ML20206S965

Applicant Motion for Reconsideration of Board Memorandum & Order of 870407.* Denial of Commonwealth of Ma Motion to Compel Util to Answer Interrogatories 28,114-117 & 131-132 Requested.Certificate of Svc Encl

ML20206S965
Person / Time
Site:	Seabrook
Issue date:	04/15/1987
From:	Lewald G PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
References
CON-#287-3155 OL, NUDOCS 8704230085
Download: ML20206S965 (9)

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DOCKETED US!1RC Dated: April 15, 1987 57 AR120 N0:56 UNITED STATES OF AMERICA GrFtr y Eif ' r .

NUCLEAR REGULATORY COMMISSION 00CKlilNG N - '

EE A NC-; 1 before the ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of )

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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

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APPLICANTS' MOTION FOR RECONSIDERATION OF THE BOARD'S MEMORANDUM AND ORDER OF APRIL 7, 1987 Applicants move the Board for reconsideration of its Memorandum and Order of April 7, 1987, allowing the motion of the Attorney General for the Commonwealth of Massachusetts (" Mass. AG") to compel Applicants' answers to Interrogatories 28, 114-117, and 131-132, over Applicants' objections. While the Board's order was served on April 8, 1987, it did not reach Applicants (counsel) until April 14, 1987. Applicants' answer in opposition to Mass. AG's motion i

to compel, timely filed and served, thus " crossed in the j mail" with the Board's order.

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In support of their motion to reconsider, Applicants say that the subject interrogatories seek information that is neither relevant to this proceeding nor such that would lead e

to the discovery of admissible information. As the Board stated in its ruling on Interrogatory No. 29:

"The [ Applicants'] stated objection that as a matter of law 'there is no basis for inquiring as to what level of radiological dose or consequences from assumed dose must be exceeded before plans would be deemed inadequate for a given event' is adopted by the Board."

Memorandum and Order of April 7, 1987 at 6.

Applicants' objections to Mass. AG Interrogatories 28, 114-117, and 131-132 should be sustained on the same basis.

These interrogatories are each predicated on the basis that the adequacy of Emergency Response Plans must be measured against some particular standard of radiological dose or the consequences of an assumed dose (i.e., early fatalities, Interrogatories 28, 114-117; dosages exceeding 200 rem, Interrogatory 131-132). No such standard anywhere appears in the Nuclear Regulatory Commission's licensing criteria, and, indeed, the Commission has expressly disavowed such an approach to emergency planning. In Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC 22 (1986), the Commission declared:

"Our emergency planning requirements do not require that an adequate plan achieve a preset minimum radiation dose saving or a minimum evacuation time for the plume exposure pathway emergency planning zone in the event of a serious accident. Rather, they attempt to achieve reasonable and feasible dose reduction under the circumstances; what may be reasonable or feasible for one plant site may not be for another."

See also Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-83-10, 17 NRC 528, 533 (1983).

The Board's earlier decisions in these proceedings have fully reflected the Commission's pronoucements and have elaborated on them. For example, in its Memorandum and Order of April 29, 1986, this Board considered the

, contention of New England Coalition on Nuclear Pollution (NECNP) NHLP-9, which stated in part that: "[t]he consequences of an accident at Seabrook are such that evacuation must be ccmpleted promptly in order to avoid unacceptable damage to the public health and safety." The Board rejected this part of NECNP's contention on the ground that it lacked any regulatory basis. Memorandum and Order of April 29, 1986 at 74. The Board held that NECNP's position was " unfounded in law, policy or logic." pointing out:

" Guiding principles of emergency planning, well-founded on the guidance of NUREG-0654 and, in turn, on Commission regulations, that were recently stated by the Shoreham Licensing Board are applicable here. These principles are:

'The purpose of emergency planning is to achieve dose savings to the general public in the event that radioactive material is accidentally released off site. There is no minimum standard of public radiation

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e dose which must be met in emergency planning.

Absolute protection of the public against all radiation doses cannot be guaranteed and is not required for all possible accident scenarios.

The emergency response plan should not be developed for any specific preconceived accident sequence. It should instead be framed to cope with a spectrum of accident possibilities including the worst accidents.

There is no standard time required to be met for evacuation in a radiological emergency. Estimates are necessary to determine accurately the actual time required for evacuation. These estimates are needed to aid in protective action decisionmaking.

No massive investment of resources (stockpiling of supplies or construction of hospitals) are required for emergency planning. We will apply a practical standard of efficiency of utilization of existing resources (such as roadways and manpower) in evaluating the acceptability of the evacuation plan."

Long Island Lighting Co. (Shoreham Nuclear

! Power Station, Unit 1), LBP-85-12, 21 NRC 644, l 782 (1985)." Id. at 73-74.

l This Board also rejected a contention filed by Mass. AG l

on February 21, 1986, which contention attempted to inject in these proceedings an assumption that protective actions j must be developed which assure that a particular level of radiological dose consequences does not occur in the event l

l of an accident. See Memorandum and Order of April 29, 1986 l

l at 43-46. The Board stated:

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"We quote, with approval, the Staff's statement in its response of March 14, 1986 that 'the basic goal of emergency planning is achievement of maximum dose savings in a radiological emergency. Toward this end, the Commission requires that reasonable estimates be provided as to the time in which an evacuation may be accomplished under different conditions, for use by responsible authorities in formulating their protective action recommendations. There is no regulatory basis, however, to support the Massachusetts Attorney General's apparent belief that protective actions must be developed which assure that any particular level of radiological dose consequences do not occur in the event of an accident.' Staff Response, March 14, 1986, at 3-4; citing Cincinnati Gas & Electric Co. (William Zimmer Nuclear Power Station, Unit No. 1), ALAB-727, 17 NRC 760, 770 (1983)." Id. at 45.

By its interrogatories 28, 114-117, and 131-132, Mass.

AG, in effect, attempts to resuscitate its rejected contention that the Emergency Response Plan must meet a particular standard. The Commission's teaching in Shoreham and San Onofre , supra, and the decisions of this Board, as noted, leave no doubt that whether the Emergency Response Plan adheres to a particular standard is not relevant to these proceedings, nor will answers to questions directed to standards lead to admissible evidence. Applicants' answers, whatever they might be, would serve no valid purpose in this licensing proceeding; it is the Commission who establishes licensing criteria, not the Applicants. What others suggest or have as a position is of no moment.

The Board's decision to compel answers from the Applicants on the subject interrogatories is, applicants

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submit, in conflict with the decisions of the Commission in Shoreham and San Onofre, supra, and those of this Board in these proceedings. Applicants therefore request the Board to reconsider its ruling and to deny Mass. AG's motion to compel answers to Interrogatories 28, 114-117, and 131-132.

Respectfully submitted, 7

Thomas G. Dignan, Jr.

George H. Lewald Kathryn A. Selleck Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 (617) 423-6100 Counsel for Applicants 4

00CKETED USNPC

' CERTIFICATE OF SERVICE I, Kathryn A. Selleck, one of the attorneys for the Applicants herein, hereby certify that on April 15, 1987, I made service of the within document by causing copies tAribe0FSLetNW hand delivered to the Atomic Safety and Licensing BoardOCKEIit:0 & SERV!CL Administrative Judges at their addresses below and the OEANCH l

Office of the Attorney General for the Commonwealth of Massachusetts at the address below, and by depositing copies thereof with Federal Express, prepaid, for delivery to (or, where indicated, by depositing in the United States mail, first class postage paid, addressed to):

Administrative Judge Helen Hoyt, Robert Carrigg, Chairman Chairperson, Atomic Safety and Board of Selectmen Licensing Board Panel Town Office U.S. Nuclear Regulatory Atlantic Avenue Commission North Hampton, NH 03862 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Judge Gustave A. Linenberger, Jr. Diane Curran, Esquire Atomic Safety and Licensing Andrea C. Ferster, Esquire Board Panel Harmon & Weiss U.S. Nuclear Regulatory Suite 430 Commission 2001 S Street, N.W.

East West Towers Building Washington, DC 20009 4350 East West Highway Bethesda, MD 20814 Dr. Jerry Harbour Stephen E. Merrill Atomic Safety and Licensing Attorney General Board Panel George Dana Bisbee U.S. Nuclear Regulatory Assistant Attorney General Commission Office of the Attorney General East West Towers Building 25 Capitol Street 4350 East West Highway Concord, NH 03301-6397 Bethesda, MD 20814

• Atomic Safety and Licensing Sherwin E. Turk, Esquire Board Panel Office of the Executive Legal U.S. Nuclear Regulatory Director Commission U.S. Nuclear Regulatory Commission I Washington, DC 20555 Tenth Floor 7735 Old Georgetown Road Bethesda, MD 20814

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• Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Board Panel 116 Lowell Street U.S. Nuclear Regulatory P.O. Box 516 Commission Manchester, NH 03105 Washington, DC 20555 Philip Ahrens, Esquire Mr. J.P. Nadeau Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central Road General Rye, NH 03870 Augusta, ME 04333 Paul McEachern, Esquire Carol S. Sneider, Esquire Matthew T. Brock, Esquire Assistant Attorney General Shaines & McEachern Department of the Attorney General 25 Maplewood Avenue One Ashburton Place, 19th Floor P.O. Box 360 Boston, MA 02108 Portsmouth, NH 03801 Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall .

Route 107 126 Daniel Street l Kensington, NH 03827 Portsmouth, NH 03801

• Senator Gordon J. Humphrey Mr. Angie Machiros U.S. Senate Chairman of the Washington, DC 20510 Board of Selectmen (Attn: Tom Burack) Town of Newbury Newbury, MA 01950

• Senator Gordon J. Humphrey Mr. Peter J. Matthews One Eagle Square, Suite 507 Mayor Concord, NH 03301 City Hall (Attn: Herb Boynton) Newburyport, MA 01950 Mr. Thomas F. Powers, III Mr. William S. Lord Town Manager Board of Selectmen Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 H. Joseph Flynn, Esquire Brentwood Board of Selectmen Office of General Counsel RFD Dalton Road Federal Emergency Management Brentwood, NH 03833 Agency 500 C Street, S.W.

Washington, DC 20472

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i Gary W. Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road

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35 Pleasant Street Hampton, NH 03841 Concord, NH 03301 Mr. Ed Thomas Judith H. Mizner, Esquire FEMA, Region I Silverglate, Gertner, Baker, 442 John W. McCormack Post Fine, Good & Mizner Office and Court House 88 Broad Street Post Office Square Boston, MA 02110 Boston, MA 02109 Charles P. Graham, Esquire McKay, Murphy and Graham 100 Main Street Amesbury, MA 01913

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' KWthryn A. Selleck

(*= Ordinary U.S. First Class Mail.)

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