ML20244D487
| ML20244D487 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 06/08/1989 |
| From: | Selleck K PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#289-8750 OL, NUDOCS 8906190087 | |
| Download: ML20244D487 (8) | |
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'89 JLN 12 P5:16 June 8, 1989 Orr.
UNITEDDSTATES OF-AMERICA NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443-OL NEW HAMPSHIRE, et al.
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50-444-OL
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(Seabrook Station, Units 1 and 2)
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(Off-site Emergency
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Planning Issues)
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MOTION TO DISMISS CONTENTION TOH/NECNP EX-2 Intervenorsl submitted only one piece of testimony that purports to support Contention TOH/NECNP EX-2, that is,
" Testimony of Sandra Fowler Mitchell on Behalf of Attorney General James M. Shannon, Town of Hampton and New England Coalition on Nuclear Pollution Regarding TOH/NECNP EX-2"
("Mitchell Testimony").
Even if every statement in the Mitchell Testimony were taken as true, however, the evidence would fall far short of the showing necessary to prevail on l
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" Interveners", for purposes of this motion, include the Attorney General for the Commonwealth of Massachusetts
(" Mass AG"), New England Coalition on Nuclear Pollution
("NECNP") and Town of Hampton ("TOH").
8906190087 890608 PDR ADOCK 05000443 T
'T) 50 3
the contention.2 Applicants therefore bring this motion to dismiss Contention TOH/NECNP EX-2.
Contention TOH/NECNP EX-2 reads as follows:
"The exercise demonstrated that there is no reasonable assurance that adequate measures can and will be taken to protect school children during a radiological emergency at Seabrook."
Nearly four single spaced pages of " basis" purported to provide some specificity for the flat generality of the contention.
Interveners have not brought forward any witnesses, however, to attest to most of the basi-allegations.
The Mitchell Testimony only goes to, at most, the first general sentence and the ninth paragraph of the basis and does not touch on the rest.
The NRC Staff objected to the contention on the ground that it did not even allege a pattern of failures associated with an essential element of the plan.
NRC Staff Response to November 14, 1988 Board Order Requesting Comments on Significance of ALAB-903 for Seabrook Proposed General Exercise Contentions, at 9.
The contention survived exclusion, but only on the expectation that it would be better explained in the course of the proceeding:
"The Staff now urges the Board to reject this contention on the grounds that it does not meet the requirements of ALAB-2 Applicants do in fact dispute the allegations in tne Mitchell Testimony.
Should the Board deny Applicants' instant motion, parts of Applicants' Rebuttas Testimony No.
25 sdew Hampshire Exercise Performance) will be offered to rebut the Mitchell allegations.
l]
^
l 903.
The' Staff believes that. absent a showing that the allegations demonstrate j
a pattern'offfailures associated with an j
essential element of the plan,=or some other. element set 'out in.ALAB-903, ' the' contention should'be rejected.
NECNP comments.that in fact the= basis for the l
contention does show a' pattern of1 repeated-or related failures;with' respect j
to protective actions for children.
j While we see clearlv that the contention ~
j alleaes reDeated failures, it is not so clear that they demonstrate a cattern of
-related failures.
However the seventh paragraph of the-basis (e.a.,
a-. profusion of ordered protective actions) scems to J
establish the pattern amid its..
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speculations.- In a iudament call'. we rule in favor of:admittina the contention with the expectation that NECNP will better exclain the cattern it sees in the alleced failures."
Memorandum and Order (Ruling on June 1988 General Exercise Contentions),' December 15, 1988, at 68-69'(emphasis added).
Not only have interveners failed to "better explain the pattern" they would allege, they have failed to produce evidence to support their original thin explanation.- The-seventh paragraph of the basis, which the Board noted j
"seem[ed) to establish the pattern amid its speculations",
has no sponsoring witness at all.
Ms. Mitchell would only testify that:
(1) the local liaisons she observed or partially observed at the IFO during the Exercise did not coordinate or exchange information efficiently, (2) not all liaisons appeared to her to be in possession of current i
information, (3) IFO officials provided conflicting messages to local EOCs as to whether parents should pick up children-from schoola, and (4) at the end of Day 1 of the Exercise,
state officials were confused over transportation arrangements for students sheltering some EPZ towns.
Ms Mitchell does not testify that any liaison gave out incorrect or outdated information, that any PAR for school children was inappropriate, or that proper actions for school children were not taken or taken successful'ly.
At most, the Mitchell Testimony can be read as suggesting that aspects of information exchange in the IFO could be bettered.
Applicants would agree that it is almost always the case that a process or procedure could be bettered.
The relevant inquiry in this proceeding, however, is whether the interveners allege and show that the Exercise revealed a pattern of failures associated with "an essential element of the plan" which failures "can be remedied only through a significant revision of the plan."
Lona Island Lichting Comnany (Shoreham Nuclear Power Station, Unit 1), ALAB-903, 28 NRC 499, 505 (1988) (emphasis added).
As NECNP itself quoted in its discussion of the admissibility of this contention:
"' minor or isolated problems on the day of the exercise do not constitute fundamental flaws in the emergency plan.' [ALAB-903) Slip Op. at 7, citing UCS v. NRC, 735 F.2d at 1448."
The minor, isolated problems alleged in the Mitchell Testimony, even if taken as true, do not amount to the required showing of a pattern of related or repeated i
failures associated with a particular essential element of 1
the plan. _ _
On a judgment call, in the expectation of something more from interveners, this Board admitted Contention TOH/NECNP EX-2.
In view of interveners' failure to meet thah er 4ctation, Applicants now move that this Board dismiss Contention TOH/NECNP EX-2.
By their attorneys,
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Thopas G.
Dignan, Jr.
George H.
Lewald Kathryn A. Selleck Jeffrey P. Trout Jay Bradford Smith Geoffrey C.
Cook William Parker Ropes & Gray One International Place Boston, MA 02110-2624 (617) 951-7000 l l
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' O h. C CERTIFICATE OF SERVICE I, Kathryn A.
Selleck, one of the attorneysrfor the:
2f Applicants herein, hereby certify that on June iBfM1py'9))I made service of the-within document by telecopying a copy to 1
Matthew T.
Brock, Esquire, Assistant Attorney General, at his request, to Shaines & McEachern, 25 Maplewood Avenue, i
Portsmouth, New Hampshire 03801 and by mailing copies
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thereof, postage prepaid, to:
1 i
Administrative Judge Ivan W.
- Smith, John P. Arnold, Esquire v
J Chairman Attorney General Atomic Safety and Licensing George Dana Bisbee, Esquire Board Assistant Attorney General U.S. Nuclear Regulatory Office of the Attorney General i
Commission 25 Capitol Street l
Washington, DC 20555 Concord, NH 03301-6397
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Administrative Judge Richard F.
Mr. Richard R.
Donovan Cole Federal Emergency Management q
Atomic Safety and Licensing Agency i
Board Federal Regional Center j
U.S Nuclear Regulatory 130 228th Street, S.W.
1 Commission Bothell, Washington 98021-9796 Washington, DC 20555 Administrative Judge Kenneth A.
Judith H. Mizner, Esquire
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McCollom 79 State Street, 2nd Floor i
1107 West Knapp Street Newburyport, MA 01950
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Stillwater, OK 74075 1
l Diane Curran, Esquire Robert R.
Pierce, Esquire l
Andrea C.
Ferster, Esquire Atomic Safety and Licensing Harmon, Curran & Tousley Board Suite 430 U.S. Nuclear Regulatory 2001 S Street, N.W.
Commission Washington, DC 20009 Washington, DC 20555 Adjudicatory File Sherwin E.
Turk, Esquire Atomic Safety and Licensing Office of the Executive Legal Board Panel Docket (2 copies)
Director U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Atomic Safety and Licensing Robert A.
Backus, Esquire Appeal Board Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O.
Box 516 Washington, DC 20555 Manchester, NH 03105 1
Philip Ahrens, Esquire Mr.'J. P. Nadeau Assistant 1.ttorney' General Selectmen's Office Department of the Attorney 10 Central Road General-Rye, NH. 03870 Augusta, ME:'04333 Paul McEachern, Esquire John Traficonte, Esquire Shaines & McEachern Assistant Attorney General 25 Maplewood Avenue Department of the Attorney P.O.
Box 360 General Portsmouth, NH 03801 One Ashburton Place, 19th Fir.
Boston, MA 02108 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 R. Scott Hill-Whilton, Esquire U.S.
Senate Lagoulis, Hill-Whilton &'
Washington, DC 20510 Rotondi (Attn:
Tom Burack)
- 79. State Street.
Newburyport,.MA 01950 Senator Gordon J. Humphrey Leonard Kopelman, Esquire One Eagle Square, Suite 507 Kopelman & Paige, P.C.
Concord, NH 03301 77 Franklin Street (Attn:
Herb Boynton)
Boston, MA 02110 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 Charles P. Graham, Esquire Office of General Counsel Murphy and Graham Federal Emergency Management 33 Low Street Agency Newburyport, MA 01950 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 03842 Concord, NH 03301 _ _ _ _ - _ _ _ - _ _ _ _ _ _ _ _ _ _
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f Ashod N. Amirian, Esquire 145 South Main Street P.O.
Box 38 Bradford, MA 01835
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