ML20247F575
| ML20247F575 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/23/1989 |
| From: | Reis E NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#289-8657 OL, NUDOCS 8905300108 | |
| Download: ML20247F575 (11) | |
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UNITED STATES OF AMERICA l
NUCLEAR REGULATORY COMMISSION
'89 EY 24 P2 :55 o
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l BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ki In the. Matter of
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Docket Nos. 50-443 OL PUBLIC SERVICE. COMPANY OF
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50-444 OL-NEW HAMPSHIRE, g al.
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Off-site Emergency Planning t
-(Seabrook Station, Units 1 and 2) c NRC STAFF RESPONSE T0 MASSACHUSETTS-ATTORNEY GENERAL'S MOTION FOR LEAVE TO FILE LATE-FILED CONTENTION BASIS REGARDING THE ADEQUACY OF PARKING SPACE AND THE TRAFFIC MANAGEMENT PLAN AT THE BEVERLY RECEPTION CENTER On.May 9,1989, the Massachusetts Attorney General moved for leave to Lfile an L additional' basis to Joint Intervenor Contention - 56, '1/ which challenges the adequacy of procedures, personnel, equipment and facilities for radiological monitoring. 2_/ The additional basis, paragraph D, which MAG seeks to add asserts that the Beverly reception center is not.
1/
Joint Intervenor Contention 56 states:
The SPMC fails to provide reasonable assurance that adequate procedures, personnel, equipraent and facilities for radiological monitoring and decontamination of general public evacuees, emergency workers and special facility evacuees (e.g.
nursing home residents) have been established.
Therefore, the requirements of 10 C.F.R. 650.47(b)(8),
5 50.47(b)(10),
5 50.47(b)(11) and NUREG-0654, Rev. 1, Supp. 1 II.H.4 II.J.10.d II.J.12, II,K.5.a and K.5.b. have not been met.
2/- Motion for Leave to File Late-Filed Contention Basis Regarding the Adequacy of Parking Spaces and the Beverly Reception Center, May 9, 1989.
'" Mass AG Motion")
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adequate to accommodate the number of persons anticipated to arrive there for monitoring because of inadequate parking and traffic control.
See Mass AG Motion at 1-2 and attached exhibit " Proposed Additional Basis to JI-56."
(" Basis D")
Mass AG Motion additionally maintains that applicants cannut meet their own planning basis, or FEMA guidance, for 12-hour monitoring, and that Applicants have an inadequate traffic management plan for evacuees at the Beverly Center.
Mass AG Motion at 2 and Besis D.
The Staff opposes admitting this new basis to Cotnention 56, as a balancing of the five factors listed in 10 C.F.R. 62.714(a)(1) weighs against admitting it.
BACKGROUND Contentions regarding the Seabrook Plan for Massachusetts Communities were to be filed in early 1988.
Joint Intervenor Contention 56, which the MAG seeks to expand by the subject motion was based upon Seacoast Anti-Pollution League (SAPL) Contention 4 whose bases were limited to the adequacy of decontamination facilities and equipment, letters of agreement, and levels of contamination calling for 3_/
In admitting the contention the Licensing Board decontamination.
stated:
SAPL Contention 3 is admitted in part, as limited to the adequacy and dispatch of the trailers to the staging areas at North Andover, Beverly, and Haverhill, Massachusetts.
The 3/
See Memorandum and Order - Part I (Ruling on Contentions on the Teabrook Plan for Massachusetts Communities, July 22, 1988
~
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balancegfthecontentionisrejectedforthesamereasonscited above.
On September 21, 1988, MAG submitted proposed contentions steming from the Seabrook emergency planning exercise. El Basis E to MAG Ex-18 therein alleged:
....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.
This contention was rejected as failing to show a flaw in the plan as wouldbematerialtolicensing.5/ Additional attempts to have this issue concerning parking and traffic control at the reception centers admitted into litigation were also rejected. El The hearing on the SPMC has been in progress since March 1989.
The subject motion was filed on May 9, 1989.
DISCUSSION The Proffered New Basis Does Not Meet the Requirements for the Submission of New Issues in NRC Proceedings.
A.
The New Basis Proffered Is -Not Within Joint Interveners Contention 56 As Admitted The new basis proffered by the Mass AG Motion attempts to inject new issues into litigation after the time originally set for filing 4/
Id. at 119.
5/
Massachusetts Attorney General's Exercise Contentions etc.,
September 21, 1988.
{/
Memorandum and Order, December 15, 1988, at 46.
-7/
See Memorandum and Order, January 13, 1989 at 12; Tr. 15288-95, 1938-41.
i contentions and must meet the tests in 10 C.F.R. 5 2.714(a)(1) for the admission of late-filed contentions.
10 C. F.R.
5 2.714(b); Duke Power Company (Catawba Nuclear Station, Units 1 and 2), CLI-83-19,17 NRC 1041 (1983); commonwealth Edison Company (Braidwood Nuclear Power Station, Units 1
and 2),
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-899, 28 NP.C 93, 99 (1988).
Section 2.714(a)(1) provides that there must be a balancing of the following five factors before contentions submitted after the original for their submittal are admitted:
(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.-
(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 existing parties.
(v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
Joint Intervenor Contention 56 which was based on SAPL Contention 3, was' admitted " limited to the %.scy and dispatch of the trailers to
[ reception centers]."
Proposed Basis D is predicated on the adequacy of i
parking lots and traffic management at the Beverly facility, matters not encompassed within contention JI 56 as admitted by the Licensing Board and thus must be evaluated by a balancing of those factors. We shall discuss the balsncing of these factors to show that no basis exists to admit the new basis to Contention JI 56.
B.
Lack of Good Faith to File On Time The Commissicn has noted that the first of the five lateness factors
-- good cause for filing late - "is a crucial element in the analysis of whether a
late-filed contention should be admitted."
Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2),
CLI-86-8, 23 NRC 241, 244 (1986).
In Braidwood, the Commission also reatfirmed the well settled principle that a proponent who " fails to satisfy this element: of the test "must make a ' compelling' showing with respect to the other four factors."
Id.; accord, Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704,16 NRC 1725 (1982).
Contentions must be filed promptly once information is available which permits them to be formulated.
Duke Power Co., (Catawba Nuclear Power Station, Units 1 and 2), CLI-83-19, 17 NRC 1041, 1048 (1983).
The intervenor points to Applicants' testimony of April 18, 1989, on the use of the Beverly reception center, and maintains on that basis that the new contention is timely. However, as the Commission clearly indicated in Catawba, the reference to a recently available document will not be sufficient to show a good cause for an untimely filing if the information was available before that time.
Here the intervenor had the information necessary to formulate the contention long before the filing of Applicants' testimony on April 18, 1989.
It is solely the method of computing and the number of evacuees that will arrive at the 8everly Reception Center which MAG claims is the l
L L!
t new information which gives rise to this late submitted contention. 8_/
Certainly the very latest time the intervenor could claim it knew of the method of computing evacuees for monitoring at reception centers was December 30, 1988, upon the issuance of LBP-88-32, 28 NRC 652, 703, which set out how this number was to be computed in this proceeding.
- Thus, Interveners had the information to formulate the basis for the contention since that time and its submission in May 1989 is late.
Further, the Intervenor was aware of the subject matter of the contention as he attempted to raise such matters at least since September 21, 1988, when he proposed MAG Contention EX-18 Basis E, which concerned parkingatthereceptioncenters.El Upon is.suance of LBP-88-32, setting out the method of calculating the number. of people for whom monitoring should be provided, Intervenor had all information needed to file the subject contention.
Under Catawba, no basis exists to conclude there was good cause in delay for filing the contention until the Applicants submitted their testimony.
C.
Other Means Exist to Protect Intervenor's Interest.
The Massachusetts Attorney General, although averring that no other party has raised this issue (Motion at 4), has not alleged that he could 8/
The intervenor makes no claim that it did not know the configuration or capacity of the Beverly reception center parking lot, the road network and the total number of projected evacuees long before the contention was filed.
It is only the claim that he did not know the method and number of evacuees for monitoring upon which he seeks to predicate this late submission.
9/
See p. 2-3, above.
not solve the purported parking and traffic problems he seeks to here raise. Thus he has not sustained his burden of showing no other means are available to protect the intarests he here seeks to protect.
D.
Intervenor Has Not Shown He Can Contribute to the Development of A Sound Record On The Issue Proffered The Commission has emphasized the importance of the third lateness factcr, the extent to which a petitioner can contribute to the development of a sound record.
The Commission has observed that "[w] hen a petitioner addresses this criterion it should set out with as much particularity as possible the precise issues it plans to cover, identify its prospective witnesses, and summarize their proposed testimony."
Braidwood, supra, 23 NRC at 246, quoting, Grand Gulf, supra,16 NRC at 1730 (emphasis added).
The intervenor does identify Dr. Thomas J. Adler as a witness, however, it has not set out the substance of his testimony.
The motion does little more than generalize about " parking and logistical problems" and " traffic bottlenecks" associated with new evacuee estimates.
Far greater specificity was required of Mass AG in light of the absence of " good cause" for injecting traffic management issues regarding the reception center so late in these proceedings.
Mass AG should have alleged facts demonstrating particularly how FEMA's finding of reception center adequacy is undermined by traffic management difficulties.
Mere assertion is not enough. There is no demonstration that introduction of traffic management issues at this late juncture will do anything to develop a sound record.
This factor must be weighed against Mass AG.
E.
The Interveners Interests Will Not Be Represented by Other parties On This Issue.
The Staff agrees that the matter intervenor here seeks to raise is presently subject to litigation.
,8-i F.
Admission of a New Basis For Contention 56 Will Broaden the Issues and Delay The Proceeding.
Traffic and parking issues which intervenor here seeks to raise are not, part.cf the~ issues under Contention 56, nor does Applicants' testimony l
address the;e matters.
The admission of basis D to Contention 56 would broaden the issues to consider these matters and delay the proceeding.
G.
Balancing of the Factors in 10 C.F.R. 5 2.714(a) Causes the Rejection c,f the Contention.
As set out above factors 1, 2, 3 and 5 in 10 C.F.R. 6 2.714(a) weigh against admission of the new-basis of contention JI 56.
Only factor 4 might weight in favor of its admission.
On balance, this new basis may not be admitted for litigation.
CONCLUSION For the foregoing reasons the MAG motion to admit a new basis to Contention JI 56 should be denied.
Respectfully submitted, W
Edwin J.
s Counsel or NRC Staff Dated at Rockville, Maryland this 23rd day of May 1989 l
4 I
't UNITED STATES OF AMERICA' NUCLEAR REGULATORY COMMISSION
'89 tiAY 24 P 2 :55 BEFORE THE ATOMIC S/FETY AND LICENSING BOARD In the Matter of 5"H.1 Docket'Nos.50M5'0L31/'#-
PUBLIC SERVICE COMPANY OF 50-444 OL NEW HAMPSHIRE, et a_1.
Off-site Emergency Planning (Seabrook Station, Units 1 and 2)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO MASSACHUSETTS ATTORNEY GENERAL'S MOTION FOR LEAVE TO FILE LATE-FILED CONTENTION BASIS REGARDING THE ADEQUACY OF PARKING SPACE AND THE TRAFFIC MANAGEMENT PLAN AT THE BEVERLY RECEPTION CENTER" in the above captioned proceeding have been served on the following by deposit in the United States vs.',
first class or, as indiceted by an asterisk, by deposit in the Nuclear R,f atory Commission's internal mail system, this 23rd day of May 1989:
IvanW.-Smith, Chairman'(2)*
Philip Ahrens, Esq.
Administrative Judge Assistant Attorney General Atomic Safety and Licensing Board Office of the Attorney General U.S. Nuclear Regulatory Commission State House Station Washington, DC 20555 Augusta, ME 04333 Richard F. Cole
- John Traficonte, Esq.
Administrative Judge Assistant Attorney General Atomic Safety and Licensing Board Office of the Attorney General U.S. Nuclear Regulatory Commission One Ashburton Place, 19th Floor Washington, DC 20555 Boston, MA 02108 Kenneth A. McCollem Geoffrey Huntington, Esq.
Administrative Judge Assistant Attorney General 1i07 West Knapp Street Office of the Attorney General Stillwater, OK 74075 25 Capitol Street Concord, NH 03301 Thomas G. Dignan, Jr., Eso.
Robert K. Gad, III, Esq.
Diane Curran, Esq.
Ropes & Gray Harmon, Curran & Tousley One International Place 2001 S Street, NW Boston, MA 02110-2624 Suite 430 Washington, DC 20009 Robert A. Backus, Esq.
Backus, Meyer & Solomon 116 Lowell Street Manchester, NH 03106
l 4 H. J. ~ Flynn, Esq. =
Judith H. Mizner, Esq...
P '. Assistant General Counsel:
79 State Street
- Federal Emergency Management Agency Newburyport, MA 01950
- 500 C Street S.W.'
. Washington,.DC' 20472-
~
. Robert Carrigg, Chaiman Board of Selectmen-Paul McEachern, Esq.
Town Office V
.:Shaines & McEachern-Atlantic Avenue 25 Maplewood Avenue.
North Hampton, NH 03862
'P.O. Box 360.
'Portsmouth, NH; 03801 William S. Lord Board of Selectmen
- Charles P.' Graham, Esq. -
Town Hall.- Friend Street McKay, Murphy & Graham Amesbury, MA 01913
-200 Main Street.
- Amesbury, MA 01913l Mrs. Anne E. Goodman, Chairman Board of Selectmen Sandra Gavutis, Chairman 13-15 Newmarket Road Board of Selectmen-Durham, NH 03824-RFD #1, Box.1154 Kensington, NH 03827 Kensington,'NH 03827 Hon. Gordon J. Humphrey Calvin.A.~Canney.
United States Senate
. City Hall 531 Hart Senate Office. Building 126 Daniel. Street Washington, DC 7'510 Portsmouth, NH 03801 Richard 2. Donovan R.! Scott. Hill-Whilton, Esq.
Federal Emergency Management Lagoulis, Clark, Hill-Whilton
-Agency-79 State Street,.
Federal Regional Center
.F McGuireL 130'228th Street, S.W.
Newburyport, MA1 01950 Bothell, Washington' 98021-9796
- Allen Lampert City Hall Peter J. Matthews, Mayor Civil Defense Director l Town of'Brentwood~
Newburyport, MA 01950
-20 Franklin Exeter, NH 03833 Michael Santosuosso, Chairman Board of Selectmen William Amstrong South Hampton, NH 03827
~
. Civil Defense Director Town of Exeter-Ashod N. Amirian, Esq.
110 Frt,nt Street Town Counsel for Merrimac Exeter, NH 03833 145 South Main Street P.O. Box 38 Gary N. Holmes, Esq.
bradford, MA 01835 Holmes & Ellis
.47.Winnacunnet Road Barbara J. Saint Andre, Esq.
Hampton, NH. 03842 Kopelman and.Paige, P.C.
77 Franklin Street Boston, MA 02110 j'.[
u
3 9;
Ms. Suzanne Breiseth J. P. Nadeau Board of Selectmen Board of Selectmen Town of:Hampton Falls' 10 Central Street
- Drinkwater Road Rye, NH 03870 Hampton Falls, NH 03844 Atomic Safety ar.d Licensing Robert R. Pierce, Esq.*
Board Panel (1)*
L Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board Panel-Washington.-DC 20555.-
U.S. Nuclear Regulatory Commission i
Washington, DC 20555 Atomic Safety and Licensing L
. Appeal Panel (5)*
'U.5, Nuclear Regulatory Commission Washington, DC 20555 i
Docketing and Service Section*
0ffice of the Secretary i
U.S. Nuclear Regulatory Commission Washington, DC 20555 Edwin Q A. eis Counspr for NRC Staff I
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