ML20195E911

Response to Seacoast Anti-Pollution League 860515 Fourth Supplemental Petition for Leave to Intervene Re Adequacy of Evacuation Time Estimates for State of Nh Radiological Emergency Response Plan.W/Certificate of Svc

ML20195E911
Person / Time
Site:	Seabrook
Issue date:	06/04/1986
From:	Sherwin Turk NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
CON-#286-400 OL, NUDOCS 8606090277
Download: ML20195E911 (10)

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD kJ) ,

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(Seabrook Station, Units 1 and 2) )

NRC STAFF'S RESPONSE TO SAPL'S FOURTH SUPPLEMENTAL PETITION FOR LEAVE TO INTERVENE On May 15,1986, the Seacoast Anti-Pollution League (SAPL) filed its

" Fourth Supplemental Petition for Leave to Intervene" (" Supplemental Petition") . Therein , SAPL set out a supplemental contention addressing the adequacy of the evacuation time estimates that are currently being prepared by ELD Associates as part of the New Hampshire radiological emergency response plan; portions of the KLD study were recently provided by the State of New Hampshire to the Board and parties, in the form of seven " progress reports". I- A response to SAPL's Supplemental A

-1/ See letter from George Dana Bisbee , Esq. (Office of the New Himpshire Attorney General) to John De Vincentis (Yankee Atomic Electric Co . ) , dated April 7, 1986; and letter from George Dana j Bisbee, Esq. to Docket and Service Secretary (NRC), dated May 5,  ;

1986.

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Petition was filed by the Applicants on May 21, 1986. 2_/ The NRC Staff hereby submits its response to SAPL's Supplemental Petition.

DISCUSSION The Staff has previously discussed the standards governing the admissibility of contentions, in responding to the offsite emergency I

planning contentions filed in February 1986 in accordance with the Licensing Board's Order of January 17, 1986; 3/ in the interest of avoiding unnecessary repetition , that discussion is incorporated by reference herein. In sum, to be admissible contentions must satisfy the basis and specificity requirements of 10 C.F.R 52.714, and must otherwise comply with the principles established in Commission case law. In addition, a late-filed contention must be supported by a favorable balancing of the five factors established in 10 C.F.R. 52.714(c)(1). The Staff's views with respect to these matters are as follows.

A. The Admissibility of SAPL's Supplemental Contention.

SAPL's Supplemental Petition sets forth a single contention, concerning the KLD evacuation time estimates which the State of New Ilampshire has indicated are to be adopted as a part of the State's radio-logical emergency response plan. This contention , asserts as follows:

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2,/ " Applicants' Response to Seacoast Anti-Pollution League's Fourth -

Supplemental Petition for Leave to Intervene," filed f. fay 21, 1986.

3_/ "NRC Staff's Response to Contentions Filed by Towns of hampton, ,

Hampton Falls , Kensington, Rye and South Hampton, and by the .

Massachusetts Attorney General, NECNP and SAPL" (" Staff's Response"), dated March 14, 1986.

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SAPL Contention 3l -

The evacuation time estimate report , as described in c Progress Report Nos. 1-7 by KLD Associates , Inc.,

does not meet the requirements of 10 CFR 550.47(a)(1),

$50.47(b)(10) and NUREG-0654 II.J.2, II.J.10(i),10(h) and 10 (1) , and Appendix 4 because it fails to account properly for the number of vehicles that would be evacuating the EPZ; relies in part upon unsupported assumptions; relies in part upon potentially biased input data; does not rely upon an extensive enough empirical base; relys [ sic]' upon traffic control personnel, not shown to be available; does not appropriately account for travel impediments sucn as flooding, snow, fog and icing of roadways; does not account [ sic] for the effect of driver disobedience on evacuation time estimates

. (ETE's); does not include topographical maps; does not deal realistically with the transport of transit dependent persons; in some instances overestimates roadway capacity and, for all of these ' reasons, underestimates the amount of time it would take to evacuate the EPZ and ,its subparts (" Regions") under the various scenarios analyzed.

Staff Response ,

The Staff does not oppose the admission of this conterition, provided

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its litigation is limited to the specific " examples", or bases, offered by SAPL in support of the contention. 4I -

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-4/ The Applicants cppose admission of this contention, in part, on the grounds that a different ETE was' . contained in the Applicants'_ onsite plan , and litigation of the State's ETE is not required by URC regulation; nowhere , however, do the Applicants assert that the contention fails to satisfy the basis and specificity requirements governing the admissibility of contentions. The Staff has already i set forth our views concerning the litigability of the State's ETE, in j which we noted our disagreement with the Applicants' position. See Staff's Response to Hampton Cqntention HI, filed March 14, 19TC In the interest of avoiding unnecessary repet.ition, that discussion la incorporated by reference herein.

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. B. The Five Factors 10 C.F.R. I 2.714(a)(1) provides that, with respect to untimely filings, the following five factors should be balanced:

(1) good cause, i' any, for failure to file on time; (2) the availability of other means whereby the petitioner's interest will be protected; (3) the extent to which the petitioner's participation may be reasonably expected to assist in developing a sound record; (4) the extent to which the petitioner's interest will be represented by e:dsting parties; (5) the extent to which the petitioner's participation will broaden the issues or delay the proceeding.

The Commission has indicated that these five factors must be considered by a Licensing Board in determining whether to admit late contentions for litigation. Commonwealth Edison Co. (Braidwood Station, Units 1 and 2),

CLI-86-08, 23 NRC (April 24,1986) (slip op, at 11-12).

With respect to the first factor listed above (" good cause"), the Commission noted as follows (Id., at 2):

It is well established in our case law that this first factor is a crucial element in the analysis of whether a late-filed contention should be admitted. If the proponent of a contention fails to satisfy this element of the test, it must make a " compelling" _ showing with respect to the other four factors. Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Power Station, i Unit 1), LB P-83-5 8, 18 NRC 640, 66 (1983);

Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC 1725 (1982).

i In the present case, SAPL appears to have demonstrated good cause for its late fil'ng of' this contention. SAPL's supplemental contention is directed to the New IIampshire ETE which was transmitted to the Board and parties, in part, in April and May 1986, and which has not yet been

! completed or adopted by the State of New Hampshire. SAPL's

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. i supplemental contention was filed within a short time after SAPL had received KLD's seven progress reports, and, it does not appear to have been dilatory in its filing of this contention . Accordingly, the first factor weighs in favor of SAPL. 5,/

The second and fourth factors enumerated above are closely related, 0

and may be considered together. Braidwood , supra, slip op at 4. -

To our knowledge, there are no other means available pursuant to which SAPL's interests may be protected apart from its participation in this

. proceeding, nor does it appear that the other parties to this proceeding can or will represent SAPL's interests. Accordingly, these factors should also be viewed as weighing in favor of SAPL.

With respect to the third factor, the Staff submits that SAPL has not adequately demonstrated that it may be expected to contribute to the development of a sound record b In this regard, SAPL states only that

-5/ Indeed, the Applicants concede that SAPL has demonstrated good cause for its late filing. See Applicants' Response, at 2.

-6/ As noted by the Commission, these factors are accorded less weight than factors 'one, three and five. Braidwood, supra, slip op. at 4.

7,/ With respect to this factor, the Commission has noted as follows:

Our case law establishes both the importance of this third factor in the evaluation of late-filed contentions and the necessity of the moving party to demonstrate that it has special expertise on the subjects which it ,

seeks to raise. Mississippi Power & Light Co. (Grand  !

Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC 1725, 1730 (1981). The Appeal Board has said:

"When a petitioner addresses this criterion it should set ,

out with as much particularity as possible the precise l issues it plans to cover, identify its prospective witnesses, and summarize their proposed testimony. "

Id.

Braidwood, supra, slip op at 5.

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. it was involved in the litigation of the ETE which previously had been included in the State plan, and it indicates that it does not know whether it will sponsor witnesses on this ETE or whether it will rely upon cross-examination (Supplemental Petition, at 4). In our view, SAPL has failed to provide the degree of specificity which is required to allow the Board to conclude that SAPL will contribute to the development of a sound record. SAPL has not identified any individuals whom it may call as witnesses in this proceeding; it has not identified the specific matters which would be addressed by those persons; and it has not summarized their proposed testimony. F0r these reasons, this factor weighs against the admission of SAPL's supplemental contention.

With respect to the fifth factor, broadening and delay of the proceeding , the admission of SAPL's supplemental contention may be expected to broaden the issues to be litigated. However, this contention replaces certain other ETE contentions filed in February 1986, and which the Licensing Board rejected as premature in its Orders of April 1 and April 29, 1986. The Staff submits -- as the Board recently noted in admitting certain other late-filed contentions -- that any delay which may result from the litigation of this contention most appropriately should be attributed to the late submission of the State's ETE. In addition , it should be noted that the sdmission of this contention is not likely to delay the proceeding, inasmuch as emergency plans have not yet been submitted for the Commonwealth of Massachusetts. Accordingly, this factor should be viewed as weighing in favor of SAPL.

In sum, factors (1), (2), (4) and (5) favor the admission of this late-filed contention, while factor (3) weighs against its admission. The

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. Staff submits that a balancing of the five factors specified in 10 C.F.R.

$ 2.714(a)(1) supports the admission of SAPL's supplemental contention.

Acccrdingly, SAPL's supplemental contention should be admitted, to the extent set forth above.

CONCLUSION For the reasons set forth above, the Licensing Board should admit SAPL's suppkmental contention, limited to the particular bases provided by SAPL in support of the contention.

Respectfully submitted,

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Sherwin E. Tuik Deputy Assistant Chief IIcaring Counsel Dated at Bethesda, Pfaryland this 4th day of June,1986 O

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i BEFORE TIIE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443 OL NEW HAMPSHIRE, et _al.

) 50-444 OL

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(Seabrook Station, Units 1 and 2) )

i CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO SAPL'S FOURTH SUPPLEMENTAL PETITION FOR LEAVE TO INTERVENE" have been served on the following bv deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 4th day of June,1986.

Helen Hoyt, Esq. , Chairman

• Dr. Emmeth A. Luebke*

Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Jerry liarbour* Ms. Carol Sneider, 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, D.C. 20555 Boston, MA 02108 Beverly Hollingworth Stephen E. Merrill 209 Winnacunnet Road Attorney General Hampton, NH 03842 George Dana Bisbee Assistant Attorney General Sandra Gavutis, Chairman Office of the Attorney General  ;

Board of Selectmen 25 Capitol Street '

RFD 1 Box 1154 Concord, NH 03301-6397 l Kensington, NH 03827 Richard A. Hampe, Esq.

New Hampshire Civil Defense Agency 107 Pleasant Street Concord, NE 03301 1

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4 Calvin A. Canney, City Manager Allen Lampert City Hall Civil Defense Director 126 Daniel Street Town of Brentwood Portsmouth, NH 03801 20 Franklin Street Exeter, NH 03833 Roberta C. Pevear State Representative Angie Machiros, Chairman Town of Hampton Falls Board of Selectmen Drinkwater Road 25 High Road Hampton Falls, NH 03844 Newbury, MA 09150 Mr. Robert J. Harrison Jerard A. Croteau, Constable President and Chief Executive Officer 82 Beach Road, P.O. Box 5501 Public Service Co. of New Hampshire Salisbury, MA 01950 P.O. Box 330 Manchester, NH 03105 Diane Curran, Esq.

Harmon & Weiss Robert A. Backus, Esq. 2001 S Street, N.W.

Backus, Meyer & Solomon Suite 430 116 Lowell Street Washington, D.C. 20009 Manchester, NH 03106 Edward A. Thomas Philip Ahrens, Esq.

Federal Emergency Management Agency Assistant Attorney General 442 J.W. McCormack (POCH) Office of the Attorney General Boston, MA 02109 State House Station, #6 Augusta, ME 04333 H.J. Flynn , Esq . Thomas G. Dignan, Jr. , Esq.

Assistant General Counsel Ropes & Gray Federal Emergency Management Agency 225 Franklin Street 500 C Street, S.W. Boston, MA 02110 Washington, D.C. 20472 Jane Doughty Atomic Safety and Licensing Seacoast Anti-Pollution League Board

• 5 Market Street U.S. Nuclear Regulatory Commission Portsmouth, NH 03801 Washington, D.C. 20555 Atomic Safety and Licensing Paul McEachern, Esq.

Appeal Panel

• Matthew T. Brock, Esq.

U.S. Nuclear Regulatory Commission Shaines & McEachern Washington, D.C. 20555 25 Maplewood Avenue P.O. Box 360 i Portsmouth, NH 03801 l i

Docketing and Service Section* William Armstrong Office of the Secretar" Civil Defense Director U.S. Nuclear Regulatory Commission Town of Exeter Washington, D.C. 20555 10 Front Street Exeter, NH 03833 hiaynard L. Young, Chairman Board of Selectmen Peter J. Matthews, Mayor 10 Central Rond City Hall Rye, NH 03870 Newburyport, MA 09150 Michael Santosuosso, Chairman William S. Lord Board of Selectmen Board of Selectmen South Hampton, NH 03827 Town Hall - Friend Street Amesbury, MA 01913 Pir. Robert Carrigg, Chairman Mrs. Anne E. Gocdman, Chairman Board of Selectmen Board of Selectmen Town Office 13-15 Newmarket Road Atlantic Avenue Durham, NH 03824 North Hampton, Nil 03802 R. K. Gad III, Esq. Gary W. Holmes, Esq.

Ropes & Gray Holmes & Ellis 225 Franklin Street 47 Winnacunnet Road Bosten, MA 02110 Hampton, NH 03842 L

Sherwin E. Turk Deputy Assistant Chief Hearing Counsel e

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