ML19332F849

Applicant Answer in Opposition to Intervenors Petition for Review of ALAB-924.* Petition Should Be Denied on Basis That Board Found as Fact That Staffing to Cover Decontamination & Reception Ctrs Adequate.Certificate of Svc Encl

ML19332F849
Person / Time
Site:	Seabrook
Issue date:	12/01/1989
From:	Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	NRC COMMISSION (OCM)
References
CON-#489-9562 ALAB-924, OL, NUDOCS 8912190181
Download: ML19332F849 (9)

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umw December 1,'1989 UNITED STATES OF AMERICA '89 DEC -4 P 2 Z6 -

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NUCLEAR REGULATORY COMMISSION *'

.In'the Matter of y,

y1 PUBLIC SERVICE COMPANY Docket Nos. 50-4(~-OL OF NEW HAMPSHIRE, 21 A1 50-444-OL T

(Seabrook Station, Units 1 (Offsite Emergency and 2)

Planning;and Safety:

Issues)

APPLICANT 8' ANSKER IN OPPOSITION TO INTERVENORS' PETITION'FOR REVIEW OF ALAB-924 INTRODUCTION l

M On November 21, 1989, the Massachusetts Attorney General, the Seacoast Anti-Pollution League, the Nuclear Coalition on 1

Nuclear' Pollution.and the Town of'Hampton (collectively q

L "Intervenors") filed with the Nuclear Regulatory Commission L

"Intervenors' Petition for Review of ALAB-924" (hereinafter the t

-" Petition").

The Petition is in three parts and seeks Commission I-review as to three. aspects of the Appeal Board's decision in Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and;2), ALAB-924, 30 NRC (Nov.

7, 1989) (hereafter referred to as "ALAB-924" and cited to the slip opinion).

We address them l

below in the order presented.

PETRE924.S8 8912190181 091201 u)

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ARGUMENT o-l I.

Second Shift Staffing at Decontamination and Reception Centers i

l Part I of the Petition deals with second shift staffing'at Decontamination and Reception Centers.

The Licensing Board found as a f act that there ~was adequate staf fing to cover.the

- decontamination and reception centers.

The Appeal Board concurred.

AIAB-924 at 46-47 n.125.

Thus to the extent thct Intervenors are quarreling with this finding of fact, the matter should not be reviewed under the rule set out in 10 CFR 5 2.786 (b; (4) (ii).

If, as-it Pould seem, the Intervenors are arguing that the requirement should be for staffing for more than "about a 12 hour1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> period" then they are challenging the requirements of NUREG-06S4 Criterion II.C.12.

While it is trua that NUREG-0654 is not a regulation it is, and has beon, for some time, the definitive guidance by which emergency plans are judged by both FEK4 and this agency.

An effort to challenge that guidance in a setting where two adjudicatory boards have been unconvinced as a matter of fact that a departure should be made hardly seems worthy of Commission attention for any reason.

II.

Shelterina of the Beach Poculation.

Part II of the Intervenors' petition deals with sheltering of the beach population.

It is.in three sections.

The first section appears to be an argument the logical conclusion of which is that the Appeal Board should have held that shelters must be V

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' built at.the Seabrook beaches or the license must be den'ied.

That extraordinary' measures, such as wholesale construction of

- shelters, is not required under the emergency planning regulations has been settled law for over five years.

Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-83-10, 17 NRC 528, 536 (1983), rev'd in cart on other arounds, GUARD v. EEE, 753 F.2d 1144 (D.C. Cir. 1985).

)

l Section 2 seems either to be an argument that should already have been.nade in suppart of the Intervenors position on the 4

question certified to this Commission in Public Service Comoanv gf New Hamoshire (Seabrook Station, Units 1 and 2), A LAB-9 2 2, 30 NRC (October 11, 1989) or it is argument in support of the seeking of review of the matter discussed in section 3.

Section 3 seeks review of the Appeal Board's affirmance of the' Licensing Board's exclusion of some late-filed testimony.

A motion to be permitted to file and. introduce testimony late is the quintessence of a matter addressed to the cound discretion of a trial tribunal and reviewable only for an abuse of that discretion as the Appeal Board noted.

ALAB-924.at 69 n.

196.

The Appeal Board, after giving this matter more than' generous consideration, concluded that no abuse of discretion occurred.

l-It is difficult to conceive of a matter less worthy of further appellate review.

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III. Adequacy of the Monitoring capacity Under the NMRERP.

In Part III of the petition the Intervenors seek review of the Appeal Board's refusal to entertain what really amounted to a late filed contention and motion to reopen the record disguised t

as comments on a question asked of the parties by the Appeal Board and filed without even a passing reference to either 10 CFR 5 2.714(a) or 10 CFR 5 2.734.

However, accepting that all that Intervenors were doing was presenting a new argument not presented to the Licensing Board, rather than a whole new contention with new alleged evidence, the question of whether to entertain that argument is a matter committed to the Appeal L

l' Board's sound discretion.'

A discretionary ruling by an l.

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appellate tribunal is not a likely candidate for Commission Review.

Especially is this so where the ultimate issue as to L

which review is being sought is an issue of fact as to which both the Licensing Board and the Appeal Board reached the same L

conclusion.

10 CFR S 2.786(b) (4) (ii).

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' Applicants take frank umbrage at Intervenors' assertion that they." established" certain facts before the Appeal Board.

Petition at 9.

Egg also Petition at 7.

They aroued certain things, unsuccessfully we might add; they hardly " established" them.

Permissible advocacy does have its limits! -

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CONCLUSION po The. Petition,for Review should be denied.

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j RespectfullyLsubmitted,

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+l' ThomW G.'

Digr9ffi, Jr.

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-George H. Lewald'.

Jeffrey P. Trout Jay Bradford' Smith Geoffrey C.

Cook William L. Parker Ropes & Gray s

One International. Place

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Boston, MA 02110-2624 (617) 951-7000 r

Counsel for Applicants J

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l CERTIFICATE OF SERVICE I, Thomas G. Dignan, Jr., one of the attorgy efq $p.u.

' Applicants herein, hereby certify that on Dece2&r

',' 1969, Y made service of the within document by depositing copies thereo'f with Federal Express, prepaid, for delivery to[(or..where' indicated, by depositing in the United States da{11,1first tlass postage paid, addressed to) the individuals listed below:

Kenneth M.

Carr, Chairman Thomas M. Roberts, Commissioner-U.S~.

Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission -

One White Flint North One White Flint North 11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852 Rockville, MD. 20852 James R. Curtiss, Commissioner U.S.

Nuclear Regulatory Commission One White Flint North 11555 Rockville Pike i

I Rockville, MD 20852 Kenneth C. Rogers, Commissioner William C.

Parler, Esquire i

U.S.

Nuclear Regulatory General Counsel i

Commission Office of the General Counsel One: White Flint North One White Flint North 4

11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852 Rockville, MD 20852-G.

Paul Bollwerk, III, Chairman Howard A. Wilber Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel.

Appeal Panel l

l U.S.

Nuclear Regulatory U.S. Nuclear Regulatory l

l Commission Commission l

East West Towers Building East West Towers-Building

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4350 East West Highway 4350 East West Highway i

Bethesda, MD 20814 Bethesda, MD 20814 Alan S.

Rosenthal, Esquire Thomas S. Moore Atomic Safety and Licensing Atomic Safety and Licensing l

Appeal Panel Appeal Panel U.S.

Nuclear Regulatory U.S. Nuclear Regulatory Commission l

Commission l

East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814

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(, ;

.3 Administrative' Judge.Ivan Smith Administrative Judge Kenneth A.

Chairman, Atomic Safety and McCollom

' Licensing Board 1107 West Knapp Street g

U.S.

Nuclear' Regulatory Stillwater, OK 74075 Commission.

East' West Towers Building 4350 East West Highway L

Bethesda, MD _20814 Administrative Judge Richard F..

H. Joseph Flynn, Esquire Cole, Atomic Safety and Office of General Counsel Licensing Board Federal Emergency _ Management

- U. S.1 Nuclear Regulatory Agency Commission 500 C Street, S.W.

East' West Towers Building Washington, DC 20472 4350_ East West Highway Bethesda, MD 20814' Mr. Richard R.

Donovan Diane Curran, Esquire Federal Emergency Management Andrea C.

Ferster, Esquire.

Agency Harmon, Curran & Tousley Federal Regional Center Suite 430-130-228th Street, S.W..

2001 S Street, N.W.

Bothell, WA 98021-9796 Washington, DC 20009 Robert R.

Pierce, Esquire John P. Arnold, Esquire Atomic Safety and Licensing Attorney General Board-George Dana Bisbee, Esquire 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 Adjudicatory File Mitzi A. Young, Esquire Atomic Safety and Licensing Edwin J. Reis, Esquire Board Panel. Docket (2 copies)

Office of the General Counsel U.S.. Nuclear Regulatory U.S.

Nuclear Regulatory Commission Commission East' West Towers Building One White Flint North, 15th Fl.

4350 East West' Highway 11555 Rockville Pike Bethesda, MD 20814 Rockville, MD 20852

• Atomic Safety and Licensing Robert A.

Backus, Esquire Appeal Board Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O.

Box 516 Washington, DC 20555 Manchester, NH 03105 f

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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 John Traficente, Esquire Shaines & McEachern Assistant Attorney General Maplewood Avenue Department of the Attorney J

P.O.

Box 360 General Portsmouth, NH 03801 One Ashburton Place, 19th flocr.

Boston, MA 02108 Chairman Mr. Calvin A. Canney Board of Selectmen City Manager 95 Amesbury Road City Hall Kensington, NH 03833 126 Daniel Street Portsmouth, NH 03601

• Senator Gordon J. Humphrey R. Scott Hill-Whilton, Esquire U.S. Senate Lagoulis, Hill-Whilton &

Washington, DC 20510 Rotondi (Attn Tom Burack) 79 State Street Newburyport, MA 01950

• Senator Gordon J. Humphroy Barbara J. Saint Andre, Esquire One Eagle Square, Suite 507 Kopelman and Paige, P.C.

Concord, NH 03301.

77 Franklin Street' (Attnt Herb Boynton)

Boston, MA 02110 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 Ashod N.

Amirian, Esquire Judith H. Mizner, Esquire 145 South Main Street 79 State Street, 2nd Floor P.O.

Box 38 Newburyport, MA 01950 Bradford, MA 01835 Gary W. Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03842 Concord, NH 03301 F..

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i Marjorie Nordlinger, Esquire Office of the General counsel one White Flint North 11555 Rockville Pike Rockville, MD 20852 l

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