ML20011F130
| ML20011F130 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 02/23/1990 |
| From: | Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20011F125 | List: |
| References | |
| ALAB-924, LBP-88-32, LBP-89-32, LBP-89-33, OL, NUDOCS 9003010207 | |
| Download: ML20011F130 (12) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION bet 0RE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of Docket Nos. 50-443 OL
- PUBLIC SERVICE COMPANY OF 50-444 OL NEW HAMPSHIRE, et al.
Off-site Emergency Planning (Seabrook Station Units 1 and ?)
NRC STAFF'S RESPONSE TO " 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" f,,
Sherwin E. Turk Senior Supervisory
'4 Trial Attorney February 23, 1990 388 1888K 88888h a O
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOAR 3 In the Matter of
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Docket Nos.- 50-443 OL PUBLIC SERVICE COMPANY OF 50-444 OL NEW HAMPSHIRE, g a_1 Off-site Emergency Planning (Seabrook Station, Units 1 and 2)
NRC STAFF'S RESPONSE TO " EMERGENCY MOTION OF THE INTERVENORS: (1) TO CLARIFY THE STATUS (>F THEAPPEALOFLBP-89-33AND(2)TOREOPEN THE RECORD ON THE NHRERP AS TO THE NEED FOR SHELTERD'n IN CERTAIN CIRCUMSTANCES" On February 6 -1990L the Massachusetts Attorney General (Mass AG),
Seacoast Anti-Pollution League (SAPL) and New England Coalition on Nuclear Pollution (NECNP) (hereinafter referred to as "Intervenors") filed an
" Emergency Motion" seeking to clarify the status of their right to appeal fromtheLicensingBoard'sexplanatorydecisioninLBP-89-33,1/andto-reopen the record to litigate the acceptability of a purported change in the New Hampshire Radiological Emergency Response Plan (NHRERP) concerning the sheltering of New Hampshire beach populations under certain circumstances. 2/ The NRC Staff files this response in opposition to Intervenors' Motion.
For the reasons set forth below, the Staff
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Public Service Co. of New Hampshire (Seabrook Station, Units 1
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and 2), LBP-89-33, 30 NRC (slip op., Nov. 20,1989),
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" 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" (" Motion"),
filed February 6,1990.
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recommends that the Appeal Board (1) dismiss, as moot or for lack of jurisdi: tion, that portion of the Motion that seeks to reopen the record on NHRERP beach' shelter issues, and (2) deny that portion of the Motion that seeks clarification of the Intervenors' current appeal rights.
Background
Litigation on the adequacy of the NHRERP proceeded before the Licensing Board from 1986 until the issuance of the Board's Partial Initial Decision (PID) on December 30, 1988; a considerable portion of that litigation and of the PID concerned the adequacy of the NHRERP's provisions for protection of New Hampshire beach populations. 3/
On November 7,1989, the Appeal Board issued ALAB-924, in which it affirmed in part, and reversed and remanded in part, several portions of the I -
-PID.SI In particular, the Appeal Board affirmed the Licensing Board's findings on the adequacy of the NHRERP's protective action strategy for the beach population, including its consideration of the use of shelterin0 as a protective action recomendation (PAR) in beach areas (ALAB-924, slip op. at 48, 56-58). Only two " beach sheltering" issues were not affirmed 1
by the Appeal Board:
(1) a legal question as to the admissibility of L
certain dose consequence / risk testimony which the Appeal Board previously certified to the Comission in ALAB-922, 5_/ end (2) the Licensing Board's l
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Public Service Co. of New Hampshira (Seabrook Station, Units 1 and 2), LBP-88-32, 28 NRC 667, 750-76 (1988); see also id.,
at 795-803.
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Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-924, 30 NRC (slip op., Nov. 7, 1989).
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Public Service Co. of New Hampshire (Seabrook Station, Units 1 l
and 2), ALAB-922, 30 NRC 247 (Oct. 11, 1989).
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finding that " implementing detail" need not be provided for a PAR to shelter New Hampshire beach populations in two specific instances:
(a) if sheltering appears to be the most effective option for maximizing dose savings (i.e., a short duration " puff" release), and (b) if there are physicalimpedimentstoevacuation(id,.at 48,50,63-69). The Appeal d
Board remanded this issue to the Licensing Board, finding that so long as the NHRERP includes sheltering of the beach population as a protective action option, the Board should have required implementing details (including the identification of potential shelters) for a PAR to shelter the beach population under these two conditions (id, at 58-59,67-68). On November 9,1989, the Licensing Board issued its decision on all remaining (SPMC and graded exercise) emergency planning issues and authorized the issuance of an operating license; E and on November 20, 1989, it issued LBP-89-33, explaining why an operating license may be issued pending completion of the remand proceeding.
On February 2, 1990, the Applicants filed a pleading before the Licensing Board in which they provided their views as to how the remand proceeding should be conducted. Therein, they made the following statement with respect to the need for implementing details for sheltering the general beach population:
l In October 1988, the NHRERP, Rev. 2, Vol. 4, Appendix F l
was revised to conform to the FEMA position that was L
litigated (and subsequently upheld):
at step IV.B.4 (General Emergency) it is recommended to evacuate ERPA A, an approximate two-mile radius that includes Hampton and Seabrook beaches, based on a declaration of General Emergency subject only to constraints of L
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Public Service Co. of New Hampshire (Seabrook Station, Units 1
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and 2), LBP-89-32, 30 NRC (slip op., Nov. 9, 1989).
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evacuation. This revision to bring the plan into conformity with the FEMA position was served on the Board and parties on October 13, 1988. 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 circumstas implementing detail is required in that case. ypes, no On February 6, 1990, Intervenors filed the instant Motion, in which
'they asserted that the Applicants' " disclosure of the meaning of the October 1988 plan revision" mandated a reopening of the record to consider l
.the adequacy of that revision (Motion at 2). According to Intervenors, the Licensing Board and Appeal Board had considered a different protective action strategy than that " interpreted" by the Applicants, with the result L
that "new evidence--the October 1988 plan changes as interpreted as of February 1, 1990" should be considered in determining the adequacy of the NHRERP's protective action strategy for New Hampshire beach populations-(j d. ). The Intervenors moved to reopen the record "to have this Board consider this 'new' NHRERP revision," and they sought sumary disposition on the NHRERP sheltering provisions based on the principles of res judicata Qd.).
Separate responses to the Intervenors' Motion were filed by the State of New Hampshire, the Applicants and FEMA on February 16, 1990. E
" Applicants' Response to Licensin 11, 1990,"
dated February 1,1990, at 9-10 (g Board Order of January
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footnote omitted).
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" State of New Hampshire's Coments Pegarding Applicants' Response to Licensing Board Order of January 11, 1990" (" State Response"), dated February 16, 1990; " Applicants' Response to Emergency Motion of Intervenors: (1) To Clar1#v the Status of the Appeal of LBP-89-33 and (Footnotecontinuedonnextpage)
DISCUSSION A. -
The Motion to Reopen on NHRERP Beach Sheltering Issuet Should Be ni:5.issed As Moot or for Lack of Jurisdiction.
The sole basis offered by Intervenors in support of their motion to reopen -- and, indeed, the sole motivating factor for their filing that motion -- is the Applicants' February 1, 1990 unilateral interpretation of o tober 1988 revisions to the NHRERP in the effect of New Hampshire's c
which the Applicants stated their belief that the NHRERP had been revised to effectively eliminate sheltering as a protective measure in those circumstances when sheltering would maximize dose savings for the beach population.
Indeed, the Intervenors do not concede the correctness of Applicants' interpretation of the plan revisions (e.g., Motion at 12 n.6, and 16 n.8), and they explicitly state that reopening is appropriate "if"
- the Applicants' interpretation is correct (Motion at 13; emphasis added).
This matter is readily resolved by reference to the recent filings 1
made by the State of New Hampshire., FEMA and the Applicants in response to Intervenors' Motion. Thus, the State of New Hampshire has flatly disputed the Applicants' interpretation of the State's plan, indicating that it was made "without consultation with state' officials" and "is incorrect" (State Response at 2). The State of New Hampshire has further indicated, with
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(Footnote continued from previous page)
(2) To Reopen the Record on the NHRERP as to the Need for Sheltering in Certain Circumstances" (" Applicants' Response"), dated February 16, 1990; and " Response of the Federal Emergency Management Agency to Emergency Motion of the Intervenors to Reopen the Record as to the Need for Sheltering in Certain Circumstances" (" FEMA Response"), dated February 16, 1990.
_. _ _ supporting affidavits, that it has not adopted any plan changes which alter its previous reliance on the " shelter-in-place" concept for beach
. populations under condition 1, i.e., where that PAR would maximize dose savings (1_d. at 3).
FEMA has similarly rejected the Applicants' interpretation of the NHRERP revisions, indicating that the shelter-in-place concept in the current NHRERP revision (Revision 3) - "which is the only provision regarding shelter in the NHRERP" - "is the same as the definition in Revision 2 (October 1988)... which is consistent with the plan in effect at the time of the 1988 hearings before the Atomic Safety and Licensing Board on the NHRERP" (FEMA Response at 2-3). The Staff concurs with FEMA's reading of the NHRERP. See 10 C.F.R. 9 50.47(a)(2). EI Significantly, the Applicants, themselves, have now retracted their disputed. interpretation of the NHRERP, thus eliminating the sole basis for Intervenors' Motion. -The Applicants indicate that the State of New Hampshire disagrees with their interpretation, that they were " wrong", and that they defer to the State's position as to the meaning of the NHRERP as
.the final arbiter of what the plan means (Applicants' Response at 6-7).
In light of these developments, the motion to reopen to consider the purported change to the NHRERP is simply moot.
In_ addition, the Appeal Board may properly decide to dismiss the Motion for lack of jurisdiction. The Appeal Board concluded its review of the NHRERP's protective action strategy for beach populations with its 9/
See also LBP-88-32, 1 8.35, 28 NRC at 758, in which the Licensing
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Board describes the shelter-in-place concept.
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issuance of ALAB-924. At that time, jurisdiction over any subsequent motions to reopen to consider this subject would appear to have passed either to the Commission or, if the motion bears a reasonable nexus to the limited matters on remand, to the Licensing Board. Louisiana Power &
LightCo.(WaterfordSteamElectricStation, Unit 3),ALAB-792,20NRC 1585, 1588-89; Id., ALAB-753, 18 NRC 1321, 1329-30 and n.14 (1983).
See also, Philadelphia Electric Co. (Limerick Generating Station, Units 1 and2),CLI-86-6,23NRC130(1086);. Id., ALAB-823, 22 NRC 773 (1985).
Because the pending Motion relates to the adequacy of the NHRERP's general protective action strategy for beach populations -- a matter which passed to the Commission upon the Intervenors' filing of their petition for review of ALAB-924 -- proper consideration of the Motion would appear to lie, in the first instance, with the Commission. Conversely, if the matter raised by the Motion is found to bear a reasonable nexus to the remanded issue of." implementing details", jurisdiction to consider the Motion might more appropriately lie with the Licensing Board.
In any event, however, jurisdiction to consider the Motion does not appear properly to lie with the Appeal Board.
B.
The Motion to C16rify the Status of Intervenors' Appeal Rights With Respect to LBP-89-33 Should Be Denied.
The Intervenors take issue with the Applicants' assertion, in Applicants'- filing of February 1,1990 (at 3 n.6), that LBP-89-33 is now the law of the case due to Intervenors' failure to brief their appeal from that decision (Motion at 3-7).
In this regard, Intervenors assert (1) that they preserved their appellate rights by filing the equivalent of a " mandamus" action before the Commission in which they addressed
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LBP-89-33 -- and that the Mass AG, at least, filed a notice of appeal from LBP-89-33(M.at3-4);andtheyproposetheentryofanorderwhich
>4 clarifies the status of their appeal from that decision, "because of the potential importance of any argument that might later be made concerning the exhaustion of administrative remedies....
(M.at7).
The Intervenors' motion for clarification of their status on appeal raises a matter that is inappropriate for decision by the Appeal Board.
In essence, this portion of their Motion seeks an advisory opinion from the Appeal Board as to whether they have effectively preserved their right to appeal from LBP-89-33 in any subsequent foray before the Court of Appeals. The issuance of such an advisory opinion is unnecessary at this time, and would constitute an inappropriate exercise of the Appeal Board's authority. The Intervenors are represented by able attorneys who are fully capable of performing their own analysis in order to determine the proper outcome of this issue.
Resolution of this question by the Appeal Board would be appropriate only at such time, if any, that the Intervenors file a brief on appeal from LBP-89-33. At such time, the Appeal Board may consider any motions to dismiss as may be filed, and may evaluate the merits of Intervenors' assertions that their appeals are timely and were preserved by the filing of their mandamus action before the Comission.
Accordingly, this aspect of Intervenors' Motion should be denied.
CONCLUSION For the reasons set forth above, the Appeal Board should (1) dismiss that portion of Intervenors' Motion that seeks to reopen the record on l
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NHRERPbeachshelterissues,and(2) deny ~thatportionoftheMotionthat.
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seeks clarification of Intervenors' appeal rights.
Respectfully submitted, j
R Sherwin E. Turk-Senior Supervisory Trial Attorney Dated at Rockville, Ma yla w this 23rd day of February, 1990 1
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-COCKETED USNRC
_ UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
% FEB 23 P5:11 BEFORE THE COMMISSION OmCE OF SECRETARY In the Matter of
)
$NCfi Docket Nos. 50-443 OL 50-444 OL-
,PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, g a_1.
Off-site Emergency Planning
)
(Seabrook Station, Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO "INTERVENORS' REQUEST-FOR AN OPPORTUNITY TO BRIEF ALAB-924 IN THE EVENT THE COMMISSION DECIDES TO REVIEW IT AND FOR A HOUSEKEEPING STAY" and NRC STAFF'S RESPONSE TO "INTERV MOTION TO SUPPLEMENT APPLICATION FOR A STAY OF LBP-89-32 in the above captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, as indicated by double asterisks, by express mail, this 23rd day of February 1990:
Ivan W. Smith, Chairman (2)*
Peter Brann, Esq.
Administrative Judge Assistant Attorney General Atomic Safety and Licensing Board Office of the Attorney General U.S. Nuclear Regulatory Comission State House Station 6
-Washington, DC. 20555 Augusta, ME-'04333 Richard F. Cole
- John Traficonte, Esq.**
Administrative Judge Assistant Attorney General Atomic Safety and Licensing Board Office of the Attorney General U.S. Nuclear Regulatory Commission One Ashburton Place, 19th Floor Washington, DC 20555 Boston, MA 02108 Kenneth'A. McCollom**
Geoffrey Huntington, Esq.**
Administrative Judge Assistant Attorney General 1107 West Knapp Street Office of the Attorney General Stillwater,-OK 74075 25 Capitol Street Concord, NH 03301 Thomas G. Dignan, Jr., Esq.**
Robert K. Gad, III, Esq.
Diane Curran, Esq.**
Ropes &_ Gray Harmon, Curran & Tousley l'
One International Place 2001 S Street, NW Boston, MA 02110-2624 Suite 430 Washington, DC 20009 L
A
-2 Robert A. Backus, Esq.**
Jack Dolan Backus, Meyer & Solomon Federal Emergency Management Agency 116 Lowell Street Region I Manchester, NH 03106 J.W. McCormack Post Office &
Courthouse Building, Room 442 Boston, MA 02109 H. J. Flynn, Esq.
Judith H. Mizner, Esq.
Assistant General Counsel 79 State Street Federal Emergency Management Agency Newburyport, MA 01950 500 C Street, S.W.
Washington, DC 20472 Robert Carrigg, Chairman Board of Selectmen Paul McEachern, Esq.**
Town Office Shaines & McEachern Atlantic Avenue l
25 Maplewood Avenue-North Hampton, NH 03862 P.O. Box 360 Portsmouth, NH 03801 Mrs. Anne E. Goodman, Chairman Board of Selectmen George Hahn, Esq.
13-15 Newmarket Road Attorney for the Examiner Durham, W 03824 Hahn & Hesson 350 5th Ave, Suite 3700 Hon. Gordon J. Humphrey New York, NY 10118 United States Senate 531 Hart Senate Office Building R. Scott Hill-Whilton, Esq.
Washington, CC 20510 Lagoulis, Hill-Whilton
& Rotondi Richard R. Donovan-79 State Street Federal Emergency Management Agency Newburyport, MA 01950-Federal Regional-Center 130 228th Street, S.W.
Allen'Lampert Bothell, Washington 98021-9796 Civil Defense Director Town of Brentwood Peter J. Matthews, Mayor 20 Franklin City Hall Exeter, NH 03833 Newburyport, MA 01950 William Armstrong Michael Santosuosso, Chairman Civil Defense Director Board of Selectmen Town of Exeter, NH 03833 South Hampton, NH '03827 10 Front Street Exeter, NH 03833 Ashod N. Amirian, Esq.
Town Counsel for Merrimac Gary W. Holmes, Esq.
145 South Main Street Holmes & Ellis P.O. Box 38 47 Winnacunnet Road Bradford, MA 01835 Hampton, NH 03842 Barbara J. Saint Andre Esq.
Kopelman and Paige, P.C.
77 Frankin Street Boston, MA 02110
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3-Ms. Suzanne Breiseth George Iverson, Director
. Board of Selectmen NH Office of Emergency Management Town of Hampton Falls State House Office Park South Drinkwater Road 107 Pleasant Street Hampton Falls, NH 03844 Concord, NH 03301 Atomic Safety and Licensing Robert R. Pierce, Esq'
- Board Panel (1)*
Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board' Panel Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Office of the Secretary (2)*
U.S. Nuclear Regulatory Consnission
. Atomic Safety and Licensing Washington, DC 20555 Appeal Panel (6)*
Attn:
Docketing and Service Section U.S. Nuclear Regulatory Commission Washington, DC 20555 4,: / A A Edwin J.
is Deputy stant General Counsel for R actor Licensing l
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