ML19332D519
| ML19332D519 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 11/15/1989 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19332D520 | List: |
| References | |
| CON-#489-9478, RTR-NUREG-0654, RTR-NUREG-654 OL, NUDOCS 8912040077 | |
| Download: ML19332D519 (13) | |
Text
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1 November 15, 1989
.__ s UNITED STATES OF AMERICA 9'. 5~
NUCLEAR REGULATORY COMMISSION Y
S before the paccrED S
ggQN ATOMIC SAFETY AND LICENSING BOARD l
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_In-the Matter of
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flGrTTTb PUBLIC SERVICE COMPANY
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Docket Nos. 50-443-OL OF NEW MAMPSHIRE, at al.
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50-444-OL
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(SeabrookiStation, Units 1
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(Offsite Emergency and 2)-
)
Planning Issues)
)
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((
APPLICANT 8' ANSWER TO INTERVENOR88 MOTION TO ADMIT l
.A LATE-FILED CONTENTION AND REOPEN THE RECORD BASED UPON THE WITHDRAWAL OF THE NASSACHUSETTS E.B.S. NETWORK AND WCGY INTRODUCTION The-Attorney General of The Commonwealth of Massachusetts l
(MAG), on behalf of himself and other intervenors, has filed yet another motion seeking the reopening of the record and l
admission of a late filed contention ("The Motion").
In this L
L effort MAG attempts to combine relevant facts well known to
.him for many months with the irrelevant fact of a recent withdrawal of a letter of agreement (LOA) to fashion an alleged significant safety issue supposedly only recently knowable by MAG.
Underlying all of this effort is an affidavit'by The Massachusetts Civil Defense Director who
" pinch hit" for the original affiant after the original 1
affiant apparently refused to endorse a form of affidavit EBSREORE.58 l
8912040077 891115 DR ADOCK 0500
2 3
s 4
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previously filed by MAG unsigned but represented to be
" authorized and approved" by the original affiant.'
t The Motion is styled "Intervenors' Motion to Admit a Late
-Filed Contention and Reopen the Record on'the SPMC Based Upon the Withdrawal of the Massachusetts E.B.S. Network and WCGY."
The title of the Motion presages its first erroneous basis, i.g.,.that execution of the Seabrook Plan for Massachusetts Communities (SPMC) is dependent upon the participation of the
" Massachusetts EBS Network" in general and station WCGY in particular.
The thrust of the Motion is that since WCGY and the Massachusetts EBS have declared their intention not to participate in-SPMC because of alleged failures of the Applicants to live up t.o alleged commitments,2 the SPMC cannot function.
This is so, it is alleged, because the participation of WCGY as the " gateway" EBS station the Merrimac Valley operational area is essential to activate the other Merriaac Valley EBS Stations and, it is alleged, without operation of these stations, SPMC cannot be executed.
In particular, it is alleged that two significant safety issues are raised by the withdrawals: (1) because WCGY has withdrawn, the EBS in the Merrimac Valley area supposedly I
Original Motion filed under date of October 30, 1989 at 12.
2 See Affidavits of John F.
Bassett and Douglas J. Rowe attached as Attachments "F" and "G" to The Motion, respqctively. -
.7
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cannot be activated,3 (this is a' " coverage" issue') and (2) that without WCGY the Applicants cannot' meet the 15 minute prompt alert and notification criteria.3 The. Motion is-supposedly tiatly because it was not until the recent withdrawals that these issues exisced and were known to MAG.
The problem for MAG ~is that he has known for some-time that SPMC did not rely upon either WCGY or the Merrimac Valley EBS Network.
Had he wanted to litigate prob 2 ems 1
arising'out of the fact that only two sister EBS stations were being relied upon to notify the public and to disseminate information, he cou1(. have and should have litigated such matters a long time ago.
In the Seabrool Station Public Alert and Notification System FEMA-REP-10 Desian Reoort (HREP-10' Report") published in redacted version.
on April 30, 1988, it was made perfectly clear that Applicants were relying on a single contract FM and AM station for initial notification and dissemination for inf ormation.6 Indeed, when it was discovered that the
-station call letters had been set out in the SPMC in the unredacted version, MhG and the other parties were sent in June of 1988 a letter enclosing the unredacted pages of the REP-10 Report.
This letter is attached to the Affidavit of 3
Motion at 15.
Motion at 16.
5 Motion at 16-18.
REP-10 Report at 1-3 et sea..-
c h
Anthony M. 'Callendrello (Exhibit' I hereto) as Attachment "A" thereto.7 These~pages make clear that the SPMC would be relying. solely on WLYT-FM and its sister station WHAV-AM.
That these were the two stations relied upon was also made clear to MAG during the deposition of Gregory Howard taken on November 16, 1988.8 On May 2, 1989, Massachusetts Assistant
-Attorney General Jonas conducted the following cross-examination of Applicants' Witness Desmarais before the Licensing Board chaired by Judge Bloch:'
"Q Pur. Desmarais, there is no assumption,-
-I take it, for expectation that any member of the public would tune into the radio to hear an EBS message without having heard the siren first; is that correct?
A (Desmarais)..There is no assumption that someone would be previously tuned in.
However,-they may have that radio station on and just be listening to it.
Q Do you have any idea as a percentage of the population of the EPZ, how many people would'be listening to that station?
l l
A (Desmarais)
No, I don't.
Q How many EBS stations are there?
A(Desmarais)
I believe there are two.
And they're listed in the REP-10 design report.
There would be two stations.for Massachusetts, I l'
believe; and two for New Hampshire.
L The letter is undated.
The assertion in the text is based upon the fact that the site letter Jogging system shows that it was sent out during the month of June, p
1988.
See callendrello Affidavit at 1 3.
8 Howard Decosition at 129 31 gag.
A portion of the E
deposition was put in evidence as MAG Ex. 126 on June 27, 1989, and p. 129 which has the specific reference E
to the two stations is the last page of that exhibit.
Tr. (5/2/89) at 147-51., _. _ _
h.
Q I take it that that's not all of the radio stations in the area?
A (Desmarais)
That's right.
Q For FM, that's WLYT; is that'right?
A'
. -(Desmarais)
If I could take a_ quick look at the REP-10' design report I would be able to verify that.
JUDGE BLOCH:
I-recall that in some'of the documents those-names were not -- the station names were not given; waL that correct?
MR. DIGNAN:
That was part of the --
l JUDGE BLOCH:' And it's now public.
{
l (Document proffered to witness.)
-l THE WITNESS:
.(Desmarais)
Thank you.
I r
JUDGE BLOCH:
While he's looking, is there a stipulation you want about this?
I MR. JONAS:l Well, there are two stations, WLYT and WCGY l
on the FM dial; and one, WHAV on the AM dial.
I JUDGE BLOCH:
Yes.
MR. JONAS:. That's just-what I want to establish.
THE WITNESS:
(Desmarais)
I believe that's accurate, but my copy of the REP-10 design report has the stations blanked'out as well.
MR. DIGNAN:
They don't' trust the= lawyers.
THE WITNESS:
(Desmarais)
I believe it's accurate.
MR. DIGNAN:
If you represent that that's what it says, j
.I'm not going to argue with you.
)
JUDGE BLOCH:
Is there some point about that?
MR. JONAS:
Well, the point I'm raising only is that there are two --
/
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BY MR. JONAS:
Q Do you know how many radio stations in the area?
l A
(Desmarais)
No, I don't. t L
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MR. DIGNAN:. I will stipulate with you that it's
. unlikely that even a significant percentage of people will actually be listening to the stations that are the EBS stations-at the time the balloon goes up.,
Does that help?-
'q MR. JONAS:
Okay.
BY MR.'JONAS:
Q Now, is there an assumption about when -- about what percentage of the population will actually hear the siren?;
A (Desmarais) 100 percent of the population.
Q Is there.an assumption about what percentage of the population will. hear that siren'the first minute?
s A
(Desmarais)
I don't believe it's in the first minute.
But over the full three-minute activation 100 percent _of the population will receive the siren alerting signal.
Q So some people will hear it in the first minute, some second', and some the third minute?
A.
(Desmarais)
Yes.
Q And'the people who hear it'in the third minute presumably will then have to interpret it and then --
interpret it correctly, so that they will turn on their radio?
A (Desmarais)
Yes.
Q Find the EBS station on the radio dial; is that right?
A (Desmarais)
Yes.
Q And actually hear the message?
A (Desmarais)
Yes.
Q Now there are going to be -- there would be the EBS activation announcement; the 25 second tone which takes 55 seconds; and then a repetition of three EBS messages?
j A
(Desmarais)
In serial fashion... _.
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SC Ij (14?
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Q~
In serial fashion?
_A (Desmarais)' That's correct.
j Q
And then the next repetition would be 15 minutes afterwards?
AL (Desmarais)' Yes.
Q So there will be some portion of the population that won't hear that EBS message until after the siren tone is completed?
A (Desmarais). It's conceivable that could occur.
Q You don't know-what percentage?
A
-(Desmarais)
No, I don't.
JUDGE BLOCH:
Is there any way to know how long it would take.for a person who doesn't know which station is:EBS to find it?
THE WITNESS:
(Desmarais)
I don't have any estimates of that time."
ItLis difficult to see in light of the foregoing how anyone could claim that it.was only with the withdrawal of WCGY and
. Massachusetts EBS that the "significant safety issue (s)"
L proposed to be litigated came to light.
But, there is more.
Jon June 29, 1985, Mr. Callendrello was cross-examined by 1
Assistant Attorney General Talbot as follows:
"Q Well, isn't it a fact that EBS is only carried on local Essex County stations?
A.
(Callendrello)
The EBS station that is identified l
in the SPMC is located in Essex County.
However, I wouldn't call it a local Essex County station, it's a l-(
50,000 watt FM station.
Mr. Catapano can address the L
range But I know it has got a substantial range.
I I've picked it up probably 40 or 50 miles away, l'
although he can talk about what the licensed range would be.
Q If he wants to, fine..
l
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}
D i
1 A.
(Catapano)
It is an are the emergency planning zone."g that extends well beyond-After learning of-the. decision of WCGY and the Massacnusetts EBS to disavow their LOAs, MAG' brought the instant motion claiming that-a new safety issue'has arisen to-be-litigated.
Applicants herein respond-to the Motion on the
- basis of the record to date in the proceeding and the Affidavits of Anthony M. Callendrello, Gary J.
Catapano (Exhibit II hereto) and George R. Gram (Exhibit. III hereto).
The Affidavit of Gram and a portion of the Affidavit of 4
Catapano (13 6-8), establish that, contrary to the apparent understanding of MAG's affiants, there never was any commitment to equip all of the EBS stations in the Merrimac Valley area.
The only commitment made was to provide certain equipment and services to WCGY, a commitment that Applicants stand ready and willing to complete."
The Gram affidavit also makes clear that the commitment to WCGY was always viewed as an-arrangement to provide back-up to the existing methods and procedures to be employed in SPMC.12 In fact, certain equipment has bee provided to WCGY to enhance The Commonwealth'n :spability for actuation through WROR.c
'O Tr. 27893-94.
Egg also Callendrello Affidavit at 1 5.
Gram Affidavit, $$ 7.
12 Gram Affidavit at 15 6-8.
U Catacano Affiday11 at 1 6. --
l o
4 The Callendrallo Affidavit establishes the following: the concept of operations is that the public will be advised by public information materials to tune in to WLYT-FM or WHAV-
?
FM upon hearing the sirens." Those individuals with responsibility for activating.the public alert and notification system can contact these stations with an in-place dedicated ring down circuit and these stations are fully equipped to carry out their necessary duties."
The Callendrello Affidavit also establishes that'the contemplated method'of SPMC execution was fully tested and approved by FEMA in the graded exercise. Mr. Callendrello also points out that there exists the Massachusetts Emergency Broadcast Plan which provides the Commonwealth with the ability,
. assuming it elects to use it,-to issue messages through all
.six Merrimac Valley EBS stations.17 These stations are not needed or contemplated, however, to accomplish the initial 15-minute alert.18 Callendrello Affidevit 11 4-5.
Callendrello Affidavit 11 6-7; Catacano Affidavit 1 4.
16 Callendrello Affidavit 11 10-12.
'I Callendrello Affidavit 11 14-16.
18 Callendrello Affidavit 1 13..
W' y
3
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i ARGUMENT Introduction In_ order to. succeed in obtaining a reopening of the evidentiary record, the Movants must establish that the motion is timely, is di;ected to a significant safety _ issue, and that a materially different result would be likely if the-newly proffered evidence had been considered initially."
In addition, where, as here, the contention sought to be litigated was not previously in controversy, tne "five
' factors" test must be satisfied.10 We address the last of these requirements.first.
I.'
THE BALkNCING OF-THE FIVE FACTORS WEIGES AGAINST THE ALLOWANCE OF THE NOTION.
As is clear from the recitation in the introduction above, MAG was, or should have been, well aware over one year ago that SPMC did not contemplate the use of WCGY or the Merrimac l
l Valley Network EBS Operational Area stations in order to meet i
the alerting requirements of 10 CFR h 50.47(b) (S)..
There simply has been no showing of any good cause for filing this contention at this late-date.
That being the case, tne l
10 CFR S 2.734(a).
20 10 CFR S 2.734 (d) incorporating 10 CFR S 2.714(a)(1).
l l ll l
,e
.t ni l
lJ Movant must shoulder a heavier burden with respect to the.
other"four factors.21 As usual.it must be. conceded that the second and fourth factors favor the Movants, but these are the less weighty f actors. 22 With respect to the third factor:, Commission
" case. law establishes both the importance of the third factor t
in the evaluation ofl 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.
[ Citation omitted.)
The Appeal Board has said:
'When a petition addresses this criterion it should set out with as much I
particularity as possible the precise issues it plans to cover, identify its prospective witnesses, and summarize their proposed testimony'."23 on a cursory look, the Motion might be v.iewed as having complied with the requirements of the third criterion; but, on close inspection, it has not.
21 E.g., Vircinia Electric & Power Co. (North Anna Station, Units 1 and 2), ALAB-289, 2 NRC 395, 398 (1975).
22 Commonwealth Edison Comoany (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 245 (1986); South Carolina Electric and Gas Comoany (Virgil C.
Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 895 (1981).
23
. Commonwealth Edison Comoany (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 246 (1986), citino with accroval, Mississioni Power and i
Licht Co. (Grand Gulf Nuclear Station, Units 1 and:2),
ALAB-704, 16 NRC 1725, 1730 (1982).
Accord, Public Service comoany of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-918, 29 NRC
, Slip Op. at 19-
)
20 (June 20, 1989). -. -
1!'
]
The affiant now offered has no special expertise in radio network design.
Neither he nor the original affiant purports to be an expert on either coverage or the issue of whether s
.the '15-minute criteria can be satisfied.24 These are the issues which the hearing, if granted, would be about.
It is these matters which must be addressed under the third
. criterion, and they are not.
As to delay, there is no doubt where the delay factor weighs.
On balance, we submit, factors one three, and five
' weigh against admission of the contention, and, therefore, the Motion should fail under 10 CFR $ $ 2.734 (d), 2.714 (a) (1).
II.
THERE BAS BEEN NO 8 BOWING THAT THE FACTS ALLEGED GIVE RISE TO A SIGNIFICANT SAFETY QUEOTION.
The claim in the Motion is that there are two significant safety questions raised'which warrant reopening.- The first is a coverage questior..
However, as the record extant as well as the affidavits filed herewith show, there is coverage of the EPZ by the WLYT-FM and WHAV-AM, the sister EBS stations under contract.
With respect to the 15-minute L
notification, that has been exercised and fully litigated.
Again, there is nothing in the materials filed which casts L
doubt on the concept that notification can be made in about 1
24 Indeed, the second affiant is even less certain as to the alleged lack of a provision for ensuring notification is made to the public in the Seabrook EPZ i
l within 15 minutes.
Comoare Boulav Affidavit 1 4
(" appear to exist") with Savver Affidavit 1 4
(" exist"). L l-
- s i:
f
' fifteen minutes through the contract EBS stations.
- Thus, there simply is no safety question raised, never mind a significant safety question.
In addition, it should be remembered that insofar as there is an unstated. issue being raised to the effect that all EBS
^
t stations should be available, they, in fact, will be, assuming the Governor activates them.
The realism doctrine dictates that any effort to base this motion on the concept that the Governor will.not activate the entire EBS system, when requested, must be rejected.
III. THERE RA8 BEEN NO SHOWING THAT A'DIFFERENT RESULT WOULD BE LIKELY.
The facts are the facts.
SPMC simply does not depend upon the Massachusetts EBS System in general or WCGY, in particular.
The result will be the same even assuming everything that is stated in all of MAG's affidavits is true.
CONCLUSION Tno Motion should be denied.
Respectfully submitted,
/
L Thomas 6. Dignan, Jr.
George H. Lewald Jeffrey P. Trout Jay Bradford deith Geoffrey C. Cook William L. Parker Ropes & Gray l
One International Place Boston, MA 02110-2624 (617) 951-7000 Counsel for Applicants,
-,m.
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