ML20012C658

Applicant Answer to Emergency Motion of Intervenors to Reopen Record,For Summary Disposition as to Need for Sheltering in Certain Circumstances & for License Revocation.* Motion Should Be Denied.W/Certificate of Svc

ML20012C658
Person / Time
Site:	Seabrook
Issue date:	03/12/1990
From:	Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
References
CON-#190-10092 OL, NUDOCS 9003230017
Download: ML20012C658 (12)

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g . a-I March 12,0gg0 UNITED STATES OF AMERICA ..

NUCLEAR REGULATORY COMMISSION 9() MAR 15 P4:56 ,

before the crnCE OF SECRElt,RY ATOMIC SAFETY AND LICENSING BOARD # %$[ j

In the Matter of PUBLIC SERVICE COMPANY Docket Nos. 50-443-OL ,

OF NEW. HAMPSHIRE, 31 Al. 50-444-OL (Seabrook Station, Units 1 (Offsite Emergency and 2) Planning Issues) i i

APPLICANT 8' AN8WER TO ENERGENCY. NOTION OF THE INTERVENORS TO REOPEN.THE RECORD, FOR'SUNNARY DISPOSITION AS TO THE NEED FOR SHELTERING IN CERTAIN CIRCUNSTANCES AND FOR LICENSB REVOCATION Under date of February 28, 1990, The Attorney General of The -

Commonwealth of Massachusetts (MAG), acting for himself and Seacoast. Anti-Pollution League (SAPL) and the New England' Coalition on Nuclear Pollution (NECNP), filed with-the Appeal Board, the Commission, and this Board, a document styled

" Emergency Motion of the Intervenors to Reopen the Record, for Summary Disposition as to the Need for Sheltering in Certain Circumstances.and for License Revocation" (The Motion).' The Motion, insofar as it is a motion to reopen, seems to be premised

'The Appeal Board has deferred to this Board by an

. unpublished order of March 1, 1990. The Commission, as of this

- writing, has not requested this Board to withhold action upon the motion either.

l-SBMORIRE.SR 9003230017 900312 PDR ADOCK 00000443 G. PDR f[

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Lupon the Intervenors' allegedly only recent understanding, that

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in the unlikely event that sheltering is ordered for the beach

. population, those persons with cars and without access to

. shelter, are to get in their cars and leave as quickly as I possible. As we understand the Motion, it is predicated on the idea that neither the Intervenors nor this Board were aware of I that fact when the NHRERP 1.as approved.

The Motion is unacconpanied by any affidavit. It also, as seen immediately below, wholly ignores the history of the proceeding and the language of this Board in its Initial Decision at issue.2 ARGUMENT 4

Apparently MAG and his fellow Intervenors would have-us believe that neither they nor this Board were aware that the shelter concept to be used with respect to the beach population was the shelter in place concept'which includes the concept of those out of doors'and with no access to shelter getting into their cars'and evacuating as quickly as possible. This premise is critical to'both the substance and timing of the Motion. -And the premise is nonextant.

2 Public Service comoany of New Hamnshire'(Seabrook Station, Units 1 and 2), LBP-88-32, 28 NRC 667 (1988).

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on July ~15, 1988, Applicants filed their proposed findings and' rulings on the sheltering-issues.3 Therein Applicants requested, inter alia, the following findings:

"10.1.39 Specific and detailed procedures are provided in.the NHRERP to ensure early notification and evacuation of the beach population. Administrative provision for and coordination of emergency instructions to be broadcast have been provided in NHRERP, Volume l', Section 2.1, and Volume 4, NHCDA procedures,.and Volume 4B,. State Police Communications Center procedures to ensure .

the flexibility'to get the most appropriate  !

message aired in a timely manner for the  !

spectrum of accident conditions. The conditions. covered by these provisions range I e from where the emergency organizations are fully staffed and are following a slowly i developing situation to theocase where a l- severe situation is developing rapidly prior L

to emergency organizations being able to E fully staff or assess the situation. AERA l L Dir. No. 6, Post'Tr. 10022 at 18.

"10.1.40 New Hampshire relies upon the shelter- l in-place concept. This means:

I Those at home are to shelter at L

home, those at work or school are i to shelter in the work place or school building. Transients- j located indoors or in private  !

homes will be asked to shelter at i L the locations they are visiting 1 1

ll if this is feasible. -Transients l without access to an indoor

! location will be advised to-evacuate as auickly as nossible in their own vehicles (i.e.. the L

vehicles in which they arrived 1 1  :

L Ann. Dir. No. 6, Post Tr. 10022 at 18 - 19; L NHRERP, Vol. 1 5 2.6.5; id. at p. 2.6-6.

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l-3 Anolicants' Proposed Findinas of Fact and Rulinas of Law l with resoect to Shelterina Issues (July 15, 1988).

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i "10.1.41 Beach closure or evacuation of the beach T a'reas are the preferred courses of action for the beach area population. Sheltering as a protective action option for this segment of the population would be considered in only a very limited number of circumstances characterized by one or more of the following conditions:

1. Dose Savings Sheltering could be recommended when it would be the most effective option in achieving maximum dose reduction. New Hampshire has chosen to base its protective action decision on the lowest values cited by EPA guidance, that is 1 rem whole body dose and 5 rem

-thyroid dose. The protective action guidelines contained in EPA 520/1-75-001, Manual of Protective Action Guides for Nuclear Incidents, Revised 1980, have been adopted in the protective action procedures of Appendix F and Appendix U.

2. Consideration of Local Conditions The protective action recommendation procedure of the NHRERP ([ modified) Appendix F, Volume 4 and-Appendix U, Volume 4A) considers impediments to evacuation when evacuation is the result of the detailed evaluation utilized in the decision-making process.

3. Transients Without Transportation When evacuation is the recommended protective action for the beach population, certain transients may be without their own means of transportation. Shelter will be recommended for this category of

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/ f transients to ensure they have recourse to some protection while ,

awaiting transportation assistance.

Ann. Dir. No. 6, 10022 at 19 - 20 and Anoendix 1."' Post II.

It is difficult to see how MAG can claim in light of proposed finding 10.1.40 quoted above, that only now is it becoming apparent to him that transients without access to an indoor location will be advised to evacuate as quickly as possible ,

in their own cars.

On August 15, 1988, MAG himself wrote proposed findings about.the very issue on which he now claims surprise.5 In his proposed finding No. 10.1.73, MAG pointed out that New Hampshire's Dr. Wallace testified that the state of New l

Hampshire relies on a shelter-in-place concept which does not include sheltering the transient beach population who would be advised to evacuate.' MAG purported to find this testimony " confusing", and clearly raised the issue to the Licensing Board, requesting the Board to make certain 1

'Id. at 18-19 (emphasis supplied).

5" Massachusetts Attorney General James M. Shannon's Proposed Findings of Fact and Rulings of Law on Sheltering Contentions,"

(" MAG-Proposed Findings") August 15, 1988, at 35-3'/.

'"For the protective action of sheltering, the State of New Hampshire relies on a shelter-in-place concept which by definition, Dr. Wallace, the Director of the division of Public Health Services, testified does not include the transient beach population. Trz 10146-47." MAG Proposed Findings at 35.

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findings thereon.7 Thus, MAG not only had notice of the issue, he araued it, back in August 1988.

Furthermore, in his current " emergency" pleading, MAG himself actually quotes the testimony of another New Hampshire witness John Bonds:

". . . that's why we adopted the shelter-in-place as opposed to another sheltering strategy."

Iri 10734-35, quoted in MAG Br. at 6. MAG cannot claim surprise at an issue aired well over a year and a half ago.

But even if MAG missed the point of the testimony, Applicants' proposed findings, and even his own proposed l

findings, MAG could not have missed the issue as it was dealt with by the Licensing Board itself. The Board's decision showed its clear understanding of the shelter-in-place concept, and, citing the same materials which Applicants cited in support of proposed finding 10.1.40, this Board found:

"New Hampshire relies upon the shelter-in-place concept, which generally provides for sheltering at the location where the instruction to shelter is received. This means: those at home are to shelter at home, those at work or school are-to shelter in the work place or school building. Transients located indoors or in private homes will be asked to shelter-at the locations they are visiting, if this is feasible. Transients without access to an indoor location will be advised to evacuate as quickly as possible in their own vehicles (i.e., the vehicles in which they arrived). App. Dir. No.'6, ff.

I" Massachusetts Attorney General James M. Shannon's Proposed Findings of Fact and Rulings of Law on Sheltering Contentions,"

(" MAG Proposed Findings") August 15, 1988, at 35-37.

w i e Tr. 10022, at 18-19; NHRERP, Vol. 1, Sec. j

^ 2.6.5 and 2.6-6."8 ,

More importantly, in its conclusions with respect to the beach sheltering issue, this Board stated, inter glig:

"With respect to issues concerning_ sheltering the-beach population, the Board summarizes and concludes as follows:

1. The preferred protective action R for the seasonal beach population  ;

in the Seabrook EPZ is almost always early beach closure or evacuation.

2. Emolovina the shelter-in-olace concent, the State of New Hampshire is prepared to recommend sheltering of the beach population in

consideration of a very limited number of conditions

l A. When sheltering can be l' predicted to be the most effective option for achieving maximum dose reduction.

L B. In consideration of impediments to evacuation such as fog, snow, road and bridge conditions,

.and highway construction. ,

C. When transients without transportation need sheltering pending l

evacuation.

3. The likelihood that sheltering would afford maximum dose savings L

to the' transient beach population

! is very low. Such a determination would require:

A. That no earlier action, such as l

s l LBP-88-32 at 758 1 8.35.

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y3 precautionary beach closing had been-taken.

B. There exists a peak or close-to-peak beach '-

population with ,

consequent evacuation ,

times significantly l longer than the duration -i of the predicted release.

C. The release is predicted to be one of short duration, without particulates, and projected to arrive at the time.", beach in a short ,

In short, the Intervenors were on notice of this matter in July,of 1988. If they missed it then, the Licensing Board decision left no. doubt when it came out in December of 1988 (

that the concept was. shelter in place, and that transients without access to indoor shelter will be advised to get in their cars and evacuate as quickly-as possible. The Motion was filed over one year later. It is not even close to being timely. It should be denied on that ground alone.

Clearly, what MAG argues is a new revelation is not a new revelation to this Board which, in turn, means that there is

-little or no likelihood that a different result will materialize. As to the significance of the safety issue, the Commission has already made clear that, given'the unlikelihood that shelter will ever be ordered for the beach

'LBP-88-32 at 775 1[ 8-96 (emphasis supplied).

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fe populations, the issue of sheltering the beach population under the NHRERP is not a significant safety issue.'O Finally, MAG continues, despite clear statements from this Board to the contrary," to argue that he can file a motion to reopen without an affidavit. The absence of an affidavit ,

is fatal.

Inasmuch as the underlying motion to reopen does not satisfy the requirements of 10 CFR 5 2.734, the Motion, insofar as it is a motion for summary disposition, should also be denied.

CONCLUSION The Motion should be denied.

Respectfully submitted, A

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. mJ homas 'G. DPfnan, Jr.

George H. Lewald Kathryn A. Selleck Jeffrey P. Trout Ropes & Gray One International Place Boston, MA 02110-2624 (617) 951-7000 counsel for Applicants 10 Public Service Comnany of New Hamnshire (Seabrook Station, Units 1 and 2), CLI-90-03, 31 NRC , Slip op. at 43 (Mar. 1, 1990)..

"Public Service Comnany of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-89-38, 30 NRC , Slip op. at 19 (Dec.11, 1989).

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000hEILO USNRC CERTIFICATE OF SERVICE W W 15 P4 :56 I, Thomas G. Dignan,- Jr. , one of the attorneys for the f Ca990i,CiTimade Applicants herein, service of the withinhereby certify document by that on March depositing Ty#IdM%ge6fWWith copiW Federal Express,-prepaid, for delivery to (or, where indi,'ated, c by depositing in the United States mail, first class postage paid, addressed to):

Administrative Judge Ivan W. Smith Adjudicatory File 1 Chairman, Atomic Safety and Atomic Safety and Licensing Licensing Board Board Panel Docket (2 copies)

U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 Administrative Judge Richard F. Cole Robert R. Pierce, Esquire Atomic Safety and Licensing Board Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board East West Towers Building U.S. Nuclear Regulatory 4350 East West Highway Commission Bethesda,-MD 20814 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Administrative Judge Kenneth A. Mitzi A. Young, Esquire McCollom Edwin J. Reis, Esquire 1107 West Knapp Street Office of the General Counsel Stillwater, OK 74075 U.S. Nuclear Regulatory Commission One White Flint North, 15th F1.

11555 Rockville Pike Rockville, MD 20852 George Dana Bisbee, Esquire Diane Curran, Esquire Associate Attorney General Andrea C. Ferster, Esquire Office of the Attorney General Harmon, Curran & Tousley 25 Capitol Street Suite 430 Concord, NH 03301-6397 2001 S Street, N.W.

Washington, DC 20009

• Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Board 116 Lowell Street U.S. Nuclear Regulatory P. O.' Box 516 Commission Manchester, NH 03105 Washington, DC 20555

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~i; Philip Ahrens, Esquire Suzanne P' Egan, City Solicitor Assistant Attorney General Lagoulis, Hill-Whilton &

Department of the Attorney Rotondi General- 79 State Street

-Augusta, ME 04333. Newburyport, MA 01950-

-Paul McEachern, Esquire John Traficonte, Esquire Shaines & McEachern Assistant Attorney General 25 Maplewood Avenue Department of the Attorney P.O. Box 360 General Portsmouth, NH 03801 One Ashburton Place, 19th Fl. .

Boston, MA 02108

• Senator Gordon J. Humphrey R. Scott Hill-Whilton,-Esquire ,

U.S. Senate Lagoulis, Hill-Whilton &'

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

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

Concord, NH 03301 77 Franklin Street (Attn: Herb Boynton) Boston, MA 02110 H. Joseph Flynn, Esquire Judith H. Mizner, Esquire Office of General Counsel 79 State Street, 2nd Floor

< Federal Emergency Management Newburyport, MA 01950 L

Agency l 500 C Street,.S.W.

I Washington, DC 20472 L Gary W. Holmen, Esquire Ashod N. Amirian, Esquire 1

Holmes & Ells 145 South Main Street

( 47 Winnacunnet Road P.O. Box 38 p -Hampton, NH 03842 Bradford,-MA 01835 l

l Mr. Richard R. Donovan Mr. Jack Dolan L Federal Emergency Management Federal Emergency Management L Agency- Agency Region I l Federal Regional Center J.W. McCormack Post Office &

l 130 228th Street, S.W. , Courthouse Building, Room 442 l Bothell, Washington 98021-9796 Boston, JUL 02109 l

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..f 4 . George Iverson,--Director  ;

lN.H. Office'of Emergency Management

' State House Office Park South 107 Pleasant: Street Concord, NH' 03301  ;

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Thoinas' G . ' Digniffi, Jr. .

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(*= Ordinary U.S. First Class Mail)

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