ML20011E650
| ML20011E650 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 02/14/1990 |
| From: | Backus R, Brock M, Curran D BACKUS, MEYER & SOLOMON, HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#190-9895 ALAB-924, LBP-89-32, LBP-89-33, OL, NUDOCS 9002220093 | |
| Download: ML20011E650 (50) | |
Text
r ,
I g' a
e L'OLKEIED U5NRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION % FEB 15 P3 :54 Before the Commission:
QFFICE Of SECRETARY Kenneth M. Carr, Chairman v0CKl.1ING A S{ ltVlCll f3 RANCH Thomas M. Roberts, Commissioner Kenneth C. Rogers, Commissioner
)
In the Matter of ) Docket Nos. 50-443-OL
) 50-444-OL PUBLIC SERVICE COMPANY ) (Emergency Planning Issues)
OF NEW HAMPSHIRE, ET AL. )
)
(Seabrook Station, Units 1 and 2) ) Fecruary 14, 1990
)
INTERVENORS' MOTION TO SUPPLEMENT APPLICATION FOR A STAY OF LBP-89-32 The Massachusetts Attorney General, New England Coalition on Nuclear Pollution and the Seacoast Anti-Pollution League (the "Intervenors") move the Commission to accept, as a supplement to INTERVENORS' APPLICATION FOR A STAY OF LBP-89-32, filed December 1, 1989, this Motion and the attached EMERGENCY MOTION OF THE INTERVENORS: (1) TO CLARIFY TNE STATUS OF THE l'
APPEAL OF LBP-89-33 AND (2) TO REOPEN THE RI:ORD ON THE NHRERP l AS TO THE NEED FOR SHELTERING IN CERTAIN CIRCJMSTANCES, filed l
with the Appeal Board February 6, 1990 (" Supplement"). In l
support of this Motion, Intervenors state:
- 1) On December 1, 1989, Intervenors filed with the Commission an application for a stay of the licensing order LBP-89-32 on grounds, inter alia, that the Licensing Board violated the mandate of ALAB-924, and authorized licensing, without first conducting any of the remand proceedings on the Ok kDO (70)
4 l t !
four plan defects identified by the Appeal Board. Application j at 2-3. This included the Licensing Board's failure to j i
require, prelicensing, implementing detail for sheltering the entire beach population under the conditions, as provided in the NHRERP, when sheltering would be the preferred PAR. As the Appeal Board found:
Under the NHRERP, therefore, the preferred protective actions for the New Hampshire seasonal beach population are
- early beach closure and, as necessary thereafter, evacuation. .
Nonetheless, the plan recognizes that, in the following '
narrowly defined instances, sheltering would be the favored protective action for at least a portion of the beach population:
(1) if sheltering is the most effective option in achieving maximum dose reduction, based upon EPA protective action guides of 1 rem whole body does and 5 rem thyroid >
dose; (2) if there are " physical" impediments to evacuation; -
(3) if an evacuation is recommended, while a beachgoer without his or her own means of transportation is awaiting -
transportation assistance.
Applicants' emergency planners and New Hampshire emergency planning officials stated that in these circumstances use of sheltering would be limited. Indeed, they could conceive of -
, only one situation in which it would be applicable under L condition (1) to achieve a " maximum dose reduction": a short duration, nonparticulate (gaseous) release that would arrive at the beach within a relatively short time period when, because of the substantial beach population, the evacuation time would be significantly longer than the exposure duration. According to these witnesses, this limited use of sheltering would be appropriate to avoid situations in which the sheltered population would be exposed or re-exposed to radioactive ground particulates during their subsequent, post-release evacuation.
l l
In reviewing this matter, we are unable to subscribe to the Licensing Board's reasons for. declining to require implementing l provisions for the beach sheltering option. Under the NHRERP, as orecared by state emeraency olannina officials and accented l
by FEMA, there are two conditions under which sheltering may be used as a protective action option for the entire beach l population. Putting aside for a moment the question of how likely it is that either of them will ever be invoked, the fact
- 1 i
l 4
that'these sheltering options have been incorporated into the NHRERP planning basis speaks volumes about the need for appropriate implementing details.
i In terms of the benefits afforded by implementing details, l under existing regulatory guidance we see no basis for i distinguishing between those who will be provided shelter under ;
condition (3) and those for whom sheltering is to be a protective action option under conditions (1) and (2) . *
- l In summary, the Licensing Board should have required that the same implementation actions that are being taken for the {
beach population without transportation under sheltering condition (3) be taken for the entire beach population under conditions (1) and (2). Therefore, we remand the matter for appropriate corrective action by the Licensing Board. l l
ALAB-924 at 50-51, 63, 67. (emphasis supplied). ,
l 2) As discussed in detail in the Supplement, on .
February 1, 1990 Applicants for the first time, advised '
l Intervenors and apparently this agency, that sheltering as a '
l PAR under Condition 1 (i.e. to achieve maximum dose reduction) had been eliminated from the NHRERP in October 1988, cost "
hearina and without notice to the Intervenors or the NRC's adiudicatory boards.
- 3) Based upon the Appeal Board's finding that sheltering under Condition 1 will maximize dose savings and will provide I
the greatest protection to the public in certain radiological -
emergencies, and for reasons further stated in the Supplement, the present NHRERP does not maximize dose savings and is an inadequate plan as a matter of law. It also appears that the NHRERP, as presently interpreted, is not supported by a FEMA review or finding of adequacy. Egg ALAB-924 at 63. See also 10 CFR 5 50. 47 (a) (2) .
i 4'
4
- 4) Intervenors, therefore, request the Commission to stay full power operation at Seabrook vntil:
a) the Appeal Board has ruled on Intervenors' Supplement, which seeks, inter alia, to reopen the record in the full power proceeding; and b) any and all further proceedings conducted pursuant to the Supplement have been completed.
Respectfully submitted, SEACOAST ANTI-POLLUTICN COMMONWEALTH OF MASSACHUSETTS LEAGUE JAMES M. SKANNON, ATTORNEY GENERAL
, s. -
p1it; hJ # < h -.
)(t/k.1.'s kUS 6 'h> C 3 kg N-Robert A. Backus, Esquire Matthew T. Brock Backus, Meyer & Solomon Assistant Attorney General 116 Lowell Street Nuclear Safety Unit P.O. Box 516 Department of the Attorney General Manchester, NH 03106 One Ashburton Place (603) 66E-7272 Boston, MA 02108-1698 (617) 727-2200 l
NEW ENGLAND COALITION ON NUCLEAR POLLUTION
-s NTD l
td( Ae We _
Diane Curran, Esquire ;
Harmon, Curran & Tousley i 2001 S Street, N.W.
l Suite 430
( Washington, DC 20009-1125 :
l (202) 328-3500 DATED: February 14, 1990 4
i
). . j
.- 1 i
UNITED STATES OF AMERICA I NUCLEAR REGULATORY COMMISSION I
Before the Commission: l l
Kenneth M. Carr, Chairman Thomas M. Roberts, Commissioner Kenneth C. Rogers, Commissioner 4
2n the Matter of ) Docket Nos. 50-443-OL !
) 50-444-OL !
(Emergency Planning Issues)
PUBLIC SERVICE COMPANY )
OF NEW HAMPSHIRE, ET AL. ) ,
)
(Seabrook Station, Units 1 and 2) ) February 14, 1990
) .
CERTIFICATE OF SERVICE
- I, Matthew T. Brock, hereby certify that on February 14, 1990, I made service of the within "INTERVENORS' MOTION TO SUPPLEMENT AN APPLICATION FOR A STAY OF LBP-89-32" by ' Federal Express as indicated by [ * ) , by hand as indicated by (**) and by first class mail to the ,
following parties: .
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 Regulatory Commission U.S. Nuclear Regulatory Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway .
Bethesda, MD 20814 Bethesda, MD 20814
- Docketing and Service ** Thomas G. Dignan, Jr.
U.S. Nuclear Regulatory Commission Ropes & Gray Washington, DC 20555 One International Place Boston, MA 02110
- - - - . _ _ - _ _ _ _ - - - _ . -_.- .- = . - -. .
- Marjorie Nordlinger, Esq. Paul McEachern, Esq.
U.S. Nuclear Regulatory Commission Shaines & McEachern Office of the General Counsel 25 Maplewood Avenue 11555 Rockville Pike, 15th Floor P.O. Box 360 Rockville, MD 20852 Portsmouth, NH 03801 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.
Washington, DC 20472 Robert A. Backus, Esq. Atomic Safety & 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 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 l
Boston, MA 02110 Newburyport, MA 01950 1
L 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 L Ashod N. Amirian, Esq. Senator Gordon J. Humphrey
! 145 South Main Street U.S. Senate l P.O. Box 38 Washington, DC 20510 l Bradford, PA 01835 (Attn: Tom Burack) '
L Senator Gordon J. Humphrey John P. Arnold, Attorney General One Eagle Square, Suite 507 Office of the Attorney General 1 Concord, NH 03301 25 Capitol Street 3 (Attn: Herb Boynton) Concord, NH 03301 l l Phillip Ahrens, Esq. William S. Lord l l Assistant Attorney General Board of Selectmen L
Department of the Attorney General Town Hall - Friend Street Augusta, ME 04333 Amesbury, MA 01913 l
l
2
l l
G. Paul Bollwerk, III, Chairman Alan S. Rosenthal Atomic Safety & Licensing Atomic Safety & Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 Howard A. Wilber *Kenneth M. Carr Atomic Safety & Licensing Chairman Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 11555 Rockville Pike East West Towers Building Rockville, MD 20852 4350 East West Highway Bethesda, MD 20814
- Thomas M. Roberts, Commissioner *Kenneth C. Rogers, Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852 Rockville, MD 20852 Jack Dolan Federal Emergency Management Agency Region 1 J.W. McCormack Post Office &
Courthouse Building, Room 442 j Boston, MA 02109 {
George Iverson, Director *Edwin Reis, Esquire N.H. Office of Emergency Management U.S. Nuclear Regulatory Commission State House Office Park South Office of General Counsel 107 Pleasant Street 11555 Rockville Pike 15th Floor Concord, NH 03301 Rockville, MD 20852 Respectfully submitted, 1 JAMES M. SHANNON !
ATTORNEY GENERAL tY r e, L
\ wa Matthew T. Brock
\W ;
Assistant Attorney General ,
l Department of the Attorney General <
l One Ashburton Place !
Boston, MA 02108 ;
(617) 727-2200 Dated: February 14, 1990 l
-__aa Ls._____________-_._._.__m____- _ _ _ _ _ _ - . _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ -- - - - - ' - e --
c UNITED STATES OF AMF.RICA NUCLEAR REGUIATORY COMKISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Before Administrative Judgest G. Paul Bollwerk III, Chairman Alan S. Rosenthal Howard A. Wilber
)
In the Matter of ) Docket Nos. 50-443-OL
) 50-444-OL PUBLIC SERVICE COMPANY )
OF NEW HAMPSHIRE, ET E. )
)
(Seabrook Station, Units 1 and 2) ) February 6, 1990
)
EMERGENCY MOTION OF THE INTERVENORS:
(1) TO CIARIFY THE STATUS OF THE APPEAL OF LBP-89-33 AND (2) TO REOPEN THE RECORD ON THE NHRERP AS TO THE NEED FOR SHELTERING IN CERTAIN CIRCUMSTANCES INTRODUCTION The Massachusetts Attorney General (" Mass AG"), the Seacoast Anti-Pollution League and the New England Coalition on Nuclear Pollution-(the "Intervanors") received the Applicants' February 1 Rer,ponse to the Licensing Board Order of January 11, 1990 on February 2, 1990. This pleading is attached hereto as Exhibit 1. Certain representations in this pleading require a response by the Mass. AG to this Board. Specifically, the Applicants assert that the Licensing Board's November 20
" explanation" (LBP-89-33) concerning AIAB-924's remanded issues was itself either never appealed, or if appealed, the Intervenors' clains of error were never briefed to this Board.
9$p?Izqs&l
h !
!- +
c ,
i Purther, astoundingly, the Applicants now assert ist the first t time that an October 10, 1988 plan revision to the NHRERP effectively eliminated sheltering as a protective measure i
option for what was called in ALAB-924 at 50 Condition (1): l those circumstances in which sheltering for the general beach population would maximize done savings. The Intervenors movc in response for permission to clarify and have this Board confirm that there has been no failure to seek-review of LBP-89-33 by the Intervenors. Further, Intervenors move to reopen the record on the NHRERP in light of the Applicants' ,
February 1, 1990 disclosure of the meaning of the October 1988 -
plan revision. It' the plan is now to be interpreted as represented by the Applicants to the Smith Board, even under those circumstances when sheltering the beach population would be the dose-minimizing strategy R& four.d by the Smith Board and <
uoheld SD _ anneal in ALAB-924, sheltering nonetheless would D21 be recommended. Thus, new evidence--the October 1988 plan changes'as interpreted as of February 1, 1990--should-be '
l considered in determining whether the NMRERP makes the most effective use of sheltering and otherwise contains protective action decision criteria which maximize dose savings under the circumstances of the Seabrook site. The Intervenors move to reopen the record to have this Board consider this "new" NHRERP revision. Further they seek summary disposition on the NHRERP sheltering contentions based on the principles of ran iudicata.
s
t ,
l
)
I. INTERVENORS HAVE PRESERVED THEIR RIGHT TO APPEAL LBP-89-33 i
-AND HAVE OTHERWISE EXHAUSTED ALL INTRA-AGENCY APPELLATE OPPORTUNITIES AVAILABLE TO DATE TO CHALLENGE LBP-89-33 The Applicants assert that: 4 I
LBP-89-33 is now the law of the case, subject only j to an3 sponte Appeal Board review. This is so because two Intervenors, NECNP and SAPL, never filed '
a Notdce of Appeal with respect to LBP-89-33, and~
the remaining intervenors never sought an extension of tin:e to brief their appeals with respect to that ,
decision. Thus, there is no appellate challenge to !
LBP-89-33. !
Exhibit 1 at 3, n.6. This statement is simply wrong.
- 1. _ First, the Applicants no doubt make this assertion because they intend to, argue, if and when necessary, to the Court of Appeals (before whom appeal of the Smith Board's November 9 licensing action is now pending) that Intervanors did not preserve their appellate rights regarding LBP-89-33 and that, therefore, based on principles of exhaustion of i
administrative remedies, they can not claim error in the ,
t Licensing Board's disposition of the ALAB-924 remand.
- 2. In fact, Applicants' st'atements are based on a 4 l
fundamental misunderstanding of the nature of Intervenors' t efforts to have the Licensing Board's errors regarding the.
ALAB-924 remand corrected. As'this Board is aware, on November -i 13, Intervenors filed a motion to revoke the November 9 licensing action on the grounds, inter alia, that the Smith Board had violated the letter and spirit of the mandate of ALAB-924. This November 13 motion for mandatory relief was filed pursuant to this Board's jurisdiction over LBP-88-32 and Intervenors' appeal thereof. On November 16, the Commission
. . - - . - - ~. . - _ - - . - - .
l T.- ..
l
,v took jurisdiction over this motion away from this Board j indicating that it would rule on this motion. On November 20, the' Smith Board issued LBP-89-33. On November 22, the Mass AG noticed the appeal of LBP-89-32 and also specifically noted that he was appealing LBP-89-33. On December 1, the Intervenors then supplemented their mandamus motion before the Commission to include a discussion of the errors made by the i l
Board in LBP-89-33'as further support for mandatory relief. 7 Then, on January 24, 1990, the Mass AG (and other Intervenors) filed briefs on LBP-89-32, excluding from these briefs the ,
legul errors already briefed at length on December 1 in support of the mandamus petitions pending before the Commission. At '
l 1-2 of his January 24 Brief on Appeal of LBP-89-32, the Mass AG noted the absence of any briefing on the issues surrounding the ,
'- disposition of the remanded issues and stated: ,
The Mass AG believes those errors entitle Intervanors-to mandatory relief revoking the November 9 license authorization. The merits of Intervonors' notions for such mandatory relief are presently pending before the '
Commission.
- 3. Applicants' notion that LBP-89-33 has never been .
challenged by the Intervenors in briefs is a remarkable L misreading of this record. Mandamus, of course, is an
^
accellate remedy available to enforce the mandate of a superior tribunal when it has been disobeyed. Mandamus can lie AR AD ,
alternative.to appeal and error if the disobedient tribunal's order is otherwise final and reviewable. On November 13, l
L Intervenors sought mandatory relief as a form of appellate l
l remedy for the Smith Board's contravention of ALAB-924 (which had issued on review of LBP-88-32). That mandamus remedy was
-e-,_ e,-, , - ....._,,m__.-w._ . _ . - , , , , -,%.. r . , . _ , , . , y,
, 1 Y
1 3
(and is) available as part of the ongoing appeal of the New l Hampshire decision and was available on November 13 notwithstanding the fact that no appeal of LBP-89-32 had been j tiled at that time. After the commission took jurisdiction I over the Intervenors' mandamus away from this Board on November 16, All claims that the disposition g1 the ALAB-924 remand by
- the Smith Board ERA in error were De longer hefore this Board. -
This is the case whether those claims are part of the ,
continuation of Intervenors' appeal of LBP-88-32 (the November 13 Motion) or are part of Intervenors' appeal of LBP-89-32 (the December 1 Supplemental Motion). Indeed, Intervenors supplemented their mandamus with the clear errors committed by the Smith Board in LBP-89-33 (which of course simply
" explained" the errors actually committed in and by LBP-89-32).1/ Thus, the Intervenors hays briefed the errors l
l >
1/ It was actually unnecessary for the Mass AG to separately i identify LBP-89-33 in his November 22 Notice of Appeal.
SAPL and NECNP by noticing an appeal of LBP-89-32 also, in effect, '
were appealing all post-facto " explanations" for this licensing action. The alternative proposed by the Applicants would result in'either a final and annenlable decision being noticed for appeal and the lengthy series of post-facto " explanations" that issue afterward not being considered as part of that decision or if each later decision is appealed separately each would become a separate decision on appeal needing to be consolidated with the first. But then how and why was the ,
first decision " final" and " reviewable" if the later-issued
" explanations" are necessary to it? The procedural morass arises because of the inherent intellectual confusion of the Smith Board which issued a " final" and " reviewable" decision on November 9 (beginning the immediate effectiveness review, for example) and then a lengthy series of " post-final" decisions.
Intervenors were under no obligation to file separate notices of appeal each time as each post-facto " explanation" must be deemed (if it is to be even considered at all) part of the
" final" and " reviewable" decision issued in LBP-89-32.
Regarding the exquisite procedural complexity that results when a Board first decides to license and only later decides how and why, aan Intervenors' January 22 Brief on Appeal of LBP-89-38 at 4-13.
I 1
in LBP-89-33 and that decision has been challenged to the full j 3EigDt possible before this agenev.
Apparently, the Applicants understand some of this and yet i i
they assert that the Mass AG should have sought "an extension f of time to brief [his) appeals" with respect to LBP-89-33 and i the disposition of the remanded issues. Exhibit 1 at 3 n.6.
But this Board after November 16, 1989 did not have appellate q jurisdiction over the disposition of the AMB-924 romand and LBP-89-33. Moreover, Intervenors had already briefed these issues on December 1. So, it is simply incoherent to assert j i
that Intervenors should have asked for more time 1) to brief ]
issues he.(with other Intervanors) had already briefed; and 2)
]
L to put these briefs before a Board which no longer had jurisdiction.
l Of course, in the event the Commission grants the Intervenors' November 17 Motion for Reconsideration and returns the mandamus claims -- asserted after November 22 pursuant to j appeal of hath LBP-88-32 And LBP-89-32 -- to this Board, then this Board can proceed to determine whether the Smith Board disobeyed its mandate.2/ In that event, the commission would l
2/ For example, this Board could then decide the not-very-difficult question whether AMB-924 was disobeyed when the Smith Board asserted (LBP-89-33 at 4) that AMB-924 did not ,
impact on the " requisite findings of reasonable assurance of public safety" even though AMB-924 held that the NHRERP was
.not an approvable plan and no reasonable assurance finding could be made without sheltering detail. AMB-924 at 68, n.194 and cases cited therein. Indeed, no terribly difficult analysis is needed to determine the necessity 19I a mandamus when one compares LBP-88-32, 28 NRC at 769-770 with AMB-924 at 60-61, 63-64 and then with LBP-89-33 at 29-33.
L 1
--~ - - - - .
.' [
! be returning to this Board the mandamus motions in their l present posture with LBP-89-33 fully briefed. It was in this sense and in light of these circumstances that the Mass AG on January 24 asserted to this Board that he had not briefed these .
remand issues again and that the merits of his challenge to the ;
disposition of the ALAB-924 remand in LBP-89-32 and LBP-89-33 j I
was before the Commission. i
- 4. Because of the potential importance of any argument .;
that might later be made concerning the exhaustion of )
[ administrative remedies regarding this all-important error which Intervenors are seeking to have the Court of Appeals review, the Mass AG moves that this Board clarify the present posture of Intervenor efforts to seek intra-agency appellate review of the errora in the disposition of the ALAB-924 remand and issue an order that statest i A. Intervenors, (SAPL, NECNP. and the Mass AG) did timely file Notices of Appeal of LBP-89-32. The Mass AG expressly referenced LBP-89-33 in his Notice of Appeal. SAPL and NECNP are deemed to'have appealed LBP-89-33 when they noticed the appeal of LBP-89-32 on November 22, 1989. Indeed, their notices of appeal were filed 2 days after LBP-89-33 issued.
B. Intervenors, (SAPL, NECNP and the Mass AG) have timely briefed the errors they claim the Smith Board committed in its disposition of the ALAB-924 romand.
Intervenors were under no obligation on January 24 to file briefs with this Appeal Board which repeated what they had already argued to the commission and were under no obligation to seek an extension of time from this Board in which to file or refile such briefs. As of November 16, 1989, the Commission and not this Board had jurisdiction over these claims of error.
/
De er h -m~-- -M - - _ _ .__ - - - --r _ 'm_______ _-_- -__-_ _ _ _ _ _ . - - _ --_ - _ . _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ . _ _ _ . _ . _ _ _ _ _ _ _ _ _ .
II. THIS BOARD SHOULD IMMEDI ATF.LY REOPEN THE RECORD ON THE NHRERP AND GRANT INTERVENORS
SUMMARY
DISPOSITION ON THE SHELTERING CONTENTIONS.
A. Background This Board is intimately familiar with the issues surrounding sheltering as a protective action in the NHRERP for the general beach population at Seabrook. ALAB-924 at 47-69.
In brief outline, in earlier versions of the NHRERP, it was stated that " sheltering may not be considered a feasible protective action on the seacoast beach during the summer."
NHRERP, $2.6.5. In response to FEMA's concerns about the absence of adequate consideration or exploration of a sheltering option, the State of New Hampshire between -
approximately September 1987 and October 1988 determined that sheltering for the general beach population would be appropriate in certain circumstances. Egg App. Direct Testir4ony No. 6 at 19-20 and Appendix 1 at 7-8, ff. Tr. 10022.
At the hearings on the NHRERP in May and June 1988, witnesses for the Applicants and the State of New Hampshire asserted that certain changes AI to the NHRERP indicated that there would 1/ Attached as Attachment II to Appendix 1 (beginning 42 e
- 47) of the Applicants' Direct Testimony No. 6, ff. Tr. 10022, were proposed modifications to the protective action decision criteria in the NHRERP. Sg2 ale 2 Attachment 1 to App's Direct Testimony No. 6 (1-35). These proposals were as of April 27, 1988, the date of the testimony, which was received on May 2, 1988. These changes were not made before the record closed in June 1988. At 18.14 of LBP-88-32, the Smith Board noted that revisions would be made in the NHRERP reflecting the proposals litigated.
{p ' 4 4
- v ,
be 2 different sets of circumstances or conditions.when sheltering would be recommended for the general beach population:
(1)- if sheltering is the dose minimizing protective action;-and (2) if-there are physical constraints on evacuation.
ALAB-924'at-50, citina record at notes 133-136. Condition (1)-
was represented-to include a certain kind offrelease for which it.was asserted sheltering would be the dose: minimizing-action. ALAB-924 at 50-51. ERR AAA2 52 at notes 140-142 and accompanying text. FEMA's Keller. reviewed the proposed sheltering optioniand found it appropriate at this site "not to shelter the summer bcach population excent in verv limited
, circumstances." Amended Testimony of Cumming/Keller, ff. Tr.
13,968 at-11' (emphasis supplied). Of course, those limited circumstances are the same identified as conditions (1) and (2) above.
The Licensing Board in December 1988 approved the NHRERP-based on the use of sheltering as a protective action for the general population in these limited circumstances.A/
Although this Board then reversed the Smith Board regarding the need for sheltering detail, it affirmed the Board regarding A/
Intervenors argued (and continue to argue) that: 1) sheltering is underutilized for the beaches in light of the long ETEs and 2) comparative efficacy of protective actions cannot be determined in the absence of dose comparisons which were excluded when proffered.
E!' I
, s. ; o
- f ,
the' appropriateness of limiting sheltering to these identified' conditions in November 1989. ALAB-924 at 50-58. Indeed, at.
. oral argument in July 1989 this Board (Judge Rosenthal) explored at some length the precise circumstances under which sheltering is considered by New Hampshire as the dose minimizing protective action. Tr. of oral Argument, July 27, 1989-at 15-17. }
L JUDGE ROSENTHAL: Well, accepting for the moment that-thesis,.your opponents argue quite vigorously that the plan deals with the sheltering alternative. And I would like your response to that. . . . (88) l .
j MR DIGNAN: [ Condition) [n) umber one is, I use the example '
of the " puff release", and I mean the true puff-release. I don't mean the one you have to predict in advance, because that's pretty difficult. But technical people tell me it is possible you could have an accident situation develop where you had a H pressurization situation and you would have-a planned l
release: you would know you're going to release, or-
-how long you're going to release and you could reach a i decision, a rational decision as an energency planner at that point-to shelter instead of evacuate because you would know your duration. You would know the type aof release you're going to get and so forth and so on. That's item (or condition) number one.
JUDGE ROSENTHAL:- Well, now here is item number one: now
'let's-say that you have this puff release and we're invoking number one. . . . What does the plan do with respect to sheltering.
MR. DIGNAN: New Hampshire is all sheltering-in-place; that's what the plan. 'And the shelter-in-place '
concept in laid out in the plan. . . . (90-91)
B. Amendment and Revision of the NHRERP ,
Applicants and the State of New Hampshire represented to the Smith Board in sworn testimony that the NHRERP would be updated and revised to reflect the changes in protective action criteria. As noted above, at 18.14 of LBP-88-32, the Smith
.c.
t-I' Board noted that revisions would be made in the decision criteria' reflecting changes proposed in Attachment 1 to the >
-; Applicants'-Direct Testimony ~No.,6,-ff. Tr. 10022 (to be distinguished from Attachments I and II to Appendix 1 to that same testimony). At.18.20 the Board noted:
NHRERP is being updated to reference the emergency classification and plant conditions under which precautionary and protective action recommendations would be made. App. Dir. No. 6, ff. Tr. 10022, at 11-12, t
Attachment 2.
Indeed, the FEMA's approval of the plan on which the Smith Board then relied, is predicated on the identification of those circumstances, albeit limited, when sheltering would'be employed as the protective action for_the general beach population. Esa Appendix 1 to Applicants Direct Testimony No.
6 at page 1 of 47 (Strome quoting FEMA's January 25, 1988 position). These circumstances were identified in the testimony and representations were made that the NHRERP would be or was being upcated to reflect these circumstances. In fact, the Smith Board made these-revisions into a license s
condition:
(I)ssuance of an operating license for Seabrook Station shall be subject to the satisfaction of the following conditions:
(b) The Director of Nuclear Reactor Regulation, in consultation with the (FEMA), shall verify that the NHRERP revisions committed to by the State of New Hampshire, as discussed herein, have been made.
LBP-88-32 at 110.4 In October 1988, the NHRERP was amended, ostensibly in compliance with the representations made during the hearings.
1
_L' ,
g In December 1988, LBP-88-32 issued with its holding regarding.
the circumstances in which sheltering would be recommended. In-July 1989, oral argument before this' Board was held as noted-above. In' November 3989, this Board issued ALAB-924 reversing .
the Smith Board'regarding the need for sheltering detail.- On January 11, 1990 the Board for the first time sought guidance from the parties as to how to proceed to resolve the remanded issues. Then on February 1, 1990 for the first time the.
Applicants asserted that plan changes in October 1988 actually eliminated shelterina for the ceneral beach noculation under Condition (1) as discussed abovel Since only condition (2) is
-left, say the Applicants, and the beach population-by definition is small under these conditions,E/ there is nothing left to resolve regarding the absence of sheltering detail. Egg Exhibit 1 at 8-12.5/ Thus, in an attempt to 5/ Intervenors do not question here the accuracyThat of-Applicants' characterizaticn of Condition (2). is a matter for.the Smith Board. The elimination of Condition (1) ,
however, is a= matter not remanded to the Smith Board. Egg infra.
5/ Applicants identify Step IV.B.4 (General Emergency) as the key change _made in October 1988 that apparently put the Board and the parties on notice that the State of New Hampshire was not going to update'the'NHRERP as it represented that it would during the hearings and as the Board required with a license
= condition regarding the use of sheltering. Attached as Exhibit 2 hereto are the relevant pages from the October 1988 revisions to Appendix U to Volume 4A of the NMRERP. (Appendix F to Volume 4 and Appendix U to volume 4A are virtually identical.)
Certainly, these pages do D21 assert or state that even under those limited circumstances when sheltering is dose minimizing (like the " puff release") evacuation is always oreferred.
Obviously, the Board and parties read the October 1988 revision in light of the representations made by the witnesses for the Applicants and the State of New Hampshire regarding the appropriate conditions for sheltering the general beach population.
, O c
-- -f eliminate-the blatant errara the Smith Board made in finding
" reasonable assurance" without sheltering detail in place (in' express contradiction to ALAB-924) and in denying,Intervenors' their prelicensing hearing rights regarding sheltering detail, the Applicants now simply assert for the first time that'since-October 1988 sheltering has D21 been the recommended protactive
-action under the NHRERP even when,-as Applicants' counsel described it at oral argument in July 1989, technical conditions make sheltering the dose-minimizing action! Thus, the NHRERP has essentially been returned to that state where it had started in 1985 and 1986.in which sheltering theLgeneral beach population is simply not considered feasible or implementablel C. Motion to Reocen This Record and For Summary Discosition.
Under normal adjudicatory conditions it seems obvious that Applicants would be and should be estopped from asserting that the NHRERP was amended in October 1988 as represented by them for the.first time in February 1990. However, emergency-planning is not a static but an ongoing process. If the NHRERP has been changed as Applicants represent and sheltering for
=
Condition (1) has been eliminated, then based on the record
-developed during the New Hampshire proceeding concerning the dose minimizing aspects of sheltering in certain circumstances, and the holdings of the Smith Board and this Board, the effect
J. :
of that' change iR AD inadeguate El&D ngt in conn 11ance with the-reaulations because-the erotective actions nrovided therein do pot maximize dose savinas in certain circummtances. Thus, Intervenors move to reopen the record on the NHRERP regurding the sheltering contentions (NECNP/RERP-8, SAPL-16 and TOH-VIII) and to have this Board review new evidence not available before February 2, 1990; 211 . the October 1988 NHRERP revisions as-now ,
interpreted by the Applicants.
- 1. Jurisdiction This Board has jurisdiction over LBP-88-32. In ALAB-924, certain' issues were remanded to the Smith Board. Regarding sheltering detail, this Board stated: ,
(T]he Licensing Board should have required that the same implementation actions that are being taken for'the beach population without transportation-under sheltering condition (3) be taken for.the entire beach population under conditions (1)xand (2). Therefore, we romand the matter for appropriate corrective action by the-Licensing Board.
ALAB-924 at 68. From this.it is clear that this Board held that implementing detail is necessary for conditions (1) ~and (2). Thus, if the record must now be reopened regarding the adequacy of the NHRERP in the absence of sheltering as the protective action for Condition (1) then thia Board and not the Smith Board has jurisdiction over this matter. Obviously, the Smith Board is not free to violate the mandate of ALAB-924 and k
w n;
+v l
. . c.
- "now' find that sheltering is nnt necessary for condition (1).2/
2.> Timeliness
.As discussed above, there was no reason for the-Board and the parties to read the October 1988 revisions as anything other than the revisions and updates promised in the State of
- New Hampshire's and Applicants' sworn testimony in May and June, 1988. The Applicants did not amend their proposed-findings on sheltering after October 1988 (filed on July 15' ,
1988)-from which much of the Board's decision is taken. Thus, at Applicants' PF 10.1.41 (at'19 of the July 15, 1988 filing)-
the conditions for sheltering the general beach population are set out. The Applicants did not alert the Board that this proposed finding was no longer accurate'after October 1988.
Thus, although the State of New Hampshire is not estopped or otherwise= prevented from changing its plan (or now disclosing that it had earlier changed its plan), on the narrow issue of timeliness, the Applicants Arg estooned from asserting that
~
Intervenors were on notice as-of October 1988 concerning the 2/ 1988 Even though Applicants' representations about the October 1, revision and the elimination of Condition (1) fly directly in the face of what they represented to the Smith Board in 1988 and what'that' Board. expressly found in LBP-88-32,
'they now seek literally by magic to have that Board simply
, reverse-itself and eliminate the need for sheltering. Of ,
cource; the Smith Board is constrained on this issue by the affirmance in ALAB-924 of its earlier holding in LBP-88-32 regarding the-circumstances in which sheltering is appropriate. An affirmance on appeal on an issue is just as much'a " mandate" on remand of a linked issue as a reversal. In any event, the remand back to the Smith Board did Dat include the authority to decide whether sheltering should be or would Ebe appropriate and therefore necessary for Condition (1).
l ..
j 'A. '.
meaning and: significance of these: earlier changes.I/
.3. Safety Sianificance LThis Board has already held that the absence of
- shelteringTdetail for those conditions in the NHRERP in which sheltering is appropriate prevents the reasonable assurance
' finding.II 'ALAB-924 at 68, n.194, And-cases cited therein.
It follows that if' sheltering is no longer to be relied upon at allein those very circumstances in which it was established and held =to be the appropriate dose minimizing protective action, then this deficiency too prevents a reasonable assurance finding and is safety significant. ALAB-924 at 58-n.164 g/ Of' course, had Intervenors moved to reopen the record in October 1988, the Applicants and the State of New Hampshire could: easily.have asserted that the October revisions were precisely what were described in the May and June 1988 testimony. This is because nothing in.the October 1988 revision is expressly. inconsistent with still retainina shelterino for Condition-(1). Obviously, the Board read-the revisions the-same way when it received them before it issued LBP-88-32 and nonetheless proceeded to adopt the Applicants' findings:on the conditions for which sheltering is appropriate.
2/ Intervenors believe that if there is a planning deficiency in the NHRERP which prevents the reasonable assurance finding, then if this deficiency is. discovered and asserted after the record has closed, it is of sufficient safety significance to merit reopening the record under $2.734. The alternative is absurd: a deficiency sufficient to prevent the 50.47 (a) (1) finding and-preclude licensing until remedied is somehow D21 sufficient to reopen a closed record if established after licensing.. Of course, if the record is reopened after a license authorization but before that license has been made effective by the lifting of the 52.734 immediate effectiveness stay, that authorization is stayed as a matter of law until the material issues now reopened are adjudicated and then any deficiencies found are corrected. Such a procedural posture is distinct from the record being reopened after a license has become effective.
1
___u_ _ . _ _ _
x ,
m;
-w .
.(notingLthat although' sheltering is'not_ par 33 required by the p
IG " range" requirement of 50.47 (b) (10) or_by the " adequate protection" underpinings of 50.47 (a) (1) , it is required when-a E found appropriate by planners based upon " site-specific.
>- circumstances").
4.. Materially Different Result ;
Had~the Smith Board and this Board been' apprised of -f the meaning of the-October 1988 update of the NHRERP it is-i quite obvious that that-evidence would have likely affected the disposition-of Intervenors' claims that sheltering is underutilized'for the general bench population at Seabrook. As this Board noted:~
Intervenors' central concern is whether confining sheltering to such a limited use under the plan is, in accordance with the first condition specified in the NHRERP,'theLaost effective use of this protective action option to achieve maximum dose reductions.
'ALAB-924uat 51. If = the use were even further _1_imited -- not evensto be.used when as set forth in condition (1) it is ;
dose-minimizing'for the population -- Intervenors would have ,
prevailed'on'this issue for the very reasons this Board ruled against them. . Egg'ALAB-924 at 51-58.
- 5. Affidavit Reauirement ,
-e Intervenors rely in support of their motion to reopen on the February 1, 1990 uncontradicted representation by the Applicants regarding the meaning of the October 1988 NHRERP J
update and those portions of the record of the NHRERP proceeding cited by the Smith Board and this Board in which
- - . . ~
.. p 4
+
g.
B :
sworn testimony was' received regarding the conditions under. ,
which sheltering the beach' population would be the dose i minimizing strategy. ALAB-924 at 51 at notes 135 and-136-and t-L accompanying text; 52, notes 141 and 142 and accompanying i L
. text. LBP-88-32.at 18.70. ERR R182 Tr. 14231.
i
- 6. Su=u=ry Dismosition j As: discussed above, the material change in-the-NHRERP disclosed for the first time on February 1, 1990 supports the -
reopening of the record on the NHRERP. Moreover, summary disposition is appropriate in light of the principles of ISA
[
iudicata.1E/ Thus, based on the same adjudicated facts as
'found by the Licensing Board and this Board regarding the appropriateness of sheltering for Condition (1), Intervanors s are-entitled to summary disposition on their sheltering o
contenti'ns as a matter of law.
- 7. Exneditious-Consideration The representations made by the. Applicants in their February 1,'1990 pleading are remarkable and indeed astounding. The NHRERP has been approved 11/
i 19/ Again: the State of New Hampshire and the Applicants are l free to change the plan (or now disclose that the plan was changed). However, on. principles of rag iudienta the inadecuacy of the NHRERP in light of this change is ;
established. Thus, without further evidence in the record that ;
would support this change and permit the holding of LBP-88-32 and' ALAB-924 in this regard to be modified, the absence of u sheltering for Condition (1) is a deficiency precluding the reasonable assurance finding. l 11/ Intervenors ignore the conundrum that it was also disapproved by this Board on November 7 regarding a related but legally distinct issue.
I
_ _ _ . n ,
i 7.,
by;the smithiBoard on' November 9, 1989, based on,an apparent and understandable failure to comprehend the significance of plan changes made in october 1988. As is now clear, the NHRERP-is D21-AD adequate glad ADA hAA D2h been adequate since October 1988.= As this Board'is aware, the Commission is nearing the end of-its immediate effectiveness review which may lead to plant' operation.= This motion should be entertained immediately and ruled upon.so that the Commission can be apprised about the significance of those changes, obviously, if Intervenors are now entitled as a matter of law to have the record reopened, this should occur-before operations would actually begin so that any deficiencias would be corrected beforehand.12/
CONCLUSION For all_the reasons set forth above, this Board should:
- 1. Issue an order declaring the status of Intervenors' efforts to appeal LBP-89-33 and the disposition of the remanded issues by the_ Smith Board as set out above; 12/ -Applicants and the NRC Staff may urge the Board to refer this motion to-the Commission. That'would be an inappropriate disposition for the following reasons: 1) this Board has appellate jurisdiction over LBP-88-32 and the record on the NHRERP - it has' lost jurisdiction Enig over the disposition of the. remanded issues in LBP-89-32 (and LBP-89-33) as that disposition supports a mandamus for violation of ALAB-924; 2) the integrity of thig Board's adjudicative processes are at issue in this motion; and 3) the Commission has not taken review of ALAB-924 and otherwise has not put the NHRERP record before it.
- 1
.~
6 , ,
l S
U 2. GrantLexpeditious consideration of'Intervenors'-motion ~ j toJreopen the record on the-NHRERP; l
4
, 3. Grant Intervenors' Motion to Roopen that record in the j
'I -
particulars as' set out-above; and
- 4. Grant Intervenors Motion for' Summary Disposition on _
the present inadequacy of the protective action decision 1 J criteria in the NHRERP.
Respectfully submitted, COMMONWEALTH OF MASSACHUSE"."rS' ;
NEW ENGLAND COALITION ON JAMES M.-SHANNON NUCLEAR POWER ATTORNEY GENERAL W f1 Ant %l '
l Diane Curran, Esq. " hn Traficonte
- Harmon, Curran, & Towsley hief, Nuclear Safety Unit Suite 430 One.Ashburton Place 2001 S Street, N.W. Boston,-MA 02108
- Washington, DC 20008-- (617) 727-2200
' SEACOAST ANTI-POLLUTION LEAGUE
.hbWY yJ ffY '
'- Robert Backus, Esq.
= Backus, Meyer, & Solomon 116-Iowell Street
. P.O. Box 516 Manchester, NH 03106 Dated: February 6, 1990
. .; ; 4 ,i s% a ~
',4wy 4.qry,y *
- w;g: 3..
- . se: ggg i-tti .
37.1.<
- h.
.g ,
\ . 4i s
2 I' e i
I
- . 4 i
- k. '
EXHIBIT 1 o
I '.
(
1.
l l
I a
., y l I H : ;, ,
.e j e
'= February 1, 1990 UNITED STATES OF AMERICA q NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING BOARD j i
D :
) :
In theJMatter of )
)
n .PUBLIC SERVICE COMPANY OF ) -Docket Nos. 50-443-OL NEW. HAMPSHIRE, et al. ) 50-444-OL !
} ) Off-site Emergency (Seabrook-Station, Units 1 and 2) ) Planning Issues ;;
)
) .
L APPLICANTS 8 RESPONSE TO LICENSING L
BORBn ORDER OF JANUARY 11. 1990 L -
^
f' L
On' January 11, 1990, this Board issued an order asking the, parties-still interested in participating in'these proceedings "to advise the Board on how to proceed in 1
accordance with the directives of ALAB-924 and how [the: .
parties) propose to participate in the resolution of the remanded issues."2 The Board also required the Applicants to p
l-I
' - By letter of January 19, 1990, the Seacoast Anti-r Pollution League advised the Board and parties that it did not have "the least interest whatsoever in any further proceedings before the-Board." ggg Aeolicants' Motion to Dismiss Abandoned Remand Issues (Jan. 26, 1990) [ hereinafter " Motion-to Dismiss")
at Exhibit 1.
2 Memorandum and Order (Recardino Issues Remanded in ALAB-924) (Jan. 11, 1990) at 1. ~
g -3 4 '
J - .
, 7
,[h '
~
o a
)
j
" confirm their commitment respecting transportation needs for v- certain special facilitian "in' Rye'and-Exeter."3 The portions of ALAB-924. remanding four issues to.the Licensing Board for further consideration are presently on appeal to the Comp _is.s.lon.'~ It was and rimains TEM -
Aeolicants' nosition, as exeressed in their Petition for
.Paview thereof, that ALAB-924 was in error and should bg
' reversed as to those issues. A ruling by the Commission on
~that petition may wholly eliminate any further need'for this s.
Board ~to address these matters in any way. Thus, Applicants. I L
respectfully suggest, the Licensing Board may wish to defer- ]
L further action on the remanded issues until the commission l
has spoken. In the'meantime, however, Applicants respond.to i !
R the Board's directions herein.
A. Romand Issues
- 1. LOAs for Teachers Ridina Evacuation Buses In ALAB-924, the Appeal Board asked that this Board
" resolve the existing inconsistency in its interpretations of the role of school personnel in an evacuation and determine 4 l
] $ -
at-2, Egg Annlicants' Petition for Review of-ALAB-924 (Nov. 10, 1989). .The Intervanors have appealed other portions of the decision. Intervanors' Petition for Review of ALAB-924 (Nov. 21, ,
1989).
i L ;
i-l.
s ,'
-e v 4
]
' whethercany LOAs should be obtained from' school personnel ~."' j m
The' Licensing Board already has resolved that perceived.
' inconsistency, in its Memorandum of November 20, 1989.'
1 Therein the Licensing Board explained that the inconsistency arose from the use of similar terms in dealing with two.
otherwise distinct areas of controversy.7 The Board went on- ,
N to clarify that LOAs are not required for evacuating teachers because (1) they would be acting as " individuals who ,
collectively supply a labor force or activity;"' (2) some teachers would be using the buses for their own evacuation, and'thus "would in every sense be recipients of that evacuation service;"' (3) the school as a whole, of-which tha teachers are an integral part, are recipients of evacuaticn
?
5 Public Service Comeany of New Hamnshire (Seabrook Station, Units 1 and 2), ALAB-924, 30 NRC (Nov. 7, 1989).
[ hereinafter "ALAB-924" and cited to the slip. opinion) at 11.
Public Service connany of New Hamnshire (Seabrook L
5tation, Units 1 and 2), LBP-89-33, 30 NRC __ (Nov. 20, 1989)-
L -[ hereinafter "LBP-89-33" and cited to the slip. opinion). In this connection, it should be noted that LBP-89-33 is.now the law
'of the-case,-subject only to anA sconte Appeal Board review.
This is so because two intervenors,-NECNP and SAPL, never filed a H notice of appeal with respect to LBP-89-33, and the remaining ll intervanors never sought an extension of time to brief their
-appeals with respect to that decision. Thus there is no h
appellate challenge to LBP-89-33.
L, I
Id. at 9-10.
Id. at 10 Id. at 11.
l L
b
k r'
.3, c , ;
services ;"' and (4) the weight of1 the evidence is that A
"teachersias a group will not abandon students needing their care.""i .
l
'The Board having responded to the Appeal Board's j l i L ' request, no further proceedings on thisLissue are required. !
i Moreover, the Seacoast Anti-Pollution League ("SAPL"),
L sponsor of the contention under which the. issue arose, has ,
r Q ad to participate in any further proceedings." For
'that reason too, no further action on this issue is r p warranted.
L 2. Sufficiency of the 1986 NHCDA'Seecial Needs Survev In. ALAB-924,- the Appeal Board " remand (ed)- the matter of-the sufficiency of the 1986 Special Needs Survey for further 1
consideration by the Licensing Board."" The Appeal Board did so because it concluded that at least some issues of 8
Id. In part because they collectively are service e recipients, LOAs are not required for the schools themselves. .
See Lena Island Lichtina Co. (Shoreham Nuclear Power Station, '
Unit 1),.LBP-85-12, 21 NRC 644, 856-58 (1985).
" 'LBP-89-83 at 11; EAR ale 2 id. at 8-9.. Moreover, the >
Board noted that teacher participation-is not essential to the '
planned evacuation of the school children. Id. at 8; ERA also Tr. 3356-57. Even if no school personnel participated, the 7 children would be under the supervision of the bus drivers while being evacuated, 222., Tr. 3388-89, and of reception center ;
personnel and/or volunteers appointed by the Reception Center Manager after evacuation. App. Ex. 5, Vol. 4B, App. B at B-1, B-
. 3, B-4 ; App. Dir. No. 4, ff. Tr. 4740 at 10; Tr. 4960-65; App.
Dir. No. 7, ff. Tr. 5622 at 126.
" Egg Motion to Dismiss.
u ALAB-924 at 19.
l' ' J; y 5 material fact existed in spite of Applicants' motion for
' summary l dispositf.on of the survey issues."
Responding to the Appeal Board's directive, this Board made a further careful review of "the factors that lead the Appeal Board to. reverse the grant of partial summary disposition, the pleadings of the parties in support and in opposition to Applicants' Motion, and the information i subsequently developed and reflected in the record of the New Hampshire portion of this proceeding."15 On the basis of' i that review, the Board concluded that "the focus of SAPL's idendified concerns regarding the adequacy of the 1986 ,
Special Survey is'to fine-tune and broaden rather than replace the methodology employed by the NHCDA to identify ,
special needs populations,"" and that "the-survey deficiencies-identified by SAPL, even if ultimately found to
- be meritorious, are either of no merit or are amenable to relatively simple and timely. correction."17
- Af ter issuance of the Licensing Board's memorandum containing the above analysis of this remanded issue, SAPL
" -Id. at 16. As the Appeal Board appears to concede, just what those surviving issues are is not yet clear, since SAPL has failed to ' identify them. Egg id. at n. 40.
15 LBP-89-33 at 16.
Id. at 21-22.
17 f Id. at 17.
l
~. 5 /
o y t l
<withdrawnfrom participation in any further proceedings."-
,Since SAPL is the' sponsor of the underlying contention and the sole advocate ~of this-issue," its withdrawal eliminates (
the need for any further proceedings." -;
r i Esa Motion.to Dismiss at Exhibit 1. ,
" The Board noted. 13F-89-33 at 14 n. 7, that NECNP Laddressed an arguably-similar issue, as to identification and f notification of hearing => impaired individuals, under NHLP Contention 4.- However, when NHLP-4 went to hearing for trial, 1 Applicants and NECNP. stipulated to a resolution of the contention, and it was withdrawn by NECNP. Egg II. 8853 and
- Stipulation ff.
- II. 8853.
" Had SAPL not withdrawn, Applicants would have proposed proceeding along the following lines:
a) It first would have been necessary.to determine what specific factual. issues remain to be litigated. SAPL's Statement of Material Facts as to Which SAPL Contends that SAPL Contentions 18 and 25-Raise Genuine Issues as to Identification of These with-Soecial Needs (June 9, 1986), Attachment A hereto,' defines the maximum scope of the issues to have been litigated. However, while the. Appeal Board held that some of these issues survived, it is also clear that at least some of them did not survive Applicants' summary disposition motion. Hence Applicants would have proposed that Applicants and SAPL each file, within-ten (10) days of the issuance of the Board's scheduling. order on the remanded issues, a-brief identifying the specific issues from Attachment A which have been disposed'of and those which survived the May 1986 motion for summary disposition.
b) It is also clear that developments on the record --
including the SPMC-Exercise record -- may have disposed of 'all of the issues that'ALAB-924 suggests survived' summary disposition in 1986. Hence Applicants would have proposed that, in the briefs described above, the Applicants and SAPL also indicate which issues have been resolved,,in whole or in part, by subsequent developments already on the record.
c) Finally, since 1986 two additional surveys have been conducted by the New Hampshire Office of Emergency Management (NHOEM), and the survey has been suitably " fine-tuned" and
" broadened". Hence, should the Board have found, after consideration of the above-referenced briefs, that some subset of
~
UI g,
,=
,3. Leadina Time for AIR Patients Based-upon a perceived-inconsistency in certain plan language ,21 and on testimony by SAPL' witness Pilot which it characterized as-being "without apparentLeontradiction,"32
.the' Appeal 1 Board remanded for,further consideration "the t i
'issueiof-(whether) preparation time has received appropriate.
consideration as a factor in deriving ETEs for (advanced-t life-support patients).""
It is undisputed on the record that the only ALS patients in the-New Hampshire EPZ are in the two EPZ hospitals.24 In its memorandum on ALAB-924, the Licensing Board reviewed the record in de' tail, clarified a few mis-l ,
l citations which may have misled the Appeal Board, and
" -demonstrated that loading time for ALS patients in fact is already accounted for in the evacuation time estimates.25 1 l
The Licensing Board then went on to note that:
i issues still remained to be resolved, Applicants would have L proposed to resolve.them by means of a motion for summary.
-disposition which would have placed these new facts before the l Board.
21 ALAB-924 at 26.
Id. at 25.
Id. at 26-27.
24 Tr. 4295. SAPL's appeal, too, was limited to "the time Seacoast Anti-it would take to' load hosnital patients."
Pollution Leacue's Brief on Acceal of the Partial Initial Decision on the NHRERP LBP-88-32, at 41 (March 21, 1989).
" LBP-89-33 at 24-29.
l l~
i
, . . - _ . . _. ~ . .- _ .-
!? l o lhii: ~1 EW [
., (
"Some. improvement could be made in-the NHRERP by ,
L '
requiring:an amendment to the plan (or town plans) to j provide for instructions to-the staff of special !
~'
facilities-to prepare ALS patients-for transportation !
o at.the. order-to evacuate. Moreover, any confusion over i the distinction between preparing special-needs persons J in anticipation-of arriving transportation, and assembling them can be readily1 resolved. This type of improvement does not require:any significant revision t to the NHRERP and'it can be readily accomplished by the '
ApplicantsandtheStateandverifgedbytheNRCStaff during the post-licensing period."
-Applicants have consulted with the State of New Hampshire, .
i and hereby commit:to have the language clarifications suggested above by the Board made, subject to Staff ovarsight as indicated'. Accordingly, no further proceedings on this c
' issue:are required.
Moreover, SAPL was the sponsor and sole advocate of this issue as well. Thus SAPL's refusal to participate-further27 constitutes an additional reason why no further zproceedings need occur on this issue.
- 4. -Imolamentina Datail for Shelterina of General Beach Poculation In'ALAB-924, the Appeal Board held that implementing
~
detail was required for the general beach population (as opposed to the estimated 2 percent of the beach population .
without' vehicles) "12 1SDE AA sheltering for the beach population is a protective action option under.the NHRERP."ta 26 -
Id. at 29.
27 Egg Motion to Dismiss.
2s ALAB-924 at 59 (emphasis added).
_ _ . _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ ~ _ _ _
L I I T ;: l1 J
The Appeal Board contemplated that the plan would providenfor' E sheltering-that general beach population in-only two limited f
circumstances: (1) when sheltering would maximize dose reductions, because of "a short duration, nonparticulate
- (gaseous) release that-would arrive at the beach within a t relatively short time period.when, because of a substantial 1
- beach population, the evacuation time-would be significantly ,
' larger lthan the exposure duration" (1.3. a limited puff ,
release on a summer beach day) and, (2) when physical impediments make-evacuation impossible." l i
~
During'the hearings on the NKRERP, FEMA took the R
. position, through its witness Joseph Keller, that evacuation ,
l D (when physically possible) would always be the preferable
. protective action for the Seabrook beach population in light of, inter alia, the uncertainties of release composition and duration, the effects of groundshine, and the poor quality of
.y .the shelter available in the Seabrook beach area.30 This FEMA position was vigorously contested by the Intervenors, L both at trial and on appeal, and was upheld by both the Licensing Board and the Appeal Board.3' In October 1988, the r NHRERP, Rev. 2, Vol. 4, Appendix F was revised to conform to ;
the FEMA position that was litigated (and subsequently
" Id. at 50-51, 59.
30 Id. at 52-55.
3' Id. at 55-58.
L 1
o
'y .
upheld)t: -at step IV.B;4'(General Emergency) it is recommended to evacuate ERPA A, an approximate two-mile radius.thatLincludes Hampton and Seabrook beaches, based on a l
declaration of a General Emergency-subject only to constraints to evacuation. This revision to bring the' plan into conformity with the FEMA position was served on the Board and parties on October 13, 1988.32 The effect of the- ;
change is to eliminate sheltering as an option under the
'first of the two circumstances contemplated by the' Appeal Board. Since-sheltering is no longer a planned protective action option under those circumstances, no implementing detail is required in that case. ;
l-Thus there remains only the issue of implementing detail for the second circumstance, 143. when evacuation is physically impossible, for example because a blizzard has blocked all' roads or a tidal wave has destroyed all bridges.33 The amount of implementing detail necessary in such circumstances would be minimal: with the roads blocked or the bridges out, emergency response officials would need L
very little additional.information in order to arrive at an l
" accurate picture of the (shelter) option's overall benefits 32 133 Letter of G. Huntington, Assistant Attorney General of'New Hampshire, to Chairman I. Smith, Atomic Safety and Licensing Board, October 13, 1988, and enclosures thereto.
33 123., conditions not normally conducive to large beach populations.
~ _ _ . ___ _ _ _ _ _ _ _ _ _ _ _ _ _ __ ___ _ _ _ _ . . _ _
m'+ s J+ ,
I and limitations".vis-a-vis a non-existent evacuation option." Likewise, the amount of detail needed is limited
-by-the fact,-specifically recognized by the Appeal Board, that the types of shelter available to the general beach population is so "down in the dirt in the error band, it's trivial."35 The only implementing detail that would be required pursuant to ALAB-924, therefore, is to direct emergency response officials to, in those extremely unlikely circumstances that a physical impediment to evacuation ,
exists,. broadcast an EBS message instructing the members of ,
the general beach population to proceed immediately to the nearest available fully-enclosed building and remain there.3' Applicants have consulted with the State of-New Hampshire, and hereby. commit to have this change made. With the 1
'. -existing Stone & Webster shelter survey as a reference, state decision makers'can be confident that sufficient indoor. space m is~available.37 "This change is minor and can be ,
p
- ALAB-924 at 64.
35
- 14. at 57, 3' Directing beachgoers to the nearest available building is consistent with the NHRERP's existing shelter-in-place L approach. Eag'Public Service Comoany of New Hannshire (Seabrook ;
b Station,. Units l'and 2), LBP-88-32, 28 NRC 667, 758 (1988).
37 Id. at 771-72. All the buildings listed in the survey are " suitable", ALAB-924 at 68, in the sense that they possess
- the minimal .9 drf which the Appeal Board recognized was all that was.available. Id. at 56. Beachgoers would be directed to go
r - n ,.
. j i
L s
/ Laccomplished.under Staff oversight. Accordingly, no further -j t , 1 proceedings on this issue are required.
L B.- Transportation commitments q Applicants hereby confirm that the NHRERP provides for "the transportation needs of special facilities based'pon u maximum facility capacity . . . in the cases of the Webster l
facility in Rye, New Hampshire, and the Exeter Healthcare facility in Exeter, New' Hampshire."" Specifically,- ,
a The Webster facility staff has, in recent discussions, indicated that their maximum capacity is 69 patients, broken down as 5 Category 2, 27 Category 3, and 37 Category 4 patients. The NHRERP commits 1 evac-bed bus, 1 school bus, and 1 coach bus to the
> facility, with 6 Category 2 spaces, 48 Category 3 spaces,3' and 36 Category 4 spaces, or a total of 90 spaces for a maximum of 69 riders.
- The-Exeter Health Care facility has indicated that
'its maximum capacity is 115 patients, broken down as 58 Category 2, 36 Category 3, and 21 Category 4 patients. The NHRERP commits 6 evac-bed and 1 coach !
bus to the facility, with 58 Category 2 and 64 only to underline "available" buildings, 141. those standing.and enterable. t 38 Id. at 70-71.
3' Also useable for Category 4 patients.
m , ,
f *
-,t , ,; >
't 89
. ? .
l 1
- 'J
-, Category 3 spaces,.'or aftotal of 122 spaces for a-k.
maximum of_115 riders._
Respectfully submitted,_
- y YY
' Thomas G.-Dignan, Jr.
' George H.'Lewald c, -
Jeffrey P.-Trout Jay Bradford Smith Geoffrey C.-Cook ,
William L.-Parker Ropes & Gray one International Place .!
Boston, MA 02110-2624 (617) 951-7000 m
j T
L l !
l- 1
- 1 1
i i
i
)
'O Ega supra note 39.
4
yev.- y . , .-
-1, . w, ;
k ',.
5
, y s ,.
g
. 'Ii
, ,. , -.4,j.i
- x. . , . '.. *
..3. .
i e.'1,,
~
% f y
l
-e.
. .)
g i
4 I .- -
1 l
4
(
1 f
2
.,je 4
4 EXHIBIT 2: <
s.
1
\,: ,
s a
j' e*.j 3
.v.
(
s -
l I P m
'Y.'.
I I
V r
1 r .,
i l,
c
.6 V
f.$
- e. .
i
i l
9, l
4 General Emergency
-s. Initiating conditions j i
All conditions NOTE Protsetive action recommendations will be provided l2 by the utility emergency response organization based l on emergency classificatien level or plant status in accordance with Attachment A.
l2 1 l
- b. Actions 4 (1) Advise NH local EOCs, Massachusetts EOC and NNY ORO of Governor's declaration of state of emergency.
(2) Recommend evacuation of ERPA A, including Hampton and Seabrook beaches, subject to contraints of Attachment C and proceed to Step 4 2
NOTE Complete Step 3 only if constraints of Attachment C exist. ,
2 i l-(3) Advise the Department of Resources and Economic +
Development to close beaches and state park areas in Hampton and Sestrook from Ocean Boulevard and Great Boar's Head to the North and Route 286 and Ocean Boulevard to the South, t
1 U-8 Rev. 2 10/88 Vol. 4A
- , 4 . - ~ , . - - .- - -
w.
.l... '-. . , . . . .
,N l' 4 f4) Advise State Police to establish access control and traffic control points for affected areas. Refer to 1 2
the Traffic Management Manual for identification of points in the affected area.
(5) Advise the Hampton, Hampton Falls and Seabrook Police l2 Departments to establish traffic control points in accordance with the Traffic Management Manual.
(6) Advise Department HHS to activate Reception Centers at Salen and Manchester. Advise DPHS to activate Decontamination Centers at activated Reception Centers.
(7) Prepare.the appropriate EBS Message, in accordance with Appendix G. for release. Activate EBS and authorize broadcast.
(8) New Hampshire sirens will be activated.
(9) After releasing EDS message, provide a copy to Media Center at Newington Town Hall.
(10) Considet extending protective actions to other areas of the EPZ based on procedures at Step 111.
Protective Action Decisions for the General Public, and using Figure 1A and update information regarding: ,
(a) Meteorological conditions (b) Radiological Assessment Vol. 4A U.g Rev. 2 10/88
. ~ . . . .
', 4 ;
C j i L
e l
i i
Ic) .ocal Conditions (Attachment On ,
(d) Emergency Response Organization Status (el Plant Conditions p V. FtCCFts
! A. ,
FIGURE 1A Protective Action Recommendation Worksheot B.
I FIGURE IB Special Facility Protective Action korksheet '
P
. C, FIGURE : Map of Emergency Response Planning Areas IERPA)
D. ,
FICURE 2A Evacuation Scenarios E. FIGURE 3 ETE Values I
F, l FICURE 4 Protective Action Recommendation Guidance Charts G. Figure 4A l ?.
Special Facility Protective Action Recommendation Guidance Charts H. F! CURE $ Special Facility Sheltering Factors VI. ATTACHMENTS ATTACi! MENT A Plant Status Information and Protective Action Recommendations 2
ATTACHMENT B Access Control Points for New Hampshire EPZ ATTACHMENT C Emergency Organization Status and Local Conditions I
j Vol. 4A U-10 Rev. 2 2/88
~. _
+
E0 UNITED STATES OF AMERICA 0NC l NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD 90 FEB 15 P3:55 l Before Administrative Judgest , . ggg G. Paul Bollwerk III, Chhirman ONUgg,jC Alan S. Rosenthal :
Howard A. Wilber l
, I L ) 1 L In the Matter of ) Docket Non. $0-443-OL l
) 50-4 4 4-DL j PUBLIC SERVICE COMPANY ) j OF NEW HAMPSHIRE, ET &L. ) ;
) )
l (Seabrook Station, Units 1 and 2) ) Februhry 6, 1990 1
)
CERTIFICATE OF SERVICE ,
I, . John Trafiennte, hereby certify that on February 6, 1990, I made-service of the enclosed EMERGENCY MOTION OF THE INTERVENORS 1) TO CLARIFY THE STATUS OF THE APPEAL OF LBP-89-33 AND 2) TO REOPEN THE RECORD ON THE NHRERP AS TO THE NEED FOR SHELTERING IN CERTAIN CIRCUMSTANCES via telefax 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 i 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 Commission
- East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 4
O.
- Docketing and Service
- Thomas G. Dignan, Jr.
U.S. Nuclear Rsgulatory 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 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 Commiscicn Federal Emergency Management Washington, DC 20555 Agency 500 C Street, S.W.
Washington, DC 20472 Robert A. Backus, Esq. Atomic Safety & Licensing Board Backus, Meyer & Solomon U.S. Nuclear Regulatory Commission 116 Lowell Street Washington, DC 20555 P.O. Box 516 l Manchester, NH 03106 l
June 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 i l 77 Franklin Street Second Floor Boston, MA 02110 Newburyport, MA 01950 Charles P. Graham, Esq. R. Scott Hill-Whilton, Esq.
l Murphy & Graham Lagoulis, Hill-Whilton & Rotondi 33 Low Street 79 State Street Newburyport, MA 01950 Newburyport, MA 01950
)
I 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. 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 l L
i l
s .c i o.
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. Nuclea't Regulatory Commission I Washington, D.C. 10555 Washington, D.C. 10555
- Howard A. Wilber Jack Dolan l Atomic Safety & Licensing Federal Emergency Management Agency Appeal Board Region i U.S. Nuclear Regulatory Commission J.W. McCormack Post Office &
Washington, D.C. 10555 Courthouse Building, Room 442 i 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. SHANNON ATTORNEY GENERAL l
~
n Traficonte sistant Attorney General Chief, Nuclear Safety Unit Department of the Attorney General One-Ashburton Place Boston, MA 02108 (617) 727-2200 Dated: February 6, 1990
. . - . , . _ . . _