ML20006F473
| ML20006F473 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 02/16/1990 |
| From: | Backus R, Curran D, Greer L BACKUS, MEYER & SOLOMON, HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#190-9910 LBP-89-33, LBP-90-01, LBP-90-1, OL, NUDOCS 9002280068 | |
| Download: ML20006F473 (83) | |
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1 79/b DOCKETED USNRC UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION
'90 FEB 20 P4 :16 1
t ATOMIC SAFETY AND LICENSING APPEAL BOARDy or qgr ru v
,p.
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Before Administrative Judges:
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G.
Paul Bollwerk III, Chairman Alan S. Rosentilal i
Howard A. Wilber l
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In the Matter of
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Docket Nos. 50-44s-OL
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50-444-OL i
PUBLIC SERVICE COMPANY
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OF NEW HAMPSHIRE, ET AL.
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(Seabrook Station, Units'I and 2)
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INTERVENORS' BRIEF IN SUPPORT OF THEIR APPEAL OF LBP-90-1 i
l COMMONWEALTH OF MASSACHUSETTS NEW ENGLAND COALITION ON JAMES M. SHANNON NUCLEAR POLLUTION Leslie B. Greer.
Diane Curran Assistant Attorney. General Harmon, curran, & Tousley Department of the Suite 430 Attorney General 2001 S. Street, N.W.
l One Ashburton Place Washington, DC 20008 Boston, MA 02108 (202) 328-3500 (617) 727-2200 SEACOAST ANTI-POLLUTION LEAGUE Robert A. Backus Backus, Meyer & Solomon l
116 Lowell Street P.O.
Box 516 Manchester, NH 03106
.(603) 668-7272 9002200068 900216 PDR ADOCK 05000443 O
PDR 3
DATED:
February 16, 1990 i
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TABLE OF CONTENTS Page INTRODUCTION.
1 PROCEDURAL POSTURE OF THIS APPEAL 1-PRELIMINARY COMMENT ON SMITH BOARD'S DISPOSITION OF THE EBS MOTIONS 3
ARGUMENT.
8 THE BOARD ERRED IN FINDING THE MOTIONS UNTIMELY 9
ESTOPPEL.
20 LAW OF THE CASE 25 F
THE BOARD'S ANALYSYS OF SAFETY SIGNIFICANCE AND THE LIKELIHOOD OF A MATERIALLY DIFFERENT RESULT 28 THE BOARD'S RULING ON THE LATE FILED CONTENTION i
MOTION.
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CONCLUSION 42
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1 TABLE OF AUTHORITIES CASES
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German v. Universal Oil Products Co.,
77 F.2d 70 (8th Cir.
1935) 27 Hearst Radio. Inc. v. Federal Communications Commission, 73 F.
I Supp. 308 (D.C. Dist. Col. 1947) 26 Sunshine Publishina Co. v. Summerfield, 184 F. Supp. 767 (D.C.
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Dist. Col. 1960) 26 1
United States v. Wheeler, 256 F.2d 745 (3rd Cir. 1988) 26 1
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NUCUAR REGULATORY COMMISSION DECISIONS Lona Island Liahtina comoany (Shoreham Nuclear Power Station, l
Unit 1), ALAB-911 13, 31 l
Lona Island Liahtina comoany (Shoreham Nuclear Power Station, Unit 1), LBP-88-24, 28 NRC 311 (1988) 35 Public Service Comoany of New Hamoshire. et al.,
(Seabrook Station, Units 1 and 2), ALAB-883, 27 NRC 43 (1989) 29 Public Service comoany of New Hamoshire, et al.,
(Seabrook Station, Units 1 and 2), LBP-89-9, 29 NRC 271 (1989) 26, 37 Public Service Comoany of New Hamoshire, et al.,
(Sombrook Station, Units 1 and 2), LBP-89-17, 29 NRC 519 (1989) 26, 28 Vermont Yankee Nuclear Power Corooration (Vermont Yankee Nuclear Generating Station), ALAB-138, 6 AEC 520 (1973) 10, 18 Washinaton Public Pvder Sucolv System (WPPSS Nuclear Project No. 3), ALAB-767, 19 NRC 964(1984) 42
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i REGULATIONS
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10 C.F.R.
l 2.764(f)(2).
2 10-C.F.R. l 2.734 9
i 51 Fed. Reg. 19536 (May 30, 1986) 10
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STATUTES Administrative Procedure Act, 5 USC $704 3
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Hobbs Act, 28 USC 52342 3
Atomic Energy Act, 42 USC 52239(b) 3 f
MISCELLANEOUS Moore's Federal Practice, pp. 59.04(13), 59.06(3)
(2d ed. 1976) 10
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UNITED STATES OF AMERICA r
i NUCLEAR REGULATORY COMMTSSION ATOMIC SAFETY AND LICENSING APPEAL BOARn Before Administrative Judges:
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G.
Paul Bollwerk, III Chairman Alan Rosenthal Howard A. Wilber O:
In the Matter of
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Docket Nos. 50-443-OL
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50-444-OL PUBLIC SERVICE COMPANY
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OF NEW HAMPSHIRE, ET AL.
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O-(Seabrook Station, Units 1 and 2)
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February 16, 1990
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INTERVENORS' BRIEF IN SUPPORT OF THEIR APPEAL OF LPB-90-1 O
INTRODUCTION The-Massachusetts Attorney General-(" Mass AG"), the C)~
Seacoast Anti-Pollution Leagua and the New England Coalition on Nuclear Pollution (the "Intnrvenors") submit this brief in support of their appeal of LBP-90-1.
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PROCEDURAL POSTURE OF THIS APPEAL l
Intervenors again note that they pursue this further
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intra-agency appellste review of the seabrook Idcensing Board's
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(the " Smith Board") actions regarding the full power licensing R
of Seabrook Station to protect their rights to such further I
intra-agency appellate review and not in derogation of their
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rights to have final agency action reviewed in the Court of
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7.ppeals for the District of Columbia Circuit at this time.
Intervenors have only sought further intra-agency review after November 13, 1989 to protect their rights to such review if:
- 1) the Commission (or the Court if and when necessary) were to grant Intervenors' various motions for mandatory relief or 2) the Commission or the Court were to grant Intervenors' pending (before the Commission) and future (before the Court if and when necessary) motions for a stay of the effectiveness of the November 9 license authorization pending the completion of further intra-agency appellate review.M In the event no stay were granted pending the completion of further intra-agency appellate review, and judicial review of the merits of the November 9 license authorization were to proceed, Intervenors would withdraw, terminate or otherwise request that l-intra-agency review be held in abeyance thereby choosing to have tha Court of Appeals review the agency's final licensing action notwithstanding the existence of an i
V _ A atay pending further intra-agency appellate review is one
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possible outcome of the Commission's immediate effectiveness revidew.
If the Commission were to deny I'
Intervenors' requests for a stay and otherwise decide pursuant j
to its immediate effectiveness review that no stay pending
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administrative review is called for thereby lifting the 52.764 e
stay and making the license authorization effective, Intervenors vould then seek a stay from the Court of Appeals.
such a judicial stay could well remain in place pending the completion of kath any further intra-agency appellate process L
that thc Court wishes to permit and Court review of the November 9 action or of any such further agency appellate process (acsuming such further agency review does not moot judicial review by resulting in license revocation),
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intra-agency appellate scheme, just as Congress contemplated-in the Atomic Energy Act ("AEA"), 42 USC 52239(b).A/
PRELIMINARY COMMENT ON SMITH BOARD'S DISPOSITION OF THE EBS MOTIONS 1.
The Intervenors initially brought the withdrawal of the Massachusetts EBS and WCGY to the attention of the Smith Board by means of a notion to file a late contention on the SPMC and reopen the record on October 30, 1989, within ten days of the withdrawal of WCGY.
That motion was accompanied by the af fidavit of Royce Sawyer, the Communications / Warning Officer of the Massachusetts ciull Defense Agency.
After the Mass AG learned that the Intervonors would not be able to sponsor Mr.
Sawyer as an expert witness as had been represented in the motion of October 30, 1989, the Intervenors withdrew the October 30th notion on November 8, 1989.A/
One day after withdrawing that action on November 9, 1989, the Intervenors filed a vil/tdally identical motion accompanied by the affidavit of Robert Boulay, the Director of the Massachusetts Civil 2/. Egg the Hobbs Act, 28 USC'52342 and the Administrative Procedure Act ("APA"), 5 USC $704.
ERR AlR2 Petitioners' (Intervanors') December 18 Opposition to Respondents' Motion to Dismiss filed in the Court of Appeals, Docket No. 89-1743, at 7-15.
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The Mass AG received on February 14, 1990, the Applicants' Response to " Mass AG's Motion to Reopen the Record" regarding the VANS system.
Certain representations made in this Response concerning Mr. Sawyer and the actions of attorneys representing the Mass AG necessitate a reply.
The Mass AG will file shortly a reply to these portions of the Response accompanied by a motion for leave to file such a reply. _ - - - - - _ - - - - - - - - -
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Defense Agency and Mr. Sawyer's superior.
On November 8 at the f
same time the october 30 motion was withdrawn, Attorney John Traficonto telephoned Robert Pierce, Esq. and explained why and under what circumstances the october 30 motion was being withdrawn.
Attorney Traficonte stated that the Mass AG had verbal agreement from Robert Boulay, Director of the Massachusetts civil Defense Agency and Sawyer's superior, that he, Boulay, would testify to matters set forth in the Sawyer Affidavit..Traficonte further stated to Pierce that because it was unclear whether Boulay would be able to sign the affidavit that day (November 8) or the next day (November 9), the Intervenors felt it necessary to withdraw the october 30 filing and would refile it either that day or the next.
Traficonte stated that there was no question that it would be immediately refiled.
Pierce stated that he would communicate these facts r
l and circumstances to the Licensing Board.
(Appendix, Exhibit 1 Traficonte Affidavit submitted in support of December 1 Supplemental Motion to Revoke and Vacate.)
On November 9 the EBS motion was refiled by Express Mail.
(Appendix, Exhibit 2 is a copy of the certificate of Service.)
i Notwithstanding these facts, the Smith Board stated in its decision of November 20, 1989, LBP-89-33:
i This (EBS) motion dated November 9, 1989 and
' served by first class mail that date was received by the Board after LBP-89-32 was rendered (November 9) and served (November 13).
An b
apparently identical earlier motion ith the same i
title was dated October 30, 1989.
The October 30
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l Motion" dated November 8, 1989.
Thus,.it is not motion was withdrawn by a faxed " Withdrawal of literally true that the EBS motion was pending i
before this Board when LBP-89-32 issued.
- However, since no appeal had been taken from LBP-89-32 when the second EBS notion finally arrived, this Board cLatinued to have jurisdiction over it.
The fact j
remains that the Board did not know about the b
November 9 EBS Motion when it rendered the partial i
initial decision, LBP-89-32.
j The Board's assistant had been told precisely what was i
occurring.
The November 9 Motion was filed by Federal Express-I
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and pursuant to 1 3.701 filing is complete upon mailing.
3 Moreover, the important issue presented by the November 9 Motion was already described in detal. in the virtually identical October 30 Motion.
When the PID issued, obviously, there had not yet been a i
response filed to the November 9 filing and also no response
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had been filed by November 8 to the earlier October 30 motion
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when it was withdrawn.
Even by November 20, when it issued its I
" explanation," the Board had-not received the Staff response, h).
Nonetheless, the Board stated in LBP-89-33:-
l the fact that it (the EBS motion) was submitted, withdrawn, and resubmitted, and that the matter is not yet fully briefed indicates that its potential i
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effect of (sic) the outcome of the proceeding ic too speculative to have warranted deferring or l
recalling our decision authorizing a full power l
operating license.
We have nevertheless examined those papers and find nothing sufficiently grave to justify any delay.
LBP-89-33 at 40-41.
Obviously, if the November 9 motion filed even before the PID was docketed meets the applicable standards then Intervenors had A_yicht to litiaate this issue orior to
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j-licensing, of course, that right has now been denied.
The g
enly basis for this denial prior to December 4, 1989, when Intervenors-filed their Petition for Review of the November 9 action with the Court of Appeals, is the last sentence of
-LBP-89-33 quoted above.
Subsequently, when the Intervenors g
obtained the affidavit of another expert, A. Anthony Kelsey, they filed the second EBS notion on November 22, 1989.
Intervenors' rights to litigate material licensing issues g
translated in these circumstances at the very leastM into a right to have the Board address Intervenor efforts to secure a
" hearing", even if after addressing them, the Board were to b
deny admission to the Intervenors' contention.
This is so because a licensing board can not simply ignore pending requests by intervenors for a pre-licensing hearing if those D
requests meet all of the formal requirements imposed by the NRC for getting the legal attention of a licensing board.
Yet such a basic violation of due process is exactly what the Smith 9
Board accomplished when it issued LBP-89-32 with absolutely no discussion at all of the EBS issues.
The only statement concerning these issues appears at 569 n.87, last sentence:
g We shall also explain why the pendency of several motions to submit new contentions does not precluda the issuance of the operating license.
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If the Smith Board were to have admitted Intervenors' EBS contention then Intervenors' rights to a hearing orior to licensina would have expanded to include disoosition of this contention prior to licensing.
Before admission, Intervenors' g
hearing rights under the AEA at least equal the right to have the admissibility decision made before licensing.
The Smith Board denied even this right.
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The promised " explanation" docketed on November 20, 9
1989 (LBP-89-33), of course, did not provide this explanation
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but promised yet another " explanation."
LBP-89-33 at 40.
Moreover, at no time has the Smith Board even addressed, let 3
alone explained, how it thought it could authorize license issuance before decidina candina motions for a hearina.
Had it f
bothered to focus on this issue, the Board would have found D2 (3
cases permitting it simply to ignore or postpone pending I
motions for a prelicensing hearing on issues at the time it issues a decision authorizing a license for the obvious reason that by lanerina or costoonina disposition of such motions it 3
is necessarily denvina these motions de facto.
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Thus, in these circumstances, the Board's bifurcated g
disposition of these issues (sig facto denial and later
" explanation") presents some serious concerns about the status I
of the January 8 decision:
a.
-Intervenors believe that the November 9 licensing y
action is " final agency action" reviewable by the court of Appeals.
The Board had no jurisdiction on January 8 to issue 3
its decision after the Intervencers sought judicial review on i
l December 4, 1989.
The merits of Intervenors' judicial appeal l
of the November 9 action regarding the EBS issues -- that the
- 3 Board sig facto denied Intervenors' motion without any reauons whatsoever -- is obviously affected by the Board's Dost-facto I
rationalization for its earlier actions.
Thus, this Appeal h
Board should strike the January 8 decision as beyond the p D-
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jurisdiction of the lower Board.E/
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In the alternative, this Board should treat the January 8 decision as the post facto rationalization it i
obviously is in light of the circumstances.
No deference on
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j appeal to any determinations by the lower Board is appropriate lest this Board be seen as lending its prestige and authority l
to the " sentence first, verdict later" procedure adopted by the y
Smith Board on November 9 ostensibly in the interest of i
" efficiency."
LBP-89-33 (November 20, 1989) at 38.
The Smith Board could not have reached any impartial decision on the EBS I
motions after November 9 because that would have amounted to an acknowledgement by the Board that it had denied Intervenors' 1
hearing rights in issuing its licensing decision.
The failure to afford the Intervenors an impartial decision on the EBS motions amounts to a denial of due process.
ARGUMENT In denying the EBS motions, the Snith Board held that the motions were untimely and that no saUtty significant issue was
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presented.
Slip Op. at 9, 14, and 29.
Based largely on its finding that no safety significant issue was presented, the Board found that a materially different result not would have 1/
This Board's own authority to strike the January 8 decision is not itself limited by the pendency of the Court of Appeals case, because striking the January 8 decision not only does not n
i interfere with the merits of the case before the Court of j'
Appeals but such action would be taken to orevent an inferior board from potentially interfering with the case now before the Court.-..
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m been likely had the newly profferred evidence been considered initially.
Id. at 30-31.
On similar grounds, the Board found that the five factors to be considered in ruling on a motion to admit a late filed contention weighed against the admission of the contention and bases.
Id. at 36.
For the reasons provided below the Board's analysis on this matter was flawed and its ruling was in error.
THE BOARD ERRED IN FINDING THE MOTIONS UNTIMELY The Sraith Board in holding that the Intervenors' motion to reopen the record was untimely concluded:
Intervenors knew or should have know as early as 1988 that the Massachusetts EBS and the agreement with WCGY was not essential to the method of alerting the public relied upon by NHY.
Id. at 9.
The Board relied upon its finding that the "Intervanors knew or should have known as early as 1988 that the Massachusetts EBS and the acreement with WCGY was not 2
essential" in concluding that the motion to reopen was untimely.
For reasons that will be discussed below the Board's finding on this issue is in error.
Moreover, by basing its
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conclusion as to timeliness on this finding, the Board employed the wrong test for determining whether a motion is timely under 10 C.F.R. 2.734.
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While no specirie test for timeliness is articulated in 10 C.F.R. 52.734 (a) (1), in adopting the regulation the Commission declined to further define timeliness on the ground that it was 7
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already adequately defined under federal practice and NRC case j
law.
In so stating the Commission referenced the essentially identical definitions for timeliness found in 6A J. Moore, Moore's Federal Practice, pp. 59.04(13), 59.06(3) (2d ed.
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1976), and Vermont Yankee Nuclear Power Corocration (Vermont Yankee Nuclear Generating Station), ALAB-136, 6 AEC 520, 523 (1973). 51 Fed. Reg. 19536 (May 30, 1986).
Under that f
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timeliness definition, in ruling on a motion to reopen based upon new evidence a board must determine whether the evidence i
could, with reasonable diligence, have been discovered and i
i presented prior to the close of the record.
If one applies that test to the EBS motions, it becomes patently clear that i
the motions are timely since at the time the record was open y
the Massachusetts EBS and WCGY were cooperating with NHY.
It is irrelevant whether the Applicants were subjectively relying on them or not, since they could, and would under the SPMC, be
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used to provide notification to the public in the Massachusetts EPZ.
At the time the record was open, the Intervenors could not have presented evidence that the EBS as initiated by the Applicants could not provide prompt notification because at that time it was still a useable element of the SPMC.
Under the terms of its contract with NHY and the provisions of the
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SPMC, WCGY could have been used as the gateway station to activate the EBS for the area containing the EPZ.
Only upon the withdrawal of the EBS and WCGY did the notification
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N-if provisions of the SPMC become attenuated to the point that they
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were subject to challenge.
By framing the issue as whether the Intervenors knew. or should have known, that the Applicants were relying primarily
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on WLYT and only looking to the EBS as a " backup" means of providing notification, the Smith Board posed the wrong question.
The issue in the first instance is not whether the Intervenors knew or should have known about the intentions of
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the Applicants, but whether even if the Intervenors had known, gauld the Intervenors have challenged the notification provisions of the SPMC because the EBS was lacking.
The answer to that question is an obvious and emphatic "no."
Regardless of whether the Applicants intended to rely upon the EBS as the primary or secondary means of providing notification, they could still use the EBS to provide notification.
Why the l
Applicants had the EBS included in the SPMC was irrelevant to L
their ability to use it to provide notification.
As long as the Applicants had the cooperation of the Massachusetts EBS and WCGY they could use them to provide notification.
It was only when they no longer had the cooperation did the notification provisions of the SPMC become cubject to challenge on that ground.
Perhaps the best way to understand the timeliness issue in this matter is to ask the question what would have happened if the Intervenors had challenged the notification provisions of
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i the SPMC when the record was still open, er won at the j
inception of the litigation on the SPMC.
Assume for the j
purpose of thi:i exercise that the Intervenors knew that the Applicants relied on WLYT as the " primary" means of providing notifir:ation and challenged that notification means essentially j
on the grounds set forth in Basis B of the EBS contention, i.e.
that only a small proportion of the population in the Massachusetts EPZ listen to that station and pre-emergency information can not be relied upon to ensure that people will turn to that station in an emergency.
Had the Intervenors i
presented that challenge, there is no doubt that the Applicants would have said, and the Licensing Board would have found, that
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the small listenership of WLYT did not make any diffarence to the ability of the SPMC to provide notification because regardless of the defects in using WLYT as a means of providing notification, the Applicants could still use the EBS to provide notification.
A means of providing notification is still a means of providing notification regardless of whether it is called the primary or secondary or back up means.
As long as the means work, it does not matter what you call it.
As long as the SPMC provided for the utility-initiated I
activation of the EBS, there was no purpose in challenging the SPMC's notification provisions in this regard.
As the Applicants through their witness Edward Desmarais have acknowledged, the use of the EBS is the virtually " universally J' '
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accepted" method of providing instructional messages to the general public.
(Appendix, Exhibit 3, Affidavit of Edward Desmarais at 3, submitted by Applicants in support of their Motion for Summary Disposition of emergency planning contentions related to notification and warning.)
FEMA has stated that an emergency plan that provides for participation in a local EBS operational plan is considered satisfactory.
(Appendix, Exhibit 4, FEMA-REP-10 at E-2.
Egg also NUREG-0654, l
FEMA-REP-1, Rev.
1, Appendix 3 at 3-15.)
The Appeal Board has found the use of the EBS to afford adequate notification.
Lan9 Island Lichtina ComDany (Shoreham Nuclear Power Station, Unit 1), ALAB-911, 29 NRC 247, 254-255 (1989).
In short there was no reason to believe that the notification provisions of the SPMC were inadequate as long as the Massachusetts EBS and WCGY i
were participating with NHY.
It was only upon the withdrawal of the EBS and WCGY that the notificatien provisions of the SPMC became deficient and the EBS contention and its bases acquired vitality.
The withdrawal of the EBS and WCGY left the SPMC relying solely on WLYT for notification to the general public.
It is that singular reliance on WLYT that is the deficiency challenged in the EBS motions.
That singular reliance did not develop until October 22, 1989 and the Intervenors could not have challenged it prior to that time.
I Therefore, the EBS motions were timely.
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Instead of focusing on the point at which the Applicants could no longer use the EBS to provide notification, the Smith 13 D
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Board addressed only the question of when the Intervenors knew g
or should have known that the Applicants looked to WLYT as their " primary" means of notification, with the EBS relegated to a "back up" role.
While the question of when the Intervenors knew or should have kn9MD is related to the g
question of when they could have challenged the notification system, its relationship is that of a subset to a set.
It is true that if the Intervanors did not know that the Applicants 9
were relying on WLYT as a their first line means of notification, the Intervenors could not have challenged the SPMC'S notification provisions on that basis.
However, that is g
only one reason that the Intervenors could not have challenged the notification provisions at an earlier time.
In this case, it is not the major reason that the Intervenors could not have g
challenged the notification provisions earlier.
The major reason is that prior to October 22, 1989, the Applicants could have used the EBS to provide notification.
The inclusion of g
utility-initiated EBS in the SPMC rendered its notification provisions unassailable on the grounds of coverage since the EBS is the uniformly accepted means for providing such g
notification.
Even if one accepts for the purpose of argument that the g
the focus of the Smith Board's inquiry was correct and the h
appropriate question was when the Intervenors should have known that the Applicants were planning to use WLYT as their primary
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means of providing notification, the Board erred in analyzing y
even that limited question.
The appropriate standard to apply in making such an inquiry is an objective one, ie when a reasonable man should have known that the Applicants were g
relying in the first instance on WLYT.
However, the Smith Board in makings its finding on this point does not focus on when a reasonable man would have been on notice, but rather relies on the affidavit of George Gram as a basis for its g
findings on this point.
Gram's affidavit does not address when a reasonable person objectively should have known but instead goes to the question of when the Applicants subiectively g
decided to rely on WLYT as the primary means of notifying and relegate the EBS to back up status.
In analyzing the timeliness of the EBS motions, the Smith g
Board stated Resolution of the issue turns upon whether the essential elements of the broad issue could have been litigated earlier, or whether the recent g
events giving-rise to the motions are sufficiently material in themselves to support Intervanors' argument that the motion is timely.
Mr. Gram's affidavit testimony to the effect that g
the commitment to Station WCGY was always viewed by NHY as a backup arrangement has not been disputed.
Id. at 10.
The Smith Board then went on to state that three factors F
are relevant to their assessment on the timeliness of the motion.
The first factor they note is that since the y
supplemental unredacted pages of the REP-10 Design Report that were supposedly sent out in June 1988 refers to WLYT and D
Section 3.2.5 of the SPMC refers to the EBS, in the opinion of the Board the Intervenors timeliness argument must depend on g
the fact that the EBS is referred to at 3.2.5 of the SPMC. Id.
at 9-10.
The Smith Board is wrong in its assessment that the Intervenors timeliaess argument turns on the fact that the EBS g
is mentioned in the SPMC.
As set forth at length above, the Intscfenors timeliness argument turns on the fact that prior to October 22, 1989 the Applicants had the means in the SPMC to initiate the EBS and after that date they did not.
The fact that the EBS is referred to in the SPMC goes not to the issue on timeliness, as the Board states, but rather goes to the issue discussed below of whether the Applicants should be estopped from denying their reliance on the EBS.
The Smith Board while acknowledging that the letter of agreement with WCGY was material, concluded that the repudiation of the letter did not affect the timeliness of the motion because in the Boards'_ view, the EBS could still be promptly activated by the Commonwealth anyway as it discussed in its section on safety significance.
Id. at 11.
Rather than measuring timeliness by the proper standard of whether the Intervenor's could have litigated the issue earlier, the Board determined to measure timeliness by the materiality of WCGY's withdrawal.
As noted above, we must measure timeliness by whether the withdrawal of WCGY is material to NHY's public alerting scheme.
Id. at 12-13.
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In' reaching-this conclusion the Smith Board confused two O-
" *Pt"*llY diff* rent is8ues.
The Proper question on the issue of timeliness is when the evidence and issue became available so that it gg,gld be litigated.
The Board attempts to
- g deal with this issue by saying that the withdrawal of WCGY is irrelevant since the EBS can still be activated.
If the Board was correct in its assumption that the EBS can still be g.
activated in a prompt enough manner to comply with regulatory requirements, it afcht have grounds for asserting that the withdrawal of WCGY is inconsequential since the vithdrawal' would not be likely to lead to a materially different result in
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the licensing proceeding.
However, that-is taking a' conclusion as to the third prong of the motion to reopen standard and trYin9 t use it-t b
t8 trap an answer to the first inquiry of O
7 the standard. -Following the Smith Bocrd's logic, one could conclude that whenever the third prong of th. standard is not met, the first prong is also not met eince the triggering event
-that gave rise to the motion,becomes a-non-event.
In this view i-a triegering' event can be treated as if it never happened g
because it would make no difference to the outcome of the case.
Under the logic of the Smith Board since the triggering event can be ignored as if it did not happen, the motion to g#
reopen is untimely since there was by definition no triggering 3
^
event.
In assessing timeliness, one can not just treat an event as if it never happened simply because you do not think it makes a ettference.
O=
-- kO.
n
.)
~
The Smith Board's logic does not withstand scrutiny.
Not only-is it confusing' apples and orangss, but also it is contrary,to the' clear regulatory intent of thw motion to reopen criteria and NRC case law under the standard.
The criteria in 10 CFR 2.734(b) states that each of the three tests in 10 CFR 2.734(a) must be separately addressed.
There is no indication p
that the Commission intended that every time a motion to reopen failed the third test, it also ipso facto failed the first test of timeliness.
While it may be that failing the third prong of L
the standard will effectively kill a motion, there is no indication that the Commission ever intended the third prong to
("
control the resolution of the first two tests.
Indeed, if that t
j was_the case, the Commission would have put the third prong first and said that unless that prong was established, no further inquiry need be made.
The need to separately address the appropriate tests under'each prong of the standard is in accord with~ established case law.
First, as we have indicated earlier (citations omitted), the board'aust consider: (1) the timeliness of the motion, i.e.,
whether the issues sought to be presented could have been raised at an earlier stage, such as prior to the k,
close of the hearingt and (2) the significance or gravity of those issues."
(Emphasis added.)
AIAB-13 8, supra at 523.
The-second factor that the Smith Board identifies as being
= relevant to the timeliness issue is also irrelevant.
The Smith Board notes that applicable regulatory requirements do not mandate, bt.t rather only suggest,.the use of the EBS as a means
h
~
of making notification, and that therefore, the loss of the EBS-does not in and of itself trigger regulatory failure. Slip. op, at 11.
That factor is irrelevant to the timeliness inquiry because it was never the Intervenors' position that the f
presence of'the EBS in the SPMC was a p.gr na regulatory-requiremont. Rather, the Intervenors' position is the one that the Smith Board so casually assumed away in considering the i
second factor, i.e.,
that the functional coverage and timing.
4
(
requirements-for_ notification are not met without the EBS's and l
WCGY's participation in the SPMC.
l The third factor that the Smith Board found relevant to the I
timeliness inquiry was the Applicants' motivation or purpose L
for including the EBS in the SPMC..Even the Board acknowledged
?
that the relevance of this factor to the timeliness inquiry is k
~ obscure.
Id. at 12-13. More than merely being obscure, it is l
j just plain irrelevant to the appropriate test of whether the q
issue or_ evidence could have been' presented earlier.
An inquiry ~into the Applicants' subiective motivation for including the EBS in the SPMC does nothing to further the real 4
inquiry of whether and when the Intervenors with reasonable diliuence'could have challenced the notification provisions of the SPMC as being inadequate because they are solelv dependent
=on.WLYT.
ESTOPPEL The motivation of the Applicants in including the EBS and WCGY in the SPMC ig relevemt to the issue of whether they 1
_]
- n u
.I i
should-be estopped from denying their reliance on those two.
J j(
entities as'means'of providing notification under the SPMC.
l That appears to be in essence what the-Smith Board was groping
-j to articulate in-its expression of concern that:
)
y' ~
It would be a question of fairness in litigation
)
were: Applicants to take credit for the arrangement in seeking their license, then
.l
. renounce as immaterial the dissolution of that
' arrangement in defending against Intervenors' r
motion. :Therefore we examine carefully the R
p background of the letter of agreement with WCGY.
M. at 13.
However, even in assessing the inue of estoppel, the Smith Board applied the wrong standard.
)-
The Smith Board concluded-that because the Applicants j
included tho'EBS and WCGY in the SPMC for " laudable" reasons
.I the Applicants could properly contest the timelin'ess of the..EBS motions.
M. at 14.
The test for estoppel, however, is not i
' simply whether one party intentionally. sought to deceive 9:
another.
While it is true that if one party ournosefully
' attempts to~ deceive another so that the second-party.will not act,.then estoppel will lie, that is not the only type of action that will give rise to estoppel.
Estoppel can be established if one party through his actions, regardless of his
. motivation, lulls another into inaction.
In this case, regardless of their motivation, the Applicants through their
' actions have created a situation where they can not at this
, point deny that the SPMC relied on utility-initiated EBS for
.providing notification to the general oublic.
y i
y.;
)[
By' continuing to incorporate explicit references to the use of the - EBS~ in the SPMC and by continuing to af firm its. use through' independent representations after the time applicants had allegedly' relegated it to "back up" status, the Applicants j
by their acts created a situation compelling estoppel.
Amendment 6 of the SPMC was adopted on July 28, 1988 and l.>
b incorporated into the plan with an effective date of August-1, F
1988 (Appendix-Exhibit 5.)
That occurred after the FEMA REP-10 report was-filed in April 1988 and even postdates the time when Applicants represent the unredacted pages of the REP-10 report j
were sert in June 1988.
Throughout Amendment 6 reference is
- made not to one radio station (WLYT), but to.the EBS.
The Plan in Section 3.2.5 at 3.2-15 states that the public will be advised to " listen to local radio stations for information'and instructional messages broadcast over the EBS l
radio network."
(Emphasis added.)
Implementing Procedure 2.13 i
(
at 3 references the initials "EBS" as standing for "The I
Emergency Broadcast System."
The Plan, Section 3.2 at 3.2-16 states:
The NHY Offsite Response Director, upon authorization from officials of the Commonwealth of Massachusetts, as described in Implementing Procedure 2.14, Emergency Response Assessment, will direct public notification to be made using.
the Public Alert and Notification System, including EBE.
The Public Notification Coordinator will communicate with the State of New Hampshire and the Commonwealth of Massachusetts to coordinate EBS messages and timing of the Massachusetts. siren system with that of New Hampshire, as feasible.
The lead EBS
}
radio station will be provided with the approved EHE message (s) and instructed to commence L :SJ e
[
broa'dcast.
Concurrent with activation of the F&E, the' Communication Coordinator will activate the siren system which consists of a Vehicular 1
' Alert and Notification System, using the siren t
activation encoder in the NHY Offsite Response EOC.
'(Emphasis'added.)
Section 3.2 does not mention the use of WLYT.
Instead it l
clearly' indicates that notifications will be made using the EBS
" network", not.just one station.
It talks about the
" activation" of the system by having the " lead EBS radio station" commence' broadcasting.
That is precisely the way the EBS works.
In the Merrimack Valley area the lead EBS station, WCGY, by commencing its own broadcast, activates'the tone alert
[
radios-in-the local EBS stations that are tuned to its frequency.
Those local EBS stations in turn rebroadcast the emergency messages over their own wave lengths.
' Apart from the direct references to the use of EBS in the
' Plan, each and every page of the text of I.P.
2.13 at pages 3-9 l
contains references to the use of EBS.
WLYT is not mentioned.
Furthermore, the REP-10 Report states that the EBS-will be the
" primary" means of notification.
(Appendix, Exhibit 6.)
If the provisions of the Plan ~are not enough to estop the Applicants from denying that the SPMC relies on the EBS, their own independent representations certainly should estop such a denial.
In their answers to interrogatories the Applicants never mentioned their reliance on WLYT, but~instead affirmed their use of the EBS to provide notification'. E.gg Attachment C
).
p
.- b,.
a m --.
.-m
-m.-
to the EBS: Motion dated November 22,.1989.
In a similar vein, i
y
>the' Applicants' witness Edward Desmarais in his deposition of Jaly 28, 1988 never mentioned WLYT but'instead stated that notification would be made through the EBS system.
(Appendix,'
Exhibit 7 Attachment to the Jonas Affidavit submitted in opposition to the Applicants Motion for Summary Disposition of emergency planning contentions related to notification and warning.
See accord Appendix, Exhibit 3.) It is noteworthy that both of these events, the answering of-interrogatories on October 25, 1988 and the Desmarais deposition on July 28,-1988, took place after the Applicants claim _to have determined to rely on WLYT and claim to have revealed that fact to the-
.Intervenors.
f~
In attempting to address'the issue of estoppel, the Smith
~
Board became caught up in-a verbal shell game due to the j;
Applicants' statement that they looked to the E'BS as a " backup" L
- means of providing notification.
The Smith Board equated the statement that.the EBS was a backup means with the conclusion
- that the SPMC did not relv on the EBS.
In making this semantic s
misstep, the Board ignored the actual provisions of the SPMC.
While-it is common in emergency planning for backup provisions i
to_be included in a plan in case there is a failure of the primary means of accomplishing some task, that is not the role of the EBS under the SPMC.
-, f cw
-s,,
A backup means to_ accomplish a task is commonly understood to be one that will be used instead of the primary or as a fall back in case the primary misfunctions.
For example, under the SPMC the primary means of alerting and notifying the hearing impaired is-through telephone calls placed by the Special Population liaisons.
I.P.
2.7 at 9.
In-the event that the
~
Special Population Liaison can not reach a hearing impaired person by telephone, the SPMC provides that route guides will be' dispatched to provide that function.
I.P.-2.11 at 5.
Similarly, the SPMC provides for the use of Shriners Auditorium-I as its' congregate care facility for Special Populations.
In the event that-that facility _becomes full, the SPMC will use a facility in Westborough to absorb the overflow capacity.
~
(Appendix, Exhibit 8, Applicants' Proposed Findings on'the SPMC-at 9.1.15).
In the SPMC route guides for the hearing impaired and the overflow use of the Westborough facility both serve as backup provisions.
They will not be used unless the primary means of accomplishing the job fails.
The way that such true backup' provisions are used under the 5
'SPMC stands in sharp _ contrast to the way that the EBS is
~ employed under the'SPMC.
Under Section-3.2.5 of the Plan and
. Implementing Procedure 2.13, the EBS is to be activated in
)
everv instance to provide notification, not just when there is
/
.a failure to contact WLYT, or when some other event prevents notification through WLYT.
Even if one were to assume that the
)'
Applicants. intended the use of the EBS only as a backup notification provision, by providing in the SPMC that the-EBS pH is to be'used each and every time that' notification is called for, they should be estopped from denying that the SPMC relies upon the use of the EBS.
g' Assuming arguendo, that-through the mailing of the unredacted pages of.the REP-10 Poport,_the deposition of Gregory Howard and the cross examination of Edward Desmarais, g:
the ~Intervenors should have known that the Applicants viewed the EBS and WCGY as playing backup roles, by their conduct in having the EBS consistently used under the SPMC to provide B-notification rather than simply as a fail safe mechanism, the Applicants forfeited any right they had to claim that the SPMC-did not rely on'the use of the EBS.
By the provisions of the g;
Plan itself and the Implementing Procedures, the use of the EBS is as much a.part of the notification system as WLYT is.
Therefore, the Applicants.are estopped from' denying they rely g:
on it.
LAW OF THE CASE The Smith Board also erred in finding that the-Applicants
-did not rely on the EBS to provide notification because in so finding, the Board ignored the law of the case and reached a conclusion that is completely inconsistent with the findings of a' Board of coordinate jurisdiction.- The doctrine of law of the case was developed to insure the orderly' administration of justice, prevent forum shopping, and avoid the confusion in the
e yy administration:of1 justice that would result from one 7
adjudicator overruling the rulings of another of coordinate jurisdiction.
3.unshine Publishina Co. v. Summerfield, 184 F.
- Supp.-767 (D.C. Dist. Col. 1960); Hearst Radio. Inc. v. Federal
- Communications Commission, 73 F._Supp. 308 (D.C. Dist. Col.
1947), aff'd on other grounds, 83 App.
D.C.
63, 167 F.2d 225.
In' finding that the Applicants did not rely on the EBS to i
provide notification, the Smith Board ignored the express q
holding of the licensing board'(the "Bloch Board") in Public Service Comoanv of New Hamoshire, et al.,
(Seabrook Station, Units 1 and 2), LBP-89-9, '29 NRC 271, 278 (1989).
f In.that case the Bloch Board stated:
The following are material facts that we find are not in dispute:
~
A.1-a.
The alert function is performed by ucing the tone mode of the siren.
A.1-b.
The Emergency Broadcast System (EBS)' radio broadcasts are-relied upon to provide-the notification function-(i.e., providing
?
information and instructions) to the public.
The Bloch. Board later reiterated that finding in Public Service Comoany of New Hamoshire, et al.,
(Seabrook Station, Units 1 and12), LBP-89-17, 29 NRC 519, 521 at n. 4 (1989).
-The doctrine of law of the case is one of comity that should be followed unless there is a showing of exceptional E)
-circumstances such as a showing that the first finding was
)
' clearly erroneous.
United States v. Wheeler, 256 F.2d 745 (3rd
=
Cir. 1988); German v. Universal Oil Products Co.,
77 F.2d 70 (8th Cir. 1935).
In this. case not only has there been no 2
- u.-
1 n
f showing that the-Bloch Board finding was clearly erroneous, but p
the overwhelming weight of the evidence shows that the Bloch-Board was correct in its finding.
As discussed above'the provisions of the SPMC resound with g
references _-to reliance on the EBS to provide notification.
Why-have provisions requiring authorization from the Governor permitting the' utility to activate the EBS unless the EBS is to h
activated?
REP-10 Report at 14 on 1-4, Attachment B to the
]
Nov. 22 EBS motion.
Gregory Howard in his deposition made an explicit distinction between notification by a plain emergency g
message and notification by the activation of the EBS.
(Appendix, Exhibit 9, SPMC MAG Ex. 126 at 157-160.)
The SPMC is replete with references to the use of "EBS" messages to provide notification, % t just emergency messages.
Why does the SPMC refer to the "lgad" EBS. station if there is only one station?. Plan, Section 3.2 at 3.2-16.
What-other g
stations is WLYT_ going to " lead" if it is the only one relied on in the-SPMC as asserted by the Applicants?- The use of the-word " lead" implies that some other radio stations will follow gn in carrying out the notification process. That is how the EBS
< works.
Hypothesizing that the term " lead EBS station" refers to'WLYT_ acting on its own is not consistent with the plain-meaning of the word " lead".
Why does the REP-10 Report refer P
to " activation of the Massachusetts EBS network" if only WLYT is relied upon to make notification?
Attachment B to November P
- k
ll 22 EBS motion.
A " network" is by definition a linked ~
y
' association of more than one entity.
It confounds the-normally understood meaning of the word " network" to assume it is referring to only one station a the Applicants propose.
The g
Bloch Board was more than justified in finding that the SPMC relied on the use of the EBS to provide. notification.
- Indeed, the Bloch Board specifically referred to the Applicants own evidence as a basis for its finding that:
g The Applicants rely on the 'EBS radio network for providing information and instructional messages.
Desmarais Affidavit, Attach. D at 3 of 23.
I LBP-89-17, 3.ugIn at 286.
Had the Smith Board evaluated the evidence in an impartial light, it would have come to the same conclusion:as the Bloch Board.
As it is, regardless of the Smith Board's perspective, it was still obliged to follow the-law of the case as
' determined by the Bloch Board.
'THE BOARD'S ANALYSIS OF SAFETY SIGNIFICANCE AND THE LIKELIHOOD OF A MATERIALLY DIFFERENT RESULT While the Board purports to address the Isrr i whether a g
safety significant~ issue is presented in the EBS motioas, in fact, it never really touches on this issue at all.
Instead the Board became hopelessly confused between the second and third criteria of the motion to reopen standard.
In essence, the Smith. Board found that no safety significant issue was
s i
5.
- presented by the motion ~because, in the opinion of the Board,
- 3 despite'WCGY's withdrawal, the Massachusetts EBS could still be usedJto make notification in compliance with regulatory requirements.
That finding, however, really addressac the 3
question posed by the third prong of the motion to reopen standard rather than the second.
While it may be that, if one
._ ere to accept the opinion of the Board that the EBS can still w
be promptly activated in spite of WCGY's withdrawal, the new 3
l issue presented would not make a materially different result.
I likely, however, that does not answer the question of whether a 3:}
significant safety issue is presented.
The discrete question that is posed by the second prong of the record reopening standard is whether the allegations contained in the EBS contention present a significant safety
_m issue.
In short, those allegations are that the Applicants will not be able to provide notificaclon-to the public in the Massachusetts EPZ in accordance with regulatory requirements.
The inability to provide such notification has been held to
=
present a significant safety issue.
2 A
Extended discussion should not be necessary with regard to the obvious safety significance that attends upon compliance with the Commission's regulation designed to provide'the members of the public located inside the EPZ with "early notification and clear instructions" in the event of a radiological emergency.
(Footnote 4
omitted.)
Public Service Comoany of New E1 Hamoshire, et glz_(Seabrook Station, Units 1 and 2), ALAB-883, 27 NRC 43, 50 (1988).
+
N
-/
i The~ Saith Board does not appear to have understood thatLthe second prong of the motion to reopen standard'is not concerned
.with whether there can be a " quick fix" for the issue raised, but rather, the test is-the whether the issue-presented is one dealing ~with safety as opposed to a nonsafety issue.
An example of-a nonsafety issue might be whether there are an adequate number of handicap accessible bathrooms in the congregate care facilities that are to receive the special needs population.
Assuming there are at least some suitable bathrooms, the inadequate number of such bathrooms presents an inconvenience, but that inadequacy.probably could not be characterized as presenting a " safety" issue.
A safety. issue is one that poses a real threat to life or property.
The inability to provide notification presents just such an issue because itiposes the threat that people at risk during an emergency.will not be informed of what protective actions to take.
Instead of dealing with the second prong directly, the Smith Board side stepped the issue by treating it as a
" fixable" one-that can be dealt with by the activation of the EBS through the Commonwealth.
The fact that a problem may be
" fixable" addresses the question of whether the-problem would lead to a materially different result,' not whether a safety, as opposed to a nonsafety, issue is presented.
In this case, the
'second prong of the motion reopen standard was met because the 1
i
)
A i
a
- s
. 4, g~
l w,
motion-presented on-issue'that as a matter of law under 1
ALAB-883 1s safety significant.
3
= -
Finally, the third prong of the standard can not be disposed of by the " quick fix" that the Smith Board latched
'g Lonto. 'The notification problem presented poses _two separate issues that must be addressed to meet regulatory requirements.
First, there has to be assurance of notification coverage.-
gg There muut be reasonable assurance that the people at risk in the EPZ will actually hear _the notification.
FEMA Guidance calls for assurance of reaching 100's of the population within 5 g
miles of plant within 15 minutes.
NUREG-0654, Appendix 3 at 3-3.
The EBS is the accepted means of providing assurance that all the people who need to hear the notification will do so.
-3 NUREG-0654, II.E.5.
Under that guidance, the use of the EBS would assure adequate coverage of the target population in the EPZ.-
However, the use of the EBS without a hardware link up to
)
WCGY does not provide assurance that notification can be accomplished in the requisite time. -In contrast, the use of WLYT with its dedicated ring down circuit to NHY can be looked g
.to accomplish the fifteen minute requirement, but not the j
, coverage requirement.
The problem presented is that there
'needs to be assurance of both a 15 minute notification and coverage to meet the regulatory requirements.
P After initially stating that it saw no difference between the situation presented in this case and that in Lona island 4
_g Lichtina Comoany (Shoreham Nuclear Power Station, Unit 1),
i
_ S'
.p
[,'__
, t:
ALAB-911, suora, the : Board went-on to admit there there is one -
difference between the cases.
That difference is the issue
-presented by.the lack of assurance that the notification can be made in a timelv fashion through the state EBS.
(Slip Op. 22).
The Board's first response to consideration of this problem was to postulate that such a problem will be fixed by the Commonwealth after a license issues.
The Smith Board asserts that'it is incomprehensible that the Governor would allow an inability to reach WCGY by telephone to impede notification and "that nothing will be done about it."
Id. at 22-23.
The clear e
implication of the Board's assertion is that it presumes that i
after an operating license issues, the Governor will arrange to have a dedicated phone line put into WCGY.
Tha Board directly affirms its reliance on a post-license "fix" to solve the time problem when it states:
5 JWe also reject the notion that officials of the Commonwealth of Masschusetts will continue to refuse copies of the generic prescripted EBS
. messages called for in nureg-0654 because they have refused to plan for an emergency at Seabrook.
Id. at 25.
i The Smith Soard erred in relying on post-licensing " fixes
- as providing reasonable assurance that notification can be made in a timely manner using the state EBS.
It is gross speculation to assume that at some point in the future the state will do something to fix the inadequacies in the Yt J. l....
' G _'.
e
. iI; utility's plan.
A speculative future act can not present 9
- reasonable assurancesat the present time, the Bogrd's second attempt to fix the timeliness problem was to postulate that the Commonwealth would activate the EBS through WROR.
In the Board's view that cured the problem that the Governor could not' reach WCGY in a timely manner.
While there is no question-that the EBS could be activated through WROR, there has been no assessment as to how long it will take to get the. message to WROR.
The fifteen minute clock starts at t
the time approval is given by the Governor.
The only assessment of the time it will take to get out a message on the state EBS through WROR is the one coritained in the EBS Operational Plan.
That assessment is that it will take 8 minutes to gat the-EBS messages downstream from WROR to the local'EBS stations.
Boulay Affidavit, Exhibit 1 at 2.
That assessment only addresses how long it will take for the CPCS-1 stations to receive the WROR transmisrlon and rebroadcast to
' the local EBS stations (referred to in the Operational. Plan as
" primary") and have the local stations, in turn, receive the
~ message-and rebroad:ast it on their airways.- The assessment doesinot address how long it will take to actually get a
' massage to WROR.itself before the 8-minute process can begin.
Presumably, to comply with the 15 minute requirement, there has to be reasonable assurance that a. message would be on WROR's airwaves within-7 minutes because according to the Operational I
I
- 33
.a m
Q$
1
-Plan it-will.thtD take 8 minutes to get'an emergency message out on the local EBS station's airwaves.
However, there is no information in the record or affidavits to provide assurance that a messageDcan be transmitted to WROR within 7 minutes of
- the Governor's approval.
The thought is essentially a simple one and worth belaboring only because the Smith Board apparently did not comprehend it.
Because there has never been an assessment of how'long it would-take to get an emergency message from NHY or the Governor out over the EBS when activated through WROR, there is no assurance-it can occur within "about" 15 minutes.
While the Massachusetts Operational Plan contains an assessment of how'long it will take a message to get on the local EBS stations once WROR commences its transmission (8 minutes),
there -is absolutely no assessment as to how long it will t.ake to get a message onto WROR's air waves in the first place.
Part of the problem in even attempting such an assessment stems-from the fact that there are no provisions in the SPMC by whichLto formulate an assessment.
There are no provisions in the SPMC spelling out the-steps that would be taken to accomplish an activation through WROR.
One cannot begin an evaluation of how long such steps will take, if one does not g-know what steps will be taken.
In a Seabrook emergency, any activation of the EBS through WROR will have to take place on an ad hp_q basis.
This stands in contrast to the Shoreham case g
where LILCO adopted provisions in its plan to utilize the state 0; F.
4 EBS.
Lona Island'Liahtina ComEADY (Shoreham Nuclear Power 3
Station, Unit 1), LBP-88-24, 28 NRC 311, 319-320 (1988).
~
However, for the purpose of argument, assume that the activation could take place in one of two ways.
The first is that the Governor who already has the emergency message since he approved it, could try to transmit it directly to WROR.
The problem here,-however, is the same as exists if he were to try to transmit it directly to WCGY.
While presumably he could find an operable telephone, there is no more assurance that he f
could get through to WROR via commercial telephone than there is that he could reach WCGY.
The Bassett affidavit indicates that on: occasion all of WCGY's phones are busy. -There is no reason to think the same phenomenon does not occasionally occur at WROR.
The same problem would exist if NHY, the other party 3
with knowledge of the emergency message, tried to reach WROR directly by commercial telephone.
of course,-it can be presumed that the Governor would use
)
[
his best efforts to try to reach WROR or WCGY.
- However, without any evidence of proper hardware such as a dedicated phone line being in place, there is no assurance that his best g
efforts would be successful within 7 minutes.
The second obvious way that the Governor or NHY might try to activqte the
-EBS through WROR is by having the Massachusetts civil Defense Agency ("MCDA") transmit the message to WROR.
That would mean the Governor or NHY would presumably have to transmit the jg message to MCDA in Framingham, and it would have to record that
=,JD
~a
u l
~
message and retransmit it in turn to WROR.
That procedure interposes at least one additional time consuming step in-the notification procedure, and makes it highly unlikely that a message could reach WROR's airwaves in 7 rtinutes of the
' Governor's approval.
~
The only indication that is in the record of how long it might take to get a message onto one station's airwaves is the recitation in the FEMA Graded Exercise Report that during the
. June 1988 Graded Exercise it took 10 minutes to get a message onto the original receiving station's airwaves in a simulated controlled input broadcast.
Attachment D to the callendrello Affidavit submitted in support of the Applicant's Answer.
If that-time period is transposed onto a scenario postulating the activation of the EBS through WROR, it indicates that even if
-the Governor or NHY were to reach WROR directly through commercial telephone it would take 10 minutes from the Governor's approval to get the message on WROR's airwaves.
Obviously, if the EBS was activated by the Governor going through MCDA to transmit the message to WROR, it would take even longer than 10 minutes since an additional transmittal step would be interposed.
Since even a 10 minute time period would exceed the 7 minute allowance, the regulatory time period of 15 minutes would be exceeded by the time the notification
. as transmitted downstream onto the airwaves of the local EBS w
p
' stations.
Furthermore, even that 10 minute period derived from
)
1 I
. 36 -
~
n the exercise demonstration is predicated upon the use of s
7 prerecorded messages,being available at the station initially receiving the message since that was the posture of WLYT in the exercise.
Since the activation of the EBS through WROR has never been 7
tested for a Seabrook emergency, there is no assurance that it can be accomplished within the required time period.
The Smith Board erred in finding that the 8 minute time period mentioned
=
j in the Massachusetts Operational Plan provided assurance of meeting the 15 minute time requirement because it ignored the question of how long it will take to get the message onto WROR
[
in the first place.
M. at 28-29.
Neither the Applicants nor the NRC Staff submitted any affidavit that refutes the statements in> Robert Boulay's affidavit.
There exists a factual issue whether notification can be made through a state activation of the EBS within 15 minutes.
Therefore, the Smith Board erred in finding that a materially different result was
)
not likely_because the state EBS can effectuate timely notification.
M. at 30.
Furthermore, the law of the case is that the utility-
)
initiated use of the EBS to make notification is a " material fact" in reaching a conclusion that adequate prompt notification can be made.
The Bloch Board held that the use of the EBS was a " material fact".
LBP-89-9, supra at 278.
Since the Bloch Board found it to be a " material fact", it is by l
e I
.m. )
e
w-
....J L
definition a fact that was relied upon by that Board in g
reaching its conclusion in LBP-89-17 that the SPMC provides reasonable assurance of prompt notification.
The negation of the existence of a material fact that was a predicate for the Bloch Board's decision makes it likely that a materially g
different result would have been arrived at in finding the SPMC's notification provisions to be adequate, since the Bloch-Board relied on the use of the EBS, under the doctrine of law of the case, the Smith Board could not hold that the use of only.WLYT provided reasonable assurance of adequate notification and made a materially different result.
unlikely.
Indeed, in the section of the Smith Board's decision entitled " Materially Different Result" the Smith Board does not even mention reliance on the use of only WLYT as a basis for
.its finding that a materially different result was not likely.
Therefore,-presumably even the Smith Board did not rely on the use of only.WLYT as a "fix" for the withdrawal of the EBS and g
WCGY.
The Smi.th Board did refer in that section to the fact that it had previously found the SPMC to be adequate.
Slig Qg at g
29-30.
However, neither in the litigation of the SPMC nor the litigation of the June 1988 Exercise was'the use of only WLYT
'to provide notification at issue.
As discussed above, it could not have been at issue until the withdrawal of WCGY in October 1989.
The basis of the Smith Board's finding that, "NHY's
^
ability to provide public notification within 15 minutes has 4 '
D
.been ' exercised and fully-litigated'" is at best obscure.
L at 16.
The Smith Board in its decision references the Applicants Answer at 12-13.
However, the Applicants Answer at that cite does not reference the basis for the assertion.
. Presumably, the assertion could be based upon either the litigation of the VANS contentions that culminated in the Bloch Board's decision in'LBP-89-17 or upon the litigation of the June 1988 FEMA Graded Exercise before the Smith Board.
In
'either case, it has not follow that the sole use of WLYT to provide notification was litigated and found to be adequate.
As stated above the Bloch Board explicitly relied on the-use of the EBS and the singular reliance on WLYT as a means of notification was never an issue in the SPMC litigation because the EBS was always to-be concurrently used to make notification until october 1989.
Had the sole-use of WLYT to provide notification been at issue,.a materially different result in the outcome of the SPMC litigation would have been likely.
The sole'une of WLYT would not have been given the presumption of adequacy accorded by a FEMA finding since FEMA found that the SPMC relied on the use of the EBS.
FEMA's review of the SPMC, App. Exh. 43C in the SPMC record at 24, quoted in the EBS motion of November 22 at 13.--As discussed in the EBS motion of November 22 at 13-14, I
relatively few people listen to WLYT and pre-emergency information cannot be relied on to assure they will find that st; station.on their radios and be notified in the event of an-emergency. _Therefore, it is unlikely that notification by using WLYT-alone would be found adequate.
There is also no presumption that the state activation of the EBS is adequate.
FEMA never found such an activation to be adequate under its review of the SFMC planning provisions or in its finding on the June FEMA Graded Exercise.
In the first instance, the SPMC's plans do not have any provisions to implement the state's activation of the EBS,.so there could not have been any FEMA finding on the matter.
Secondly, during the Graded Exercise, FEMA made its evaluation based upon a Mode-2 full demonstration where the NHY offsite Response Organization undertook full
=
~
responsibility for_ implementing all emergency provisions.
Therefore, there was no demonstration of a state EBS activation
_d in that exercise.
The Board's Rulino On The Late Filed Contention Motion
_3 The-Smith Board denied the Intervenors' Motion to Admit a late filed Contention largely on the same grounds that it
~
denied the Intervenors' Motion to Reopen the Record.
For the y
same reasons that'the Board's decision was in error on the-
-recordcreopening motion, the Board was also in error on its findings on the Motion to Admit a Late Filed Contention.
As i
addressed above, the motion was timely.
The Board erred in finding that the delay that would be g
occasioned by the admission of the contention weighed against l D
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its admission.
In so finding, the Board relied on a representation of the Intervenors in the EBS motion of Novembec 9 that a further filing was referenced as expected.
142 at 33.
In fact, the further filing that was expected was the second EBS motion filed on November 22 as the Intervenors' Motion to Add an Additional Basis.
Long before the Board's decision on January 8, 1990 filings on the EBS issue were complete.
The Board's finding on this issue was without foundation.
Indeed, had the Smith Board simply admitted the EBS Contention and reopened the record in November 1989, it is likely that hearings could have been held and litigation on this issue would have been complete by this date.
As to the fifth factor the Smith Board erred in applying the test it used to evaluate that criterion.
The Smith Board found that Intervenors were not likely to contribute to the development of a sound record because it found " factual deficiencies in the Intervenor's argument."
141 at 35.
The Board then went on to describe how it found the merits of the evidence to be offered by Robert Boulay and Anthony Kelsey to be lacking.
1d2 at 35-36.
The Board improperly rejected the EBS contention based upon a premature determination of the merits of the factual issues that the contention sought to present.
Such a rejection of a contention based upon the merits of the evidence amounts to a prejudgment of an issue without affording the Intervenors an opportunity for a hearing 8
- ) _ _ _ _ _......
y n
on the matter.
As. stated in both EBS actions, the Intervenors' net the proper test for this criterion set-forth in Washinaton Public' Power Sunniv System (WPPSS Nuclear Project No. 3),
ALAB-767, 19 NRC 964,-985 (1984).
)I CONCLUSION For the foregoing reasons the Smith Board's decision in LBP-90-1 was in error.
The decision of that-Board should be reversed., The EBS contention and additional basis should be i.
admitted, and the record reopened.
Respectfully submitted, COMMONWEALTH OF' MASSACHUSETTS SEACOAST ANTI-POLLUTION LEAGUE JAMES M. SHANNON d
.LY ~k. ktbes ele t$
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Leslie B. Greer ~
Robert A.
Backus Assistant Attoreny General Backus, Meyer & Solumon Nuclear Safety Unit 116 Lowell Street One Ashburton Place P.O. Box 516 Boston, MA- 02108 Manchester, NH 03106 (617) 727-2200 (603)'668-7272 NEW ENGLAND COALITION
- ON - NUCLEAR POLLUTION i
9}t1utru blurn.,-
.LJb CL 1
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Diane Curran, Esquire
'Harmon, Curran & Tousiey l
.2001 S Street, N.W.
' Suite 430 Ji Washington, DC 20009-1125 j
(202) 328-3500 1
4 DATED: ' February 16, 1990
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APPENDIX
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EXHIBIT 1 f;,
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s UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION-Before the Commission:'
y:
Kenneth M. Carr, Chairman L
Thomas M.-Roberts, Commissioner Kenneth C. Rogers, commissioner
.j James R. Curtiss, commissioner
)
In the Matter of
)
Docket Nos. 50-443-OL
)
50-444-OL-l"
-PUBLIC SERVICE COMPANY
)
(Emergency Planning Issues) l-OF NEW HAMPSHIRE, EI AL.
)
(Seabrook Station, Units 1 and 2)
)
December 1, 1989 i'
)
i AFFIDAVIT OF JOHN TRAFICONTE
.I,. John'Traficonte, do make oath and state:
F 1.
. I am an Assistant Attorney General in the Commonwealth
(.
of Massachusetts'and Chief of the Nuclear Safety Unit in the Department of the Attorney General.
2.
On occasion counsel in the Seabrook proceeding have communicated with the Licensing Board'on various matters
[3"
'through Robert Pierce, Esq., a legal assistant to that Board.
This process has-the approval-of the Board.
'3.
On November 8 at or around 11:30 a.m.,-I telephoned 9:
};
<Mr. Pierce in Washington from my office in Boston to discuss two distinct matters:
- 1) I wanted to explain the circumstances of a " Notice of Withdrawal" of an earlier filed October 30 g,
1
t Intervenor Motion to Reopen the Record ("EBS Motion") which I was'having faxed.to the Licensing Board at the time of.my call; and 2) I. wanted to state Intervenors' desire and need.for the scheduling of-a pre-hearing conference with the Board and h
parties to address the impact of AIAB-924 which I had received the previous day.
4.
With-regard to the first matter, I explained the circumstances surrounding Intervenors' witness Royce Sawyer's decision (finally confirmed by me by telephone at around 10:00 a.m. that day) not to participate further in the Seabrook l
proceeding by testifying at any subsequent hearing.
During this discussion, Pierce used the accurate expression that
~
Sawyer had simply "gotten cold feet" about getting involved in the Seabrook case.
After explaining that Sawyer's superior, Robert Boulay, had agreed to sign a virtually-identical affidavit, I stated to Pierce that I was unsure whether Boulay would be in my office later that day or early the next to sign it.
In these circumstances, I stated that Intervenors believed it technically appropriate to withdraw their October 30 EBS Motion, since their earlier affiant was no longer available, i
and simply file another EBS Motion immediately upon obtaining the'Boulay signature.
I told Pierce that Intervenors proceeded in this way because they anticipated that if Intervanors offered a substitute, although virtually identical, affidavit on November 8 or November 9 without the accompanying legal )!
di
.-..a.....
.. ~.. -. -...
a j
1
. paraphernalia now required -- full discussion of the motion to reopen and late-filed contention' standards has been required of l
aygry document or pleadina amendment filed,-pursuant to the' Licensing Board's' September 26 " Unauthorized Pleadings" Order
-- th$y-anticipated that the Staff, Applicants and the Board j
would characterize it as an " Unauthorized Pleading" and.
summarily disregard it..
I stated that the simplest solution k
appeared to be a withdrawal and a new filing of the: identical motion,.although I' indicated that I was aware that the I,
L timeliness of this new filing could then be challenged.
I told Pierce that;I would file the new pleading that day or at the
{
latest the next day.
Pierce told me he would communicate'the substance of our conversation to the Licensing Board.
S '. -
With regard to the second matter, I stated that r
i
.Intervenors believed it was appropriate as soon as practicable to have-a pre-hearing conference to discuss the impact of U
AIAB-924~ on the course of the proceeding.
In.this regard, I told Pierce that I had heard a rumor that morning from a third party.that the NRC Staff. intended to request that the' Board issue a Seabrook license authorization notwithstanding f
AIAB-924.
I asked Pierce directly whether the Staff had mado l
such a request.
He laughed,-indicated surprise concerning such a request and stated that no such request had been made to the 23oard.
I then told Pierce that Intervanors obviously would wish to be heard prior to any licensing action regarding.- _ -
W 2
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AMB-924's'. impact on the Board's capacity to issue a-license.
Pierce.again' laughed and stated that that seemed obvious to him.. Then, Pierce told me again that he would communicate ay-i.
requests to the Board.
6.
The following day, November 9, I prepared and faxed to 4
5 the Board a formal request for hearing in light of AMB-924.
In this document, I repeated-some of the statements I had made y
to Pierce the day before.
I indicated that Intervenors
,1 i
[
believed that-AMB-924 required further hearings on the i
adequacy of the NHRERP and also affected any decision that might issue on the adequacy of the SPMC.
I did not make any l
express reference or otherwise repeat my oral request to Pierce concerning'Intervenors' desire to be heard on the issue of the Board's capacity to issue a license notwithstanding AMB-924, because I' inferred from the responses Pierce made to my i-questions concerning the Staff's purported request, that the p'
Board did not have any intent at that time to issue a license, d
]
i Signed under the pains and penalties of perjury this 1st
}
day of December, 1989.
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EXHIBIT 2 i
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UNITED' STATES-0F AMERICA NUCLEAR REGULATORY CoNMISSIoN ATOMIC SAFETY AND LICENSING BOARD Before.the-Administrative Judges:
QJ
-Ivan W. Smith, Chairman Dr. Richard F. Cole l
Kenneth A. McCollua I'
E In the Matter of
)
)
Docket Nos. 50-443-OL PUBLIC SERVICE COMPANY
)
O OF NEW MAMPSHIRE, Et M.
)
50-444-OL
)
-(Seabrook Station, Units 1 and 2)
)
).
._ ).
November 9, 1989
.{
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CERTIFICATE OF SERVICE L
I, Leslie B. Greer, hereby certify that on Nov L
ember 9, 1989, I made service'of.the within INTERVENORS' MOTION
}'
. CONTENTION AND REOPEN THE RECORD ON LATE FILED-t:
-WITHDRAWAL OF THE. MASSACHUSETTS E.B.S. NETW\\
-Express-as indicated with (*) and by first class mail to:
ral l
- Ivan.W. Smith,' Chairman Atomic Safety & Licensing ~ Board
- Kenneth A. McCollum I
LU.S. Nuclear Regulatory 1107 W. Knap t
Commission Stillwater, p.St.
OK 74075 East West Towers Building 4350~ East. West Highway
- Docketing and Service Bethesda, MD 20814 U.S. Nuclear Regulatory Commission Washington, DC 20555
-*Dr.. Richard F. Cole g
-Atomic Safety & Licensing Board Paul.McEachern, Esq.
'U.S. Nuclear = Regulatory Commission Shaines & McEachern East West Towers Building 25 Maplewood Avenue 4350' East' West' Highway P. O. Box 360 Bethesda, MD.20814 Portsmouth, NH 03801
).
~
_ _ -. _ _ ~.. _ _. _ _ ~. -._ - - - - - - - - ~.
3
'O -
- Robert'R.-Pierce, Esq.-
Atomic Safety & Licensing Board
- Thomas G.
U.S.
Dignan, Jr., Esq.
East-West Towers Buildin9 Nuclear Regulatory Commission Katherine Selleck, Esq.
Ropes,& Gray 4350 East West Highway One International. Place Bethesda, MD O
20814 Boston, MA 02110 F
H. Joseph Flynn Esq.
Assistant Genera,l Counsel Office of General Counsel
- Mitzi A. Young,-Esq.
Edwin J. Reis, Esq.
Federal Energency Management U.S. Nuclear Regulatory Agency O
Commission 500 C Street, S.W.
Washington,'DC Office of the General-Counsel-20472 15th Floor 11555 Rockville Pike 1
Atomic Safety & Licensing Rockville, MD 20852 J
d Appeal Board i
Robert A. Backus, Esq.
(.
U.S. Nuclear Regulatory Backus, Meyer & Solomon 1
'c Commission Washington, DC 116 Lowell Street 4
20555 P.O. Box 516 j
i_
Atomic Safety & Licensing Board Manchester, NH 03106 i
U.S.
Washington, DCNuclear Regulatory CommissionJane Doughty
'O -
L' Seacoast Anti-Pollution League 20555
\\
5 Market Street Charles P. Graham, Esq.
Portsmouth, NH 03801 Murphy & Graham
)O 33 Low Street Barbara St. Andre Esq.
Kopelman & Paige,,P.C.
Newburyport, MA 01950 77' Franklin Street q
Boston, MA 02110 Judith H. Mizner, Esq.
.79 State Street R. Scott Hill-Whilton, Esq.
I 2nd Floor
!O -
Newburyport,-MA Lagoulis, Hill-Whilton 01950
& Rotondi 79 State Street Dianne curran Newburyport, MA
-01950 Harmon, curran,,Esq.
t o
& Towsley-Ashod N. Amirian, Esq.
L Suite 430 145 South Main Street 2001-S Street, N.W.
P.O. Box 38 i
Washington, DC 20008 Bradford, MA 01835 Senator Gordon J. Humphrey U.S. Senate Senator Gordon J. Humphrey I
Washington, DC 20510 one Eagle Square, Suite 507
.(Attn: Tom Burack)
Concord, NH (Attn:
03301 4
Herb Boynton)
- O 45 m
--3
=-
~-
3 --
C..'
office of the Attorney GeneralJohn P. Arnold, Attorney 25 Capitol Street phillip Ahrens, Esq.
1-Concord,~NH 03301 Assistant Attorney General-.
Department of the Attorney E
General
- 3x William S. Lord Augusta, ME 04333 Town Hall - Friend Street-Board of Selectmen
(
i Amesbury, MA 01913 i
,h COMMONWEALTH OF MASSACHUSETT JAMES M. SNANNON ATTORNEY GENERAL i
i, 3
[.
J i-Leslie B. Greer g
Assistant Attorney General
~
Nuclear Safety Unit
- L!
One Ashburton PlaceDepartment of th l
)
Boston, MA 02108-1698
\\
(617) 727-2200' t
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DATED:
November 9, 1989 k
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EXHIBIT 3 1
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September 17,-1988 i
UNITED STATES OF AMERICA i
E NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING BOARD l
)
In the Matter of
)
)
'PUBLIC SERVICE COMPANY OF
.)
Docket Hos. 50-443-OL-1
/-
-NEW KAMPSHIRE, et al.-
)
50-444-OL-1
)
(On-Site Emergency' L
1
)
Planning and Safety (Seabrook Station, Units 1 and 2)
)
Issues) l'
)
I i.
AFFIDAVIT OF EDWARD W. DESMARAIS 1.
I, Edward W. Desmarais, being on oath, depose and say as follows:
1.
.I am a member of the-Independent Review Team for i
u L.
New Hampshire Yankee.
Since January of 1988 I have had
)
. responsibility as Project Manager for the Massachusetts s
(
..public Alert and Notification System.
A statement of my professional qualifications is attached hereto and marked "A."-
2.
The purpose of this affidavit is to address allegations in: Contention Bases A.1, A.5, A.9, A.10, A.11, B.
)-
1, B.3-and B.4.
The allegations I address are: (1) message coverage will not'be provided at the sound pressure levels required in NUREG-0654 (2) the tirae needed to accomplish the i;
..m..-
y 4.
As provided in the Design Report for Seabrook Station at.page 2-14,-dual Whalen WS-4000 sirens are employed on the VANS vehicles.
As also provided therein, at page 2-15, these sirens are capable of functioning as either a siren
)-
or a public' address device.
The Design Report, at page 2-6, clearly states "the siren tone is used to provide the alert function at all siren locations" (copies of pages 2-6, 2..-
)
[?
and 2-15 attached and marked "C").
5.
The SPMC does not contemplate the use of sirene in Y
'the message mode.
The use of only the siren tone to provide the alert function for VANS is consistent with the concept of operations described in the SPMC in Section 3.2.5 (copy attached and marked "D").
SPMC Section 3.2.5 also describes 7-when and under what circumstances the siren alerting tone
. 1 5'
will be'used.
L S.
In order to eliminate potential confusion rega:eding the theoretically potential use of the siren's public addreas mode, Section 3.6.1.E of the SPMC was revised in Amendment 6, deleting.any reference to'this mode of operation.
7.
Under the SPMC, and~as stated in the FEMA-REP. 10 Design Report at pp. 1-2 and 2-6, the means for obtaining information and instructional messages is via the universally accepted'use of EBS radio broadcasts. (See Also NtmEG-0654, Rev 1, Appendix 3, Concept of Operations at 3-2)
Thuc the i
public address capability of the sirens is not being used to j-satisfy any regulatory requirement.
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$'diskdTm FEDERAL EMERGENCY MANAGEMENT AGENCY l
Guide for the Evaluation of l
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Alert and Notification Systems n
E for Nuclear Power Plants i
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CHAPTER 1 NUREG-0654/ FEMA-REP-1, Revision 1, PLANNING STANDARD E -
NOTIFICATION METHODS AND PROCEDURES Plannino Standa rd E in NURBG-06 54/PEMA-REP-1. Revision 1.
recui res that t
" Procedures have been established for notification, by the o
l licensee of State and local response organizations and for notification of emergency personnel by all response organ-izations; the content of initial and followup messages to response organizations and the.public has been established; and means to provide early notification and clear instruc-tion.to the populace within the plume exposure pathway Emergency Planning zone have been established. "
Evaluation Criterion E.5 in Plannino Standard E reauires that:
" State and local government organizations shall establish a system for disseminating to the public appropriate infor-mation contained in initial and fcilowup messages received i
f rom the licensee including the appropriate notification to appropriate broadcast media, e.g., the Emergency Broadcast Syst em ' (EBS). "
)
. E. 5.1
_ Areas of Review Evaluation Criterion E.5 addresses the system (s) used to dis-i seminate information to the public during a nuclear power plant
- emergency.
The review under Evaluation Criterion E.5 ensures-that responsible state and local government organizations have adequate administrative procedures to communicate appropriate l
information to the public and that the physical capabilities
. exist to disseminate this emergency information.
The public will generally be informed by some form of broadcast media.
All appropriate media are encouraged to participate.
E.5.2 Acceptance criteria An acceptable emergency plan under Evaluation Criterion E.5 should describe a system of disseminating information to the Public that meets the following criteria:
E-1
u
- 1. Lists the broadcast. stations and broadcasting systems that are to be selected so' as to ensure that:
Transmission signal (s) are of adequate strength within the coverage area under review; and Capability exists to broadcast of ficial inf ormation
).
24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> a day, 7 days a - week.
If a selected station does not have a backup power supply., then an i
alternate station should be identified and included in. the emergency plan.
- 2. Depicts procedures and individual responsibilities for each ' organization and commitments between agreeing parties to' honor these responsibilities in case of an
~,
of f site radiological emergency.
These procedures should address activation authorization and designate individ-uals, by title, responsible for notification system 1
. activation.
Actual. authentication codes should not be y
identified.
- 3. Ref erences or includes some form of documentation, available: for review,. that states the station's or o
broadcast system's ability to participate in _the -public-notification process.
The emergency plan should identify, by title, points of contact accessible 24 f
hours a day, 7 days a week.
Participation in a " Local 1
Emergency Broadcast System Operational Area Plan" is 1
considered satisf actory.
1
- 4. Clearly-defines intervals f or broadcasting of ficial-
'information statements for each class of nuclear power plant emergency action level.
It is recommended that n
the maximum broadcast interval be no more than 15
. minutes' (for of ficial inf ormation during actual general:
emergencies) until the emergency is-declared of ficially to be over.
[f
- 5. Includes a commitment that the Emergency operations Center (EOC) or the media center will have the-F capability to monitor the broadcast of. of ficial information messages (radio and television).
Incorrectly transmitted information should be immediately identified to the station (s) by the EOC's authorized point of contact.
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.4-i SEABft00K PLAN FOR MASSACHUSETTS 00088281 TIES IMPLBENTING PROCEDURES MANUAL D'
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Date:
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Dir cfor' of Ese ncy Response 7
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SEABROOK STATION
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PUBLIC ALERT AND NOTIFICATION SYSTEM FEMA-REP-10 DESIGN REPORT New Hampshire Yankee O
April 30,1988
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' PLANNING STANDARD E - NOTIFICATION METHODS AND PROP
~
EVALUATION CRITERION E.5: Notification Methods The primary means of disseminating information and instructions to tr, public is through broadcast of messages over the Emergency Broi - ;ast System (EBS), a network of commercial radio stations. New Hampshira and i
Massachusetts portions of the EPZ are covered by separate EBS networks.
--- ~.
In the event that occurrences at Seabrook Station lead to an emergency classification of ALERT, the EBS stations in both states are put on standby.
The New Hampshire EBS stations may, at the ALERT Level, be activated for issuance of instruction for precautionary closing of beach areas. At the SITE AREA EMERGENCY or GENERAL EMERGENCY level, broadcasts over the EBS are activated for both Massachusetts and New Hampshire in conjunction with siren activations.
In addition to providing public information and instructional messages, the EBS networks in both states are used in supplementing the siren system coverage for alerting of institutions in the EPZ. These institutions will be offered tone-alert radio receivers that will be activated by a two-tone signal over the EBS network.
The use of institutional tone-alert radio receivers to supplement siren system coverage is discussed more fully-in Chapter 2. Section E.6.2.4.2.
New Hampshire EBS Network In New Hampshire, the Seacoast Operational Area Common Program Control Sta-tion (CPCS) is WOKQ.
WOKQ, a 50,000-watt FM station broadcasting at 97.5 MHz from Dover, NH, operates 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> per day, seven days a week, and is equipped with a backup power supply.
As the CPCS, WOKQ is responsible 1-2
T.-
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y
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EXHIBIT 7 i
D'-
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D-I I
i
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9
f r
e 2
Volume: I 3
Pages-1-199 Exhibits: See Index 4
UNITED STATES OF AMERICA 5
NUCLEAR REGULATORY COMMISSION Before The 6
ATOMIC SAFETY AND LICENSING BOARD P
7 x
8 In The Matter of 9
9 PUBLIC SERVICE COMPANY OF 10 NEW HAMPSHIRE, et al.
(Seabrook Station, Unito 1 and 2)
No.
50-443-OL-1 11 50-444-OL-1 12 x
13 DEPOSITION of EDWARD DESMARAIS, a witness called by counsel for the Commonwealth of 14 Massachusetts, taken pursuant to Rule 30 of the p
Massachusetts Rules of Civil Procedure before 15 Michael D. O'Connor, Registered Professional Reporter and Notary Public in and for the he 16 Commonwealth of Massachusetts, at the Offices of the Attorney General, One Ashburton Place, Boston, g de 17 Massachusetts, on Thursday, July 28,
- 1988, JQ commencing at 9 52 a.m.
$Ijf IB
- e.,g.
'jjf 20
)gSFd DORIS M.
JONES & ASSOCIATES, INC.
21 Professional Shorthand Reporters s
59 Temple Place 22 Boston, Massachusetts 02111 g ;t (617) 542-0039 23 (M
4
~
24 e
1 e,w i
T
I h
144 t
g}
$1_
Massachusetts to provide some. type of alerting or
^
2 public-warning, type of message as dictated by those 4
I-
- 3' government agencies or offices.
]
I 4
Q.-
Does one.or more of the VANS sirens cover-5 public beach areas?
n 6
A.
Yes.
).--
i 7
Q.
Will the public address capability be 8
called upon for use for that stren?
9
-MS.
SELLECK:
Are you asking him-to predict 10
.whether someone will request it?
4 11 MR. JONAS:
Let me ask a different l
)1 1 21
-question.
1
-13 Q.
You said that New Hampshire Yankee wouldn't 14 on its own use the public address capability of D-15 these sirens in the event that they have to become i
16-deployed and-used?
17 A.
That's correct.
b; 18-Q.
Is that uniformly true'with respect'to all 19 16-acoustic locations?
pt 20 A.
That is correct.
h-q 21:
Q.
Even for those that cover the public beach
'1 e
1 22 areas?
I'
'23 A.
That is correct.
1
- 24 Q.
Under this scheme, how is it that the
>s
p; 145 u
E-1-
public obtains information in instructional messages e
2 inEthe event of an emergency?
3
.A.
That's' cited in the design report and also D
4~
cited in the staff response positions to your 5
motions, and that the conventional and accepted 6
industry practice is to use the EBS stations to 7
provide public informational messages.
8 Q.
That's what New Hampshire Yankee intends to D
'9 have done for these VANS 7 10 A.
That's correct.
It is consistent with 4
i
'll industry practice.
In fact, let me cite from Page D
12-1-2 of the REP-10 Design Report.
13 "The primary means of disseminating
'14 information and instructions to the pub'lic is pi l
15
- through the broadcast of messages over the emergency 16 broadcast system, a network of commercial radio i
i g'
17 stations.
New Hampshire and Massachusetts portions-18
'EPZ are covered by separate EBS network."
19 Q.
How is it that the public will know to tune 1
20 into the EBS upon hearing the siren?
t there have not been 21 A.
There will be 22-distributed public information brochures, which will D
23 provide those instructions, f
24 Q.
They will be distributed to whom?
e on rys
-ve,
_s,,
g,.
0-I 146 O
1 A.
They will be posted in public places.
They j
2 will also be distributed to the residents of the O
4 Q.
I take it, then, that New Hampshire Yankee 5
is relying upon the people at the beaches who may C
6 not have otherwise received this information to read 7
it off of a posting?
8 A.
I wouldn't presume how they would read or 0-9 obtain the information.
I'm indicating the accepted 10 practices for disseminating that information, and 11 that is to publish it and post it in public places.
12 Q.
Is there any special means that New 13 Hampshire Yankee proposes to provide that
-Q 14 information to the public beach population?
15 A.
In what sense?
16 Q.
Other than posting in public places and (I
17 sending it to residents?
18 MS. SELLECK:
What information are you 19 talking about?
O'
)
20 MR. JONAS:
The information to tune into an 21 EBS radio statio.
when you hear a siren.
22 A.
None that :'m aware of.
O 23 Q.
Do you know who the owner is of Staging 24 Area No. $?
O-
.,,... ~ ~ -. -.
i 164 1
the Commonwealth of Massachusetts to sound the 2
wirens, he can, in essence, activate the system, 3
which would prearm the sirens while in transit to 4
the acoustic locations, and as soon as they are in
)
place and operable, then the sirens would 6
automatically activate.
7 If the sirens travel out to the acoustic 8
locations, are in place and in an operable position 9
and at sometime ubsequent to the short-term 10 emergency director being relieved by either the site 11 emergency director or the off-site response director 12 and having authorization from the appropriate 13 official, he can then activate the siren system.
14 Q.
Later on in the design report, and I think 15 elsewhere as well, you describe 16 A.
I do have one more thing to add to that.
17 Part of the activation of the siren also includes 18 the dissemination of the public information message 19 through the EBS system, and that's also factored 20 into the notification process.
So it is sounding 21 the sirens and delivering the prescribed EBS 22 messages.
23 Q.
Elsewhere in the design report and in other 24-documents you use the term " deployment time,"
J nnois v.
TONES & ASSOCIATES, !NC.
l
l EXHIBIT 8 m
j J
l
)
{
)
July 19, 1989 UNITED STATES OF AMERICA i
NUCLEAR REGULATORY COMMISSION t
)
before the ATOMIC SAFETY AND LICENSING BOARD h
In the Matter of
)
PUBLIC SERVICE COMPANY
)
Docket Hos. 50-443-OL OF NEW MAMPSHIRE, at Al.
)
50-444-OL
)
(Seabrook Station, Units 1
)
(offsite Emergency and 2)
)
Planning Issues) i-
)
i 1
T APPLICANTS' PROPOSED FINDINGS OF FACT, RULINGS OF IAW, AND CONCIRSIONS WI' lit RESPECT i
i To Tut SEAamooK PLAN FOR NASSAC50SETTS l
i CONNUNITIES AND TER EXERCISE CONTENTIONS Thomas G.
Dignan, Jr.
George H. I4wald Kathryn A. Selleck Jeffrey P. Trout Jay Bradford Smith Geoffray C.
Cook 8-William Parker I.
Ropes & Gray one International Place i
Boston, MA 02110-2624 (617) 951-7000 g.
counsel for Applicants O
,.. ~.. _ _
_.._..,m...,-~
i I
9.1.15.
While the SPMC relies on Shriner's as the I
primary congregate care facility for special populations, should the Auditorium reach capacity, space for additional i
evacuees would be provided utilizing a portion of the space
,3 at the Westboro Congregate Care Center in the New England Power Company's facility, which has an ARC certified capacity of approximately 2,063 people.
App. Reb. No.
6, ff. Tr.
21049 at 67.
I f
9.1.16.
At the same time, Applicants are pursuing the identification of nursing homes and other special j'
facilities outside the EPZ which could serve as congregate care host facilities for evacuees from like facilities in the l
EPZ communities.
Where possible, NHY will seek to effect 3
cooperative agreements between individual EPZ facilities and l
host facilities to provide for the direct transfer of L
i evacuated individuals during an emergency.
App. Reb. No.
6,
'J ff. Tr. 21049 at 67.
j 9.1.17.
Should any of these individuals, such as nursing home patients, and other special facility residents, require more than custodial care (i.e., medical supervision),
they will subsequently be moved from the congregate care i
y facility to other facilities as soon as the Red Cross, in conjunction with the special facility staffs, can make suitable arrangements for their relocation.
App. Reb. No.
6, 3
ff. Tr. 21049 at 67-68.
T
-181-O s
+
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).
I
?
EXHIBIT 9
)
)'
)
)
):
p
~~~
D
)
1 i
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 2
ATOMIC SAFETY AND LICENSING BOARD 3
Before the Administrative Judges 4
Ivan W.
Smith, Chairman Gustave A.
Linenberger, Jr.
5 Dr. Jerry Harbour 6
)
IN THE MATTER OF
) Docket Nos 7
PUBLIC SERVICE COMPANY
) 50-443-OL OF NEW HAMPSHIRE, ET AL.
) 50-444-OL 8
)
(Off-Site EP)
Seabrook Station, Units I and 2
)
9 l
10 11 12 DEPOSITION OF GREGORY HOWARD, 13 a witness called on behalf of the Commonwealth of 14 Massachusetts, taken pursuant to the provisions 15 of the Massachusetts Rules of Civil Procedure, 16 before Teresa Sciaba, a Notary Public and 1
17 Registered Professional Reporter in and for the 18 Commonwealth of Massachusetts, at the offices of 19 The Attorney General, One Ashburton Place, 20 Boston, Massachusetts, on Wednesday, November 16, 21 1988, comnencing at
.O 00 a.m.
22 i
23 CCPLEY COUPT REFORT!NG
.0.
Tre ont Street 24 Boston, Massachusetts 02108 (617) 423-5841
=
_ _ ~.
~1 1
i 1
157 V
i
("
1 indicates to develop independently an EBs 2
message?
3 A.
Yes.
4 Q.
And do you ha"e any memory as to what 5~
that had.to do with, what the circumstances of
)
s f7-6 t h a *, drill weret.
7 A.
To the best of my recollection, I wes f
8 called upon to independently develop a message J
J 9
concerning sheltering farm animals and dealing
)
10 with appropriate hand 1Ang of food stuffs.
{
11 generally directed toward farmers.
This was
)
12' obviously well after the zone had been e"acuated.
13 Q.
All right.
Then on page 7,
Exhibit i 1
14 indicates that you're to obtain approval of the i
]
15 ESS. message from tne offsite response director?
16 A.
Paragraph D?
-t 17 Q.
Paragraph D, yes.
All right.
- Now,
'8 you'il see that procedure 5.1.11 (C) at the end 19 of that paragraph indicates that you are to L
20 quote, Advise the announcer whether the message 21 is to ne preceded by the ISS activation
)
22-announcement and tone."
Could you explain that 23 sentence?
- 24 A.
That has to do, to the best of P. y D.
-s.
. (
.s>
s.
'c
+
158 I
t 3
L 1
racollection, that has to do with whether or not i
l 2
the ORO has-legal authority from the State of
. +
I P
3 Massachusetts to implement the emergency i
);
i 4
broadcast' system.
5 Correct me if I'm wrong, but my y-6 understanding is that only the governor of i
7 Massachusetts or his representative has the i
f 8
authority to implement the emergency broadcast l
3
.h 9 system for.this state.
If we don't have his i
10 authority, we can't use the sirens or the tone.
i
'11 Q.
You can't use the sirens or the tone?
D L
12 A.
We can use the tone, we can't use the i.
i f
113 MS. SELLECK:
I would move to l
l-
'r i
14 strike the legal conclusions of the witness or r3 15 object to any questions that
- 16 MR. TRAFICONTE:
He's answering the l
,i I
.O
~
17 question.
Are you going to object to his 18-answer?
Let the record reflect counsel objects
[
19 to her witness' answer.
lD I
20 MS. SELLECK:
Your follow-up 21 question.
22 MR. TRAFICONTE:
I didn't make it 23
- yet, j
i 24 MS. SELLECK-I believe you had a 4-l
.w
- - - - - - - - - - - - - - - - - - - - - - ^ ^ -
~
s y
159
)
follow-up question after which he was continuing 2
his answer.
3 Q.
Now, let me just make sure I understand i-4 what your testimony'is.
This sentence then runs
-l
- 4..
S to the circumstances in which you had not 1
6 received that authority, I take it, and therefore
(
7 L
8 A.
Yes.
9 Q.
And therefore you would be advising the i
I L
10 announcer not to play the tone or implement a l
11 tone?
f'
- t.
i 12 A.
Not o designate it as an emergency 7
I l'
13 broadcast system message, in that case, it will
'i 14 be designated a Public Service message.
- l l-15 Q.
I see.
r l-16 A.
Same message, different designation.
17 Q.
I see, okay.
It could be the same, it I-18 could be any one of the messages that you've 19 decided"to formulate in line with these i
20 procedures, but it came down to this point, and
]
,)
21 you're communicating with the EBS station this i
22 procedure advises you or instructs you to advise l
)
l 23 the station as.to whether it's an EBS message or
-24 not?-
~
160 (1
A.
- Yes, t
'2 Q.
Well, let me ask this, who would have I:
3 advised you whether the EBS system is to be ie triggered or not?
S A.
- he director or hf.s assistant who is 6
interfacing with Massachusetts government.
7 Q.
Okay.
Now, let's imagine that you were l 8 being told by that person that ORO had received 9
the necessary legal authority, a,, 10 A.
- Yes, D
'11
-Q.
I take it then that this procedure would 1
12 instruct you to advise the radio station that it 4.
13 is to be preceded by the EBS activation l 14 J
announcement tone?
i l15 A.
Correct.
.I16 Q.
How do you understand the radio D
1 let me 4
17 withdraw that.
How's the radio station going to
'.1 8 know whether or not legal authority has been 4
I
)
19 delegated to your organization and to you?
I
.20' A.
My understanding is that they don't have 21 to know, they take what ! say on faith, they rely (22 on me.
23 Q'.
And what is the basis of that I
2 41 understanding?
m--
i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
)
ATOMIC SAFETY AND LICENSING APPEAL BOARD l
Before Administrative Judgest l
G.
Paul Bollwerk III, Chairman Alan S. Rosenthal
)-
Howard A. Wilber i
t
)
In the Matter of
)
Docket Nos. 50-443-OL
)
)
50-444-OL PUBLIC SERVICE COMPANY
)
OF NEW HAMPSHIRE, EI &L.
)
)
(Seabrook Station, Units 1 and 2)
)
February 16, 1990
)
g CERTIFICATE OF SERVICE a
o I, Leslie B. Greer, hereby certify that on February 16, 1990, j
I made service of the enclosed INTERVENORS' BRIEF IN SUPPORT OF THEIR APPEAL OF LBP-90-1 via Federal Express as indicated by (*),
and by first class mail to:
Ivan W. Smith, Chairman Kenneth A. McCollom Atomic Safety & Licensing Board 1107 W. Knapp St.
U.S. Nuclear Regulatory Commission Stillwater, OK 74075 East West Towers Building
)-
4350 East West Highway Bethesda, MD 20814 Dr. Richard F. Cole Robert R.
Pierce; Esq.
Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S. Nuclear Regulstory Commission U.S. Nuclear Regulatory Commission East West Towers k.uilding East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 k
1
~
- Docketing and Service
- Thomas G.
Dignan, Jr.
U.S. Nuclear Regulatory Commission Ropes A Gray Washington, DC 20555 One International Place
)
Boston, MA 02110
- Mitzi A. Young, Esq.
Phillip Ahrens, Esq.
Edwin J. Reis, Esq.
Assistant Attorney General U.S. Nuclear Regulatory Commission Department of the Attorney General Office of the General Counsel Augusta, ME 04333
)
11555 Rockville Pike, 15th Floor Rockville, MD 20852 H. Joseph Flynn, Esq.
Atomic Safety & Licensing Assistant General Counsel Appeal Board Office of General Counsel U.S. Nuclear Regulatory Commission
)
Federal Emergency Management Washington, DC 20555 Agency 500 C Street, S.W.
l Washington, DC 20472 Robert A. Backus, Esq.
Atomic Safety & Licensing Board
)
Backus, Meyer & Solomon U.S. Nuclear Regulatory Commission 116 Lowell,stest Washington, DC 20555 P.O.
Box 516 Manchester, NH 03106 Jane Doughty.
Diane Curran, Esq.
)
Seacoast Anti-Pollution League Harmon, curran & Towsley Five Market Street Suite 430 Portsmouth, NH 03801 2001 S Street, N.W.
Washington, DC 20008 Barbara St. Andre, Esq.
Judith Mizner, Esq.
Kopelman & Paige, P.C.
79 State Street 77 Franklin Street Second Floor Boston, MA 02110 Newburyport, MA 01950 Charles P. Graham, Esq.
R. Scott Hill-Whilton, Esq.
Murphy & Graham Lagoulis, Hill-Whilton & Rotondi 33 Low Street 79 State Street Newburyport, MA 01950 Newburyport, MA 01950 Ashod N. Amirian, Esq.
Senator Gordon J. Humphrey 145 South Main Street U.S. Senate P.O.
Box 38 Washington, DC 20510 Bradford, MA 01835 (Attn:
Tom Burack)
Senator Gordon J. Hurphrey John P. Arnold, Attorney General One Eagle Square, Suite 507 Office of the Attorney General Concord, NH 03301 25 Capitol Street
)
(Attn:
Herb Boynton)
Concord, NH 03301 D
R/
{
DOCKET 50 i
UNITED STATES OF AMERICA USNRC p
NUCLEAR REGULATORY COMMISSION f
ATOWIC SAFETY AND LICENSING APPEAL BOAR @ FEB 20 P4 :16 l
Before Administrative Judges (mCE CF SECRETIRV 90CKEli4C A Sf 6(VICf.
i G.
Paul Bollwerk III, Chairman W NCH L
Alan S. Rosenthal lJ Howsrd A. Wilber
)
In the Matter of
)
Docket Nos. 50-443-OL
)
50-444-OL
,s PUBLTC SERVICE COMPANY
)
OF NEW HAMPSHIRE, ET AL.
)
)
(Seabrook Staticn, Units 1 and 2)
)
February 16, 1990
)
g CERTIFICATE OF SERVICE I, Leslie B. ureer, hereby certify that on February 16, 1990, I made service of the enclosed INTERVENORS' BRIEF IN SUPPORT OF THEIR APPEAL OF LBP-90-1 via Federal Express a0 indicated by (*),
and by first class mail to:
Ivan W.
Smith, Chairman Kenneth A. McCollom Atomic Safety & Licensing Board 1107 W. Knapp St.
U.S. Nuclear Regulatory Commistsion Stillwater, OK 74075 East West Towers Building 4350 East West Highway
)
Bethesda, MD 20814 Dr. Richard F. Cole Robert R. Pierce, Esq.
Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Cormission East West Towers Building East West Towers Building I
4350 East West Highway 4350 East West Highway I
Bethesda, MD 20814 Bethesda, MD 20814 0
3
)
l
- Docketing and Service
- Thomas G.
Dignan, Jr.
U.S. Nuclear Regulatory Commission Ropes & Gray Washington, DC 20555 One International Place
).
Boston, MA 02110
- Mitzi A. Young, Esq.
Phillip Ahrens, Esq.
)
Edwin J. Reis, Esq.
Assistant Attorney General 1
U.S. Nuclear Regulatori Commission Department of the Attorney General Office of the General Counsel Augusta, ME 04333 11555 Rockville Pike, 15th Floor
]
Rockville, MD 20852 H. Joseph Flynn, Es'].
Atomic Safety & Licensing Assistant General Counsel Appeal Board Office of General Counsel U.S. Nuclear Regulatory Commission
).
Federal Emergency Management Washington, DC 20555 i
Agency 500 C Street, S.W.
]
Washington, DC 20472 Robert A.
Backus, Esq.
Atomic Safety 4 Licensing Board Backus, Meyer & Solomon U.S. Nuclear Regulatory Commission 116 Lowell Street Washington, DC 20555 P.O.
Box 516 Manchester, NH 03106 Jane Doughty Diane Curran, Esq.
)
Seacoast Anti-Pollution League Harmon, Curran & Towsley Five Market Street Suit:s 430 Portsmouth, NH 03801 2001 S Street, N.W.
Washington, DC 20008 Barbara St. Andre, Esq.
Judith Mizner, Esq.
)
Kopelman & Paige, P.C.
79 State Street 77 Franklin Street Second Floor Boston, MA 02110 Newburyport, MA 01950 Charles P. Graham, Esq.
R. Scott Hill-Whilton, Esq.
Murphy & Graham Lagoulis, Hill-Whilton & Rotondi
)
33 Low Street 79 State Street Newburyport, MA 01950 Newburyport, MA 01950 Ashod N. Amirian, Esq.
Senator Gordon J. Humphrey i
145 South Main Street U.S. Senate P.O. Box 38 Washington, DC 20510 Bradford, MA 01835 (Attn:
Tom Burack)
Senator Gordon J. Humphrey John P. Arnold, Attorney General One Eagle Square, Suite 507 Office of the Attorney General Concord, NH 03301 25 Capitol Street (Attn:
Herb Boynton)
Concord, NH 03301
) )
Paul McEachern, Esq.
Shaines & McEachern 25 Maplewood Avenue, PO Box 360 Portsmouth, NH 03801
- G.
Paul Bollwerk, Chairman
- Alan S. Rosenthal Atomic Safety & Licensing Atomic Safety & Licensing Appeal. Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
10555 Washington, D.C.
10555
- Howard A. Wilber Jack Dolan Atomic Safety & Licensing Federal Emergency Management Agency Appeal Board Region 1 U.S. Nuclear Regulatory Commission J.W. McCormack Post Office &
Washington, D.C.
10555 Courthouse Building, Room 442 Boston, MA 02109 George Iverson, Director N.H. Office of Emergency Management State House Office Park South 107 Pleasant Street Concord, NH 03301 Respectfully submitted, JAMES M. SKANNON ATTORNEY GENERAL
'dkk bb<3 Leslie B. Greer Assistant Attorney General Department of the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200
=
Dated:
February 16, 1990
- n
. _ _.........