ML20246N829
| ML20246N829 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/15/1989 |
| From: | Trout J PUBLIC SERVICE CO. OF NEW HAMPSHIRE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#289-8626 OL, NUDOCS 8905220011 | |
| Download: ML20246N829 (52) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING BOARD
)
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.
)
)
APPLICANTS' RESPONSE TO MASS AG'S MOTION TO ADMIT IATE-FILED CONTENTION BASIS On May 9, 1989, the Attorney General for the Commonwealth of Massachusetts (" Mass AG") filed a " Motion For Leave to File Late-Filed Contention Basis Regarding the Adequacy of Parking Space and the Traffic Management Plan at i
the Beverly Reception Center" (" Motion").
This Motion should be denied, for three reasons: (1) the same late-filed contention has already been rejected three times by this Board, including once for failure to meet the late-filed criteria; (2) the contention again fails to meet the criteria for late-filed contentions; and (3) the contention attempts 8905220013 g90515 anmr.na gDR ADOCM 05000443 PDR
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l to resurrect issues already litigated and decided in New Hampshire.
ARGUMENT l
This Board has already repeatedly rejected, including l-once as late-filed, a contention by Mass AG on precisely this issue, thus rendering the question res iudicata.
- Moreover, Mass AG has failed to meet the five-factor test for admission of late-filed contentions.
Finally, the proffered " basis" attempts to raise issues, e.o. vehicle occupancy rates, which this Board has already decided in Applicants' favor.
I.
The Board Has Already Reiected This Late-Filed L
Contention.
On September 21, 1988, Mass AG filed his exercise contentions in these proceedings.
Among them was a contention alleging that "there is insufficient space at the reception centers to handle all the vehicles that would arrive there in the event of a wide-spread contaminating release like the one which was simulated for the Exercise."
MAG EX-18 Basis E, Massachusetts Attorney General's Exercise Contentions Submitted in Response to the June 1988 Seabrook Initial Full-Participation Exercise at 91 (September 21, 1988).
This issue seems to be identical to the thrust of Mass AG's present Motion.
This Board's initial ruling on Mass AG's parking contention was that it seemed not to meet the fundamental flaw criteria elucidated in ALAB-903.
Memorandum and Order (Rulina on June 1988 General Exercise Contentions) at 46 - - _ _ _ - - _ - _ _ _ _ _ _ - _ _ _ _ - _ - _ _ - _ _ _ _ _
i N
1 (December 15, 1988).
However, the Board gave Mass AG an opportunity to amend the contention to render it admissible.
]
Id.
When Mass AG failed to do so, but instead attempted to bootstrap the contention onto ALAB-905, the Board expressly rejected it as untimely filed.
See Memorandum and order (Rulina on Massachusetts Attorney General's Exercise Contentions 8.C.1.
8.C.3.
- 18. and 21.C) at 12 (January 13, 1989) ("We deny the Attorney General's motion for leave because he totally fails to pay respect to commission procedures for seeking the admission of a late filed i
l contention.")
Mass AG was then given a third opportunity to I
argue the admissibility of his contention, at the January 18 l
pre-hearing conference.
Tr. 15288-295.
Again the Board l
l rejected the contention.
Tr. 15338-341.
Mass AG has already been given three opportunities by the Board to properly raise any concerns he had about parking l
at reception centers.
On each occasion, Mass AG fumbled the ball.
Now, months later, he seeks yet again to resurrect this thrice-rejected contention.
The Board should stand by its prior three rulings, and reject the contention once and for all.
II.
The Five-Factor Test is Not Met.
On the strength of what he purports is new information first received on April 18, 1989, and with no reference whatsoever to the former MAG EX-18 E, Mass AG seeks to add a new four-page-long " basis" to JI Contention 56.
As Mass AG
i concedes, Motion at 2, this addition can only be made if Mass AG prevails under the "five factors test" for admissibility of a late-filed contention.1 The factors are:
"(i)
Good cause, if any, for failure to file on time.
(ii)
The availability of other means whereby the petitioner's interest will be protected.
(iii)
The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(iv)
The extent to which the petitioner's interest will be represented by exicting parties.
(v)
The extent to which the petitioner's participation will broaden the issues or delay the proceeding."
10 C.F.R. 5 2.714 (a) (1).
Since all of the five factors weigh against the admission of this late-filed " basis", the Motion should be denied.
A.
Good Cause Has Not Been Shown.
Mass AG's entire Motion is premised upon the key assertion that it was not until April 18, 1989 that Applicants disclosed what Mass AG characterizes as "a fundamental change in the planning basis, and revision to the SPMC, for the ' expected number of evacuees, or load, arriving at each reception center'".
This critical assertion by Mass AG, however, is erroneous.
Applicants made their new 1
Even then, as noted in Part I suora and Part III infra, there would be res iudicata problems. I
I i
i monitoring load calculations known to Mass AG on January 27, 1989, ite., nearly three months prior to the date claimed by Mass AG.
Moreover, the basis of these new calculations, 12e., this Board's Partial Initial Decision on the NHRERP,2 was served on Mass AG yet another month earlier.
Thus Mass AG cannot show good cause for the untimeliness of his filing.
On December 30, 1988, this Board spelled out the formula to be used in calculating anticipated monitoring load for reception centers.
See P.I.D.
at 1 5.19, 28 NRC at 703.
The calculations contained in Applicants' April 18, 1989 testimony were -- as the passage cited by Mass AG himself in the Motion shows -- designed to conform with the formula in the P.I.D.
See Motion at 2-3.
Thus, as early as December 30, 1988, Mass AG knew or should have known what the anticipated monitoring load of each reception center would be.
Moreover, Applicants informed Mass AG on at least three occasions at the end of January, 1989, that Applicants had recalculated the monitoring load and added four additional monitoring stations at each reception center.
The first such notice to Mass AG was on January 27, 1989, when Applicants filed, and served on all parties, Applicants' Notice l
l Regarding New Documents
(" Notice"), Exhibit A hereto.
In l
that Notice, Applicants highlighted and described certain of 1
i l
2 Pu'olic Service Company of New Hampshire (Seabrook i
Station, Units 1 and 2), LBP-88-32, 28 NRC 667 (1988)
(hereinafter "P.I.D."]
E______
s the documents which "may be of significance" to the parties.
Notice at 2.
One of the documents thus highlighted was described as "a revised method for estimating the number of evacuees anticipated to arrive at NHY-ORO reception centers, which will result in an increase of four monitoring stations at each center."
Id.
The second and third notices to Mass AG occurred on January 31, 1989.
On that date, Applicants hand-delivered the documents described in the notice, including the 1
memorandum describing the " revised method for estimating the number of evacuees anticipated to arrive at NHY ORO reception centers", to Mass AG.
Egg Letter of Kathryn A. Selleck to Allan R. Fierce, January 31, 1989, Exhibit B hereto.
Also on that date, Applicants discussed the increased monitoring capacity of the reception centers in settlement talks with Mass AG, which discussion is memorialized in the Letter of Jeffrey P. Trout to John Traficonte, February 1, 1989, pages 2-3, Exhibit C hereto.
There can be no dispute as to whether Mass AG received and read the new monitoring-load document produced on January 27, 1989.
On February 7, 1989, Mass AG filed a pleading in which he stated that "[o]n February 1, 1989, the Mass AG reviewed those documents".
See Motion of the Massachusetts Attorney General to Permit Limited Further Discovery on JI 46, JI 49, and JI 50 and to Permit Testiomony
[ sic] on These Contentions to Be Filed on April 3, 1989, at 3 _ _
s (February 7, 1989), Exhibit D hereto.
Also on February 7, Mass AG stated to the Board and Applicants, on the record, that the monitoring-load change had been noted.
Tr. 15703.3 Finally, Mass AG on April 10, 1989 filed testimony on monitoring rate that expressly relied on both the P.I.D. and on Applicants' January calculations.
See Testimony of Dr.
Colin J. High on Behalf of James M. Shannon, Attorney General for the Commonwealth of Massachusetts, Concerning Contention JI-56 (Monitoring Rate) at-3 and 4-5 (April 10, 1989),
Exhibit E hereto.
In that testimony, Mass AG postulated a monitoring load at Deverly that was either 23% (14,103 vs.
I 11,478) or 38% (15,807 vs. 11,478) hiaher than the summer peak load contained in Applicants' calculations.
Id. at 5, 6.
Thus, putting entirely to one side the three prior attempts by Mass AG to raise this issue, the chronology of Applicants' notice to Mass AG as to monitoring load is:
P.I.D. articulates standard for
. December 30 calculating monitoring load.
Applicants produce, and describe, January 27 new monitoring-load calculations.
i Applicants transmit documentation of January 31 3
In that telephone conference on bed buses, Ms. Greer listed "all the other changes that we've seen coming through here" as including " changing the site of the host facility for school children, adding additional ambulance companies, i
addi,ng additionsl radio statigns.
Tr. 15703, A
comparison to Exhibit A hereto makes clear that " radio stations" is a mistranscription for " radiological monitoring stations".
(No new radio stations were added.) _ _ - _ -
_ _ _ _ _ _ _ _ _ _ _ _ - _ - _ _ _ _ _ _ _ _ _ _ _ _ = _ _ - _ _ _ _ - - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ -
i s
new monitoring-load calculations to Mass AG by hand delivery.
January 31 Applicants discuss new monitoring stations with Mass AG in settlement talks.
Applicants send letter to Mass AG February 1 confirming settlement discussions.
Mass AG reviewo Applicants' February 1 documents, including monitoring-load calculations.
Mass AG confirms (in writing and on February 7 the transcript) that he has reviewed the documents.
Mass AG files testimony based upon April 10 the new monitoring-load calculations, claiming 14,103 or 15,807 as Beverly load.
Applicants file testimony based upon April 18 the new monitoring-load calculations, citing 11,478 as Beverly load.
Mass AG files his Motion, claiming May 9 surprise at the new monitoring-load calculations of 11,478 at Beverly.
It is clear that Mass AG's claim, that he was surprised by
" fundamental change" contained in Applicants' April 18 testimony, is without foundation.4 4
Applicants presume that the particular Assistant Attorney General who signud the Motion:
(1) was unaware of, or had forgotten, the three Mass AG pleadings, two Board orders, and two pro-hearing conference colloquys in which this issue was previouzly di1cusrad; (2) was unaware of, or had forgotten the January 27 Notice highlighting the new f
monitoring-lehd calculations; (3) was unaware of, or had forgotten, the Janahry J1 letter transmitting the new monitoring-load calculations; (4) was unaware of, or had forgotten, the January 31 settlement discussion and February 1 letter in which new monitoring stations were discussed; (5) did not himself reviev or subsequently learn about the e
review of, the new monitoring-load calculations by Mass AG on f I
f
\\
As Mass AG concedes, good cause is the " crucial" factor in determining whether a late-filed contention should be admitted.
Motion at 2, citing Commonwealth Edison Company (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 244 (1986).
As the on-site Board in these proceedings has held, "[a]bsent good cause for late filing, a compelling showing must be made on the other four factors."
}iemorandum and Order (Grantina Mass. Reauest to Fi3e a Reolv; Denvina Mass. Motion To Amend) at 6 (October 12, 1988)
[ hereinafter "Onsite Order"), Exhibit F hereto.
This crucial factor weighs against Mass AG.
He should have known about the new " planning basis" on December 30, 1988, when the Board established it in the New Hampshire P.I.D. Mass AG could have known about it as early as January 27, when Applicants produced and highlighted their new calculations.
And Mass AG did know about it by February 1, as he twice has stated.
But Mass AG did not file his new " basis" on or after February 1.
Instead he waited until trial had commenced --
indeed, until it was half over -- and until after both sides Febscuary 1; (6) was unaware of, or had forgotten, the February 7 pleading and the February 7 telephone statement by Mass AG; and (7) did not participate in or read the April 10 testimony on monitoring rate filed by Mass AG, which expressly relies on the new monitoring-rate calculation and arrives at load numbers substantially higher than Applicants'.
Applicants also presume that none of the other members of the Mass AG's office who were aware of one or more of the above documents and statements read the Motion before it was filed. 1
f had filed their testimony.
This delay of more than three months (or more than four, if one counts from the P.I.D.) is wholly unreasonable.
E.o.,
Onsite Order at 6 (delay of 42 to 50 days, while case is still in summary disposition phase, is too long).
Mass AG has made no showing of good cause for this extreme tardiness.
B.
Mass AG Has Another Means to Protect His Interest.
Mass AG could eliminate the problem which he alleges to exist by persuading his client, the Commonwealth, to resume emergency planning for Seabrook Station.
Instead, Mass AG has chosen (as Governor Dukakis's principal nuclear-affairs aide has put it) to " sacrifice the public welfare for the sake of a litigation strategy."
See Memorandum of Peter W.
Agnes to Charles V.
Barry, August 7,
1986, at 4, Exhibit G hereto.
Under the laws of Massachusetts, that apparently is Mass AG's prerogative.
However, having made that choice, Mass AG must live with the consequences.
This factor weighs against admission of the new " basis".
C.
Mass AG Has Not Shown That He Will Develop a Sound Record.
In order to meet this third factor, the petitioner must
" set out with as much particularity as possible the precise issues it plans to cover, identify its prospective witnesses, and summarize their oroposed testimony."
Commonwealth Edison Comoany (Braidwood Nuclear Power Station, Units 1 and 2),
CLI-86-8, 23 NRC 241, 246 (1986) (emphasis added).
Mass AG does identify Dr. Adler as the witness to be offered.
Mobion _ _ _ _ _ _ _ _. _ _ _
i
7 t
\\
at 6.
As to the substance of his testimony, however, Mass AG states only that Adler "will testify in support of the issues raised in Basis D."
Id.
This " summary" is of no help whatsoever.
Cf. Public Service Comoany of New Hampshire (Seabrook Station, Units 1 and 2), LBP-89-4, 29 NRC 62, 70 (1989)
(" Generalities, rather than precise issues, were presented, and we will not do Interveners' homework for them by reading the affidavit and then summarizing the proposed testimony.").
Especially in light of the several months that Mass AG has had in which to prepare, his failure to adequately describe how he would contribute to the record must weigh against him.
D.
Mass AG Needs No Assistance to Protect His Interests.
As noted above, Mass AG can adequately protect his own interests at any time, by giving up his " litigation strategy" of refusing to plan.
He needs no assistance from any other Intarvenor.
This factor too weighs against admission of the new " basis".
E.
The Issues Will Be Broadened and the Proceedings Delave_d.
By injecting parking capacity and " management" into the proceedings (after the issue has already been three times rejected), Mass AG would obviously broaden the issues to be litigated.
Perhaps more importantly, this long-delayed, last-minute contention would Ureck havoc upon the schedule of these procDedi'.1gs.-
As Of May 9, wheri Mass AG brought the l
l - _ _ - _ _ - _ _ _ _ _ _ - _ - _ _
t Motion, the hearings had already reached their halfway point, all the testimony from all the parties had been filed, and a final schedule for the appearances of the remaining witnesses had been prepared.
If Mass AG's Motion is granted, then new testimony will have to be drafted and filed, and new witness appearances scheduled.- The inevitable result will be a significant delay in completing these proceedings.
This factor too, therefore, weighs against Mass AG.
III. The New " Basis" Raises Already-Decided Issues.
Even if Mass AG parking contention had not already been rejected three times by the Board, and even if the contention did not also fail the five-factor test for late filing, the Motion should nonetheless be denied on grounds of res iudicata.
Although styled as a new issue, the proffered
" basis" in reality attempts to relitigate key issues which already have been debated and decided in the New Hampshire portion of these proceedings.
Mass AG's proposed Basis D states that Applicants' "new" (i.e., January) calculation " underestimate; the number of cars used by the permanent residents who are evacuating."
Proposed Additional Basis to JI-56, Attachment to Motion, at 4.
This alleged underestimation, we are told, arises from two purporced facts:
(1)
" Applicants use the incorrect multiplier of 2.6 permanent residents per vehicle.
Using the correct multiplier of 2.2 evacuating residents per vehicle, derived 1 - - _ _ _ _ _ - - _ _ _ _ _ _
i s
from the survey conducted for the Mass AG in l'87, one finds 9
that the number of permanent resident vehicles is significantly larger than that calculated by the Applicants."
-Id.
(2)
"Also, the Applicants have misestimated the percentage of the beach area vehicles that would arrive at the Beverly reception center by including only 50% of the transient beach population in their new 20% calculation.
See Applicants' No.
17 at 4.
The correct percentage of the Massachusetts transient beach population which should be included in the calculation is at least 80%."
Id.
1 The implication of Mass AG's new " basis" is that those two numbers, the 2.6 residents per vehicle and the 50% of transients, are new as of April 1989.
In reality, however, Applicants advanced both of those numbers, for ETE and for monitoring-capacity calculations, in the New Hampshire hearings a year and a half ago.
- Seg, e.a.,
Tr. 4764, 7407-08.
Mass AG directly challenged the 2.6 number, and also attempted to undermine the 50% assumption.
Adler Dir.,
Tr. ff. 7181 at 42-43; Luloff Dir., Tr. ff. 8203 at 8-9 and Attach 3; see also SAPL Contention 31 Basis 19.
The Board resolved this clash of testimony (some of which Mass AG himself backed away from in his proposed findings), in favor j
of Applicants.
P.I.D.
11 9.29, 9.130, 28 NBC at 782, 803.
Having litigated and lost these two issues in hew l
f Hampshire, Mass AG now seeks leave to have the same Mitness f
l k
~13-l
j
+
useithe same data 5 to argue the same points again.
Sound
)
considerations of Igg iudicata indicate that Mass AG's request should be denied.
CONCLUSION For the reasons stated above, the Motion should be denied.
Respectfully submitted, Qf W?e,i-
'homas G.
Dignan, Jr.
T George H.
Lewald Kathryn A. Selleck Jeffrey P. Trout Jay Bradford Smith Geoffrey C.
Cook William L. Parker Ropes & Gray One International Place Boston, MA 02110-2624 (617) 951-7000 5
Curiously, the new " basis" argues that Mass AG's 1987 rurvey indicates a 2.2 vehicle occopancy rate, while in New Hampshire Mass AG's witness stated that it suggested a 2.3 rate.
Egg bf h l tr., Tr. ff. 71% at 42-43.
No explanation I --.
is offerba as to why the same data, interpreted by the same witness, should now produce a different ( L.L., less favorable to Applicants) result.
'2 4 -
hK:4 7;T i
4Y i
January 27, 1989 q
UNITED STATES OF AMERICA i
NUCLEAR REGULATORY COMMISSION I
l before the
]
ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
)
)
PUBLIC SERVICE COMPANY OF
)
Docket Nos. 50-443-OL NEW HAMPSHIRE, et al.
)
50-444-OL
)
Offsite Emergency (Seabrook. Station, Units 1 and 2)
)
Planning Issues
)
)
APPLICANTS' NOTICE REGARDING NEW DOCUMENTS Applicants hereby notify the parties that new documents which were not available or did not exist during the
. discovery phase of the SPMC litigation have been added to the discovery room at Seabrook Station and are available for review by the parties.
The documents are few in number and an index will be provided to any party requesting one.
l For those parties not wishing to inspect the documents or request copies, Applicants provide the following i
l l
< spy 1V./. 8#-
r +
i ee information contLined in the documents which Applicants believe may be of significance:
1.
Applicants have obtained a letter of agreement with I
1 an additional host facility that will be designated in the SPMC for school, day care center, and nursery school populations.
2.
Applicants have obtained a letter of agreement with a new host hospital facility.
3.
Applicants have obtained a letter of agreement with an additional ambulance company.
4.
The Manning Sequence at Access Control Points staffed by more than one traffic guide has been identified.
5.
The evacuation bus routes within the Massachusetts EPZ have been revised and analyzed.
6.
Two litigation-related memoranda have been prepared.
One deals with the subject of transportation needs and indicates the use of evacuation bed buses rather than ambulances for nursing home residents and special needs populations.
The other deals with a revised method for j
estimating the number of evacuees anticipated to arrive at NHY ORO reception centers, which will result in an increase of four monitoring stations at each center.
) l j
~
r;,
. -? s.
Applicants note that these documents are being produced voluntarily and are not called for by the supplementation provisions of'10 CFR S 2.740(e).
By their attorneys, M
f'W Thomas G.
Dignan, Jr.
George H. Lewald Kathryn A. Selleck Jeffrey P. Trout Jay Bradford Smith Geoffrey C.
Cook Ropes & Gray 225 Franklin Street Boston, MA 02110 (617)-423-6100 _ _ _ _ - __ -
- J E.xs tait I i
'i ROPES & GRAY k
225 FRANKLIN STREET BOSTON, MASSACHUSETTS O2110 IN WASMINGTON IN PRovtDENCE-30 KENNEDY PLAZA TELEX NUMSER 9405 49RCPGRALOR OSN 1001 PENNSYLVANIA AVENV3,N W PROVIDENCE, R1.02903 TELECOPiER (617) 423-2377 a (617) 423 7841 sutTE 1200 (401) 521 6400 telf) 423-690S WASHINGTON. O C 20004 (202)626 3900 TELECOPtER teollS284910 TELECOPIER (2021626 3961 January 31, 1989 HAND DELIVER Allan R.
Fierce, Esquire Assistant Attorney General Department.of the Attorney General One Ashburton Place, 19th Floor Boston, Massachusetts 02108-1698 Re:
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2)
Docket Nos. 50-443-OL and 50-444-OL
Dear Allan:
Enclosed are the copies you requested yesterday of all the documents referenced in Applicants' Notice Regarding New Documents.
In addition, I have enclosed the extra document we discussed regarding the radio station.
Please arrange reimbursement to Ropes & Gray of $50.15 for the copying costs.
i very truly yours, a
/_.
Kathryn A.
Selleck KAS/lme Enclosures
[_ HIGn7 C ROPES & GRAY f
225 FRANKLIN STREET 1
BOSTON, MASSACHUSETTS O2110 (6171423 6100
'N wASMiNGTON l
- N PaoviCENCE:
1001 PENNSYLVANIA AVENUE, N w TELEX NUMSFR 940519 ROPORALOR SSN 30 MENNEQV PLA,gA SviTE 1200 TELECOP'ER '617) 423-2377 * <6171423 784i PROVIDENCE. R L 02903 WASMsNGTON O C 20004
'617) 423 690$
1401) S21 640o
!202)626 3900 TELECOPiER. 44011 S214910 7ELECOP*E,1 (202)626 3961 I
February 1, 1989 HAND DELIVER
{
John Traficonte i
Chief, Nuclear Safety Unit f
Department of the Attorney General one Ashburton Place Boston, MA 02108 Public Service Company of New Hampshire, et nl.
Re:
Docket Nos. 50-443-OL and 50-444-OL De.ar John:
Enclosed please find a draft stipulation covering those contentions on which we seem to have reached or at least neared closure:
JI S 1, 10, 13 & 142, 16 (and EX-16), 21, 25, 36, 40, 45 C & D, 46G3, 47B, 49E.2, 26, 32, 33, 34 A & B & D, Please mark any changes that you desire 50E & F & N, and 52.
and on the draft (call me if there are any major problems) send it back to me at your earliest convenience.
Also enclosed please find:
1)
The population map, for JI 21.
If the map is not satisfactory in its present form, then please advise us as to what changes you desire, and Applicants will consider them.
2)
The FCC authorization letter, for JI 32.
NHY is the Part 90 licensee.
NHY has authorized the Offsite 1
We need some sort of written sign-off from West Newbury on this contention.
l 2
We need some sort of written sign-off from Amesbury on this contention.
)
3 We need some sort of written sign-off from SAPL on j
this cont.ention, l
l
l Ropcc & GRAY l
John Traficonte February 1, 1989 Response Director, who is also an NHY employee, to take
)
any actions necessary and to utilize any NHY resources identified in the Plan.
This would include authority to f
utilize NHY's Part 90 license in the event of an
)
I emergency.
See Letter of Authorization from Edward A.
Brown, also enclosed.
3)
The commonwealth's KI policy, with which Applicants
{
J comply.
4)
A brief history of media access to the EOF.
Applicants propose, as resolution of JI 36, to follow the 1986 Exercise procedure.
We have also discussed several other sets of contentions where resolution seems possible:
ETEs (JI 1, 2,
3, 22 and MAG Ex-11C); Seabreezes (JI 19) ; EBS messages (JI 35);
Pre-Emergency Information (JI 39); Monitoring and Decontamination (JI 56 and 57).
Just to review the status of our discussions --
We have proposed attempting to install a JI 3-type counter system, and to attempt to model certain commuter traffic aspects.
You will get back to us as to when we all can meet again, with Allan and Dr. Adler present too.
We have offered to alter the PARS for Amesbury and Salisbury so that, regardless of present wind direction, if the area out to 2 miles is being evacuated and the conditions for sea breezes exist, Applicants would recommend evacuating Amesbury and Salisbury too.4 On EBS, you will consult with your expert as to what type of training and/or qualifications fix would be acceptable.
Now that you have our updated pre-emergency information, we can determine what issues remain on JI 39 and attempt to resolve them.
With regards to monitoring, the flow rate through the trailer is 70 seconds per person, which includes the time to transit from the waiting area I
inside the trailer prior to monitoring and the time to exit the trailer post monitoring.
The flow path i
j 4
I am unclear -- are we discussing JI 23 as well?
l 1
RoEcc & GRAY g
,.j John Traficonte February 1, 1989 is illustrated in IP 3.4 Attachment 4, a copy of which is enclosed.
The additional half-trailers being added have not been delivered yet, but our understanding is that they would be laid out similarly to the full trailers, only shorter (and without showers).
As we have discussed, the trailers are pre-positioned at the Reception Centers.
Waste water is discussed in still another enclosure.
I believe that that addresses all the concerns you raised with regards to JI 56 and 57.
If we can reach closure on any of these other issues in time to include them in the present stipulation, we should do so.
Otherwise we could do a second stipulation once all negotiations are complete.
Thanks for your time and efforts.
I look forward to hearing from you soon on these matters.
Very truly yours '
m,-
- L
/,Y 1,V b,i < h
%di -
Jefirey P. Trout Enclosure
l b.X ri l B t7 b
\\
' UNITED' STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i
l i
ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
1 Ivan W.
Smith, Chairman Richard F.
Cole Kenneth A. McCollom
)
In the Matter of
)
1
)
I PUBLIC SERVICE COMPANY OF
)
Docket No.(s)
NEW IIAMPSHIRE, EI &L.
)
50-443/444-OL (Seabrook Station, Units 1 and 2)
)
Offsite EP
)
February 7, 1989
)
MOTION OF THE MASSACHUSETTS ATTORNEY GENERAL TO PERMIT LIMITED FURTHER DISCOVERY ON JI 46, JI 49, AND JI 50 AND TO PERMIT TESTIOMONY QN_THESE CONTENTIONS TO BE FILED ON APRIL 3.1989 4
Pursuant to 10 CFR 2.30, $2.711, and $2.740(b)(1), the I
Massachusetts Attorney General (" Mass AG") hereby moves the Licensing Board to permit further limited discovery on three
" pure" SPMC Contentions, JI 46, JI 49, and JI 50, and to allow the Mass AG's testimony on these contentions to be filed on April 3, 1989, the date the Board has established for testimony i
on all other SPMC and Exercise contentions.
The Applicants have just announced a significant change to that portion of the SPMC addressed by these contentions.
1.
On January 27, 1989, the Mass AG reeeived the
]
memorandum and order of the Board setting the hearing schedule in the Seabrook Plan for the Massachusetts Communities ("SPMC").
l According to that Order and the understandings reached during a gMOf
l.1 l
telephone conference call on January 23, 1989, the Interveners are to file on February 21, 1989 all written testimony, exhibits, and trial briefs in connection with the rebuttal of l
the Applicants prima facie case on " pure" SPMC contentions.
j' That same order further provides that on April 3, 1989 the l.
Interveners are to file similiar documents for any portion of that case not previously filed on February 21, 1989.
2.
On January 27, 1989, John Traficonte, the head of the Nuclear Safety Unit in the Office of the Mass AG, began negotiating a stipulation with the Applicants' counsel as to which portions of testimony were to be filed on February 21, 1989 and April 3, 1989.
That stipulation will be filed shortly.
There is no serious dispute that the Interveners' testimony on Contentions JI 46, JI 49, and JI 50 (which pertain to the special needs population) are " pure" SPMC contentions, and that testimony regarding them would, unless relief is afforded, be due on February 21, 1989.
3.
On January 30, 1989, the Mass AG received a copy of Applicants' Notice Regarding New Documents.
In that notice the Applicants advised the parties that new documents'were being held in the document room at Seabrook Station for review by the parties.
According to this Notice, one new document " deals with the subject of transportation needs and indicated the use of evacuation bed buses rather than ambulances for nursing home residents and special needs population."
That same Notice further advised the parties that an index of those documents would be provided to any party requesting one. _ _ _ _ _ _ _ _ _ _ _ _
I 4
4.
In response to that notice, the Mass AG promptly contacted Applicants' counsel and requested that copies of all new documents be provided without further delay directly to the Mass AG.
i 5.
On January 31, 1989, the Applicants sent to the Mass AG
)
copies of tua documents referred to in their Notice Regarding New Documents.
6.
On February 1, 1989, the Mass AG reviewed those documents, including the document relevant to this motion.
It is a 33-page Transportation Needs Analysis prepared by D. Bovino and three others.
It has a cover memo dated December 21, 1988.
7.
On February 2, 1989, a member of the Mass AG staff contacted Applicants' counsel and requested confirmation as to whether this document indicated that the Applicants intended to revise the SpMC to provide for evacuation bed buses rather than ambulances to evacuate nursing home residents and special needs populations.
Applicants' counsel indicated that it was her understanding that the Applicants did intend to rely, as the new documents suggested, on the use of bed buses for this purpose.
However, when questioned about this, Applicants' counsel was unable to articulate how the use of bed buses would be implemented in the plan.
Applicants' counsel undertook to try to find out how the plan would make use of laed buses.
8.
The Applicants new reliance on the use of bed buses constitutes a significant change in the manner in which the plan will be implemented for nursing home residents and special needs populations.
Under the proposed revisions to the SpMC, 1 1
i
4 the majority of bedridden individuals within the Massachusetts EpZ will be evacuated not by ambulances, but by bed buses.
The proposed. revisions to the plan contemplate the use of 31 bed buses.
The proposed bed buses will carry ten persons each.
The proposed revision in the plan therefore contemplates the evacuation of up to 310 disabled individuals by bed buses.
In contrast, the revised SpMC contemplates using only 88 ambulances carrying a
maximum of'two persons each.
This revision necessitates a complete re-evaluation of the testimony the Mass AG was preparing on Contentions JI 46, JI 49, and JI 50 as they pertain to the evacuation of special needs individuals.
These contentions are among those for which testimony is due February 21, 1989.
9.
Due process requires that the Mass AG be permitted a fair opportunity to prepare for the hearings on the SPMC by being permitted, through discovery, to find out from the Applicants how the proposed revisions in the plan are to be implemented.
The proposed revisions in the SpMC as they pertain to evacuation by bed buses radically change the implementation of the plan.
The Mass AG proposes that he be permitted (1) to serve one short set of requests to produce on the Applicants, (2) to inspect a bed bus, if the Applicants have one, and (3) to depose the person with the most knowledge'and information about the proposed implementation l
of the use of bed buses and, in addition, D.
Bovino, the person who prepared the new evacuation needs assessment memorandum.
The Mass AG further proposes that his testimony on these contentions i
be filed on the second date for the filing of testimony (April 3) rather than the first date (February 21). - _ _ _ _
F
)-
10.
Applicants are in no position to complain about discovery being allowed for a br!.ef period and the dates requiring testimony on the applicable contentions being delayed briefly, since it was the Applicants who elected to make these plan changes and waited to announce them until a mere three weeks before testimony was to be filed.
In the instance described herein, it I
appears that the Applicants had the relevant document'in their possession and available for at least six weeks prior to providing it to the Mass AG.
WHEREFORE, the Mass AG prays that this Licensing Board grant l
l its motion to permit limited discovery and to delay the filing of testimony until April 17, 1989 on Joint Intervenor Contentions 46, 49, and 50.
The proposed postponement in filing'the relevant testimony will neither delay the commencement of the hearings which are scheduled to begin on March 21, 1989, nor cause any gap in the hearing process after the hearings have begun.
Respectfully submitted, COMMONWEALTH OF MASSACHUSETTS JAMES M. SHANNON ATTORNEY GENERAL
'O" By:
John Traficonth Chief, Nuclear Safety Unit Allan R.
Fierce Famels Talbot Leslie Grear Assistant Attotneys General Nuclear Saf.ety Unit Dept. of the Attorney General One Ashburton place, 19th Flt.
Boston, MA 02108 j
(617) 727-2200 Dated:
February 7, 1989 _ _ - _ _ _ _ _ _ _ _.
4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before the Administrative Judges:
Ivan W.
Smith, Chaitman Dr. Richard F.
Cole Kenneth A. McCollom
)
In the Matter of
)
Docket Nos. 50-443-OL
)
50-444-OL PUBLIC SERVICE COMPANY
)
(Off-Site EP)
OF NEW HAMPSHIRE, EI AL.
)
)
(Seabrook Station, Units 1 and 2)
)
February 7,
1989
)
CERTIFICATE OF SERVICE I, Allan R.
Fierce, hereby certify that on February 7,
- 1989, I made service of the within MOTION OF THE MASSACHUSETTS ATTORNEY GENERAL TO PERMIT LIMITED FURTHER DISCOVERY ON JI 46, JI 49, AND JI 50 AND TO PERMIT TESTIOMONY ON THESE CONTENTIONS TO BE FILED ON APRIL 3,1989, by First Class Mail and telefax as indicated by
(*) to:
- Ivan W.
Smith, Chairman
- Kenneth A. McCollom Atomic Safety & Licensing Bd.
Atomic Safety & Licensing Bd.
U.S. Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 "Dr. Richard F. Cole Docketing and Service Atomic Safety & Licensing Board U.S.
Nuclear R99ulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building Washington, DC 20555 4350 East West Highway Bethesda, MD 20814 1
-c Robert R.
Pierce, Esq.
- Thomas G.
Dignan, Jr.
Atomic Safety & Licensing Bd.
Katherine Selleck U.S.
Nuclear Regulatory Commission Ropes & Gray East West Towers Building 225 Franklin Street 4350 East West Highway Boston, MA 02110 Bethesda, MD 20814 H.
Joseph Flynn, Esq.
Sherwin E.
Turk, Esq.
Assistant General Counsel U.S.
Nuclear Regulatory Office of General Counsel Commission Federal Emergency Management Office of the General Counsel Agency 15th Floor 500 C Street, S.W.
11555 Rockville Pike Washington, DC 20472 Rockville, MD 20852 Atomic Safety & Lice; c Robert A.
Backus, Esq.
Appeal Board Panel Backus, Meyer & Solomon U.S.
Nuclear Regulatory 116 Lowell Street Commission P.O.
Box 516 Washington, DC 20555 Manchester, NH 03106 Atomic Safety & Licensing Jane Doughty Board Panel Seacoast Anti-Pollution League U.S. Nuclear Regulatory 5 Market Street Commission Portsmouth, NH 03801 Washington, DC 20555 Charles P.
Graham, Esq.
Barbara St. Andre, Esq.
Murphy & Graham Kopelman & Paige, P.C.
33 Low Street 77 Franklin Street Newburyport, MA 01950 Boston, MA 02110 Judith H. Mizner, Esq.
R.
Scott Hill-Whilton, Esq.
79 State Street Lagoulis, Clark, Hill-Whilton 2nd Floor
& McGuire Newburyport, MA 01950 79 State Street Newburyport, MA 01950 Dianne Curran, Esq.
Ashod N. Amirian, Esq.
Harmon, Curran, & Towsley 145 South Main Street Suite 430 P.O.
Box 38 2001 S Street, N.W.
Bradford, MA 01835 Washington, DC Senator Gordon J. Humphrey Senator Gordon J. Humphrey U.S. Senate 1 Eagle Square, Suite 507 Washington, DC 20510 Concord, UH 03301 (Attn: Tom Burack)
(Attn: Herb Boynton)
George Dana Bisbee, Esq.
Phillip Ahrens, Esq.
Assistant Attorney General Assistant Attorney General Office of the Attorney General Department of the Attorney 25 Capitol Street General Concord, NH 03301 Augusta, ME 04333 l
IL_________._
W n
John H. Frye, III Alternate James H Carpenter, Alternate Chairman-Technical Member Atomic Safety and Licensing Atomic. Safety and Licensing Board Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear and Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Sandra Gavutis, Chairperson Calvin A.
Canney J
Board of Selectmen City Manager
{
RFD 1, Box 1154 City Hall Rte. 107 126 Daniel Street Kensington, Nil 03827 Portsmouth, NH 03801 Gary W.
Holmes, Esq.
Richard A.
Hampe, Esq.
Holmes & Ellis Hampe & McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03842 Concord, NH 03301 Robert Carrigg, Chairman J.P.
Nadeau Board of Selectmen Selectmen's Office Town Office 10 Central Road Atlantic Avenue Rye, NH 03870 North Hampton, NH 03862 William S.
Lord Sheldon J. Wolfe Board of Selectmen 1110 Wimbledon Drive Town Hall - Friend Street McLean, VA 22101 Amesbury, MA 01913 i
/t
~
W Allan R. Fierce Assistant Attorney General Nuclear Safety Unit Department of the Attorney General One Ashburton Place Boston, MA 02108-1698 (617) 727-2200 DATED:
February 7, 1989 i
4
i -
QHiBtr 8
+
i l
. UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY ~AND LICENSING BOARD 1
Before the Administrative Judges:
l 1
Ivan W.
Smith, Chairperson Dr. Richard F. Cole l
Kenneth A. McCollom l
)
In the Matter of
-)
)
Docket Nos.
PUBLIC SERVICE COMPANY OF
)
50-443-OL NEW HAMPSHIRE, et al.
)
(Off-site EP)
(Seabrook Station, Units 1 and 2)
)-
)
April 10, 1989
)
l TESTIMONY OF DR. COLIN J.
HIGH ON BEHALF OF JAMES M.
SHANNON, ATTORNEY GENERAL FOR THE COMMONWEALTH OF MASSACHUSETTS, CONCERNING CONTENTION JI-56 (Monitorino Rate)
Department of the Attorney General Commonwealth of Massachusetts One Ashburton Place Boston, Massachusetts 02108-1698 (617) 727-2200
} $ff C
l j
I u-
_1_____.__________
]
3 k
I.
SUMMARY
OF TESTIMONY In this testimony, Dr. Colin High, an expert in the area of air photo interpretation, survey techniques, and statistical methods, uses the "20% formula" set forth in.the NHRERP PID at S 5.19 to estimate the number of people who, for planning purposes, can be expected to arrive for monitoring at'the SPMC's two reception centers.
This testimony is intended to
~
lay a foundation for JI-56, which challenges the SPMC's ability to achieve a monitoring rate that will permit the ORO to moniter 20% of the total population within 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />.
II.
IDENTIFICATION OF WITNESS Q.1.
What is your name and current occupation?
A.1.
My name is Colin J. High and I am a Principal of Resources Systems Group, Inc., of Norwich, Vermont.
Q.2.
What are your professional qualifications?
A.2.
In addition to my work at Resource Systems Group.I am also Research Professor of Environmental Studies at Dartmouth College, Hanover, NH.
I hold BS and Ph.D. degrees in Georgraphy and Geology from the University of Bristol, England.
I have received formal undergraduate and graduate training in air photo interpretation, survey techniques and statistical methods.
I have been an instructor in geography, air photo interpretation, remote sensing and statistical _ -
(_. _ _ - _ _ -
T l
methods at the university level.
I have 23 years experience in the use of air photographs and statistical surveys in transportation, land use studies, rite evaluation and 1
{
environmental science.
I have received grants and contracts l
l from NASA, the U.S.
Department of Energy, and the U.S.
First Service which involves the use of air photography and statistical analysis.
A copy of my curriculum vitae is on file in this proceeding.
It is Attachment 1 to the testimony which I presented to the Board for the hearing on the NHRERP, December 1, 1987 (fol. Tr. 6849).
III.
IESTIMONX Q.3.
What is the purpose of your testimony?
A.3.
This testimony is designed to lay the foundation needed to assess the ability of the SPMC to achieve a monitoring rate that enables the New Hampshire Yankee Offsite Response Organization ("NHY-ORO") to monitor 20% of the total resident and transient population within a 12 hour1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> period.
My testimony provides an estimate of the number of persons that, using the "20% method" described in Section 5.19 of the Board's NHRERP PID, may be expected to arrive at the monitoring trailers at the SPMC's reception centers in North Andover and Beverly during and after an evacuetion of the Massachusetts part of the Seabrook EPZ, under peak population conditions, on hot suminer days at midweek and weekends.
-2
T
-t Q.4.
What is the method you used to make this. estimate?
A.4.
The mathematical formula used in this case-for estimating the reception centet load is that formula which is described in the Boards's NHRERP PID, section 5.19 at page 74 as follows:
Evacuee Load - (0.20 x (PP -SFP -TDP)) + TDP Where:
PP= Sum o'f the peak population for the assigned communities; SFP=Special facilities. population of the assigned communities; TEP= Transit dependent population of the assigned communities.
Q.5.
Please describe the data used in this calculation.
A.S.
The data was obtained in the following way:
Peak resident populations for the assigned communities (PP) were drived form the estimates of resident populations for 1989 given by Dr. Albet E.
Luloff in his pre-filed testimony dated April 3, 1989.
These were 24,090 for the communities assigned to the North Andover reception center and 30,882 for the communities assigned to the Beverly reception center.
The summer midweek non-resident (transient) populations assigned to both North Andover and Beverly were calculated from the table of Maximum Evacuation Population given in Table 3.6-1 of Section~6 of the SPMC.
The summer weekend non-resident population assigned to North Andover was also esicul,ated from the same source.(Table 3.6-1).
i A
The summer weekend non-resident population of communities assigned to Beverly include substantial number of visitors at the beaches of Plum Island and Salisbury.
The estimated non-resident population of the Salisbury beaches and Plum Island beaches which are assigned to Beverly are calculated by using the Board's finding that the maximum peak vehicle population of the beach area of the EPZ for planning purpose is 35,000 to 36,000 (PID, $ 9.12) and then applying the proportion of the total vechicles in the EPZ beach areas which are normally found at Salisbury and Plum Island beaches.
Using the vehicle counts based on air photograph interpretation in beach areas made by KLD and reported in Volume 6 of the NHRERP at E-5 and the counts reported in the testimony of Befort, Adler and High (fol. Tr. 6849), I calculated that on average 40% of the total number of vehicles in the EPZ beach areas are at Salisbury and Plum Island beaches on hot summer weekends.
Therefore, using 35,500 as the maximum EPZ beach area vehicles estimate times 40%, I calculate the maximum number of vehicles at Salisbury and Plum Island beaches to be 14,200.
Using the vehicle occupancy rate of 2.4 (NHRERP Vol. 6 at 2-12), this gives a maximum beach population of 34,080 to be assigned to l
l Beverly.
The non-residents of the assigned communities outside l-the beach areas are calculated from the data given in Table 3.6-1 of Section 3.6 of the SPMC.
Tne transit dependent populations were taken from Table 11-7 of Volume 6 of the NHRERP; and special facilities '
i j
\\
k.
populations of the assigned communities are taken from PSNH l-1 Intra-company business memo from B.
Bovino to D.
Tailleart dated January 13, 1989 (a memorandum obtained through discovery by the Massachusetts Attorney General).
That memo appears to l
use special. facility population data which are more current than the data reported in the SPMC (Amend. 6),
Q.6.
What are the results of your calculations using the method and data.that you have described?
A.6.
The estimates for the. evacuee loads reporting for monitoring at the SPMC's reception centers in North Andover and Beverly are given in the following table:
Evacuee Loads at Recention Centers Peak Peak Summer Midwegh Summer Weekend North Andover 7,395 6,144 Beverly 12,652 14,103 Q 7.
Do you believe these estimates are the best possible estimstes of the evacuee loads at these receptions centers?
A 7.
No.
They would likely be higher for two reesons.
First, I used the Applicants' vehicle occupancy rate cf 2.4 for the vehicles at Salisbury and Plum Island beaches.
In my opinion, the vehicle occupancy rate is probably higher than that.
Surveys conducted of vehicle occupancy on hot summer days at New Hampshire beaches within the EPZ and adjoining the Massachusetts beaches (see Volume 6 of the NHRERP at E-4, reporting data collected by the Southeastern New Hampshire _ - - - - _ - _ _ _ - _ - - _ _ _ _ _
\\
'N i
y h
Regional planning Commission) sho's occupancy rates f rom 3.0 to 3.5 person per vehicles.
If an occupancy rate of 3.0 were applied to the beach area vehicle estimates for a peak summer weekend, then the evacuee load at Beverly would increase to 15,807 people.
Second, the formula approved by the Board in its NHRERP PID, and used here, assumes that only 20% of the non-transit dependent population will go to be monitored at the reception centers.
No evidence, based on conditions at this site, is i
given to support this assumption.
The percentage of the l
population that choose to be monitored could be much higher that 20%.
If that were the case, then evacuee loads at both North Andover and Beverly would be higher.
Q.8.
Does this conclude your testimony?
A.8.
Yes.
i l
_1
b)( rt &T E
i
- CCEETET csec VNITED STATES OF AMERICA
. NUCLEAR REGULATORY COMMISSION
'88 DCT 12 P5 :29 ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
[kg -
Sheldon J. Wolfe, Chairman Emmeth A. Luebke.
Jerry Harbour ihVfD OCT II 1988 Docket Nos. 50-443-OL-1
)
50-444-OL-1 In the Matter of
)
)
(On-Site Emergency Planning PUBLIC SERVICE COMPANY
)
and Safety issues) 0F NEW HAMPSHIRE, et al.
)
)
(ASLBP No. 88-558-01-OLR)
(Seabrook Station, Units 1 and 2)
)
)
October 12, 1988 MEMORANDUM AND ORDER (Granting Mass. Request To File A Reply; DenyingMass.MotionToAmend)
Memorandum I.
Background
In the Memorandum and Order of June 2,1988 (unpublished), the Bocrd admitted as an issue in controversy an amended contention and certain bases on the notification system for Massachusetts which had been submitted by the Attorney General for Massachusetts (Mass.).1 The admitted amended contention reads as follows:
1 The Board also directed that discovery should be completed by August 1,1988 and that any motions for summary disposition should be filed by September 15.
The latter date was extended to September 19 (see Applicants' letter of September 15 memorializing the conference call on September 12).
On September 17, Applicants filed their motion for sunnary disposition, and the Staff and Mass.
will file their responses pursu' ant to 9 2.749(a).
l
f
' Applicants have failed to comply with the provisions of 10 C.F.R. i 50.47(b)(5) and Part 50, Appendix E, IV, D(3).
The means they claim to have established to provide early notification and clear instruction to the populace of the Towns of Amesbury, Merrimac, Newbury, Newburyport, Salisbury and West Newbury, Massachusetts and Salisbury State Beach Reservation in Salisbury, Massachusetts are inadequate.
Certain bases were also admitted, among which were the following:
Basis 10.
The applicants have not indicated when and under what circumstances the tone alert mode or the message mode will be used.
Basis 2.
The applicants are legally prohibited under local ordinances from operating their six staging areas and their VANS vehicles at the pre-selected acoustic locations. The specific laws and ordinances can be identified when the Applicants disclose the acoustic locations and staging areas.
On September 8,1988, Mass. filed a motion to amend bases.
It requested that the following two bases be admitted in that they are directly related to bases already admitted for hearing:
. Basis 10a.
Applicants no longer intend to use the sirens in the voice mode for instructing the transient beach population in an emergency and there are no other means in place that provide reasonable assurance that the beach population in Massachusetts will be adequately instructed in the event of an emergency at Seabrook Station.
Basis 2a.
The Applicants are prohibited from use of the acoustics locations which have been selected because no pemission for use of these locations has been obtained from the property j
owners.
The Applicants' answer of September 17. opposed the granting of the Mass. motion.
On September 21. Mass, filed a request to reply together with a reply to the Applicants' opposing answer.
On September'22, the Staff, filed a response opposing the granting of the Mass. motion, and on 9
]-
September 29 filed a response opposing the Mass. request to file reply.
On October 3, Applicants filed an answer opposing the request to reply.2 II.
Discussion In its motion of September 8, Mass. asserted that the two amended bases resulted from newly discovered facts and/or recent changes in Applicants' notification system plan which could not have been discovered earlier.
In addition, Mass. stated that only as a matter of caution was it filing the motion to amend since bases 10a and 2a were directly related to admitted bases 10 and 2 and fell clearly within the scope of the admitted contention.
However, we agree with the Applicants' and the Staff's arguments that Mass. has attempted to inject two new contentions because the two proposed amended' bases raise issues neit'her posed by nor directly related to the original admitted bases.
Since the reach of a contention necessarily hinges upon its terms coupled with its stated bases and since a fair reading of the contention and of bases 10 and 2 compels us to conclude that the centention was not intended to embrace the two issues newly posed in the emended bases, Mass. should have filed a motion for leave to file out-of-time the two 2
We grant Mass.' request to reply despite the fact that its citation to and discussion of the five factors in 10'C.F.R. 9 2.714(a)(1) should have been presented in its motion of September 8.
On numerous prior occasions we have cautioned the parties that they must file exhaustive briefs.
Hereafter, where it is clea'r that, as in the instant case, the movant could and should have presented fully all arguments in the original motion, we will deny any request by the movant to file a reply brief. Our patience is at an end.
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f l
l 4
new contentions, cited ano fully addressed the five factors in 10 C.F.R. 5 2.714(a)(1) that govern the disposition of late-filed contentions.3 l
l We deny the motion to amend bases but preceed to discuss the five factors to determine whether, es contentions, the two lats-filed contentions should be admitted.4 l
l In its motion of September 8, although not citing the first factor-in 6 2.714(a)(1), and in its reply of September 21, Mass. stated that, during the taking of a deposition of one of Applicants' witnesses on July 28, 1988, it learned for the first time that Applicants had no plans to use sirens in the beach area in the voice mode. Mass. also asserted that it was not until after August 2, when Applicants amended the Seabrook Plan for Massachusetts Commusiities and thereby confirmed I
the deletion of the voice mode, that Mass. had factual grounds for submitting the proposed amended basis 10a.
Second, Mass. asserted that 3
Public Service Comoany of New Hamoshire, et al. (Seabrook Station, Units 1 ano 2), ALAB-899, 28 NRC _ (August 23,1988).
l 4
(1)
Good cause, if any, for failure to file on time.
(ii) The availability of other means whereby the petitioner's interest will be protected.
l (iii) The extent to which the petitioner's participation may i
reasonably be expected to assist in developing a souno l
record.
(iv) The extent to which the petitioner's iriterest will be represented by existing parties.
(v)
The extent to which the petitioner.'s participation will broaden the issues or delay the proceeding.
y
,,e
~ it was not until after August 19, 1988, when the off-site Licensing Boaro rejected Mass. contentions concerning inadequate provisions for instructing the population via the voice mode because this was an on site issue, that it had grounds for filing proposed amended basis 10a before this on-site Board.
In both the motion and the reply Mass, asserted that it had no grounds for proposing amended basis 2a until after it found out during discovery the addresses of acoustic locations where the sirens were to be located, and until after it discovered, through title searches, that several of the acoustic locations appeared to be on private property. Mass. added that it appeared that the owners of these properties had not consented to the use of their properties for siren operation.
However, with respect to Contention 10a, since Mass, acknowledges that it learned on July 28, 1988 that the Applicants had no plans to use sirens in the voice mode, we find that it should have filed a motion for leave to submit out-of-time this new contention in a timely manner instead of waiting until September 8 to do so.
Further, we find that it is not an acceptable excuse that, rather than timely filing a motion for leave with this Board, Mass. took the risk that the contention would be admitted by the off-site Board. With respect to l
Contention 2a Mass. does not deny that on July 20, 1988 it reviewed discovery documents which set forth the addresses of the preselected acoustic locations where the sirens would be operated.
Thus, thereafter Mass. should have filed a motion for leave to submit out-of-time this new contention in a timely manner, and we fin'd that it did not. We conclude that Mass has failed to show good cause for failure to file a e
e D
f 1 motion for leave to submit out-of-time these two new contentions for periods of between forty-two to fifty days after becoming aware of the relevant information.
We weigh this factor against Mass. Absent good cause for late filing, a compelling showing must be made on the other four factors.5 The Applicants and the Staff concede factors (ii) and (iv) weigh in favor of Mass. and we agree.
However, these two factors are accorded less weight than the three other factors.0 With respect to factor (iii), when a petitioner addresses this criterion, it should set out with as much particularity as possible the l
precise issues it plans to cover, identify its prospective witnesses, and summarize their proposed testimony.I At page 4 of its reply, Mass.
states that, with regard to Contention 2a, it will present evidence in the form of title documents and testimony of Applicants' employees to establish that Applicants neither own nor have they sought pemission to use certain acoustic locations upon which to operate the vehicuirr mounted sirens.
It also states that with regard to Contention 10a it will offer the testimony of a behavioral / human response expert that the voice mode is absolutely necessary for instructing the transient beach 5
Mississippi Power & Light Company (Grand Gulf Nuclear Station, Units 1 and 2) ALAB-704, 16 NRC 1725, 1730 (1982).
O Commonwealth Edison Company (Braidwood Nuclear Power Station, Units
~
1 and 2), CLI-86 6, 23 NRC 241, 245 (1986).
7 Id. at 246.
e e
_____.-__-_m_
T
- 1. y !
i population in an emergency. While it sets out the precise issues planned to be covered and sumarized proposed testimony, Mass. should i
1 have but did not identify by name the witnesses it would call to testify in oroer that the Board could arrive at an informed judgment regarding their likely contribution.8 It should also have identified the specific title documents it intends to offer into evidence in order to assure the Board that there indeed is real evidence.
Perhaps, in light of the 1-Protective Order of July 27, 1988, Mass. was hesitant about specifically.
identifying Applicants' employees it intended to call as witnesses and about-identifying specific title documents -- however, condition 8 of the Protective Order provided that all papers filed that contained any.
protected information should be segregated and served in specially designated envelopes on the Board and counsel for active parties only.
This was not done. We weigh this factor against Mass.
With respect to factor (v), Mass. argues that, since bases 2a and 10a arise directly from existing bases and are well within the scope of the siren contention, the granting of the motion to amend bases will not unduly broaden the issues. However, we denied, supra, the motion to amend bases, and thus to admit the two late-filed contentions obviously would broaden the issues. We need not go farther in light of the disjunctive wording in factor (v).
In any event, we reject the second 8
South Carolina Electric and Gas Comsany (Virgil C. Sumer Nuclear Station Unit 1), ALAB-642,13 NRC 381, 893-894 (1981).
1.
argument advanced by Mass. -- viz-that since, in amending 10 C.F.R. 5 50.47,9 the Commission made the siren issue a full-power rather than a low-power issue, the full-power proceeding will not be delayed because the Seabrook Plan for Massachusetts Connunities pending before the off-site Board is still in the discovery stages. However, pursuant to the Commission's Order of October 7,1988, CLI-88-08, in a Notice of Clarification dated October 12, 1988, the Acting Chief Administrative Judge of.the Atomic Safety and Licensing Board Panel has ordered that this on-site Board has jurisdiction cver and shall consider and decide this now full-power issue -- i.e., Amended Contention on Notification System for Massachusetts (and certain bases) admitted in this Board's Memorandum and Order of June 2,1988 (unpublished).
Thus, this on-site Board, rather than the off-site Board, has been authorized to consider and decide the amended contention of Mass. and certain bases which were admitted on June 2.
We are a separate, independent Board and must proceed expeditiously to resolve this full-power issue now pending before us pursuant to i 2.749 procedures, regardless of the status of the proceedings before the off-site Board. The admission of the two late-filed contentions would delay our proceeding.' We weigh this factor against Mass.
Overall, Mass. failed to demonstrate that it prevailed on the five factor test. Much less did it make the compelling showing on factors l
9 53 Fed. Reg. 36955 (September 23,1988).
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two through five that was required to overcome its failure to demonstrate good cause, under the first factor, for its failure to file on time.
O'rder 1.
The Mass. request of September 21, 1988 to file a reply is granted.
2.
The Mass. Motion to Amend Bases of September 8,1988 is denied.
3.
Even if the Mass. Motion to Amend Bases of September 8,1988 is considered as a motion for leave to file out-of-time two new contentions, it is denied.
Judge Luebke was unavailable and did not assist in preparation of this issuance.
THE ATOMIC SAFETY AND LICENSING BOARD JYbbv,
kg Sheldon J. Welfe, Chairman i
ADMINISTRATE W JUDGE 4
Jerry Harbour ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland this 12th day of Octcber, 1988
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Chules V. Bury surewy i
l MEMORANDUM TO: CHARLES V.
BARRY, SECRETAR FROM: PETER W. AGNES4 R
M AN ECRETARYR.
DATE: AUGUST 7, 1989 RE: PILGRIM /SEABROOK ISSUES
- 1. I have outlined a possible series of events that I recommend we consider 'aursuing over the course of the next month to resolve the a)ove questions.
POSSIBLE SEQUENCE OF EVENTS (1) SECRETARY'S REPORT ON PILGRIM A. Generic points:
i
-Stronger enforcement effort by NRC needed
-More state planning resources needed l
-Enlarge the EPZ
-Off-site monitoring
-Need for a site specific and an authoritative quantification of risk
-Need to improve delivery of EPI data and measure level of understanding B. Specific Concerns:
-BECo management must prove its ability I
x.
I MEMO TO SECRETARY BARRY ON PILGRIM /SEABROOK EVENTS PAGE TWO i
-Mark I containment problem must be addressed by NRC~ or Congress
-Siren and Alert Notification systems must be corrected
-New ETE and Shelter studies should be done
-Numerous weaknesses in the emergency. plans must be corrected C. Recommendations:
-Establish Technological Hazards Division within Civil defense (funded by utility)
-Direct Governor's Council On Radiation Protection to further study methods of expanding the EPZ and introducing off-site monitoring
-Direct Civil Defense Agency to publish a work plan within 30 days detailing the effort to upgrade the plans
-Recommend that within 30 days BECo file a work plan detailing steps to:
o Support funding of THD o Complete and Test Siren and Alert System o Demonstrate why Pilgrim Beaches are so different than Seabrook Beaches that Governor's policy on Seabrook summer operation should not apply o Provide a new ETE and Shelter study on terms satisfactory to the state c Provide assurances that all previously identified management problems have been corrected before restart o Provide assurances that if and when there is a restart adequate monitoring is in place to avoid any slippage o Provide better distribution of EPI data and i
demonstrate that it reaches its intended audience and is understood.
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MEMO TO SECRETARY BARRY ON PILGRIM /SEABROOK PAGE T H2EE (2) GOVERNOR'S REPSONSE TO REPORT A. Appreval and Press Availability; Position:
-Brief summary of che Report (including "come clean" statement about risks of nuclear power plants and frank statement that it remains to be seen whether the plant should reopen).
Statement that before the report is released the Secretary is directed to host special briefings for Congressional delegation and state legislators;
-Statement that If all the conditions set forth in the report are satisfied (including a public hearing by BECo before any restart that have surfaced have been corrected),and a public accounting of h the plant should be allowed to resume operations under close scrutiny (a specific BECo does notprogram of third party monitoring for a two year period).
If accept our recommendations we will move to withdraw the emergency plans and oppose operation;
-Support filed by the legislators insofar as itfor and participation in the show-cause p containment issue; addresses the Mark I
-Statement that further recommendations may emerge following the Report by Dr. Carnesale;
-Acknowledgement that there are generic problems highlighted by the Secretary in his report that do have a bearing on Seabrook and.that these will be taken into consideration in making that decision.
(3) REPORT BY DR. CARNSALE ON CHERNOBYL (SPECULATION)
-highlight what is known about Russian versus American plants; the design differences in
-highlight differences in licensing and regulatory process
-explain how Chernobyl accident appears to have occurred and that such an accident sequence is not possible here
-explain nature and sequence of post-accident protective responses
-explain who did what to whom m
f' 3
i MEMO TO SECRETARY BARRY ON PILGRIM /SEABF,00K j
PAGE FOUR i
-explain nature and consequences (environmental, somatic i
and genetic) of the off-site releases comments.about implications for U.S. Planning (more i
flexibility; closer look at sheltering)
{
.(4) GOVERNOR'S STATEMENT ON SEABROOK
-No submission of emergency plans for Seabrook because there is no " reasonable assurance" that public health and safety can be protected in the event of an accident.
This does not mean we believe nuclear power is inherently unsafe and does not mean that we believe that the nuclear industry and federal regulators are incapable of controlling the technology.
Our position is that-this particular plant is so poorly sited that we can not fulfill our public health and safety obligations to the residents of the Commonwealth if we certify plans.
-Explain that the strong opposition expressed by each of the local communities in the Mass. EPZ since Chernobyl.is a
" weighty factor" in measuring whether there is a reasonable assurance that plans are adequate.
Explain that Dr. Carnesale's report confirms the position we took in March about the summer beach population.
-Explain that Secretary Barry's Report sharpens the issues even further by illustrating the weaknesses in the federal planning process that make it impossible to measure the true effectiveness of emergency plans
-State in strong terms, however, that because the final decision on licensure is up to federal authorities, we must prepare ourselves as best we can for the possibility that the Seabrook plant will operate despite our opposition.
Therefore, we are going to formally oppose licensing before the NRC and in court, but we are not going to risk the safety and health of our citizens by refusing to engage in further planning or training.
We will respect local opposition to any planning activity, but will continue to work in-house and with the utility if necessary on developing procedures to protect our residents in the event the plant is ever licensed.
THEME: "I will not sacrifice the public welfare for the sake of a litigation strategy."
2.
NOTE: The above recommendations do not factor in energy consequences or persistent concerns about the disposal of radioactive waste and the health effects of low level ionizing l
radiation that persons living in the area of a nuclear plant might be exposed to.
4 l
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CERTIFICATE OF SERVICE
'89 MY 18 P5 :03 I, Jeffrey P. Trout, one of the attorneys for_the Applicants herein, hereby certify that on May 15, ylpB9,L I' y
made service of the within document by mailing copies /.k.j,.,,
thereof, postage prepaid, to:
Administrative Judge Ivan W. Smith, John P. Arnold, Esquire Chairman Attorney General Atomic Safety and Licensing George Dana Bisbee, Esquire Board Assistant Attorney General U.S. Nuclear Regulatory Office of the Attorney General Commission 25 Capitol Street Washington, DC 20555 Concord, NH 03301-6397 Administrative Judge Richard F.
Mr. Richard R. Donovan Cole Federal Emergency Management Atomic Safety and Licensing Agency i
Board Federal Regional Center U.S. Nuclear Regulatory 130 228th Street, S.W.
l, Commission Bothell, Washington 98021-9796-l Washington, DC 20555 l
Administrative Judge Kenneth A.
Judith H. Mizner, Esquire McCollom 79 State Street, 2nd Floor 1107 West Knapp Street Newburyport, MA 01950 Stillwater, OK 74075 Diane Curran, Esquire Robert R.
Pierce, Esquire 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 l
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
Philip Ahrens, Esquire Mr.
J.
P. Nadeau Assistant Attorney General Selectmen's Office i
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 Flr.
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 I
Town of Exeter Town Hall - Friend Street i
10 Front Street Amesbury, MA 01913 Exeter, NH 03833 l
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.
j 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, NJ 03301 1 j
... +
I Ashod N. Amirian, Esquire 145 South Main Street P.O.
Box 38 Bradford, MA 01835 t
7..;,
~
Jeffrey P. Trout i
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