ML20245E594
| ML20245E594 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 04/21/1989 |
| From: | Jonas S MASSACHUSETTS, COMMONWEALTH OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#289-8500 LBP-89-90, OL-1, NUDOCS 8905020053 | |
| Download: ML20245E594 (8) | |
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.gg APP. 24 P3 :46 NUCLEAR-REGULATORY-COMMISSION ATOMIC SAFETY-AND LICENSING BOARD u : t -. - -
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Before. Administrative Judges::
Peter Bloch, Chairman.
j Emmeth A'.Luebke Dr. Jerry liarbour
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In the Matter of
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'PUBLIC SERVICE' COMPANY OF
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Docket No.(s) l NEW HAMPSHIRE, ET AL.
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50-443/444-OL-1 (Seabrook Station, Units 1 and 2)
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On-site'EP
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April 21, 1989
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MASS _ AG JRIEE._QN RELEVANCE OF DISCOMFDET f
The. Board has requested briefs on the legal question:
"What standard should we apply to determine the-possible irelevance'of discomfort?"~ Memorandum _and Ordet (Summary
- Disposition), LBP-89-90 at 9-16 (March 6, 1989).
The Applicants have now filed their brief on the issue.
The crux q
of their argument, in conjunction with their Direct Testimony,
.is that the Board shculd substitute the standard of " hearing damage" for " discomfort" notwithstanding the fact that the guidance material plainly chooses the " discomfort" standard.
That argument should be rejected.
I B905020053 890421 l
PDR ADOCK 05000443 ;'
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ARGUMENT
-The Applicants have narrowed the issue somewhat.
They admit that "[s]ome discomfort may result" from their system, a finding itself implied in the Board's phrasing of the que:; tion.
Applicants' Briaf. at 2.
They also acknowledged that in its present configuration their system does not " literally l
compl[y] with the guidance."
Id. at 3.
Their contribution to a sound result ends when they attempt to persuade the Board to substitute a standard of hearing damage for the plain and explicit standard of discomfort.
The analysis begins with NUREG-0654, FEMA-rep-1, Rev. I which states that "[t]he maximum sound levels received by any member of the public should be lower than 123 dBC, the level which may cause discomfort to individuals."
Id. App. 3 at 3-8.
The standard, therefore, is discomfort, not hearing damage.
1/
Based on the Mass AG's Direct Testimony, operation at 122 dBC, and all the way down to 110 dBC, Hill cause discomfort to almost all listeners.
Operation at the 123 dBC level will be at the upper bound of the discomfort range for the vast majority of Ilsteners.
The question is whether the Board will permit a system which turns the sound up even louder.
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Notwithstanding the clear use of the term discomfort, the
' Applicants invite the Board to search beyond NUREG-0654 in an apparent attempt to render ambiguous an otherwise unambiguous standard.
As a general matter, of course, this kind of
. argument runs counter to established principles of statutory and regulatory interpretation.
E g., Escondida Mutual Water
~
Co.
v.
La Jolla Indian.s, 466 U.S. 765, 772 (1984); Euburban IIansit Corp.
v.
ICC, 784 F.
2d 1129, 1130 (D.C. Cir. 1986);
United Scenic Artists. Local 889 v.
NLRB, 762 F.
2d 1027, 1032 (D.C. Cir. 1985).
There is good reason for the application of those principles here.
The Applicants have offered nothing to demonstrate that the authors of NUREG-0654 meant the standard i
to be anything other than what they said it should be.
l An attempt to go behind NUREG-0654.also fails.
- First, there is no indication that the authors, even if they looked to CPG-1-17 and the National Academy of Sciences study, wanted.to do anything other than refer to 123 dBC as a conservative benchmark.for discomfort.
There is no support for the belief 1
that they were concerned themselves with auditory fatigue or hearing damage.
Moreover, CPG-1-17 itself recognizes that i
operation of outdoor warning systems should avoid sound levels which are disturbing, even if not potentially damaging.
CPG 1-17 at 8 ("the resulting high noise levels (from testing]
could be viewed as disturbing _and&tdamagimg under these circumstances"; "[1]oud sounds, Elen_if not potentially_ 1
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damacina, can be viewed as a disturbance by some residents of a community.") (emphasis added).
Moreover, while the Applicants i
maintain that operating at less than 1000 Hz should not be 1
subject strictly to the standard, Egg Applicants' Direct Testimony at 13, cpg 1-17 says nothing of such an exception and, indeed, applies the 123 dBC standard uniformly for all outdoor warning devices in the range from 300 to 1000 Hz (the Applicants' system operates at 550 Hz).
See cpg l-17 at 4.
l The Applicants then attempt to reach beyond even cpg 1-17 to determine the relevance of discomfort "in reference to.
objective criteria."A' That attempt proceeds from the faulty assumption that one should compare a reference system (the relevance of which is assumed by the Applicants) to the VANS system to determine the relative extent of hearing damage.
In fact, as the Mass AG's testimony points out, there is a significant distinction between discomfort and damage and the VANS system will plainly exceed even the significant levels of discomfort to listeners associated with the 123 dBC level.
The authors of NUREG-0654 apparently wished to avoid discomfort to 2/
The Applicants believe that " discomfort is a concept that has not been quantitatively defined" and, therefore, their
" objective criteria" analysis should be entertained.
Applicants' Brief at 2.
In fact, discomfort has been defined and tested in a study done in 1946 and relied upon by a host of authorities since then.
See Ma s s _AG_lli.tect TeSit.iE03E, part II.
Not only is it contrary to the language of NUREG-0654, it is unnecessary to undertake that analysis because relevant data l
does exist.
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Y the population, even if.it would not cause hearing damage.
It is both reasonable and appropriate that notification systems be kept at sound levels which carry out their functions without discomfort to the population.
The-Applicants' analysis is also another form of
" rewriting" the NUREG-0654 standard.
They have transmuted-a uniform limit of sound exposure to any member of the public to one which must be compared to a " reference" system based on frequency and' duration.
Of course, NUREG-0654 says nothing
.about such comparisons on a case-by-case basis but, rather, adopted a single, uniform standard based on a conservative standard for discomfort.A#
Respectfully submitted, JAMES M.
SHANNON ATTORNEY GENERAL
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4 St hen A./6onas Deputy Attorney General Chief, Public Protection Bureau One Ashburton Place Boston, MA 02108 (617) 727-2200 Dated:
April 21, 1989
'3/
Even if such a case-by-case procedure were appropriate it should reach a conclusion measured in terms of discomfort, not hearing damage.
The Mass AG has done that and the result is that the VANS system exceeds-the appropriate standard.
i'
- a:
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'89 APR 24 P3 :50
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BUL-In the Matter of
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Docket Nos. 50-443-OLul8-
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50-444-OL-1 PUBLIC SERVICE COMPANY
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OF NEW HAMPSHIRE, EI AL.
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- (Seabrook Station, Units 1 and 2)
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April 21, 1989
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CERTIFICATE OF SERVICE I,
Stephen A.
Jonas, hereby certify that on April 21, 1989, I made service of the within Mass AG Brief On Relevance Of Discomfort, Mass AG Direct Testimony Regarding Prompt Alert And Notification System Issues, and Mass AG's Supplemental Answer To Applicants' Expert Witness Interrogatories, by First Class Mail, or by Federal Express as indicated by [*],
or by Hand Delivery as indicated by [**]
to:
- Peter Bloch, Chairman
- Dr. Emmeth A. Luebke Atomic Safety & Licensing Board 5500 Friendship Boulevard U.S. Nuclear Regulatory Commission Apartment 1923N Washington, DC 20555 Chevy Chase, Me 20815
- Dr. Jerry Harbour
- Gregory Barry, Esq.
Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Office of Ge"eral Counsel Commission 11555 Rockville Pike Washington, DC-20555 Rockville, MD 20852 Docketing and Service
- Thomas G. Dignan, Jr.
U.S. Nuclear Regulatory Commission Ropes & Gray Washington, DC 20555 One International Place Boston, MA 02110
_______---___-_____----_____A
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L.
H.
Joseph Flynn, Esq.
Atomic Safety'& Licensing Assistant General Counsel Appeal Board l
' Office of General Counsel U.S. Nuclear Regulatory Commission L
Federal Emergency Management Washington, DC 20555 Agency 500 C Street, S.W.
' Washington, DC 20472 Robert A.
Backus, Esq.
Atomic Safety & Licensing Board Backus, Meyer & Solomon U.S. Nuclear Regulatory. Commission
(
116 Lowell Street Washington, DC 20555 P.O.
Box 516 Manchester, NH 03106 Jane Doughty Dianne Curran, Esq.
Seacoast Anti-Pollution League Harmon, Curran & Towsley Five Market Street Suite 430 Portsmouth, NH. 03801 2001_S Street, N.W.
Washington, DC 20008 Barbara St. Andre, Esq.
Judith Mizner, Esq.
Kopelman,& Paige, P.C.
79 State Street
'77 Franklin Street Second Floor
' Boston, MA 02110-Newburyport, MA 01950 Charles P.. Graham, Esq.
R._ Scott Hill-Whilton, Esq.
Murphy & Graham Lagoulis, Hill-Whilton & Rotondi
.33 Low Street 79 State Street Newburyport, MA 01950 Newburyport, MA 01950 Ashod N. Amirian., Esq.
Senator Gordon J. Humphrey-145 South Main Street U.S.
Senate P.O.
Box 38 Washington, DC 20510 Bradford, MA 01835 (Attn:
Tom Burack)
Senator Gordon J. Humphrey George Dana Bisbee, Esq.
One Eagle Square, Suite 507 Assistant Attorney General Concord, NH 03301-Office of the Attorney General (Attn:
Herb Boynton) 25 Capitol Street Concord, NH 03301 Phillip Ahrens, Esq.
Assistant Attorney General Department of the Attorney General Augusta, ME 04333.
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William S. Lord Board:of Selectmen Town Hall
. Friend. Street
'Amesbury,.MA- 01913 Respectfully submitted, JAMES M.-SHANNON ATTORNEY GENERAL 5tepften A.'Jonas
. Deputy Attorney General Chief, Public Protection Division.
One Ashburton Place Boston, MA 02108.
(617) 727-2200 Dated:
April 21, 1989 Y$ - _ _ _ _ - _ _ _ _
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