ML20029B606

Response of Ma Atty General to Appeal Board 910222 Order.* Questionable Whether Eight Issues Resolved.To Dismiss Issues Would Be Wrong on Procedural Grounds & Moot on Substantive Grounds.W/Certificate of Svc

ML20029B606
Person / Time
Site:	Seabrook
Issue date:	02/28/1991
From:	Greer L MASSACHUSETTS, COMMONWEALTH OF
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#191-11481 OL, NUDOCS 9103130111
Download: ML20029B606 (13)

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(!00KETED UsHRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION.91 t m PS -1 :15 ATOMIC SAFETY AND LICENSING APPEAL BOARD Before Administrative Judges:

G. Paul Bollwerk III, Chairman Alan S. Rosenthal Howard A. Wi'bor

)

In the Matter of ) Docket Nos. 50-443-OL

) 444-OL PUBLIC SERVICE COMPANY )

OF NEW HAMPSHIRE, ET AL. )

)

(Seabrook Station, Units 1 and 2) ) February 28, 1991

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RESPONSE OF THE MASF_AG TO THE APPEAL BOARD ORDER OF FFIB11AEJ 22, 1991 Under dat- , February .2, 1991, this Appeal Board issued an Order permit;ing the Massachusetts Attorney General (" Mass

! AG") to reply to the February 8, 1991 Response of the [

Applicants to this Board's Order dated February 4, 1991. The Order of February ^_2, 1991 indicated that the Appeal Board is considering the dismissal of the eight matters identified in-the Applicants' Response on the basis that.they have been resolved, and are, therefore, moot. For the reasons set forth below,-the Mas AG submits that dismissal of the eight issues l under the present circumstances is inappropriate, unwarranted L >

to 'te evidence before this Board, and contrary to law.

9103130111 910228

, PDR ADOCK 05000443 l G PDR

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I. To- Dis'.niss the Issues as Moot Would be Procedurally Imoroorr.

1 To dismiss the eight issues on the basis of a i

representation of counsel to the effect that the issues may  ;

potentially have been resolved would be in violation of the Intervenor's hearing rights under tl.e Atomic Energy Act and due process of law. To date the Applicants have done nothing more than through counsel represent that they believe the issues in

. question may have been resolved by events that occurred after the close of the record in the Licensing proceeding. They have not filed any motion'to dismiss the issues as moot. They have not even supplied af fidavits, or detailed factual accounts, setting forth the basis for their belief that the issues may potentially have been resolved. Even the NRC staff in their response does not take the position that the issues have in fact been resolved. To dismiss the eight issues on the basis of the thin factual foundation that is before the Board-et this time would make a mockery of the Intervenors' hearing rights.

In essence, it would be adopting a procedure under which Intervenors are obligated at the time of a hearing to produce witnesses, documents, and other legally admissible evidence, in support of their case and in contast, Applicants may prevail by waiting until after the close of the record and merely file a

- suggestion that all of the issues raised by Intervenors have

-been-resolved.- Particularly, when such a process is contrasted 1 with the onerous provisions that Intervenors must meet to reopen a closed record in a licensing proceeding, adoption of

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such a procedure would give the impression that ]itigation for the NRC is not even handed. Under such a procedure, Intervenors are given no opportunity to present countervailing evidence, to examine any documents or other physical evidenes that formed the basis for the Applicants' belief, or to cross examine any witnesses who might support the Applicants' belief. Such a procedure does not comport with even minimal due process standards. Such a procedure is not supported by the Agency's own regulations or the Atomic Energy Act.

Furthermore, as set forth below there are serious factual questions as to_whether the issues have been-resolved.

II. There is Not a Sufficient Factual Basis to Conclude That the Eiaht Isnues Have Been Resolved.

As indicated below there are significant questions as to whether the eight (8) issues identified by the Applicants have in' fact been resolved.

1. In their appeal the Intervenors assertad that no evacuation time study had been done to assess what the realistic evacuation times would be in the Massachusetts portion of the EPZ. Contention JI-1. As noted in the Mass AG's brief at page 52 although Appendix _4 of NUREG-0654 calls for a written study showing the derivation of the SPMC's ETEs, none existed at the time that the brief was filed in January of 1990. Such a study still does not exist. The updated ETE 4

referred to in the Applicants' Posponse that was published in December 1989 is nothing niore than a modificd version of the information contained in volume 6 of the NHRERP. While the l

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December 1989.ETE document is a document separate from the NHRERP, it fails to meet any of the concerns addressed at page 52 through page 55 of the Mass AG's brief.

2. The current status of state of emergency planning has been previously described to this Board. While the Governor is evaluating what to do about emergency planning at Seabrook, as of this time he has not yet made any formal decision as to the role of state personnel in such planning. Similarly, although the Mass AG is informed by counsel representing the local ccmmunities that the Town of West Newbury, and City of Newburyport have formed committees to study emergency planning, their efforts in the area of emergency planning are in the formative stage. Tt.e committees have been instructed to set emergency planning geals and objectives; to study the SPMC to see if those goals and objectives have been met by that plan; if the goals have not been met by the utility ple.n, tnen the committees are to formulate draft plane for the towns; if those draft plans call for the use of town personnel, including police, a survey is then to be taken of the town personnel to ascertain how many police or other workers would be willing and available to respond to a Seabrook emergency. Presumably, the draft plans would then be adjusted in accordance with the results of the survey.

Assuming lthat the towns ultimately find the utility plan lacking in-its failure to meet the goals and objectives that the emergency-planning committecs set, the question will be as to how the towns will choose to allocate the personnel

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resources available to them. It is possible conceivable that the towns may decide to assign the police who are willing and available to respond to a Seabrook emergency to emergency response roles other than road impediment watch, or traffic guide responsibilities. As noted below, over half the Massachusetts EPZ communities have 3 or fewer police on the late night shift, and thus may have very few police available for emergency response.

The emergency planning status of the oth3r four towns other than West Newbury and Newburyport is even more inchoate. Until the towns ascertain their emergency planning goals and objectives,- and what personnel they will have available to assign to meeting those goals and objectives, ore cannot predict with any degree of certainty whether local police will be assigned to road impediment watch, or traffic guide responsibilities. While it may ultimately turn out_that local police can be relied upon to fulfill those tasks, at this point it is- still to early to have reasonable assurance of that fact.

3. While it is unclear from the Applicants or Staffs' filings on tne issue, presumably the December 1989 change in the SPMC that they refer to as enhancing notification to special facilities during "off hours", is the provision that calls for the special population liaisons to call the local i

. police if they are unable co reach a special facility.

Apparently, under the December 1989 addition to the the plan, the SPMC relies on the local police department to carry out the I

function of notifying these specini facilities of the

4 radiological emergency and assisting the special facilities in

- carrying out whatever protective ,ction recommendation is suggested. When a staff mer',er of the Mass AG's of fice contacted the local polier departments in the winter of 1990fto ascertain their availab.11ty to fulfill that role in the event of a radiological emergency at Seabrook Station, the unanimouc response of the departments was that they would not have suf ficient staf fing during of f-hours to carry out that notification function.

Four of the six towns in the Massachusetts EPZ have three or fewer police officers on duty during the late night /early morning hours when the special--facilities at issue have unmanned phones. If a radiologica?. emergency was to occur during those hours, the local police departments have uniformly atated that they would assign their few available police officers to emergency roles other than going to those special facilities and engaging in a door to door notification process. Most of the special facilities at issue are housing projects at which elderly and/or handicapped persons reside and are lacking public_ address systems. Therefore, it appears that issue No. 3 remains alive.

4. While the_ Applicants and NRC Staff note that FEMA has conducted a survey of the 5:estborough faci?.ity and found it to be adequate' as a host f acility for special-necds populations, the Mass AG once again reminds the Appeal Board that FEMA had previously found the Shriners Auditorium to be adequate even though that facility-could accommodate only half of the number

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of persons that wereL assigned to it at the time of the survey.

Based upon FEMA's track record in this area, the mere-fact they have surveyed a facility and found it to be adequate, does not warrant confidence in-the belief that it is' suitable for the special_needs populations.--There is still no information as to

1) the square footage in the Westborough facility that is l

L l accessible to the mobility impaired; whether the facility can l-be accessed by visually or sight-impaired persons; the number of bathrooms, if any, and other sanitary facilities, that are accessable to the hundreds upon hundieds of special needs persons who are to be assigned there. Therefore, there in insufficient information to have confidence that this issue is moot.

5. At page 69 of his brief, the Mass AG argued that the l Licensing Board's finding that the Holy Cross Host School p

facility is adequate is without foundation. The Mass AG after l noting that FEMA had never reviewed the facility went-on to

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note three problems with-the use of the' facility. Two have

~ been~ resolved by the recent e:1pulation as to the staffing and time period that the_ facility would oe used,-however, it is:not clear that the third: issue las to the material resources that' children will--need at-that facility-has been resolved. The Applicants believe- that the issue was resolved by the joint-stipulation on issues _ remanded in ALAB-937. It is not so clear to the Mass AG-that this issue was encompassed by the issues remanded in ALAB-937 at.d in turn by the joint stipulation. In l

r ny svant, _ those dccuments speak for themselves.

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The Mass AG still believes that there should be provisions for the material resources that children are likely to need during their stay at the facility such as food, diapers, and bedding. Thore is some question as to whether the availability of material resources at Holy Cross is a completely resolved issue.

6. While it t:ay be that the Haverhill staging area GAD be used, as apparently it was used in the 1990 FEMA graded-exercise, ths Mass AG remains without sufficient information as to whether the underlying zoning issues at the core of the

-issue have been resolved. Apparently, Haverhi~' t did not enjoin the use of the facility during une 1090 FEMA graded exercise, however, at present there is no informatica as to whether the underlying zoning problem has been addressed, either through an amendment to the zoning by-laws or by some other resolution.

Assuming as posited by Contention JI-53 that the use of the Haverhill staging center is prohibited by local zoning ordinances, there still exists the possibility that the town, or abutters to the facility who also have the right to' enforce local zoning ordinances, will seek-to enjoin the use of the facility as a staging area in the future.

During the course of an informal telephone conversation, counsel for the Applicants informed a member of the Mass AG's staf f that the Applicants were confident that they had resolved this issue. However, at this time the Mass AG is not awara of, nor has this Board been presented with, any factual or legal

Y basis to conclude that the zoning issues pertaining to the Haverhill staging area have been resolved.

7. The issuu concerning-whether there are sufficient ambulances available under the SPMC certainly has not been resolved. According to the Applica.it's Response, the most recent update to the SPMC shows-a supply of 107 available ambulances available as_against a need for 87. However, in contrast to those figures the NRC Shaff's Response shows a supply of only 81 ambulances being available. Even if one was to count the 12 ambulettes noted by the NRC Staff as ambulances, there would still be a discrepancy between the Applicants' and NRC Staffs' figures.

Regardless of the variables as to the actual numbers of ambulances that are-now under contract, the core of the Mass AG's challenge as to the availability of ambulances remains.

The Mass AG has presented evidence that even when there were 89 ambulances under contract to the SFMC only 60 would be available. There is no reason to believe that a larger percentage would be available under the current count.

Even if_one were to accept the Applicants or NRC?s Staffs numbers as to the number of ambulances under contract, there-is clearly an insufficient reserve available over _the assessed i l

need figure _to meet prudent planning standards.- Furthermore,  ;!

as _ noted in the Mass AG's brief on: page 74,-_ the Licensing Board '

erred in its disposition of the Mass AG's challenge to the adequacy of_ transportation and resources for the special needs population because the SPMC relies on the availability of at l

least 31 bed busses. The Mass AG challenged the use of bed busses on the grounds that they did not comply wich state law and regulations and their use was subject to being enjoined.

That situation still remains. In that event, there would be the need for approximately 150 additional ambulances for the Massachusetts EPZ.

8. As indicated above, the evacuation bed bus issue dvad not appear to have been resolved. The underlying challenge to the use of bed busses was based upon them being subject to enforcement actions that would preclude their use. The identification of actual contractors who have through their letters of agreement declared an intent to violate the state public health regulations simply means that the Department of Public Health is now in a position to move to enjoin the use of bed busses if it elects to do so.

CONCLUSION As indicated above, it is highly questionable whether the eight issues have in fact been resolved. To dismiss them as moot at this point in time would be wrong on procedural and substantive grounds.

Respectfully submitted, SCOTT HARSHBARGER ATTORNEY GENERAL 4D .

By: Leslie B. Greer Assistant Attorney General Nuclear Safety Division One Ashburton Place Boaton, Massachusetts 02108 617-727-2200 Date: February 28, 1991 19E4n

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g UNITED STATES OF AMERICA [

NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD '91 MAR -1 PS :15 Before Administrative Judges On c:' : nCm uw  ;

G. Paul Bollwerk IIT., Chairman Rosenthal

[Nh Alan S.

-Howard A. Wilber l

l

)

In the Matter-of ) Docket Hos. 50-443-OL

) 50-444-OL l l

PUBLIC SERVICE COMPANY )

OF NEW HAMPSHIRE, ET M,. )

)

(Seabrook Station, Units 1 and 2) ) February 28, 1991 l

) )

l l

CERTIFICATE OF SERVICE l I, Leslie Greer, hereby certify that on February 28, 1991, I made service of the enclosed Response of the Mans AG to the Appeal Board Order of February 22, 1991 by Federal Express as-indicated by (*) and by first class mail to: q l

I

-Ivan-W. Smith, Chairman KennethJA. McCollom ',

Atomic Safety & Licensing Board 1107 W. Knapp St.

U.S. L 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 I

. U.S. Nuclear Regulatory Commission. U.S. Nuclear Regulatory Commission-'

East We'st Towers Building East West Towers Building 4150 East West Highway- -

4350 East West Highway 1

- Bethesda, MD _ 20814 Bethesda, MD 20814 l e

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I

O

• Docketing and Service

• Thomas G. Dignan, Jr.1/

U.S. Nuclear Regulatory Commission Ropes & Gray Washington, DC' 20555 One International Place Boston, MA 02110

• Elaine Chan Mitzi A. Young, Esq. Philip Ahrens, Esq.

Edwin J. Reis, Esq. Assistant Attorney General-U.S. Nuclear Regulatory Commission Department of the Attorney General Of fice 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 Counsei 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 Rcgulatory 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-

. Boston, MAL 02110 Newburyport, MA 01950

~ Charles P. Graham, Esq. R. Scott Hill-Whilton, Esq.

Murphy & Graham Lagoulis,-Hill-Whilton & Rotondi 33 Low Street .

79 State Street Newburyport,LMA 01950 Newburyport, MA 01950 Ashod H.? Amirian, Esq. Sonator Gordon J. Humphrey c145 South Main Street U.S. Senate L P.O. Box,38 Washington, DC 20510 E Bradford, 704 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

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1/ 1 Hand delivery was made on -2 March 1, 1991 by 10:00 a.m.

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Paul McEachern, Esq. Michael Sinclair Shaines & McEachern- Graystone Emergency-Management 25 Maplewood. Avenue, - Associates Portsmouth, NH.03801' 13 Summer Street Hillsboro, NH 03224

• G. Paul Bollwerk,- Chairman Atomic Safety _& Licensing

• Alan S.-Rosenthal Appeal Board, 5th FL. Atomic Safety & Licensing U.S. Nuclear Regulatory Commission Appeal Board, 5th FL..

Bethesda, MD 20814 U.S. Nuclear Regulatory Commission Bethesda, MD 20814

• Howard A. Wilber Jack Dolan

' Atomic Safety & Licensing ,

Appeal; Board,=Sth FL. Federal Emergency Management-Agency-Region 1 U.S.-Nuclear Regulatory Commission 'J.W.

Bethesda, MD '20814 ' McCormack Post Office &

Courthouse Building, Room 442 Boston, W4 02109

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

, Respectfully'aubmitted, ,

SCOTT HARSHBARGER ATTORNEY: GENERAL p h.o? $

Leslie Greer- .

Assistant-. Attorney G( neral Department of:the Att orney _ General-One-Ashburton Place Boston,-MA 02108' (617) 727-2200 ,

Dated:; February (28,'1991 k

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