented in the event of a radiological emergency" should be treated as what amounts to a separate contention.

NRC Staff's Response to Motions for Reconsideration Filed by the Town of Amesbury and the Town of Hampton June 15, 1987 at 11. But if one were to do so this separate i contention would have to be denied for lack of specificity, i 5

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4 engage in the academic exercise of. comparing old versions of NHRERP with the current one. There is no need to engage in such fruitless matters.

SAPL next cor: plains of the Board's rejection of certain bases inecrporated by reference from a prior pleading with respect to SAPL Contention 31. We have read the Staff's excellent analysis of this issue set forth in i

NRC Staff's Response to SAPL's Motion for Partial Reconsideraticn (June 16, 1987) (hereafter cited "NRC Response") at 5-6 ]

SAPL next coinplains of the Board's rejection of certain bases with respect to TOH Revised Contention III. ,

i Applicants rely upon their argument with respect to this l matter set forth above in connec' tion with the TOH Motion.

As in the case of SAPL's motion with respect to Contention 31, the Applicants would rely upon the argument made with respect thereto by the Staff in its response to the SAPL Motion. NRC Response at 7.

Finally SAPL requests the Board to reconsider its decision with respect to SAPL Contention 36. That contention raises the issue of the effect of the Massachusetts position on emergency planning upon the NHRERP insofar as it assumes cooperation by the Town of Salisbury, Massachusetts in setting up a traffic control point. Prescinding from lateness, this Board also ruled that while it could not agree with the Applicants that the 6

.1 realism doctrine necessarily precluded litigation of the contention as asserted SAPL has provided no basis for doing so in the face of that doctrine. Board Order at 49. SAPL still has provided no such basis in the motion at bar.

For all of the foregoing reasons the SAPL motion should be denied.

Respectfully submitted, j

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./- -w-/Ms V 1

Thomas G. l George H. Le[waldDi #ffin , Jr. 1 Kathryn A. Selleck Ropes & Gray 225 Franklin Street Boston, MA 02110 (611) 423-6100 ,

Counsel for Applicants i

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l 5 CERTIFICATE OF SERVICE

'87 Jti -8 Pi2 :16 I, Thomas G. Dignan, Jr., one of the attorneys for the 1 Applicants herein, hereby certify that on July 7,,1987, I made service of the within document by depositing copies thereof with Federal Express, prepaid, for delivery to!(or,.

where indicated, by depositing in the United States mail, 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 3 Commission North Hampton, NH 03862 I East West Towers Building 4350 East West Highway Bethesda, MD 20814 Judge Gustave A. Linenberger Diane Curran, Esquire Atomic Safety and Licensing Andrea C. Ferster, 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  !

4350 East West Highway Concord, NH 03301-6397  !

Bethesda, MD 20814

• Atomic Safety and Licensing Sherwin E. Turk, Esquire Board Panel Office of the Executive Legal U.S. Naclear 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 I

O 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 36G 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 Office of General Counsel RFD 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

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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 iB8 Broad Street Post Office Square Boston, MA 02110 i Boston, MA 02109 )

Charles P. Graham, Esquire McKay, Murphy and Graham 100 Main Street Amesbury, MA 01913 1

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