ML20012E667

Opposition of FEMA to Emergency Motion of Intervenors to Reopen Record for Summary Disposition as to Need for Sheltering in Certain Circumstances & for License Revocation.* W/Certificate of Svc

ML20012E667
Person / Time
Site:	Seabrook
Issue date:	03/28/1990
From:	Flynn H, Mcpheters L Federal Emergency Management Agency
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20012E665	List: ML20012E664 ML20012E667
References
OL, NUDOCS 9004060078
Download: ML20012E667 (8)

Text

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March 28, 1990 UNITED STATES OF AMERICA s ,

NUCLEAR REGULATORY COMMISSION  :

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BEFORE Ti!E ATOMIC _ SAFETY AND LICENSING BOARD JUDGE IVAN W. SMITil, Cl! AIRMAN JUDGE RICilARD F. COLE JUDGE KENNETil A. McCOLLOM -

) i In the Matter of )

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-Public Service Cc. of New Itampshire, ) Docket No. 50-443-OL  ;

et al. ). 50-444-OL }

} Offsite Emergency -

(Seabrook Station, Units.1 & 2) ) Planning Issues

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OPPOSITION OF.THE FEDERAL EMERGENCY MANAGEMENT AGENCY TO EMERGENCY MOTION OF-TIIE INTERVENORS TO REOPEN Ti!E RECORD, FOR

SUMMARY

DISPOSITION AS TO TIIE NEED FOR Sl!ELTERING >

-IN CERTAIN CIRCUMSTANCES AND FOR LICENSE REVOCATION  !

The Federal Emergency Management Agency, through its' undersigned counsel, j respectfully submits the following opposition to the emergency motion of the intervenors to' reopen the record, for summary disposition as to the nevd for_ ,

sheltering in certain circumstances, and for license revocation: l s !I-I. Introduction f On February 28,.1990, the Intervenors-filed with the Appeal Board their ,

Energency Motion regarding sheltering. On March 1, 1990 the Appeal Board i issued an Order referring the Intervenors' Motion to this Board for  ;

appropriate action. The following response presents FEMA's position that the- =5

. motion should be denied because tnis Board and the Commission have ruled that

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the' sheltering issue, as the record now stands, presents no safety significant t

• considerations material to licensing issuance and therefore no hearing is

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j warranted. FEMA also disputes the Intervenors' argument that they learned for I i

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the first' time in filings' of .the State. of !!eu _llampshire,- FEMA, and th3 b gg.; <

-Applicants;in Februaryt1990 that in the unlikely event that sheltering'in p

p lj place was. ordered for the nearby beach population, that the transient' beach y

population would be directed to leave in their automobiles as soon as

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r g Lpossible. -As discussed in Section III below, sheltering in place, in which thustransient beach population without access to'an indoor location will be (l-o requested to evacuate in their own vehicles, has been a concept of the NHRERP 1

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since at least February 11, 1988. Therefore, there is no reason for~ reopening

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E the hearing on account of newly available information.

o Ve II'.' No Hearing is Re3uired on the Sheltering,Issce Raised by Intervenors' l Motion Because, as This Board and the Commission lias Ruled, the Issue is Not Safety Significant and Thus Not Material to Licensing.

n This Board has found that the likelihood is extremely low that sheltering-t in place would-ever be ordered as the preferred protective action to achieve maximum' dose reduction for.the nearby beach population, and that evacuation 4

LBP-88-32, Sec. -;

would' virtually always be the preferred' protective action. =J v

j 8.96, 28: NRC 667, 775-76. This Board thus ruled that the issue of-1 implementing detail for sheltering raised by the Appeal. Board in ALAB-924 was-not safety-significant because of the extreme unlikelihood that sheltering-would ever be utilized for the nearby beach population in the event of an a ' emergency at Seabrook, and held that an operating license should be iscued

'_ln notwithstanding the pendency of the issue raised by the Appeal Board.

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s LBP-89-33, p. 33.  ;

a In considering this point, the Commission stated:

{wje find 1 reasonable the Licensing Board's decision that this remanded .;

'j issue does not raise a significant substantive issue regarding emergency planning adequacy. The record shows clearly that evacuation rather than i

sheltering is the principal protective action for the beach population,  ;

and that the average shelter factor is so small that the public protection  !

afforded from sheltering is very small. ... Given these considerations, we believe that the absence of implementing detail for the sheltering option  ;

i is not significant.

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~ FEMA's Opposition to Intervenor's Emergency Motion - p. 2. i l L e

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< 'CLI-90-03J.ppi 43-44.

Moreover,.the Commission concluded that no further- 1*

hearings were required on the issues remanded'in ALAB-924, including the t i

sheltering issue, in order for- the Commission to determine the significance of  ;

these' issues prior to licensing issuance. Id., slip. op. at 15, . Lf . (The Appeal Board's decision in ALAB-924 is pending possible review r. the 1 i

Commission.) The Commission further held that "all issues which are . ,evant to compliance with 10.C.F.R. Sec. 50.47(b) emergency planning standards'are  ;

not necessarily material to license issuance because, under 10 C.F.R. Sec.

50.47(c), compliance issues may not be significant and therefore need not be resolved prior to license issuance." Id., p. 13. (FEMA submits that these  ;

statements of the Commission in CLI-90-03 are legal rulings which this Board'

-is' entitled to take into account, despite the provisions of 10 C.F.R. Sec.

2.764(g). Soe Long Island Lighting Co., ALAB-800, 21 NRC 386, 390-92 (1985)).,  ;

Since:this Board, affirmed by the Commission, has determined that the i

sheltering issues raised by ALAB-924 are not significant substantive is'ues

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regarding emergency plan adequacy and therefore not material to licensing f

-issuance,. FEMA submits that there is no need and no legal requirement for this Board to hold a post-licensing evidentiary hearing on these issues. In any.

event, it should be noted also that~the Appeal ~ Board did not order thatJsuch a hearing.be conducted, but merely remanded the case to this Board "for.further action consistent with-this opinion." ALAB-924, p. 70. The Commission, through its adjudicatory boards, may reasonably restrict the boundaries of the y

. inquiries by which it determines issuance of a license, and its determination 1

will be respected by the Courts. Mothers for Peace v. NRC, 789 F.2d 26, 29-30 (D.C.Cir. 1986) (en banc).

FEMA's Opposition to Intervenor's Emergency Motion - p. 3.

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f, , Sinc;'the issus_ 'of ' implementing detail for shsltering of the besch :

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{ population has- been determined by. the: Commission not to be a significant.1 7

L substantive issue regarding emergency plan adequacy, and therefore/not-to be p gp-h bE noterial to the licensing determination, nothing:in the holding of the E~

Court of Appeals in Union ~of Concerned Scientists v. NRC, 735 F.2d 1437

-(D.C.Cir. 1984), requires this Board nou to hold an evidentiary hearing on L- ,these issues. The Court of Appeals-further explicated its holding in UCS, L

rejecting the dictum setting forth a presumption for an on-the-record hearing,

{U stating:

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-We will henceforth make no presumption that a. statutory " hearing"

' requirement' does or does not compel the agency to undertake a formal

" hearing on.the record," thereby leaving it to the agency, as an initial matter, - to resolve the ambiguity.

Chemical Waste Management, Inc. v. U.S. Environmental Protection Agency, 873-F.2d'1477,f1482(D.C.Cir.1989). The matter of whether and.in what form y

implementing detail;may be added to the NHRERP for the remote and virtually inconceivable utilization of sheltering for the nearby beach population can be

' considered'" fine-tuning" that can be accomplished with consultation between

the State of New Hampshire, FEMA, and the NRC.

y III.- There is No Basis to Reopen the Record On Account of Newly.

Available Information.

'The Intervenors claim that' they learned for the first time through the

'i-February 1990 filings of the State of New Hampshire, FEMA, and the Applicants

-that, under the sheltering-in-place concept of the NHRERP, under Condition-1 transients without access to indoor locations would be told to evacuate in the

- p vehicles in which they arrived. This claim is controverted by the record, K j i

FEMA's Opposition to Intervenor's Emergency Motion - p. 4.

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As PEMA: poi'nted out'in_its. filing to the Appeal' Board of. February-16, 1990 y

.- < Lat!pp. 324,1on February 11, 1988,-Richard !!.'Strome, then Director of the' State of New flampshire Office of- Emergency Management, wroto to PEMA- setting _ l t_ ,

f forth the State's " shelter-in-place" concept, which calls for transients

-without access to an indoor-location to evacuate as quickly as possible in-their'own vehicles.: Mr. Strome's letter was submitted for the record by the '

Applicants in their Direct Testimony No. 6 on April 27, 1988, Appendix 1, p. .

4,.ff. Tr ?l0022. = The October 1988 revisions to the NIIRERP, also -

incorporating this concept, were served along with the letter.of October 13,

'1988 of Geoffrey !!untington,-- Assistant Attorney General of New flampshire,- to  :

this: Board.

Applicants, in their Answer to Intervenor's Emergency Motion submitted on March 12, 1989, correctly point out that the shelter-in-place concept was-addressed in both Applicants' and Intervenors' proposed findings on the' i sheltering issues and that this Board accurately characterized the shelter-in-place concept in its, Partial Initial Decision. LBP-88-32 at 758,

. par. 8.35.-

There is thus no newly _available information on this issue, and the Intervenors' motion to reopen is_not timely. Por this reason also,-the motion- 4 to reopen should be denied.

Respectfully submitted,-

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!!. osep lynn Js L% Mcf%%

Linda Iluber McPheters For the ,

Federal Emergency Management Agency-500 C Street, S.W.

Room 840 Washington, D.C. 20472 (202) 646-4102

. FEMA's Opposition to Intervenor's Emergency Motion - p. 5.

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000KL100 UsHRC March 28, 1990

- 90 MR 30 A9:05 UNITED STATES OP AMERICA NUCLEAR REGULATORY COMMISSION 0FICE OF SECRETARY DOCKlimG !. SliiVICI-BEFORETHEATOMICSAFETYANDLICENSINGBOAh JUDGE IVAN W. SMITH, CHAIRMAN i

JUDGE RICHARD F. COLE JUDGE KENNETH A. McCOLLOM

)

In the Matter of )

)

Public Service Co. of New Hampshire, ) Docket No. 50-443-OL et al. ) 50-444-OL

) Offsite Emergency (Seabrook Station, Units 1 & 2) ) Planning Issues

)

)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Motion for Leave to Pile and Opposition 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 and for License Revocation have been served upon the following

. " persons by U.S. mail, first class, on February 16, 1990.

Administrative Judge Administrative Judge G. Paul Bollwerk, III Thomas S. Moore, Chairman Atomic Safety and Licensing Appeal Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555

. Administrative Judge Administrative Law Judge Howard A. Wilber Ivan W. Smith, Chairman Atomic Safety.and Licensing Appeal Atomic Safety and Licensing Board Board U.S. Nuclear Regulatory Commission EU.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Administrative Judge Administrative Judge Richard F. Cole Kenneth A. McCollom Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555

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'.- t iRobert R. Pierce, Esq.. Administrative' Judge

. Atomic Safety and . Licensing Board

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James !!.: Carpenter '

U.S.' Nuclear Regulatory Commission Atomic Safety and-Licensing Board-Washingtonk D.C.'20555: U.S. Nuclear Regulatory Commission t

i Washington,-D.C.-20555

.Edwin J.LReis, Esq. . .Mitzi A.' Young,-Attorney..

Office,of the General Counsel' OfficeJof the General Counsel- U.S. Nuclear Regulatory Commission, U.S6 Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 i

diane. Curran,Esq.'. Thomas G.'Dignan, Jr., Esq.

-Harmon, Curran & Tousley- Ropes & Gray 2001 S Street,-N.W., Suite 430 One International Place Boston,'MA 02110 Washington, D.C. 20009 Paul McEachern,-Esq.

Robert A. Backus,-Esq.

Backus, Meyer & Solomon Shaines & McEachern-25 Maplewood Avenue, P.O. Box 360

~116 Lowell Street. Portsmouth, N1103801 Machester, NH 03106

! - Gary W. llolmett, Esq. Judith A. Mizner Counsel for,Newburyport Holmes & Ellis' 4 47 Winnacunnet Road 79 State Street

-Hampton,< Nil 03842 Newburyport, MA 01950 Barbara J. Saint Andrei Esq. Jane Doherty Seacoast Anti-Pollution League Kopelman and' Paige,: P.C.

77 Franklin: Street 3 Market Street

. Boston, MA 02110 Portsmouth, NH 03801 Ashod N. Amirian, Esq. Jack Dolan 145 South Main St., P.O. Box 38 Federal-Emergency Management Agency i

Bradford,-MA 01830 442 J.W. McCormack (POCH)-

Boston, MA 02109 t George D. Bisbee, Esq. Suzanna Breiseth Assistant Attorney General Board of Selectmen Office of'the Attorney General Town of Hampton Falls 25 Capitol Street Drinkwater Road j Concord, Nil 03301- Hampton Falls, NH 03844- 1 J

= John Traficonte, Esq.

Chief, Nuclear Safety Unit Office of the Attorney General

'One Ashburton Place, 19th floor Boston'MA 02108 i

.4. Peter"J.' Brann, Esq.

Richard A..-Hampe, Esq. l T, Hampe G McNicholas d Assistant Attorney General  !

Office of the Attorney General 35 Pleasant Street f State House Station, #6 Concord, NH 03301 .1 s

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-Certificate of Service, March 28, 1990, p.2.

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Allen Lampert: William Armstrong Civil Defense Director Civil Defense Director Town of Brentwood Town of Exeter 20 Franklin Street 10 Front Street

.Exeter, Nil 03833 Exeter, Nil 03833

' Sandra' Gavutis, Chairman Calvin A. Canney Board of Selectmen- _ City Manager

RFD #1 - Box 1154 City Ibil Kensington, Nil 03827 126 Daniel Street Portsmouth, tHI 03801' Anne Goodman, Chairnen William S. Lord Board of Selectmen Board of Selectmen 13-15 Newmarket Road Town Hall - Friend Street Durham, Nil 03824 Amesbury, MA 01913 Michael Santosuosso R. Scott Hill-Whilton, Esq.

Board of Selectmen Lagoulis,Ilill-Whilton & McGuire South Hampton, NH 03827 79 State Street Newburyport, MA 01950 Stanley W. Knowles, Chairman Norman C. Katner Board of Selectmen Superintendent of Schools P.O. Box 710 School Administrative Unit No. 21 North'llampton, Nil 03862 Alumni Drive llampton, NH 03842 Sandra F. Mitchell The lionorable

. Civil Defense Director Gordon J. Humphrey Town of Kensington ATTN: Janet Coit Box 10 RR1 United-States Senate East Kingston, NH 03827 Washington, D.C. 20510 b c b LINDA HUBER MCPHETERS Federal Emergency Management Agency 500 C Street, S.W., Room 840 Washington, D.C. 20472 (202) 646-3941 Dated: March 28, 1990

> Certificate of Service, March 28, 1990, p.3.

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