ML20029A045

Licensee Suggestion for Certified Question.* Draft Certified Question for Appeal Board Encl.* W/Certificate of Svc

ML20029A045
Person / Time
Site:	Seabrook
Issue date:	01/28/1991
From:	Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20029A041	List: ML20029A040 ML20029A043 ML20029A045 ML20029A047
References
OL, NUDOCS 9102010112
Download: ML20029A045 (10)

Text

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January 28, 1991 l UNITED STATES OF AMERICA 91 JN 29 P5:22  ;

NUCLEAR REGULATORY COMMISSION before the ,,

ATOMIC SAFETY AND LICENSING BOARD In the Matter of PUBLIC SERVICE COMPANY Docket Nos. 50-443-OL OF NEW HAMPSHIRE, 3.t al. 50-444-OL (Seabrook Station, Units 1 (Offsite Emergency and 2) Planning Issues)

LICEN8EES' SUGGESTION FOR CERTIFIED QUESTION At the conclusion of a prehearing conference held telephonically on January 23, 1991, Licensees were directed by the Board to draft a form of certified question for consideration by-the Appeal Board. Attached hereto is a suggested form of i certification in response to that order.

Respectfully submitted,

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d- >'f C /il/

p Thcimss G. Dig 6an, Jr.

D - George H. Lewald '

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Kathryn Selleck Shea o Jeffrey P. Trout Ropes & Gray  ;

One International Place

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Boston, MA 02110-2624 (617) 951-7000 1 Counsel for Licensees CEkfQUts.S$

9102010112 910129 PDR ADOCK 05000443 O PDR

e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges Ivan W. Smith, Chairman Dr. Richard F. Cole Dr. Kenneth A. McCollom In the Matter of PUBLIC SERVICE COMPANY Docket Nos. 50-443-OL OF NEW RAMPSHIRE, 21 al. 50-444-OL (Seabrook Station, Units 1 (Offsite Emergency and 2) Planning)

ASLBP No. 82-471-02-OL February __, 1991 MEMORANDUM AND ORDER (Certifying Question to Appeal Board)

In ALAB-939,' the Appeal Board addressed certain questions concerning the so-called " beach-shelter" issue in this proceeding which questions had been referred to the Appeal Board by this Licensing Board.2 These questions arose during our consideration of the romand of the " beach-shelter" issue by the Appeal Board in

'Public Service comoany of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-9 3 9, 32 NRC 165 (1990).

2 Sag Public Service CoirqaDv of New Hamoshire (Seabrook Station, Units 1 and 2), LBF-90-12, 31 NRC 427 (1990).

ALA B-9 2 4 . 3 In the course of addressing the referred questions, the Appeal Board stated:

"As we have previously indicated, it was not the intent of our remand in ALAB-924 to direct planning officials to adopt sheltering of the general beach population as a protective action and we do not do so now."'

However, the Appeal Board vont on to state:

"In light of (New Hampshire's) post-remand filings clarifying the existing adjudicatory record concerning the scope and details of the sheltering option for the transient beach population under condition (1), in the context of the intervenors' challenges to the adequacy of the sheltering option for the general beach population, we find it incumbent upon the Licensing Board to ensure that, as a consequence of evidence previously submitted by applicants in the course of the hearing, several related matters are clarified."

The first of the several matters to be clarified was:

"(B)ecause the evidence presented by applicants indicates that automobiles are assigned no cloudshine sheltering value by planners, the Board should ensure that the record contains an adequately supported explanation for distinguishing between those nontransportation-dependent beachgoers already within a building who will be directed to shelter, and all other beachgoers, who will be directed to go to their cars and evacuate, in terms of condition (1)'s purpose of utilizing sheltering for ' achieving maximum dose reduction.'"

3 Public Service Company of New Hamoshir6 (Seabrook Station, Units 1 and 2), ALAB-9 2 4 , 30 NRC 331 (1989).

'32 NRC at 178.

5 32 NRC at 179.

6 1d.

The second matter was:

"(G)iven the testimony by New Hampshire emergency planning officials suggesting the need to distinguish betwoon suitable and unsuitable shelter, the Licensing Board should onsure that the record is clear as to whether such measures are necessary relative to the

'sholter-in-placo' option as now described by the State."

And the third, and last, of the several matters was:

"[G)iven (Licensecs') evidence acknowledging the contral importance of quality emergency notification messages, the Licensing Board should ensure that any EBS/ beach public address message proposed for uso relative to condition (1) makes clear the steps that all members of the beach populetion are to take in the event that a ' shelter-in-placo,' as now described by the state, is recommendou."7 All of the several matters as to which clarification was directed by the Appeal Board, assumed that under the so-called

" Condition (1)" the New Hampshire Radiological Emergency Responso Plan (NHRERP) called for sheltering (sheltering-in-place) of the

" beach population."

On November 14, 1990, we issued an unpublished Memorandum and Order directing all parties and requesting the State of Now Hampshire to submit memoranda reflecting their views with respect to the three remanded issues. All of those entities complied.

The Licensees took the position that the record did contain the information called for with respect to the first two matters, but also stated that, "In light of the filings of the Stato of New Hampshire and FEMA which we understand will be made, the question 7

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i posed now appears to be irrelevant."a The Intervenors New England Coalition on Nuclear Pollution (NECNP) and the Attorney l General of The Commonwealth of Massachusetts (MAG) filed a joint response in which they took the position that none of the remanded issues had been addressed on the record, and, therefore, further hearings were required.'

l Responses were also filed by the Federal Emergency Management Agency and the NRC Staff. Both of these responses indicated that in the judgment of both the Staff and FEMA, the questions posed by the remand were moot. The Staff seemed to believe this was so because the NHRERP does not set forth shelter-in-place as an option with respect to ERPA A (which includes the "Lasch population") in the event of a general emergency and that the " shelter-in-place" option for condition (1) is a " null set" in any event." FEMA stated that "it is impossible to have the combination of events necessary to have

' Condition l'. . . .

8 Licensees' ResDonse to the Memorandum and order of November

14. 1990 of the Atomic Safety and Licensina Board Re ALAB-939 at 3 (Jan. 10, 1991)._

'In addition, Seacoast Anti-Pollution League (SAPL), without seeking leave to do so, filed e late response. The Board has not considered this response.

"NRC Staff Views on Matters Referred in ALAB-939 at 2-3 (January 11, 1991).

" Advice of the Federal Emeraency Manacement Acency l Recardina Issues Raised by ALAB-939 at 2 (January 11, 1991).

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i In addition, the State of New Hampshire responded." A copy of that response is attached hereto as " Attachment 1." In its response, signed by the Deputy Attorney General of the State, New Hampshire asserts unequivocally that ". . . with respect to condition (1), the short duration non-particulate gaseous puf f release, evacuation - not shelter-in-place - is the planned protective action."" This factual assertion was confirmed on g the record during the prehearing conference under oath by the Director of the New Hampshire Office of Emergency Management

-(NHOEM)."

Assuming that the above quoted statement could be considered evidence in this matter, it would seem clear that the three matters remanded in ALAB-939, are indeed, moot, inasmuch as such i matters have relevance only if shelter-in-place at a general emergency is a planned protective action in the NHRERp. However, that statement is, in the first instance, a statement of counsel,

albeit a high ranking official of the State of New Hampshire with authority to speak for, and bind, the State in a court of Law.

It has, of course, been confirmed under__ oath by the chief r

official of the NHOEM, the State agency responsible for emergency planning. The Board would have no difficulty in declaring the matters remanded in ALAB-939 as being resolved as moot but for

" Memorandum of the State of New Hamoshire on ALAB-939 (January 10, 1991).

l uld at 1-2.

"II. 28493.

the fact that ALAB-939 appears to require either that information relied upon in making such a declaration be either elicited in an evidentiary hearing, or the subject of an affidavit in support of a summary disposition motion. In light of that concern, the Licensing Board certifies to the Appeal Board the following question:

May the Licensing Board treat the factual statements in the Memorandum of the State of New Hamoshire on ALAB-939 as equivalent to record evidence or the proper subject of official notice so as to supply the necessary record foundation for resolution of the matters remanded in ALAB-9 39 ?

ATOMIC SAFETY AND LICENSING BOARD Richard F. Cole ADMINISTRATIVE JUDGE Kenneth A. McCollom ADMINISTRATIVE JUDGE Ivan W. Smith, Chairmen ADMINISTRATIVE LAW JUDGE Bethesda, Maryland February __, 1991 l

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'91 Ju 29 PS :22 CEBI T cATE OF SERVICE

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I, Thomas G. Dignan, Jr. , one of the attorneys forJthe s 'i' Ml Licensees herein, hereby certify that on January 28, 1991",natChade

, service of the within document by depositing copies thereof with 4

Federal Express, prepaid, for delivery to (or, where indicated, by depositing in the United States mail, first class postage paid, addressed to):

Administrative Judge Ivan W. Smith Adjudicatory File 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 Betheoda, 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. Nucitar 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 John P. Arnold, Attorney General Diane Curran, Esquire George Dana Bisbee, Associate Andrea_C. Ferster, Esquire Attorney General Harmon, Curran & Tousley Office of the Attorney-General Suite 430 25 Capitol Street 2001 S Street, N.W.

Concord, NH 03301-6397 Washington, DC 20009

• Atomic Safety and-Licensing Robert A. Backus, Esquire

Appeal Panel 116 Lowell Street U.S.-Nuclear Regulatory P. O. Box 516 Commission Manchester, NH 03105 Mail Stop EWW-529 Washington, DC 20555 u _.. _..__ .. ___ __ _ ._ _ _ - _ _ _ _ _ . _ . _ . _ _ _ _ . _

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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 Leslie Greer, Esquire Shaines & McEachern Matthew Brock, Esquire 25 Maplewood Avenue Massachusetts Attorney General P.O. Box 360 One Ashburton Place Portsmouth, NH 03801 Boston, MA 02108

• Senator Gordon J. Humphrey R. Scott Hill-Whilton, Esquire U.S. Senate Lagoulis, Hill-Whilton &

Washington, DC 20510 Rotondi (Attnt 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 101 Arch 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 Agency 500 C Street, S.W.

Washington, DC 20472 Gary W. Holmes, Esquire Ashod N. Amirian, Esquire Holmes & Ells 145 South Main Street 47 Winnacunnet Road P.O. Box 38 Hampton, NH 03842 Bradford, MA 01935 Mr. Richard R. Donovan Mr. Jack Dolan Federal Emergency Management Federal Emergency Management Agency Agency - Region I Federal Regional Center J.W. McCormack Post Office &

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

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George Iverson, Director N.H. Office of Emergency Management State House Office Park South 107 Pleasant Street Concord, NH 03301

(- ;/Vj,,_jpO l Thomas G. Dignahl Jr.

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

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