ML20195F037
| ML20195F037 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/30/1986 |
| From: | Dignan T, Gad R PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#286-424 OL, NUDOCS 8606090334 | |
| Download: ML20195F037 (25) | |
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Dated:
May 30 86 U t(b UNITED STATES OF AMERICA p
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In the Matter of
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PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443-OL NEW HAMPSHIRE, et al.
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50-444-OL
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(Seabrook Station, Units 1 and 2) )
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ON APPEAL FROM THE MEMORANDLM AND ORDER OF THE LICENSING BOARD ISSUED APRIL 29, 1986 BRIEF OF APPLICANTS Thomas G.
Dignan, Jr.
R.
K. Gad III Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 60 86 Counsel for applicants Q
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TABLE OF CONTENTS Page i
TABLE OF AUTHORITIES:
ii PRIOR PROCEEDINGS AND FACTS 1
ARGUMENT..............................................
7 I.
MASS. AG IS WITHOUT STANDING TO APPEAL 1
UNDER 10 CFR $ 2.714a 7
II.
THE APPEAL SHOULD BE DENIED ON THE MERITS 12 CONCLUSION............................................
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TABLE OF AUTHORITIES Page(s)
Cases Cincinnati Gas & Electric Co. (Wm.
H.
Zimmer Nuclear Power Station, Unit No. 1),
ALAB-727, 17 NRC 760 (1983) 15, 16 Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit No. 2), ALAB-730, 17 NRC 1057 (1983) 15 Exxon Nuclear Company, Inc. (Nuclear Fuel Recovery and Recycling Center),
ALAB-447, 6 NRC 873 (1977) 11 Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-329 3 NRC 607 (1976) 7, 8,
9, 10, 11 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP 76, 16 NRC 1029 (1982) 3 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-749, 18 NRC 1195 (1983) 7 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-86 23 NRC __ (April 29, 1996) ("the Decision"_)
1, 18 Southern California Edison Co.
(San Onofre Nuclear Generating Station, Units 2 and 3), CLI-83-lO, 17 NRC 528 (1983) 15 Regulations 10 CFR S 2.714......................................
2 10 CFR $ 2.714a............................. 10, 11, 19 10 CFR S 2.715(c) 2, 3,
5, 10, 11 10 CFR 50, App. E 19 10 CFR 100 16, 17, 19
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4 Dated:
May 30, 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING APPEAL 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
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Off-site Emergency (Seabrook Station, Units 1 and 2) )
Planning Issues
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ON APPEAL FROM THE MEMORANDUM AND ORDER OF THE LICENSING BOARD ISSUED APRIL 29, 1986 BRIEF OF APPLICANTS PRIOR PROCEEDINGS AND FACTS This is an appeal from one of the orders set out in a Memorandum and Order issued by the Licensing Board in the above-captioned matter.
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-86 __,
23 NRC (April 29, 1986) (hereafter "the Decision" and l
l l
cited to the slip opinion).
The specific order from which the appeal is taken is an order which rejected a contention of the Attorney General of the Commonwealth of Massachusetts (Mass. AG).
Decision at 46.
The appeal is taken by Mass.
AG and jurisdiction of this Appeal Board is purportedly invoked under 10 CFR S 2.714a.
Mass. AG first appeared in this proceeding by way of a petition to intervene filed November 18, 1981,1 which was supplemented on April 20, 1982, with four proposed contentions.2 On September 13, 1982, the Licensing Board issued a prehearing conference order that, inter alia, recited the prior withdrawal of one of Mass AG's contentions and rejected, as premature, the remaining three.
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-82-76, 16 NRC 1029, 1077-79 (1982).
- However, the Board specifically granted Mass. AG standing in the proceeding under 10 CFR S 2.715(c).
Id. at 1079.3 In that 1
Petition of the Massachusetts Attorney General to Intervene in Operating License Proceeding, NRC Dkt.
Nos. 50-443, 50-444 (Nov. 18, 1981).
2 Supplement to the Petition to Intervene of the Commonwealth of Massachusetts, NRC Dkt. Nos. 50-443, 50-444 (April 20, 1982).
3 By its order of May 22, 1986, this Appeal Board has suggested that Mass. AG may be a different entity than the Commonwealth of Massachusetts for purposes of this proceeding.
This may be because in LBP-82-76, the Licensing Board referred to the Commonwealth of Massachusetts as the entity granted 10 CFR S 2.715(c) i same order, the Licensing Board admitted a number of other issues filed by other parties for litigation.
These contentions dealt with areas other than off-site emergency planning.
And the proceeding proceeded apace on those issues.
On June 23, 1983, Mass. AG filed a total of five contentions relative to New Hampshire's emergency planning.4 On July 5, 1983, the applicants answered this filing, pointing out, inter alia, that Mass. AG's status as of that i
time was as an interested state under 10 CFR S 2.715(c) and noted that applicants were unclear as to whether the Mass.
AG filing was to be considered a filing under 10 CFR 9 2.715(c) or 10 CFR S 2.714.5 On July 15, 1983, Mass. AG filed a response to the applicants' July 5, 1983 filing claiming the " requisite standing to participate in this proceeding" and stating that Mass. AG had already shown 4
status.
This in turn may have resulted from the fact that during 1982 Mass. AG filed some papers (including the supplement setting out contentions referred to in n.2 above) with a title denoting " Commonwealth of Massachusetts" as the filing entity.
However, there has never been a separate intervention for the Commonwealth as such and as differentiated from Mass. AG.
Contentions of Attorney General Francis X.
Bellotti Relative to Emergency Planning for the State of New Hamsphire, NRC Dkt. Nos. 50-443-OL, 50-444-OL (June 23, 1983).
5
- Applicants' Response to Contentions of Attorney General Francis X.
Bellotti Relative to Emergency Planning for the State of New Hampshire, NRC Dkt. Nos. 50-443, 50-444 at 1-2 (July 5, 1983).
l.
enough to "[ entitle] him to full-party status under 10 CFR
$ 2.714."8 During August of 1983, while the admissibility of these proposed contentions was still sub judice, the evidentiary hearings were held on the still extant contentions in areas other than off-site emergency planning.7 In those hearings Mass. AG participated extensively, both cross-examining applicant and Staff witnesses, e.g. Tr. 1018-1066, 1091-1113, 1115-1117, 1305-1333, and submitting a direct case, TI. 1189-1197.
Later Mass. AG filed proposed findings of fact and rulings of law with respbet to certain of the litigated contentions.s These contentions are still sub judice the Licensing Board responsible for "on-site emergency planning and safety issues."'
8 Answer of Attorney General Francis X. Bellotti to the
" Applicants' Response to Contentions of Attorney General
~
Francis X.
Bellotti Relative to Emergency Planning for the State of New Hampshire, NRC Dkt. Nos. 50-443-OL, 50-444-OL at 1-2 (July 15, 1983).
7 Some had been disposed of on motion for summary disposition.
s Attorney General Bellotti's Proposed Findings of Fact and Conclusions of Law re NECNP Contentions III.12 and 13, NRC Dkt. Nos. 50-443, 50-444 (Oct. 26, 1983).
In'the fall of 1985 the original chairperson of the Licensing Board was replaced by a new chairperson for purposes of handling the "on-site" hearing, the technical board members remaining without change.
The off-site hearing is being conducted by the Licensing Board made up of the original chairperson and the same two technical members.
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On August 31-1983, the Licensing Board issued an order ruling, inter alia,Ron the admissibility of Mass. AG's five proposed New Hampshire emergency planning contentions.18 The Board admitted four of the five contentions as reworded,11 and held that Mass. AG had sufficient interest;22 the Board did not state specifically whether Mass. AG now was admitted under 10 CFR S 2.714 as well as, or in addition to, or to the exclusion of, 10 CFR 5 2.715(c).
On September 9, 1983, Mass. AG filed an additional contention with respect to emergency planning for the New Hampshire beach communities.ta The admissibility of this contention was never ruled upon due to the hiatus which occurred in this proceeding resulting from construction delays due to financial constraints.
In any event, on January 10, 1986, the on-site safety issues being, as they are today, still sub judice the Licensing Board, the Staff advised the Licensing Board that 28 Memorandum and Order, ASLBP No. 82-471-02-06 (August 30, 1983) (unpublished).
21 Id. at 15-19.
12
]@. at 15.
13 Contention of Attorney General Francis X. Bellotti Relative to Emergency Planning for the New Hampshire Beach Communities, NRC Dkt. Nos. 50-443, 50-444 (Sept.
9, 1983).
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4 the State of New Hamsphire had formally submitted off-site emergency response plans for review.
As a result, the Licensing Board issued a memorandum and order which had the effect of dismissing as moot all prior off-site emergency planning contentions admitted in the August 30, 1983 order and setting a schedule for litigation of the New Hampshire Radiological Emergency Response Plan.1*
Inter alia, the participants were directed to file contentions with respect to that plan on or before February 24, 1986.
On February 21, 1986, Mass. AG refiled the same contention and statement of basis originally filed on September 9, 1983.15 On April 29, 1983, as noted earlier, the Licensing Board rejected the contention.
Decision at 46.
The Licensing Board did not, and has not, precluded. Mass. AG from further participation in the ongoing off-site emergency planning hearing nor in any way altered its status with respect to the contentions sub judice having to do with onsite matters.
This appeal followed.
1*
Memorandum and Order, ASLBP No. 82-471-02-06 (Jan. 17, 1986) (unpublished).
is Contention of Attorney General Francis X.
Bellotti Relative to Emergency Planning for the New Hamsphire Beach Communities, NRC Dkt. Nos. 50-443-OL, 50-444-OL (Feb. 21, 1976) attaching as Exhibit A, a copy of the September 9, 1983 filing, all of which is reproduced as Exhibit A to Mass. AG's brief on this appeal. -
r ARGUMENT I.
MASS. AG IS WITHOUT STANDING TO APPEAL UNDER 10 CFR 6 2.714a Mass. AG's status in this operating license proceeding is as follows:
Since September 13, 1982, he has been, and remains, admitted to this proceeding as an interested state pursuant to 10 CFR $ 2.715(c).
During that time he has, inter alia, cross-examined witnesses, put in a direct evidentiary case, filed proposed findings and rulings which are even now sub judice.
In addition, Mass. AG has engaged in discovery,ts attempted to recuse the chairp,erson of the Licensing Board,17 and generally and fully participated in the proceeding.
On these facts, the case of Gulf States Utilities Co.
(River Bend Station, Units 1 and 2), ALAB-329, 3 NRC 607 (1976), unmentioned in Mass. AG's initial brief on appeal, is on point and dispositive.
Therein, the State of Louisiana had participated in a construction permit proceeding on environmental and site suitability issues under 10 CFR S 2.715(c) and had successfully appealed a partial initial decision thereon.
Thereafter, Louisiana had is E.g.
Attorney General Bellotti's Interrogatories and Requests for Documents to Applicants on Emergency Planning for the State of New Hampshire, NRC Dkt.
Nos. 50-443, 50-444 (Sept. 29, 1983).
17 See Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-749, 18 NRC 1195 (1983). J
all of its tendered issues on " health and safety" matters rejected by the Licensing Board at the outset of the phase of the hearing to consider such issues as well as the remanded environmental issues.
ALAB-329, supra, at 608-09.
Louisiana attempted to appeal that ruling under 10 CFR S 2.714a.
The Appeal Board rejected the appeal:
"As we have frequently held, Section 2.714a excepts from the general prohibition against interlocutory appeals only those orders which are directly_ concerned with the grant or denial of status as an intervenor.
See e.g.,
Louisiana Power & Light Co.
(Waterford Steam Electric Station, Unit 3), ALAB-168, 6 AEC 1155 (1973);
Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-176, 7 AEC 151 (1974); Philadelphia Electric Co.
(Fulton Generating Station, Units 1 and 2), ALAB-206, 7 AEC 841 (1974); Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2 ),
ALAB-269, NRCI-75/4R 411 (April 28, 1975).
As a consequence, one who has been permitted to intervene may not invoke that Section to obtain interlocutory review of an order which does no more than to exclude from consideration in the proceeding certain of the issues which he has sought to raise.
Ibid.
"These holdings apply here.
We have seen that the State was granted intervention--albeit (in accordance with its wishes) as an ' interested State' participating under Section 2.715(c) rather than as a party under Section 2.714(a).
The ruling of the Licensing Board under present attack did nothing to affect the State's status in the proceeding.
To the contrary, the State was left entirely free to participate to the fullest extent not only on the remanded environmental )
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(i.e.,
fuel utilization efficiency) issue which it had previously and successfully raised but, as well, on each and every health and safety issue which the Licensing Board determined to be properly be. fore it for consideration and decision.
The sole practical consequence of the ruling was that the scope of the health and safety hearing would not be further broadened to encompass the additional issues which the State sought to inject into it.
"In the totality of these circumstances, the situation before us differs in no material respect from that in any of the earlier cases in which intervenors attempted under the aegis of Section 2.714a to have us examine on an interlocutory basis Licensing Board rulings addressed to what issues would or would not be entertained by the Board.
The complaint of those intervenors was precisely the same as that of the State in the proceeding at bar: namely that, although allowed to intervene, they were not allowed to introduce some of the issues which they thought warranted Licensing Board consideration.
Our uniform response to them was that, even if meritorious, their complaint was premature, i.e.,
its assertion to us must await the rendition of an initial decision.
The identical response is called for in this instance."
3 NRC at 610-611 (footnotes omitted) (emphasis added).
In a footnote appended to the second above-quoted paragraph, the Appeal Board also made clear that Mass. AG cannot argue that a different ruling is in order because its only contention in the current phase of the hearings was excluded.
"Even had the effect of the ruling been (as it plainly was not) to preclude participation by the State on any health and safety issues, we still could not -
have accepted the State's claim that the ruling was the ' equivalent of denying a petition to intervene submitted by a private person.'
That claim appears to rest upon the consideration that, in line with what has now become common practice, the Licensing Board elected to conduct 'two distinct hearings, one concerned with environmental issues and site suitability and the other with radiological health and safety matters.'
But, irrespective of the number of separate hearings, the fact nonetheless remains that this is a single licensing proceeding in which the State has affirmatively participated--to the extent of introducing its own evidence and taking an appeal from adverse Licensing Board findings--on at least some of the matters being litigated.
Thus, the Licensing Board's action cannot be analogized to the denial of an intervention petition of a private person.
Such a denial results, of course, in the petitioner being barred from taking any part in the proceeding other than the making of a limited appearance."
Id. at n.5 (emphasis added).
Here, too, the Licensing Board's order did not alter Mass. AG's status under 10 CFR S 2.715(c) or its concommitant right to participate in the litigation of admitted contentions of other participants.
Nor can any distinction between the case at bar and ALAB-329 be drawn on the theory that Louisiana had voluntarily assumed 10 CFR S 2.715(c) status whereas Mass.
AG once sought and was denied 10 CFR $ 2.714 status and was thus forced into 10 CFR $ 2.715(c) status.
As ALAB-329 makes clear, the key to the right to utilize 10 CFR S 2.714a _
O is a preclusion from participation (other than the making of a limited appearance).
This has not happened to Mass. AG.
It may be argued that the foregoing means that a state never can utilize 10 CFR $ 2.714a because it can always be held that the 10 CFR S 2.715(c) alternative exists.
Prescinding from the issue of whether there always exists a 10 CFR S 2.715(c) right to all states in all cases,18 in this case the right clearly exists for Mass. AG as an affected state.
See Exxon Nuclear Company, Inc. (Nuclear Fuel Recovery and Recycling Center), ALAB-447, 6 NRC 873 (1977).
And no injustice is done by the rule of ALAB-329.
In short, the Commission has said that in exchange for the privileges granted by 10 CFR 6 2.715(c) which gives full participatory rights with no need for taking positions or articulating contentions, a state is denied any individual right of interlocutory appeal under 10 CFR S 2.714a.
There is nothing unfair about this.
28 A state presumably must show that the facility's operation will have some effect on it.
Thus, it is likely that Hawaii would have difficulty attaining 10 CFR $ 2.715(c) status at Seabrook.
II.
THE APPEAL SHOULD BE DENIED ON THE MERITS i
The Mass. AG contention here involved reads as follows:
"The draft radiological emergency response plans for the Towns of Seabrook, Hampton, North Hampton, and Rye do not provide reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency at the Seabrook Station, as required by 10 C.F.R.
$50.47(a)(1), because in the event of a severe accident on a summer weekend some or all of the beach area transient populations within those communities cannot under many plausible meteorological conditions be protected I
by means of evacuation even from early death and because there are not adequate plans or provisions for sheltering the beach area transients w: thin those communities."
l As noted earlier, this proposed centention was first filed on September 9, 1983.
The statement of basis which accompanied it began as follows:
"The draft emergency response plans for i
the Towns of Seabrook, Hampton, North Hampton, and Rye all rely on evacuation and sheltering as the two options for protecting persons present in those communities at the time of a radiological emergency at Seabrook Station which results in a radiological release to areas within those communities.
- See, e.g.,
Seabrook Plan, at II II-18; Rye Plan, at II II-18; North Hampton Plan, at II II-20; and Hampton Plan, at II II-20.
However, a preliminary i
site-specific accident consequence i
analysis performed for the Massachusetts Attorney General has revealed that, given the unusual circumstances associated with dense beach populations, evacuation cannot protect the transient.
1 beach area populations in the vicinity of the Seabrook site from early death in the event of a PWR 2 release as defined in the NRC's Reactor Safety Study (WASH-1400) on a summer weekend."1' There then followed a description of a study which purported t
to demonstrate that if one assumes an evacuation time of five and one-half hours for the " beach population", under various specific scenarios composed of different combinations of release rates, stability classes, wind speeds and " dose scaling factors," an individual would receive a 200 rem dose.
The statement of basis then closed:
"Thus, primary accident consequence data developed for this Department reveal that evacuation cannot under a number of plausible weather conditions protect the summer weekend beach area populations in the vicinity of this site from even early death.
The results. described herein do not account for the less i
severe consequences of radiation illness and delayed fatalities due to latent cancers.
Despite the severe limitations on the utility of evacuation as a protective option for the transient beach population, however, there are currently no provisions for sheltering that population within the EPZ.
Neither the New Hampshire Radiological Emergency Response Plan nor the local community plans contain any analysis of available public sheltering, or its capacity to i
1' Contention of Attorney General Francis X.
Bellotti Relative to Emergency Planning for the New Hampshire Beach Communities (Sept.
9, 1983) at 2-3.
It is noteworthy that by the time this basis (like the contention) was simply refiled verbatim, the plans now at issue were sufficiently changed so that the pages cited in the above-quoted statement have nothing to do with the subject referenced. l l
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accommodat'e the beach populations or to provide shielding from radionuclides, or any plans for effecting such sheltering.
In short, there is at present no basis for (and has not been) any development of sheltering as a potential protective action for the beach population."
What is clear from the foregoing is that the contention was a contention to the effect that (a) everyone cannot be evacuated in time to assure that they never receive a 200 rem dose in all (or at least certain severe) accident scenarios and (b) there is no way to shelter the beach population (short of presumably constructing large shelters) as opposed to evacuating the population.
Therefore, according to the contention unless massive shelters are constructed the plant cannot operate at that site.
These are what the contention and basis were in 1983 and despite two invitations from the Staff to recast or limit the contention,28 these are what the contention and basis remained as of April 29, 1986, when the Licensing Board rejected it.
Both before the Licensing Board and this Appeal Board, Mass. AG now seeks to interpret this contention as being something different than it is.
As ao See NRC Staff Response to " Contention of Attorney General Francis X.
Bellotti Relative to Emergency Planning for the New Hampshire Beach Communities", NRC Dkt. Nos. 50-443-OL, 50-444-OL (Sept. 26, 1983);
Attachment to 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 (March 14, 1986) (pages dealing with Mass. AG).. _ -. -.
drafted and insisted upon, the contention sought to put the plan to judgment by a standard that all persons were to be protected from a 200 rem dose in at least all accident scenarios described in the basis.
And this was to be done either by demonstrating an ability to evacuate within a time certain or to shelter everyone not so evacuable.
This is not the law.
To begin with it is settled that there is no requirement that it be demonstrated that any given population can be evacuated from any given area in any given time.
Cincinnati Gas & Electric Co. (Wm. H.
Zimmer Nuclear Power Station, Unit No. 1), ALAB-727, 17 NRC 760, 770 (1983); Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit No. 2),
ALAB-730, 17 NRC 1057, 1069 n.13 (1983).
It is also settled that the regulation does not require that extraordinary measures be taken to deal with nuclear power plant accidents such as undertaking major construction of new facilities (such as big shelters).
Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3),
CLI-83-10, 17 NRC 528, 533 (1983).
In short, what is required is that what at least approaches the best possible plan given the facilities available be developed.
If the facilities or geographic or demographic characteristics at one site mean that more adverse effects will result from a given course of events than at another - so be it.
Perhaps the best illustration of why Mass. AG's contention was properly excluded begins with the following language from ALAB-727:
"The applicants are equally correct in their insistence that the Commission's emergency planning requirements do not prescribe specific time limits governing the evacuation of plume EPZs.
The matter of the time within which evacuation can be accomplished is left to be determined on a case-by-case basis upon consideration of all relevant conditions prevailing in the specific locality.
But it does not follow, as the applicants would have it, that a particular evacuation plan need not be concerned with the efficiency with which evacuation might be accomplished given the conditions under which it must take place.
Indeed, the Commission clidelines suggest the contrary."
17 NRC at 770 (first emphasis in original; second emphasis is supplied).
Mass. AG's contention leaves no room for judging the plan against the conditions that actually exist at Seabrook.
And it does not seek an exploration of the efficiency of the plan given those specific conditions.
The proposed contention does not contemplate litigating Seabrook "as is,"
i.e.,
given the conditions that actually exist at that site, and it is therefore inadmissible.
It seeks, rather, to litigate in quantitative terms what the siting decision heretofore made under Part 100 means (in terms of potential offsite impact under hypothesized extreme case scenarios).
If admitted, we will presumably hear from the Commonwealth's witness on accident sequences, safety system function, containment failure analysis, source term, and dispersion !
mechanics and impact.
In response, the Applicants would offer their own panel of witnesses on those topics.
That such litigation is what the proposed contention not only contemplates but requires is a further indicium of its inadmissibility: accident consequence analyses are not a part of offsite emergency planning litigation.
In reality what Mass. AG is attempting to do by injecting this contention into the proceeding as to turn the emergency planning regulations into a siting criterion; a test over and above, or in addition to, those set forth in 10 CFR 100.
This is not the purpose of the regulation.
Its purpose is to provide, to the greatest extent reasonably possible, additional " defense in depth" beyond that provided in the first instance by the siting criteria.
At some sites the additional protection possibly will be considerable given the geographic, demographic and political (i.e.
willingness to spend money on emergency equipment) characteristics involved; at other sites it will be less or essentially none.
This makes the latter no less acceptable.
Mass. AG had considerable opportunity to shape his contention within the guidelines of the regulations.
The Staff, in effect, told him how to do it.
He refused and held out for a contention that would judge the plan against a non-site specific set of standards.
As a result the contention was properly rejected..
CONCLUSION The Licensing Board in its decision specifically rejected "that part of the Applicants' argument as to whether the beach population's adequate protection was an issue to be litigated at the siting, not the emergency planning stage.
It is, indeed, the duty of this Board to reach predictive findings that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency for the general public prior to issuance of a license to operate."
Decision at 46 (emphasis in original).
Respectfully, the Applicants fear that our argument to the Licensing Board was not well enough articulated and that, therefore, it was misapprehended.
We do not contend that emergency plans respecting the beach population (or any other segment of the general population) are beyond the scope of the ongoing proceedings.
To the contrary, in those proceedings the Board may and should (assuming an admitted contention) consider whether the l
promulgated plans are implementable (i.e., whether the equipment and resources necessary to carry out what has been 2
planned are available) and whether there are planning alternatives that are likely to achieve an even greater dose savings (i.e., whether the plans should be changed).
All that we believe is barred is a decision (or a contention) to 3
the*effect that, notwithstanding the best plans that may can devise, notwithstanding the resouces to carry them out, and i l
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notwithstanding that the. site has passed the Part 100 siting criteria, Seabrook may never operate at that site because the site is too close to the beach or because under hypothesized conditions offsite doses might exceed some N
unstated level (or that it may not be operated in the absence of extraordinary such as the construction of massive shelters, the construction of new highways or the closing of the beaches).
In short, we do not contend that Part 100 circumscribes the Part 50, Appendix E review'; we contend, rather, that Part 50, Appendix E neither substitutes for, nor overrides, the Part 100 si ting analysis.
The Mass. AG contention should and must be' rejected because at bottom it' is a siting contention, not a planning contention..
The appeal should be dismissed for lack of jurisdiction under 10 CFR S 2.714a; in the event the Appear Board should ree.ch the merits, the decision of the Licensing Board should be affirmed.
Respectfull
- bmitted, 1
.sc/ ~ (ro o)
Thomas G.
Dignan, Jr.
R.
K.
Gad III Ropes & Gray 225 Franklin Street Boston, MA 02110_
(617) 423-6100 Counsel for applicants r
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CERTIFICATE OF SERVICE I, Thomas G.
- Dignan, Jr.,
one of the attorneys for the Applicants herein, hereby certify that on May 30, 1986, I made service of the within "Brief of Applicants on Appeal from the Memorandum and order of the Licensing Board Issued April 29, 1986" by mailing copies thereof, postage prepaid, to:
Alan S.
Rosenthal, Chairman Howard A. Wilber Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Appeal Panel U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Gary J.
Edles Mr. Ed Thomas Atomic Safety and Licensing FEMA, Region I Appeal Panel 442 John W. McCormack Post U.S.
Nuclear Regulatory Office and Court House Commission Post Office Square Washington, DC 20555 Boston, MA 02109 Helen Hoyt, Chairperson Robert Carrigg, Chairman Atomic Safety and Licensing Board of' Selectmen Board Panel Town Office U.S.
Nuclear Regulatory Atlantic Avenue Commission North Hampton, NH 03862 Washington, DC 20555 Dr. Emmeth A.
Luebke Diane Curran, Esquire Atomic Safety and Licensing Harmon & Weiss Board Panel 2001 S Street, N.W.
U.S. Nuclear Regulatory Suite 430 Commission Washington, DC 20009 Washington, DC 20555
- + -
Dr. Jerry Harbour Stephen E. Merrill, Esquire Atomic Safety and Licensing Attorney General Board Panel George Dana Bisbee, Esquire U.S.
Nuclear Regulatory Assistant Attorney General Commission Office of the Attorney General Washington, DC 20555 25 Capitol Street Concord, NH 03301-6397 Atomic Safety and Licensing Shel.o'n 2.
Turk, Esquire Board Panel Office of the Executive Legal U.S. Nuclear Regulatory Director Commission U.S.
Nuclear Regulatory Washington, DC 20555 Commission Washington, DC 2055B Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Board Panel Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O. Bo:: 516 Wachington, DC 20555 Manchester, NH 03105 4
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 & Mc7achern 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 RED 1 - Box 1154 City Hall Kensington, NH 03827 126 Daniel Street 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 I
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Senator Gordon J. Humphrey Mr. Peter S. Matthews 1 Pillsbury Street 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 Gary W. Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03841 Concord, NH 03301 h
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Thomas D. Dip (n, Jr.
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