ML20034C250

Commonwealth of Ma Atty General Motion to Amend Brief in Support of LBP-89-32,LBP-89-33 & Related Rulings.* Board Should Permit Commonwealth of Ma Atty General to Amend 900124 Brief.Certificate of Svc Encl

ML20034C250
Person / Time
Site:	Seabrook
Issue date:	04/27/1990
From:	Traficonte J MASSACHUSETTS, COMMONWEALTH OF
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#290-10305 ALAB-924, CLI-90-03, CLI-90-3, LBP-89-32, LBP-89-33, OL, NUDOCS 9005020225
Download: ML20034C250 (62)

Text

r-e r 4.M g Y

Q DOLMETED USNRC UNITED STATES OF AMERICA-NUCLEAR REGULATORY COMMISSION

'90 APR 30: P4 :08 ATOMIC SAFETY AND LICENSING. APPEAL BOARD 6flICE OF SECRETARY-.

Before Administrative Judges:

[hkcfg i

G.

Paul Bollwerk III, Chairman Alan S. Rosenthal Howard A; Wilber-

)

.In the Matter of-

)

-Docket Nos.-.50-443-OL

.)

50-444-OL PUBLIC SERVICE COMPANY

.)

').

- i OF NEW HAMPSHIRE, ET M,.-

)-

(Seabrook Station, Units 1 and 2)

)

April 27) 1990-

).

L MASSACHUSETTS ATTORNEY GENERAL'S MO' TION TO-AMEND BRIEF IN' SUPPORT OF HIS APPEAL OF LBP-89-32,__LBP-89-33 AND RELATED RULINGS i

d j.

The Massachusetts Attorney General;(" Mass'AG") hereby moves-to amend his brief filed on' January 24,-1990 with this Board'on-his appeal of LBP-89-32 to. include pages 17-71'of1Intervenors'~

l i

December 1 Supplemental Motion and Memorandum ~in" Support'of l'

November 13 Motion to Revoke and Vacate'the NovemberJ9-License l

Authorization (" Supplemental Motion") filed with the Commission-and attached here as Exhibit 1.

In support of this motion,:the Mass AG states as follows:

4 1.

As set out in detail'during oral argument-(Tr. at 9-33)-

on April 18, 1990, the Mass AG bel'ieves that certain!appellates arguments set out in his Supplemental Motion-were not addressed by the Commission in the adjudicatory portions of CLI 03 _('at 10-15).

As a result, the Intervenors' claims that the Licensing I

Board's decision in LBP-89-33 contravened ALAB-924 i

9005020225 900427 PDR ADOCK 05000443

$O3 o-PDR i

-l

a J

..s :

}

notwithstanding the - Commission'sLinterpretation of 50.47 (c) (1).

have not been addressed by this agency.1/

In the Supplemental !

Motion, the Intervanors analyzed in detail each of the four j

remanded issues and the manner in which the Licensing. Board disobeyed the mandate of ALAB-924.

The commission's-determination that 50.47(c) permits licensing notwithstanding open and unresolved. issues relevant to licensing as;long as such l

issues are not safety significant-and do not preclude the i

reasonable. assurance finding;does'not address the Intervanors

i specific arguments that as to the four remanded issues'th'a Licensing Board's determination to issue a license contravened the holdings of this Board in ALAB-924.A!

2.

This motion is timely for the following reasons:

a.

Intervenors did not brief these matters-in-their January 24 briefs because the Commission had taken' jurisdiction over Intervenors' appellate claims.that the Licensing' Board had i

L violated ALAB-924.

The Mass AG, however, on February 6 did t

1/

The Mass AG, to repeat,. believes that the Court of Appeals has jurisdiction over these issues.

The NRC, however, asserts that the Court has jurisdiction only over.the immediate effectiveness decision, ("IED"), which is at 15-65 of CLI-90-03.

By this motion, the Mass AG seeks to protect his right to further appellate: review in the event the Court adopts the agency's jurisdictional perspective.

i 2/

The Commission in the IED (CLI-90-03 at 15-44) expressly contradicts the findings of this Board in ALAB-924 but the IED is non-adjudicatory and'nonbinding.

10. CFR 2. 764 (g).

Again,-

the NRC is asserting to the. Court of Appeals that only the IED is presently reviewable.

" -f i

4 2

-,o-r

s L

-file an'energency-motion with:this Board' seeking clarification-i l

as to this very issue.

-t t

b.

Between January 24 and March 1, the Mass'AG'didi not move to amend his brief because he had no possibility of knowing how or in what way the commission'would dispose of-his mandamus motions.

He also was asserting that the Court had-jurisdiction as a consequence of his December 4, 1989 Petition

-(

for Review.

4 c.

.After CLI-90-03' issued-on March 1,.1990, the Mass-AG did not move to amend because he believed that-there was certainly now " final agency action" and.therefore' court jurisdiction.

Indeed, the.NRC asserted'in its March 12' Opposition to Dispositive Motion and' Motion for Expeditious Consideration filed with the Court of Appeals at 1-2:

i At the outset, we are-duty bound to point out that:

petitioners' various motions do not amount.to.a petition i

for review attacking the NRC final decision approving;the

?

Seabrook license..That decision is the Commision's~

I "immediate effectiveness" rulina.

Moreover, from March 7 until the present the NRC'has filed no j

l motion to dismiss Docket No. 90-1132 on the grounds that.there l

is no final agency. action.

Based on the clear provisions'11f 5 L

USC 5704 (second and third sentences the Mass AG believedi(and t'

believes) that the-issues presented in the Supplemental 1 Motion are now before the Court, d.

Between April ~11 and April 18, 1990, the MasscAG I

was seeking to stay further agency appellate process on these very grounds.

When this Board denied the stay requests asserting its continued appellate jurisdiction over these

~3-6 4

=w

t

?j

'l matters,--the Mass AG presented theseLarguments; orally _.and then

)f at argument' moved to amend his-brief to protect his appellate 1

rights.

Tr. of_ oral Argument at 177.

e.

The-Mass AG files this motion on April 27,-1990..

)

The delay from April 18fis due to'the_followingxfactors:

1 ) _.

delay in receipt of the transcript of the oral argument untili April 20, 1990.

Review of this transcript wasfdeemed necessary; to the preparation of.this motion.

The Mass'AG, prepared and' t

filed on April 24 an Application for Stay withlthe Chief I

t Justice of the United States and prepared and filed on April 27 l

a' Motion Seeking Clarification of Present Appellate k

Jurisdiction'with the Court'of Appeals.

For all of the reasons set forth above, this Board'should permit the Mass AG to amend his January 24 Brief to, include the arguments already briefed to the Commission in:the Supplemental Motion..The Intervenors have taken every rational step.in light of the circumstances to obtain review of these matters.

Respectfully submitted, JAMES M. SHANNON AT ORNEY GENERAL'

(

e

.h(Mko.)

John Traficonte i

/ Chief, Nuclear Safety Unit

[

pepartment of the-Attorney General

-<0ne Ashburton Place Boston, MA-02108 (617) 727-2200 DATED:

April 27, 1990' 1882n

, l

~

m

'M E'

1

/2 i

i l

EXHIBIT 1 i

i 1

l l

i 1

I

.j s'.

-a

-q l

1

- 3

- l

. i i

1']

r h

a 1

a s

A

o g

+

. UNITED STATES OF-AMERICA'.:

~

NUCLEAR-REGULATORY COMMISSION Before the Commissiont

_ Xenneth M. Carr, Chairman Thomas M. Roberts,; commissioner Kenneth C.. Rogers,: Commissioner James R. Curtiss,z Commissioner.-

-i

)-

In the Matter of

)

Docket Nos. 50-443-OLl t

).

50-444-OL:

PUBLIC SERVICE CO!!PANY-

),

t(Emergency. Planning Issuec);

OF NEW HAMPSHIRE, ET AL.

)'

-)

(Seabrook Station,-Units.1:and 2)

):

December,1,.;1989

)

y 4

INTERVENORS' SUPPLEMENTAL NOTION AND' MEMORANDUM IN I

~

SUPPORT'OF' NOVEMBER 13 NOTION TO REVOKE.AND' VACATE

( _

THE NOVEMBER 9: LICENSE' AUTHORIZATION y

e 1

t COMMONWEALTH OF MASSACHUSETTS JAMES M. SHANNON-ATTORNEY' GENERAL L

John Traficonte.

Assistant Attorney General ~

Chief, Nuclear Safety Unit

,j Department of'the: Attorney 1-General ~-

.i One Ashburton Place-Boston, MA 02108

/ H, 1

Dated:

December 1, 1989 gjrf g'

y

-r-ll

---

- ~'

~..._

_ _ __ __ _ q 2:

i have their statutory; rights to a hearing on all^ issues material-tolicensingacknowledgedandrespected$I/

i III. REMANDED ISSUES c

The discussion that follows is made more accessible by;an.

r initial review of NRC' procedural law with' regard-to when and H,

under what circumstances an issue can be m M1ved Altar or outside of the hearing process (" post-hearind"Lresolution)',

I a

usually by delegation from a licensing or Appeal' Board'to the 1

i Staff.

After an issue has been determined to be resolvable-post-hearing, the next issue a Board confronts is-whether such' resolution is to be completed pre-or post-licensing.-

Graphically, the law looks as'follows:

s 6

l Issue 3

3 Hearing Post,-Hearing l

Pre-Licensing is Post-Licensing" LPre-Licensing necessary if it is condition condition l

possible l

Issues are presented for further' resolution, at'least for, purposes of this discussion, at the conclusion of a-hearing

'l upon licensing board review and decision, or.on. remand from-t A/

Recall that Intervenors have sought unsuccessfully to i

litigate:

1) the low power testing events which led to a constructive suspension of the' low power license, a-$50,000-fine and the extraordinary requirement of additional operator proficiency tests to be administered by:thel Staff;;2)-the.

truncated scope of the September onsite exercise'which this commission. considered material and from which it denied Applicants an exemption; and 3).-the October 20, 1989 loss of an EBS-capacity to support the utility's plan, which is gring facia of safety significance.- Since the: Board has^ uniformly denied Intervenors' hearing rights on all these matters (either' expressly or da facto) it is unclear what additional' aid the Board seeks from the commission other than an expression of 1

approval.

[

.l'7

.1

,1

.i i

appeal of>such a decision.

Issues on remand often, but not'

~

always, are presented Aitar license authorization ~and gitar license issuance.

Here,-of course, the" remanded issues were' presented before licensing authorization.

~ The standards for determining whetherfan issue requires n' d

hearing are shaped by both substantive and> procedural _ factors.

As the Appeal Board stated!in Southern California Edison J.

Company (San Onofre Nuclear' Generating Station, Units 2 andT3),

t l

ALAB-717, 17 NRC 346, 380 n. 57 (1983):-

There are, to-be.sure, both substantiveiand procedural

'I l

limits as to how much of the emergency evaluation, or how I

many open items, may be deferred:until after the close.of the hearing.

Substantively,: the evidence must be.

- sufficient for the Board to. conclude that the state of l

emergency preparedness "providesrreasonable. assurance.

Theboardcontinued,quotingtheLicensingBoardat15.NRCat' 1216:

Certain matters may be "left for the Staff to resolve, following the hearings."...

These. matters. typically are of a minor nature and/or are such thatLon-the-record-procedures, including cross examin tion, would be.unlikely a

to affect the result. _ Procedurally, the limits are established by Section'189'of.the [AEA).

.:. which!

entitles interested persons 1to-an adjudicatory hearing on the issusance of a(n).

. operating-licenses.

This means that an intervanor must have the onnertunity'to liticata the substantive muestion whether there is " reasonable-assurance.

Id.

(emphasis supplied).

Accord: Consolidate Edison Connany of New York. Inc., (Indian Point Station, Unit No. 2),-CLI-74-23, 7 AEC 947, 951-952-(1974) (general proposition is that i

post-hearing resolution disfavored except for " minor procedural l

deficiencies").,

en,

y

-.vm-

+,n

,-,m,,,wn-

p' y~ )

v c

L r

l Thus, if an issue is presented on remand before licensing i

l-and: 1) it is not a " minor" matter, 2) its' resolution is in 3

y some fashion entwined with the " reasonable' assurance" finding /'and 3):a hearing may well affect the I

I-l decision-making process then NRC law requires'that it be,

[

resolved by a< hearing.. Needless to say,' that hearing is to q

t take_ place before licensing under the AEA.

Cincinnati 1 Gas: &

1 Electric connany (Wm. H. Zimmer Nuclear Power Station, Unit No.

1), ALAB-727, 17 NRC 760, 773-774 (1983) (affirming' Licensing s

Board's withholding of license-pending.further hearings on; emergency planning because "intervenors must.be afforded'an opportunity to test the revised plansiin an adjudicatory hearing"); Louisiana Power and Licht connanv, (Waterford Steam Electric Station, Unit 3), - ALAB-732,.17 lutC 1076, 1103-1108 1

(1983) (affirming post-hearing verification on-the grounds that the evidentiary record supported the predictive findings =

needed);1E/ Commonwealth' Edison Connanv,.(Byron Nuclear Power 1

2/

For example, if that finding could not be.made on the present record with regard to that issue, as the: Appeal Board-expressly found regarding sheltering.

See also supplement at 4 n.3.

ALAB-924 cat 168.n.194.

12/

For example, the record established-the. number of each type of vehicle needed and the verification of1the submission of LOAs was appropriate for " post-hearing ministerial-i resolution."

Id. at 1105.

Cf.

ALAB-924 atl19 n.t 47 (noting that present record provides no' basis.for assessing adequacy-of number of vehicles) and 68 n. 194 (noting'absense of:gngs

i sheltering details in the plan and distinguishing-Waterford).-

~ r Indeed, Waterford at:1105 n. 46 distinguished Zimmer on precisely the same grounds -- the Zimmer; Applicants' proposed-communication system was not " incorporated in theJemergency-plan" and, the record would not support the " reasonable assurance" finding and therefore under Indian-Point and its progeny a hearing was required.

~19-

=

r

~

"~

^~

~ ~ ~ ~ ~ ' ~ ~

^ ~ ~~

~

^

j t

a 1

station, Units 11 and 2), ALAB-770, 19 NRC'1163,c1175_(1984)"

a (noting link between hearing rights'.~and the relationshipu l

between the unresolved issus and aL" reasonable assurance" l

finding); Philadelnhia' Electric Comnany (Limerick' Generating.

4 Station, Units'1 and 2),1ALAB-836, 23 NRC 479, 4 94-496 E (1986)' -

(discussing above cited cases and' noting'that." designation;of 4

i several more traffic control _ points" in light of-intervenor's dual failure to explain what purpose further hearing would serve and-how it had been-prejudiced islappropriately resolved' post-hearing);11/-Pacific-Gas and Electric Comnanv, (Diablo Canyon Nuclear Power Plant,' Units 1 and 2)','ALAB-781,'.20 NRC.

q 819,-832-835 (1984) (noting that emergency.. planning findingsi are " predictive" and that " post-hearing" resolutionLappropriate t

"as long as the evidence permits the Licensing-Boardfto find.

" reasonable assurance");1I/

1 l

i A.

General Infirmities in the Analysis i

1.

The Board's own analysis of its jurisdiction, powers and scope of discretion on: remand-As discussed above, the Smith Board drew certain inferences from the Appeal Board's purported " silence" as to'the'effect of ALAB-924 on "the potential in our (SPMC) decision for t

11/

The Smith Board's hasty action'and its refusal to provide j

an opportunitysto Intervenors to be heard on this issue made it impossible for Intervenors to articulate the grounds for their hearing rights on the remanded issues and their injury if.no, hearings prior to licensing were held.

12/

The post-hearing licensing condition at issue involved the.

l final publication of an information booklet, the draft of which was in the evidentiary record.

.e-r-

-g--.

.--e, m

-,,w-~

.--..e---v---

~1 a

L u

authorizing issuance of the Seabrook operating 111 cense.".As noted, there is no basis-for these-inferences inLlight of the circumstances extant in the time, frame from November 1 to November 7, when ALAB-924; issued.

-But not only does the Board's reasoning have-no factual support, the legal conclusions it reaches concerning its powers =and discretion after ALAB-924 issued is completely incoherent.

The Board-1 asserted:

i

)

Our reading of ALAB-924 leads us1to infer that-the remand [

order included traditional broad discretion in resolving l

the issues based.upon our' familiarity with the very-large-evidentiary record of the. proceeding.-

Supp. at 3.

Moving forward from this! proposition,.the Board framed the issue as follows:

Here, of course,'the. question.is whether' post-licensing-consideration of open matters by an adjudicating: board is appropriate.

~

I Supp. at 4.

In-the Board's view, the answer to'this question-i in turn depends on whether

' i i

the requisite findings'ofLreasonable assurance of public safety can be made despite pending open matters....

Supp. at 4.

Because the Board' viewed none'of the four-remanded issues as a significant or " major"'(Supp. at 5) safety' issue, J

it did not view ALAB-924 as an impediment to.these " requisite.

O findings."

Thus, the Board asserts that all remanded issues-i can be and are resolved after its November 9 licensing action, either in the body of the analysis set forth in the. Supplement-3 or at.some point in the future "under the close-scrutiny of the litigating parties."

(Supp. at 5). ;

,,.,.i y

.,e-wr c.

.w-

-6'.,s

-, 5

l r

A review of the logical' and ' legal support for the Smith Board. analysis isLinstructive.

-First, Smith: notes that'

~There is.no regulation or, as far as we can determine, any reported decision which would foreclose the-issuance of,an

[

operating license once the basic findings under 10 CFR-50.47 (a) (1) and 50.57(a) (3) have been made despite the -

I pendency of open_ matters.

-Supp. at 3.

Of course,1the Board ignores the obvious fact -that' AIAB-924 reversed and remanded : certain NHRERP: findings.

One=

1

~

1 necessary inference. from this reversal lis that = to the extent-the Board's basic NHRERP findinglunder 10 CFR 50.47(a) (1)' was

{

based on the compliance of that plan with the 50.47(b) ~

~

-standards, then that_ finding.was reversed pending' resolution of d

the remanded-issues.

Thus, in~ truth, the-proper statement.of law should be:

There is no regulation or, as far as we can_ determine,.!anyL J

reported decision which wouldTpermit theEissuance of an operating license once theLbasic: findings under 10 CFR 50.47(a) (1) and 50.57(a) (3) have been reversed mai remanded orior 12 licensina.

t Second, the Board discusses-the' general issuefof l

" post-hearing" resolution of issues,-noting that although the adjudicative context is preferred it is not-obligatory.

The:

Board states that this principlefis "particularly valid"Lin-matters of emergency planning where boards " traditionally. rely

... upon post-hearing verification.of the resolution of open matters."

Supp. at 4.

Having identified a category of open-i issues subject to post-hearing resolution by a board or 'the Staff, the Board then states:

4 Here, of course, the question is whether cost-licensina consideration of open matters by an adjudicatory-board-is appropriate.

Putting aside questions of passing s G

t

.-,,g m-r m*-

W

^

[

W jurisdiction,'which are not,present at this juncture,11f

.the-requisite findings ofJreasonable assurance of.public.

safety _can be made despite:pending open matters, then, a fortiori, the commission's adjudicating boards can defer resolution of some remanded issues for post-licensing.

H consideration....

1 Supp..at 4-5'(emphasis. supplied).

As noted,1 because the Saith

^

Board believes that none of the open issues on remand are t

" major safat'y_ issue (s)", it1 believes most-licensina consideration is appropriate.

Not a single case'is citedLfor-this latter proposition.

Tho' Board---appears to believe that nost-11eansina -resolution of contested remanded : issues is I

l supported by:the. commission case-law which in narrow-circumscribed situations; permits nost-hearina resolutionoof' minor ministerial matters.12/

Interestingly, even the case-I law on oost-hearina resolution oftissues does'not draw anyt

^

s distinction between major.or significant safety 1 issues and other issues, an obvious unspokeniassumptionuin the-' Board's' analysis.

In fact, if the' unresolved-issue involves ~the exercise of judgment and discretion, it can only be resolved lby means of a hearing, even if it is not a major safety issue.

-In.

part, this is-because the AEA gives the public a~right'to a hearing on all issues material to licensing 12/

Significantly, post-hearing resolution of issues (whether

~

through gra-licensing conditions whose verificationLis'done by the Board or delegated to the Staff, or 22at-licensing

^

conditions whose verification is normally delegated to the Staff) do not involve "open"' issues in the sense,in which-the four issues reversed and remandedLby.ALAB-924 were'open on November'9 when the Board ~ rendered its decision.

The. remanded-issues were and (as discussed below in detail) still are "open" in the sense'that a record must be developed, judgment exercised and real world corrective steps taken before they are resolved.

l '

.[

...t

.e.

0

~

and some of these-issues although not major: safety issues'are' still b[ definition material k 2.

The three-tiered structure'of error The Board's analysis is so woefully-inadequate that it may p

reflect a conscious effort to obfuscate basic principles of.

law.

Indeed, the errors contained in.the " analysis"'setiforthi

~

i at 2-6 of the Supplement are actually layered in three-tiers.

The three-tiers are:

1) the' direct _ impact L of ALAB-924 's reversal on previous findings material to. licensing-is' ignored; a

2) the relationship between the remanded issuas and the'need' for a hearing is never discussed;:and 3) the relationship between the remanded issues, real world corrective action, and' any licensing action is completely inverted.

a.

" Reversal" and its Innact on'an Earlier Judsment..

The Board's " analysis"'of its powers.and1 discretion, as noted, proceeds from the proposition that the?" requisite findings of reasonable assurance of public; safety" (Supp, at 4) or the " basic findings under.10 CFR 50.47 (a) (1)" t (Supp. at 3) are unaffected by ALAB-924.

The Board appears to believe that-the findings set forth in LBP-88-32.are untouched by ALAB-924 and it asserts as support-for this belief the propositionLthat the Appeal Board-affirmed this Board's partial initial.

decision on the NHRERP with respect to.every major safety l

issue decided in ALAB-924..

b supp. at 5.

Yet, this matter has nothing to do with what the the Smith Board believes about ALAB-924 or with how the. Smith Board in its ingg dixit chooses 12. characterize the impact of 11/

If they were not " material" to a licensing decision they, would-not be "open" or need resolution at all.

e

-~.-

.. =.... = -. -

1 l

I ALAB-924.

Rather, as an initialipropositio7,11t is necessary:

to analyze the impact of ALAB-924 in light of basic principles of appellate law.

Indeed, agi a matter si laL it -is quite

.t obvious that ALAB-924 reversed a portioni of the very findings

.necessary and material to any seabrook licensing.

l For example, the lower Board found adequate transportation resources'had been identified to evacuate.the "specialTneeds" population as required by 50.47(b)~(10) and the corresponding sections of NUREG-0654.

LPB-88-32, 28;NRC at;699.

In turn, t

L the Board's overall " reasonable-assurance"-finding pursuant'to l

50.47 (a) (1) was based on the plan's compliance with 50.47(b).1E/

The (b) (10) finding wasibased on an estimate of l

demand which relied on the 1986 Special Needs' Survey.

The-Appeal Board reversed the lower Board's reliance;on'this survey n

a as an appropriate estimate of demand. -Thus,-as:a necessary inference of this reversal the Board reversed'theLlower Board's.

(b)(10) finding as to the present adequacy of. transportation t

resources.

Indeed, the Appeal Board stated:

Further, in light of our romand of this issue for additional proceedings, it is premature for'us to render 11/

Egg-LBP-88-32, 28 NRC at 804.-

The Staff and-Applicants

+

argued successfully before the ~ 1ower Board -that the (a) (1) i finding simply flows from a finding of compliance with the.

specific'(b) standards.

Egg Staff's November 13.Briefoon.

certified question at 5, and massim.

Egg Alast ALAB-922. at 23.

Thus, the requisite finding of. (a) (1) was based'on1the (b).

findings.

The Board can not now changevits. tune and adopt an eviscerated version of the Intervenors' view' that an (a) (1).

finding requires an additional judgment of-plan efficacy and-risk in light of the circumstances.

If (a) (1) does not require such a judgment notwithstanding Intervenor challenges, it will not permit.such a judgment as an override to deficiencies in the (b) standards, f.

m.

m.--.

r.,

J

1

,a any judgment regarding intervenor SAPL's challenges to the -

j 5

Licensing Board's findings concerning~ availability of adequate numbers of vehicles and drivers.

Once the 1

propriety of this special needs survey's methodology has been aired,_it then will be appropriate for the-Licensing:

Board to consider whether the number of vehicles and.

drivers identified as available to assist in= transportation =

~

of,the "special needs" population is sufficient, j

ALAB-924 at'19-20.

From this one example:alone, it is' obvious that AIAB-924 '

d reversed the Board's NHRERP decision on matters material to-that decision and its basic finding.12/

Importantly, a-reversal on material issues is not the same as a reversal on

" major safety" issues,1II since~under NRC law there are i

t 11/

The Appeal Board.gitad ALAB-832, 23 NRC at 154.

In'that case, the issue of the number of available bus drivers was.

p remanded because the record.would not support a finding..

On remand, "(a]Il parties will be free to^ adduce. additional evidence on the issue.

Upon review of the evidence 1

presented at the reonened hearina, the Licensing Board should-L reconsider its prior findings..

(emphasis supplied).

12/

Indeed, it is difficult to imagine why theLAppeal Board would have bothered to reverse And'ramand if the issues were amenable to post-hearing (or in the Board's transmogrification

'q post-licensing) resolution and therefore had no necessary relationship to the requisite findings under 50.47(a)(1) and any licensing action.

One presumes the Appeal Board-reversed because things y.aIS DEt I.ight and remanded because the Board would have to make a judgment in the context of the remand at

- i some point in the future as to whetherithey now are right.

Why bother if such~ issues are not material to a licensing action?

13/

Lack of adequate transportation resources for the "special' needs" population is indeed a-significant safety issue.

The point here is that whether the remanded issues are major safety issues or not is irrelevant to the proper analysis of the impact of ALAB-924 on LBP-88-32 and the powers and discretion of the Board on November 9.

4

,e a-,,

- - - - - - - -. - -. _ _ _ ~ - - - - - -,

-e as-, - ~

e-e,-.-a--

y 4 -

,)

c I

issues material to licensing.that'are not major safety-

~

issues.12/

The Board appears toLbelieve that so long;as~it was j

not reversed on major safety issuasiitLis freeLto ignore the:reve' f

rsal on otherwise material issues and issue a license.

The; Board' j

's analysis evidences'not even a passing familiarity with,the law:

of appellate reversal and romand,.and; appears'to betbased.on-a r-g enarkable confusion between reversal-and-remand =gitar aflicenseli asues and reversal and romand before a license issues.

1.

Reversal.and Romand after Judgment Assume a-rational world with a single decision byfa' Board.

that authorizes a license.

A stay isisought~and denied.

The.

license issues.

On appeal on the-merits s' portion-of that -

decision is. reversed and remanded by the Appeal'BoardL(or'the commission).

The question, for the superior ;(or ifiit Jis silent.

I L

then the inferior) board ist -Does the reversal andIremand ~

l require a license suspension or revocation:pending the romand?-

Even assuming that the remanded issues require a hearing to be resolved properly, a license suspension or: revocation is not required as a matter of law.

Instead, an equitable standard is applied and the absence of any safety significance in the:

i s

remanded issues is weighed and considered-in~ deciding whether 1

to suspend the license pending the decision on the merits of the remand.

[

12/

Indeed, on one reading of ALAB-922,-the Appeal. Board has__

interpreted all of emergency planning as something less than_a-

~

1 maior safety issue, in contradiction to-the' intent of congress 1

and the Commission in 1980.

Egg Mass AG's October 27-Brief on a

certified Question at 5-10 discussing emergency planning'as "second tier."

i

1. d':<%Mg %

ud u-u l

i

~.

i.

2.

Reversal and remand before-judgment.

~The situation the Smith Board found itself in on-November 9:

1 is yary differant.

At least two decisions were necessary

]

preconditions to any licensing 1 action.-LThe first decision was i

reversed before the second decision was rendered.- Thus, the-legal requirements for-a license were not met, as a matter of law, once.the reversal occurred.AE/ - The Board improperly"and without any analysis of the differences between pre-licensing!

and post-licensing reversal-and romand, simply applied an:

b equitable standard to the licensing issue in!its Supplement.

I But although some limited equity may be appropriate in,the post-licensing romand context because the legal' requirements had at one time been met, it plays Da Igla whatever in the pre-licensing situation, because the Board has-D2 1urisdiction j

gg h the leaal reauirements igt g license.- 133.Seabrook, ALAB-349, 4 NRC 235, 270 (1976) J (noting difference between.

" presumptively valid authorization" and'one. based onfnow 22/

Again, the correct analysis has nothing to do with the safety significance of the reversed and. remanded: issues.

These issues obviously involve material matters concerning l'egal~

requirements of licensing.

(If-they did not, they would not ever have been litigated!)

Thus,. the Board's entire analysis in the Supplement is a non-seauitur:

even if it is assumed, incorrectly, that there is D2 major' safety significance to any j

of the-remanded issues, the. Appeal Board mugh haya reversed LBP-88-32 on issues at least material tct licensing.

Therefore',

certain legal requirements-for a license are not1 presently met i

and were not met at the time of the licensing action on November 9.

28-t e-,

.,e

,.,,.mp.--,.-

,e-r

. ~.. _

?g s

• ~

j a

invalid law'or, regulation).

The Board's equitable analysis,-

i

. based on the purported lack of safety significance to any of'

. q the remanded issues, simply _ changes the legal. requirements'for

~

L a license and indeed is indistinguishable'from an " exemption" the standards for which the Beard did not even address.

Indeed, analytically, the Board's actions-on November 9,71989; L

are just as absurd as.the actions of a Board that in 1986 or i

1987 or at any time simply = determined that a license could

+

issue immediately notwithstanding open issues-that'are material _

to licensing so long as these issues:are not of. major' safety 4

significance.21/

Thus, the first tier of error deeply obscured by the Board's analysis in the1 Supplement is that the Board did nel haza iurisdiction on November 9<to: alter the.legaliraquirements' a

for a license and issue one.

The. Board ignores completely the undisputed fact that ALAB-924 reversed'LBP-88-32 on-issues.

i material to licensing.

Impermissibly, sliding ~from law.to equity, the Board frames'the issue;as one~ involving the, safety..

significance of the remanded issues.

Prior'to.' license authorization this procedure is indistinguishable from a l

l 21/

such a. procedure, of course, is. familiar'to the commission.

It applies'to license amendments and involves a-

"no significant hazards" determination.

133-10 CFR 50.91.

Of course, it does not apply to initial licensing-actions and indeed it required amendment by Congress of the Atomic Energy Act to be permissible for the Commission to act in such fashion at all. *

-n

., - --~ -_

+-~,.a

-*~

..b 4

s

]

l 1

-e straight forward-modification of the legal' requirements of a license.22/

b.

The r==mnded inmuem and the need for a hearina..

i The second level of error on which the supplementcrests is '

j its complete failure to focus.on the-rather simple question whether any of the romanded' issues require-a hearing..

As'

-r noted, the irrelevant question that the Board posed:and c

J incorrectly answered was:

Are the remanded issues safetyL l

l significant?

Finding that they are not, the Board believedIit i

L was free to issue a license without any concern whether the issues require a hearing prior to resolution.I2/- However, 4

AY.RD 11 DQDR Si the remanded issues age safety micrnificant ~M '

]

i thav reauire a hearina nrior to resolution. Intervanors were

'j entitled to that hearina under the AEA nrior to the licensina.

f

~

a action.

Thus, ALAB-924 works at two levels - 1) Lit reversed d

r findinas on material issues and these issuesLhad.to be i

l i

22/

It goes without saying that the Board had no--jurisdiction-

~

to simply reutter its NHRERP judgment on the romandedt issues i

Thus, because these issues are obviously; material to licensing-

.l under 50.47(a)(1) and (b), and the Board had no jurisdiction to j

alter the legal requirements for licensing (i.e., somehow l

eliminate the materiality of these issues),.-the Board:had.no.

l jurisdiction at all.to issue the license on November 9, 1989 and it is void as a matter of law.

22/

As noted, the Board. based its decision to consider gli remanded issues cost-licensina on the case-law that permits-Dost-hearina resolution of certain issues. 'The illogic here, has two separate layers:

1).even if something'can be resolved post-hearing it may still have to be a prelicensing condition and 2) something is resolvable cost-hearina only if-a hearing is not necessary.

Remarkably, the Board moved from post-hearing law to post-licensing treatment without ever asking whether any of the remanded issues required a hearing.

Obviously, if the remanded issues could not be' resolved post" hearing, the case law dealing with such issues is of absolutely no support for the even more dramatic step of resolving them post-licensing!,

j i

+

I d

addressed by the' Board on romand prior to licensingI(by.

hearing only if necessary); and 2) Yit. remanded issues at'least-I some of which im necessity required & hearing,-and such hearings must be provided-under the AEA prior to licensing.<

l It-takes little analysis to see that at least two'of the l

four remanded. issues require a'." hearing",.at least in the~-

sense that Intervenors be given an opportunity to be~

heard. E Not'only'is,this! he result,-under'the very case.

t law cited by the Smith Board concerning the limits of'

?

" post-hearing" resolution,-but;the Appeal-Board's remand expressly directed the Board to conduct'such further proceedings.

3.e3 AIAB-924 at' 68-69' (sheltering provisions).

[

?

Again, as an exampic, the Appeal Board reversed-an-earlier summary disposition decision of the lower Board holding that-genuine issues of material _ fact were presented that merited a hearing.

The Supplement literally tortures this issueLbeyond1-recognition because the' Board is determined to reutter its-4 judgment right now (retroactive, of course,'to November 9 which we are supposed to believe was the point at which-the Board had actually carefully read-AIAB-924 and realized that L

it was not an impediment to licensing) that transportation j

resources are. adequate.AEI Indeed, although at some level it seems beyond belief, it appears that'the Board has again 23/

The Smith Board's remarkable discussion of each of these issues is analyzed in detail below.

It-is clear from this analysis that hearings must be held on all four remanded issues, contrary to the Board's crabbed and unsupportable reading of the record and AIAB-924.

25/

Egg infra where it is made clear that the Board directly

.and openly disobeys the decision of the Appeal Board on this.

l matter.

~,

1

sg 1

- + -

granted summary disposition.on this issue without so much'as

~

one scrap;of additional informat' ion.- certainly, one can read

-and reread-the supplement.at 12-22-(particularly~at:20-22) without finding an answer to the simple; question.whether the hearing that the Appeal-Board found necessary is indeed going to take place.AS/.of course, ifLIntervenorsLare entitled to a hearing, thatfentitlement-includes airight~to have that hearing pre-licensing if no license has issued.

As discussed in detail.below, the Board openly and' knowingly' acted in bad faith in denying any possibility of a pre-licensing > hearing on:

the romand. issues (as well as other pending issues'.the' Board simply' ignored.)

j Even-the Smith Board may have' acknowledged.that1the

^

sheltering remand requires a. hearing.

At-31 ofithe Supplement, the Board stated:

It is likely that this. issue cannot be resolved on the existing record.

Further, the Board noted that:

"We read the direction to' a

permit a challenge...."

certainly, these words at least J

intimate that a " hearing"'is.indeed required prior-to j

resolution.

of course, in' keeping withLthe general

. intellectual level of the supplement, the. word " hearing" is not mentioned at 31-33.

Thus, the obvious contradiction between'a' i

2f/

At 20, the Board states that the only special needs issue remanded by the Appeal.

. Board that has the reasonable possibility of requiring a pre-licensing hearing and adjudication.isLthat involving the dissemination methodology employed by l

the NHCDA in conducting the 1986 Special Needs Survey. '

...-.n

, --,., -... ~..

n-,

~ '

.a l

t

. remand before licensing that.requiresca hearing before the-

't issue can be resolved and.an immediate licensing action in-open l

violation of Intervonors'. hearing rights.under the AEALis masked in.the " explanation."

In:f'act, as-discussedzbelow,-atL l

H yet another lay.gl the discussion of.thelresolutionLof'the sheltering issue is remarkable. :Not only'does11ts resolution e

require a hearing but the Appeal Board expressly. held:that plan' approval requires this resolution.

Thus, even without the>

i E

Intervenors' AEA. rights to a hearing before licensing oni

^t material issues, the. Appeal Board obviously understoodithat~

I resolution of this issue would take place ~before tho' plan would be approved and any license issued, if that issuance was based on~that approval.

ALAB-924 at 68 n.-194.

~

t Thus, instead of the irrelevant discussion concerning-safety significance, the Board should have analyzed'whether any of the remanded issues required a hearing.-.Because they obviously do, the Board's. November 9' licensing action,feven.

(footnote continued)

It is unclear from a reading of 20-22 whether'the Board intended to grant summary disposition anew in direct violation 6

of ALAB-924 or simply rule -as to the absence of safety:

significance.

If the latter, then Intervenors;may get--their?

hearing but obviously not: pre-licensing.

No doubt inadvertently, theLBoard in'the quoted portion ~above correctly noted that the Appeal Board's romand may have required a-

"cre-licanae hearing".-

(emphasis' supplied).

obviously, ont..

November 9 the Smith Board made sure that:aven if:ALAB-924 did require that, it could no longer' comply.

Indeed, we are-supposed to believe that within. 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br />?of November 7'the-Smith Board had already determined' that. nothingL in ALAB-924: was an impediment to licensing, even though onL November 20', the Board still has not answered the question clearly.- obviously, if the Board obeys ALAB-924 and, permits a hearing, that hearing-certainly should have'been pre-licensing.

Again, the non-legal, non-judicial character of~the November 9' action is l

clear.

L. -

w l

1 i

l i

assuming it had the-jurisdiction'to either reutter-its NHRERP or. alter-the legal. requirements-for a license,.was"in direct.

and knowing violation of the AEA.-

b c.

The relationship between the remanded; issues and.

'I anv licanmina action Finally, the Board completely inverts theDrelationship-I between. post-hearing resolution offissues and licensing

~

-i action.. To grasp'this. third layer ofJillogicLand error in'the Supplement it is.necessary to map out the:possible actions

~

s available to a Board at the time of' licensing.

-At the time of-

[

a licensing action, a Board can-identify issues that:,

1)-

can be closed gitar decision (under its oversight or' by the Staff) hut before licensing; i.e., prelicensing-conditions; and 2) can be closed Altar decision And After licensing by.-

.t the Staff; i.e.,

post licensing. conditions.

1 Both of these patterns are available for matters that are appropriate for post-hearing resolution.

AtLthe time of a licensing action, however, a Board is nnt free to? identify j

1 l

issues that:

1) are not now resolvable without hearing.and' simply postpone that hearing until after a license issues; or 2) require real world changes-yet attach nn conditions (pre-or-post-licensing) on the license requiring those L

changes; or

, 1 1

.m

~

o y

3-4 1

'l

.j 13)

. require real;world changes that_in-turn will give' rise.

]

to a hearing yet neither attach any conditions at all on:the license concerning these changes'nor provide for that hearing

-)y priorito licensing.

i

-Yet, since ALAB-924 issued before the Smith' Board rendered; a license authorization and the disposition of the four' t

remanded issues is, therefore,-controlled by'.--ALAB-924, fit is; appropriate to analyze the November 9 action als if the Board

~

itself had just issued LBP-88-32 modified byJ ALAB-924. 'Seen in.

l this light, it is obvious that the' failure by the Board to

[

l attach any conditions pre-or-post' licensing on its licensing action is simply a. refusal to obey ALAB-924 and.a further' indication that the November 9 action was notfa. judicial act-at'

-[

t all.

t B.

Board's Analysis of Specific Issues.

l In turning to the Board's detailed analysis of the remanded issues, Intervanors, then, will focus on the'two' relevant-considerations in weighing the validityn(and the motives) of q

the November 9Llicensing-action:

did' resolution of the remanded issues require a hearing?

If not, what type of Licensing Board action was required at the very minimum'if: the' Smith Board was obedient.to ALAB-924's directives-and concerned' about public safety?

35-

.'I

..-.y.,

4

-e-

I L

la

'1.

Letters of Agreement'for.New Hampshire Teachers-The. Appeal Board noted a contradiction in~LPB-88-32.between' school teachers as " providers"'and " recipients" of emergency-services.

It instructed the Licensing Board to provide further.-

explanations if it is the case that school teachers'would' 1

ordinarily be expected to accompany their studentsLin off-site evacuation situations,.then.although in somersense " providers",

l the. teachers could still be appropriately characterized as--

l

" recipients" of' services for:whom'no agreements were necessary.

As the_ Appeal Board noted:

IDAs need not be sought from everyone: involved in the emergency response process, t

ALAB-924 at 8.

The Appeal Board'further noted, however,'that'-

it appears the empirical question offwhat New Hampshire:

teachers are ordinarily expected to do-(which controls the legal requirement for LOAs under: Criterion II.C.4. of NUREG-0654) can not be answered on!the~present record:- "the present record fails to disclose any definitive evidence.

I addressing whether school personnel usually would (or would-not) be expected to accompany their students in emergency l

evacuation situations."

ALAB-924 at 10.

If teachers;are-not expected to do this, then LOAs should be obtained.

l This issue is purportedly-completely resolved by the

" analysis" set forth in the Supplement.

Thus, the Board has taken the view that: 1) no further_ evidentiary record needs to be developed, and 2) no LOAs with any teachers are necessary..

..,q n-ii o'

u n

l s

i Thus, no hearing was required an6'no pre-or post-licensing l

conditions were,necessary or called-for._ Indeed, the l

i supplement la the Board's resolution of'this-remanded issue. D Unfortunately, tho' Board's analysis of this ~ issue _ is _

woefully inadequate.

The Board states at 7:

We begin with an answer to-the~ Appeal ~ Board'sIfactual~

inquiry, i.e., whether the~ teachers are ordinarily expected-to accompany their students in'an evacuation.-

'i But, one can read and reread pages 7-12land not find an answer to this simple question, the very question the' Appeal-Board, believes had to be answered but could.not be answered on the existing record.

First, immediately after stating the question-the Board states what its--" assumption" had'beencin LBP-88-32.-

Then, the Board offers some scatter-shot:- 1) L it repeats:

Applicants' witnesses ~1DAS dix 11 that school personnel "will do what must be done" (8); 2) it notes that' these personnelE are I

not " key"; and 3) ult repeats its behavioral /" analysis" regarding role abandonment (already noted by the Appeal Board as-irrelevant to the remanded issue in ALAB-924 at 10).

The Board also noted:

12/

In keeping with the format of the supplement, the Board addresses the irrelevant. question as to the;" safety or regulatory [ sic) significance" of this issue at 11. _ However, careful reading of 7-12 indicates that.the issue ha's indeed ~

been resolved no matter what its safety significance is.

Intervenors are totally bafflediby the unexplained'although repeated reference to'" regulatory significance" (supp. at 11, 19

(" regulatory issue")).

Obviously' the. Board can not decide' which regulations count and which do not.

,, ~., -,

,,,..,_.am

,,n.-

.~..n

-,n,

n t.

d H;)

1

'Mr.~-Strome, then New Hampshire's Director.of'Energency' Management,. explained'that=whether or:not teachers accompany school" children'in.an. evacuation depends upon i

'whether.they volunteer to do so:..=..-

9 Finally, the Board stated:-

' I

1 Be that;as it may, if in' fact,. teachers'are " service i

providers" contrary to our earlier. rulings that they are-not,.the regulatory l implications must,:in obedience to-ALAB-924, befaddressed.

i It la addressed in remarkably:incoherentifashions first,-noting that LOAs are not required for; individuals-who 1

-collectively supply a labor force or activity,:the Board asserts.that if viewed as:" providers"-(because they accompany ^

j students offsite) the teachers'ar34 such providers'" collectively as school system employees."

(10) But if, aus the Board notes, j

such services depend on certain teachers'volunteerina then not only is it obvious that they are not " ordinarily expected" to do this,2I/ but such volunteering =is an individual' matter-having nothing to do with their-membership in a collective t

labor force.

Indeed,.it is outrightlirrational to assert'that:

whatever services teachers may provide when they volunteer' is done collectively....

Id.

(emphasis supplied).

6 4

23/

Although obvious, it no doubt needs to:be stated that in the sense used by the Appeal Board " ordinarily expecting" someone to do something is the opposite of hoping they volunteer to do it.

(Supp. at 8 noting that "New' Hampshire li would h233 that the teachers would be willing to participate" (emphasis supplied)).

I

• i

. s

)

e

-.*=e w--,y,m.

em-.-

,e,,m wv.n,<

,--e W

g D

l L

i i

L i

second, the Board simply reverses its determination in l

LBP-88-32 that the teachers are " providers" of services.

Because the " volunteers" would be relying on school buses they would be "in every sense" recipients and net providers.

(11) i

\\

Not only is the Board no longer free to simply change its-

-l rulings on romand under the doctrine of law of the case, but.

this is pure legerdemaint they have to first'" volunteer" to-do something not ordinarily expected of them and only then.do they become " recipients."

But these " volunteers"'are first

" providers" and AnlX thSD " recipient.s" in the limited s6nse used by the Board.

Indeed, as further support for reversing its earlier determination, the Board now simply defines the

" school system" as the unit that is the recipient.

Teachers-are just a part of that unit and "should not be separated from the school system as a part especially requiring LoAs."

Id.

Well, of course, they are required to be if what they are called upon to do is not ordinarily expected of them and they l

could avoid doing it (by simply evacuating on their own or seeing to their own families).

Again, the simple question posed by the Appeal Board just can not find an answer.

Finally, the Board simply reasserts its irrelevant ~

behavioral assumptions (in this iteration, dressed up as n

l

" profound () belie (f)s") and in a remarkable linguistic l

amalgamation states:

3 l '

l-r d

4-,--

. -.w, co-~

..-,,_v...-,

. ~

,5..,w---

..,w

. -. -... ~,...

,...,----,,,-,.--~.-~-.cw--cm...~

To the extent that school buses permit the teachers to see l

their children safely to reception centers, they are the.

raciniants of marvices, albeit on behalf of their charama, i

i (11) (emphasis supplied).

Had the saith Board acted in a judicial capacity on November 9 or November 20 it would have obeyed AIAB-924, I

determined that teachers are not ordinarily expected to perform these services (or sought further evidentiary submissions on I

i this point), and then deferred any_ licensing action pending the i

i submission of ICAs.

obviously, such submissions in light of

)

i the well-known, well-organized and vocal opposition to emergency planning among EPZ teachers would likely have led to

+

challenge and further hearings.

Knowing this and knowing that this would engender delay, the Smith Board simply agted and i

i s

l later defended its actions with illogic, irrationality and cant.

2.

The 1986 Special Needs survey-The Appeal Board reviewed SAPL's claim of error regarding a November 4, 1986 summary disposition decision resolving the challenge to the adequacy of the procedures used to identify the "special needs" population in New Hampshire.

AIAB-924 at 15.

Based on review of the materials presented to the Licensing Board on the motion, the Appeal Board found genuine l

issues of material fact which prevented summary disposition.

It remanded the issue "for further consideration" by the Licensing Board.

The Appeal Board then stated:

F l l t.

J a

,..,,,,,,,s.,-wa

..-w...~,.-.,...n.,

,-w,vv.

-e

,-n--m--,~-,can,.-w--,..-

7q

'l i

j rurther, in light of our remand of this issue for additional proceedings, it is premature for us to render any judgment regarding intervenor SAPL's j

challenges to the Licensing Board's findings j

concerning availabilit 1

vehicles and drivers. y of adequate numbers of Once the propriety of this special needs survey's methodology has been aired, it then will be appropriate for the Licensing Board to consider whether the number of vehicles and drivers

[

identified as available to assist in transportation of the "special needs" population-is sufficient.

\\

ALAB-924 at 19-20.

Thus, this remanded issue prevented any j

immediate licensing action for two different reasons:

1)'the hearing that was denied would now have.to be provided and under l

l the AEA this has to be a pre-licensing hearing;'and'2) the i

reversal of the basis for the demand estimate for i

transportation resources effectively reversed the lower Board's i

finding as to the adequacy of transportation resources and this issue (regardless of AEA hearing rights) at'the verv least would require pre-licensing resolution, because of its significance.

In reaching its judgment on this issue, the Appeal Board-expressly rejected a harmless error analysis based on Intervenors' purported opportunity to contest the 1986 Survey's' adequacy or on the Board's findings that an excess of' transportation resources were available.

The Appeal Board stated:

We also are unable in this instance to rely upon the i

Licensing Board's determination that there is an i

excess of available evacuation vehicles and drivers,.

I man LBP-88-32, 28 NRC at 695, as-the foundation for a finding of harmless error.

In many instances, intervenor assertions establish an-upper limit against a

which the adequacy of planning can be judged.

On the o_ resent record, however, we have no bania'for settina a limit on the uncertainty about the size of soecial needs" nooulation that accrues from the-

{

the a

Licensina Board's erroneous su===rv dianomition rulina. i

~..

ALAB-924 at 19 n.47 (emphasis supplied).

The Licensing Board's1" explanation" of this issue is astonishing even viewed against the standard set by the supplement.

As discussed above, the need to provide the hearing that was denied is never directly acknowledged by the Board.

(certainly, the Intervenors' right to that hearing befora licensing was denied da faste on November 9.)

Moreover, the issue of the adequacy of transportation resources for the "special needs" population in light of ALAB-924, is simply finessed by the Board by again urantina summary dianomition gg ihm Ann 11eants and reivina on tha trananortation aveman raiacted by the Annaal-Roard.

There is no clearer example of an inferior board directly and openly contradicting the law of the case as announced by a superior tribunal.III The reason, of course, for the Board's actions is that if it acknowledged the reversal of its finding concerning transportation resources-then it could not claim, as it does in the Supplement at 2-6, that ALAB-924 has no impact on the " requisite findings of 1

j reasonable assurance of public safety." (4)

The Board begins its " explanation" by expressly routtering its judgment concerning transportation resources (17).

It then asserts that the survey deficiencies identified by SAPL "even if ultimately found to be meritorious, are either of no noment 11/

A lower board does not have iurisdiction to reutter its judgment in direct contradiction and derogation of its superior Such an act is ultra vires and Egid th initio.

j board. ;

'I

..,3 l

.l or are amenable to relatively simple and timely correction.". D Id.

If the deficiencies are of "no moment" then apparently they are not material even though the Appeal j

Board has so. held.

But, if the survey can be fixed quickly and j

simply, then this should be done, the results tested in the-adversary process "under the close scrutiny of the litigating l

1 l

parties"' (5) and then the adequacy of transportation resources j

!\\

)

assessed anew by the BoatJ just as the Appeal Board ordered it to do.

The Board, however, reasons that since the deficiencies slan be corrected, neither those corrections nor a hearing on a reassessment of the results is necessary prior to licensing.

)

i j

For this proposition, the Board cites a statement from a, December 15, 1981 Commission rulemaking and clains that.

reasonable assurance finding = can be made at that point at which "there are no barriers to emergency planning implementation or to a satisfactory state of emergency 2.Q/

Throughout.its discussion of this issue, the Board acts as if there is an evidentiary record on the adequacy of the

survey, of course, there is none because of the earlier erroneous summary disposition.

Indeed, the Board appears to.

believe it is free in limit Intervonors' attack on the survey (which Intervenors never had an op points raised in SAPL's pleadings portunity.to mount) to the in opposition to summary disposition.

Of course, a party is obligated in opposing summary disposition only to establish a genuine. issue of.

material fact.

10 CFR 2.749(d)..

It is under no obligation to present its full evidentiary case.

Even cursory review of the j

Board's discussion of this remanded issue at 16-22 indicates i

that its entire " analysis" is based on this rather basic and fundamental error.

{ j

4 i

l

. i i

preparedness that cannot feasibly be removed."

supp. at 17 citina 46 Fed. Reg. 61134, 61135 (December 15, 1981).AA/

In l

fact, this statement is indistinguishable fron.the standard f

that applies to the review of energency plans at.the s

construction M Dh43R of a proceeding.

Saa $50.34 (a) (10),

' i App. E.II.

133 4133 14 NRC 279, 285-(1981)' Director's Decision Denying Petition for Revocation of Seabrook' Construction Permit l

(noting that current "information does not. indicate that it is l

infeasible to develop an energency plan, including an evacuation plan, for the area surrounding the seabrook site.")

Indeed, if this were the legal standard for licensing then the 1981 decision by the Director stated sufficient grounds to grant a full operating license for Seabrook!

i 11/

Needless to say, the Commission's statement is taken out of context.

First, it is clear that the Board simply lifted this citation from the Waterford decision where it appears at 17 NRC 1076, 1104.

Second, as the Waterford context makes clear this statement references the " predictive" nature of the

" reasonable assurance" finding.

It does not,; standing alone, indicate what type of issues are amenable to post-hearing or, as here, post-licensing resolution.

833 cases cited at outset of this section.

Third, the statement is.taken from a pro rulem' king which excluded hearings on emergency exercises. posed a

The rule (47 Fed. Reg. 30232 (July 13, 1982)) was reversed by the Court of Appeals.

Ucs v. NRc, 735 F.2d 1437 (D.C. Cir. 1984).

Indeed, the Waterford citation predated the Court's reversal of this rulemaking. As is clear when the portion cited by the Salth Board is put in context, this Commission ~ statement was connected to its efforts at removing energency exercises from litigation, an impermissible goal.

46 Fed. Reg. 61134, 61135.

See also 50 Fed. Reg. 19323 (May 8, 1985) (Commission obeys Ugg, maintains " predictive" nature of finding but repeats'no language even remotely similar to quoted citation).

i 4

.-.----.-.w.,

...,.m..-

..m

,,.,.....m,~

l Turning its attention to the specific issues raised in SAPL's opposition to summary disposition, the Board advances a series of illogical and indeed false propositions that support its view that ALAB-924's reversal is not of any significance a)

The Board asserts at 18 that SAPL advanced no " factual bases tending to establish that significant numbers...were,'in fact, understated or unreported."

Again, as noted, the Smith Board ignores the obvious-fact that SAPL was denied a hearing

~

and had no obligation to present its evidentiary case in l

opposition to summary disposition.

Moreover, this assertion cannot be squared with the undisputed fact that SAPL indeed challenged the survey.

Even the Board acknowledged that SAPL's

" principal thesis" is that the "results obtained-through that survey cannot ha relied unen to adequatelv identiev tJha number and particularized transportation needs" of the special-needs population. (17) (emphasis added).

b) Next the Board asserts at 18 that SAPL did not claim that the survey was " inadequate because of design flaws" (emphasis in original).

Apparently, the Board now reads SAPL's challenge as merely a claim that the survey could be improved.

Thus, although the Appeal Board reversed the Board's November 1986 summary disposition holding that "there were issues of material fact relating to the survey" in dispute (ALAB-924 at 16), the Smith Board in November 1989 (indeed within 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> of that reversal) again grants di facto summary disposition on these issues:

il t

l I

Even if we accept SAPL's proposition as true...it I

j would not materially weaken the Applicants' position that the design of the survey instrument was j

adeguate...

i i

supp. at 18.

l t

c),

Next, the Board asserts at 19 that any defects in the survey need not be resolved prior to licensing (or even as post-licensing conditions)._ This is so because part of the i

SAPL opposition to summary disposition concerned the sunner-special needs population which will not be present until summer 1990 and because there is a resources excess of 150% in the NHRERP.

Again, obviously, Intervenors never presented an l

t evidentiary case in which they might have challenged in detail i

the non-sunner special needs count.

However, the SAPL i

materials did challenge the methodology of the survey for gli EPZ special needs populations, not just the summer population.

Moreover, the Board simply adopts the harmless error analysis expressly rejected by the Appeal Board as noted above when it i

asserts that excess resources are now sufficient:

We believe that the number, whatever it might be, is t

not so large as to render the existing excess transportation resources under the NHRERP inadequate.

Supp. at 21.

This finding directly contradicts ALAB-924 at 19 n.47 set out above.

d)

Finally, the Board asserts that no survey can guarantee identification of every special needs person.

In support of this irrelevant truisa, the Board states:

4

?

.. l

r

~~

I l

Indeed, during the Massachusetts portion of this proceeding, the oniv witn=== offered hv anv intervanor on the inaua of identifyina and calculatina the transportation needs of.the homebound disabled testified that not all pre-identified homebound disabled would in fact use the transportation resources allocated to them.

supp at 21 n.12.

(emphasis supplied).

This reference to the litigation of similar issues on the SPMC is nothing short of astonishing when put into context.

First, the Mass.AG's contention on the SPMC directly challenged the adequacy of the mail survey used by the utility.2A/

Second, the Board;(at Tr 19987988), excluded Mass AG's testimony of one of,the foremost survey experts in the country (that February 21 testimony is attached hereto as Exhibit 2), holding that the contention did Det adequately put the parties on notice as to this issue and that the Mass AG's December 1988 answers to interrogatories did not adequately identify survey " methodology" as part of the issues presented by the contention.22/

Third, the Board 22/

The 1986 New Hampshire survey and the 1988 SPMC survey are similar in design and methodology.

Obviously, SAPL Contentions 18 and 25 were sufficient to put at issue the adequacy.of the survey's methodology in the New Hampshire proceeding.

The language of the Mass AG's contention was even more direct in expressly challenging this methodology.

333 July 5,-1989

" Contentions Memo."

at 59, JI 48 "The plan proposes to conduct periodic special needs surveys by mail.

Plan 3.7.

This method is unreliable for a number of reasons."

22/

It made this ruling notwithstanding its otr11er holding that the filing of testimony prior to hearing is a form of discovery putting parties on notice as to the issues presented.

ERA Tr 16444.

The Mass AG's December:19, 1988 Answers to Applicants' Interrogatories concerning JI Contentions 6 and 27-63 stated at 86:

" Experts in the area of I

surveys and data gathering have uniformly proclaimed surveys by mail as being among the most unreliable methods of gathering information."

The Mass AG's expert, Dr. Dillman, was not j

retained until February,1989..

~,;...

-,n--.

~,, -, - - -

+ - - - ~ ~. ~ ~ - - - - - - ' ' ~ ~ ' ~ ~ ~ ' - ~

0.

l l

1 7

i acknowledged in its decision on'the SPMC, LBP-89-32 at 1 8.21' (287), that the SPMC survey was indeed flawed and had left out i

l l

l entire portions of the special needs population.

Yet, it was l

l sure that timely correction would be forthcoming.

In light of l

\\

i its handling of this issue in the SPMC litigation, it is l-misleading for the Board to characterize.the Mass AG's witness as "the only witness offered by any intervenor" during the Massachusetts portion of tho' proceeding on the issue of l

l identifyina and calculating the transportation needs of the special-needs population.

Indeed, this is an outright i

i falsehood.

i In sun, then, the Board's disposition of this remanded issue is conoletelv and totally in error.

The Board denied Intervenors their pre-licensing hearing again, routtered its judgment on transportation resource adequacy in derogation of ALAB-924, granted summary disposition within forty-eight' hours of the Appeal Board's reversal of its earlier. identical action, mischaracterized in form and substance the nature of SAPL's challenge to the 1986 Survey, and adopted a harmless error analysis based on purported planning excess expressly raiected i

kg the Anpeal Reard.

There is virtually not a single accurate statement of fact or law at 16 to 22 of the supplement.

The only conclusion possible upon review of these natters is that the Board is not acting in good faith.

3.

&Lg_and ETEs for snacial Doculations Upon review of the arrangements in the NHRERP for the evacuation of special facilities, the Appeal Board noted that the ETEs for special facilities may have been underestimated- - - - -

'l because of a failure to include in 's he ETE the time it takes to move an advanced life support ("ALS") patient from a bed to a stretcher adjacent to the bed (" preparation time").

This process cannot be begun before the arrival of the evacuation I

vehicle and it may add an additional 28 to.60 minutes per patient to the total ETE for the facility. N ALAB-924 at 25.

Not only did Intervenors' witness Pilot testify that this preparation could-not be begun before the evacuation vehicle i

arrived, but contrary to the statement of the Licensing Board in LBP-88-32 at 28 NRC at 699,-the NHRERP also states that patients are assembled an and not before the evacuation vehicles arrive.

ALAB-924 at 26 n.69.

The Appeal Board, noting that increased evacuation times for special facilities close-in to the reactor effect the relative efficacy of aheltering as compared to evacuation, remanded the matter to i

the Board for resolution.

The Board also-statedt i

l Correction of the preparation time omission suggested

'I by the Licensing Board's statement also will ensure that special facility planning conforms to the.

guidance of NUREG-0654 that evacuation time

"[e)stimates for special facilities shall be made with consideration for the means of mobilization of.

equipment and manpower to aid in evacuation" and that-

"[ejach special facility shall be treated on an individual basis."

NUREG-0654, App. 4, at 4-9 to 4-10.-

W Assuming staffing was sufficient to permit each ALS

~

patient to be shifted from bed.to stretcher simultaneously and-that all ambulances for these patients arrived at a special facility at the same time, the total additional time would be r

between 28 and 60 minutes for any one facility.

If either of these assumptions could not be made (as seems obvious) the increase in the ETE for a particular facility would be a function of the staffing available, the number of patients and the arrival times of the ambulances.

Obviously, these increases could be substantial.

i a -

4

..--.c.

p-

,,, ~..E-..y--,-,.

,,,&~_-

, -.,...,,,. -. ~ _ -, -,. - - -

\\

t

'l l

I i

ALAB-924 at 27 n.71.EE/

-i First, it is clear that this issue is of sufficient l

importance to have required resolution prior to licensing, i

perhaps in a Raat-hearing but still gra-licensing posture.. As discussed below, however, the Licensing; Board's total confusion on this issue and the Applicants' repeated efforts to underestimate Seabrook evacuation times requires that these e

issues get resolved (pre-licensing and) by means.of-the adversary process.

Thus, again, the Board's November'9 action i

i denied-Intervenors' hearing rights on material issues and failed to close or resolve open issues prior to licensing in f

I any fashion.

As should now be anticipated, the Board's November 20 explanation confuses, misstates and obfuscates

[

these issues.

The Board begins its " analysis" by setting forth the total-generic ETE used in the NMRERP for special facilities:

3.30 hours3.472222e-4 days <br />0.00833 hours <br />4.960317e-5 weeks <br />1.1415e-5 months <br /> composed of Mobilization time:

.33 hour3.819444e-4 days <br />0.00917 hours <br />5.456349e-5 weeks <br />1.25565e-5 months <br />s-Inbound Travel: 90/50 +.50 2.30.

Loading Passengers

_ 12 3.30 hours3.472222e-4 days <br />0.00833 hours <br />4.960317e-5 weeks <br />1.1415e-5 months <br /> 11/

The NHRERP provides no particularized ETEs for the special facilities on the grounds that no special facility ETE is longer than the overall ETE for the EPZ.

Obviously, if the NHRERP has underestimated the special facility ETEs by a substantial amount that varies from facility to facility for the reasons set forth in the preceding footnote, then the NHRERP has not complied with governing regulations.

Indeed, in reality, the plan may call for an evacuation of a facility whose dose minimizing action would be sheltering.

, i

,-,.--,,e-

.--,--e...,-,--

-.--.r r,g-

-,,~..ws v

n-

.J l,

i l

i i

{

Supp. at 25 citina NHRERP, vol. 6 at 11-26.

Next, the Board

)

i i

compares this estimate of loading time (.67 hours7.75463e-4 days <br />0.0186 hours <br />1.107804e-4 weeks <br />2.54935e-5 months <br /> = 40.2 f

i minutes) with the average preparation time estimated by Ms.

i Pilot (28 + 60 minutes /2 = 44 minutes), and finds that the

{

Pilot estimate and the assurytions in the NHRERP do not j

" deviate in any significant way" and that an " increase of four minutes in the ETE would not affect the choice" of a PAR for-l the ALS patient population as a whole. (25)

In this fashion, the Smith Board puts the Appeal Board's concern "in context".

(25)

[

l It is difficult to be certain how to interpret what the.

[

Smith Board does in this passage.

It is so obviously wrongheaded to compare the preparation time which Pilot estimated at 44 minutes on average per patiant with the loading time ner facility that the Board must have realized it was comparing apples and oranges.

The whole point of Pilot's testimony and the Appeal Board's romand in this regard was that before an ALS patient could be loaded at a facility preparation I

time was necessary and this preparation could ngt hagin 2D111 the evacuation vehicle arrived.

Thus,. Pilot's'44' minutes gar t

natient would have to be added to the NHRERP's estimate of 40.2 minutes of loading time par facility as.long as the preparation could not begin until the evacuation vehicles arrived.

The Intervenors in light of the circumstances.here (a' Board retroactively defending its own careless and hasty action) o infer that the Smith Board is purposefully and intentionally,

h

--...-.,_,._,,1

i a

confusing the issue in the hope that the press of time, and the level of detail will prevent comprehension and review of its action.AS/

1 The next maneuver made by the Board to avoid the issue has two parts:

1) the Board outlines notification and mobilitation i

procedures for EMS vehicles and the special facilities and finds a margin of extra time there in which to perform Pilot's l

i l

preparatory tasks; and 2) the Board asserts that the NMRERP can be amended post-licensing under the oversight of the Staff tot i

provide instructions to the staff of special i

facilities to prepare ALS patients for i

transportation at the order to evacuate.

(29).22/

Turning first to the mobilization-procedures for the EMS j

vehicles, the Board accurately states that these vehicles would be notified and possibly mobilized at an Alert (26).

If mobilized at Alert (obviously bhfore an order to evacuate would issue) they travel from their point of origin to the State Transportation staging Areas (TSAs). (26)

Later when the order I

as/

The alternative is similarly bleaks after years of litigating ETE issues and a " careful" reading of ALAB-924 the Board simply fails to grasp even the rough edges of the remanded issue.

22/

It is unclear why any amendment would be necessary if upon the Board's present review of the issue "any inconsistency (as noted at ALAB-924 at 26] between our former ruling and the current issue evaporates."

(28). :This statement appears to be l

based on a belief that the whole issue turns on a miscitation in LBP-88-32.

Of course, the miscitation is irrelevant to the l

issue and as noted by the Smith Board was corrected by the Appeal Board.

(28).

The relevant citations are to the Pilot testimony and to those portions of the NHRERP which clearly state that special facility patients will be assembled as and not before the evacuation vehicles arrive.

ALAB-924 at 26 n.69.

3 t >

_I, j

to evacuate is given these vehicles travel from the State TSAs to the Local TSAs in the communities and from there to the individual facilities.

As set out above, this 2-staged transit process for these vehicles is reflected in the NMRERP at vol. 6 i

at 11-26 in two separate estimates of " inbound travel time"

1) 90 miles at 50 mph = 1.8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br /> (travel time from point of i

origin to state TSA) and 2).50 hours5.787037e-4 days <br />0.0139 hours <br />8.267196e-5 weeks <br />1.9025e-5 months <br /> which equals the time on

[

average for traveling from the state TSA to the local TsA to I

the special facility.

(San Vol 6, 11-19 to 11-20).

Thus, I

because the staffs of the facilities are told when the order to I

evacuate is given and because, assuming the vehicles hay,a already arrived at tha 3.tgia ISA, it is estimated that the i

vehicles will travel from there to the individual facilities in about 30 minutes, the Board believes that this 30 minutes e

provides an extra margin of time within which ALS patients can be readied for evacuation -- a margin of time beyond that assumed as loading time for those patients.

(27).

Thus, because the Board believes this extra time exirts, the remanded issue is resolved by simply requiring an amendment instructing the staff of the special facilities to begin preparation upon the order to evacuate.

i i

on closer review, such a solution would be an egregious error and reflects again the Board's incomprehension of the remanded issue.

First, assuming the planners knew that all l

necessary vehicles would arrive at each facility 30 minutes l

after the staffs were told to begin the preparation of their patients, the point made by Ms. Pilot and noted by the Appeal

3

?

4

- - ~. ~., -,

,~.

~~-.,---,a.

..,.n.

-~.-.,,.._w..

,-,,,,,,,.,.-,,_,,.,,c

~,.-.n.,-

'1

\\

f

{

l l

Board was that SASH patient would require 28 to 60 minutes to complete the preparation prior to loading.

Since there are no i

individual ETEs for each special facility reflecting "the means j

l of mobilization of equipment and manpower to aid in evacuation" i

(ALAB-924 at 27 n. 71 siting NUREG 0654) there is no basis for I

assuming that within that 30 minutes even 1 patient will be I

i ready to begin the loading process when the EMS vehicles 1

T arrive.

Ms. Pilot estimated the process to take 28-60 minutes t

per patient and without knowing "on an individual basis" how j

many patients can be prepared minultaneously the e.apact of this additional process on the ETE for any one facility could be very great.AA/

But more fundamentally, the Board misconceives the ETE i

scheme it cites, and indeed na AX1ER 22. minutes is available At i

All!

If the emergency is slower-paced and permits a two-staged l

i l

mobilization of the EMS vehicles,.then it is clear that at the point at which a decision comparing evacuation to-sheltering for the special facilities is made, the appropriate ETE.has nothing to do with the one cited by the Board and set out above, i.e. 3.30 hours3.472222e-4 days <br />0.00833 hours <br />4.960317e-5 weeks <br />1.1415e-5 months <br />.

That estimate includes a 2.5 hour5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br /> mobilization and travel time which would already have taken i

place before the protective action decision would have to be i

t 314 For example, assume five ALS patients at a facility each of which takes 45 minutes to prepara and available staffing permits preparation of only 1 patient at a time.

The total preparation time for this facility would be 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br /> 45 minutes and even if this process began 30 minutes early (the purported extra time the Board believes it has found) the. total i

additional evacuation time would be over 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br />, a-significant amount and one having an impact on any determination whether i

this facility should evacuate or shelter.

i i

i.i i

i made.

In this situation, the auEh 12MAI transit time for the EMS vehicles (.50 hours5.787037e-4 days <br />0.0139 hours <br />8.267196e-5 weeks <br />1.9025e-5 months <br /> to travel from State TSA to Local TSA to facilities) would greatly reduce the special facility ETEs t

and indeed counterbalance (in whole or in part) the omission of any preparation time in the ETE calculation.AI/

Thus, the f

1 extra margin of time is available only when it is Det needed.

I Assuming instead the very type of emergency for which the ETE t

l calculation set out at Vol. 6, 11-26 was designed-(in which-the EMS vehicle upon the order to evacuate must first mobilise and then travel to the State TSA, the Local TSA and finally the I

f facility) it is quite obvious that it would be an unmitigated l

disaster to amend the NHRERP and instruct the staff to begin the preparation time upon the order to evacuate when the evacuation vehicles will arrive over a very long and uncertain period of time up to 2.63 hours7.291667e-4 days <br />0.0175 hours <br />1.041667e-4 weeks <br />2.39715e-5 months <br /> AliSI th&1 ERRt SIAgg.

It is obviously this simple point that led the planners to quite f

reasonably instruct the staff to begin preparations AA and Det before the evacuation vehicles arrive.

Thus, in precisely those emergency situations in which the omission of any I

preparation time will anal affect the special facility ETEs (because the mobilization time for the vehicles will be.

l longest) there is absolutely no extra time before, vehicle

[

arrival to begin preparation, and indeed the uncertain and 22/

The NHRERP is contradictory on this point.

At Vol. 6,

(

11-21 " loading time" for special facilities is defined to include the travel time from the local TSA to the facility.

l But at 11-26 the inbound travel time calculation includes.50 l

hours which as is clear from 11-20 includes trips hath from State TSA to Local TSA ADA from Local TSA to-facility.. The analysis above assumes the " loading itme" estimate reflects only-activiities at the facility and no, travel time from Local i

TSA to tho' facility.

~

t Varied arrival times of the evacuation. vehicles demand that preparations be begun only upon arrival and net at the order to j

evacuate.

Thus, this remanded issue requires additional planning to l

determine the total preparation time per facility and then to calculate for each facility an appropriate ETE to determine it.

and when certain facilities should be sheltered when'others I

should be evacuated.

These plan changes are sufficiently l

complex and involve no small amount of judgment and, therefore, l

1 resolution of this remanded issue, too, requires'further i

adversary proceedings.

Again, the Board's actions on November 9 and November 20 neither resolve the issues in any f

rational fashion nor permit Intervenors' the hearing to which I

they are statutorily entitled.

f r

4.

A Sheltering Plan for the Beach Population The Appeal Board reversed the Licensing Board's judgment regarding the present adequacy of the planning done to assure the implementability of the protective measures described in the NHRERP.

Specifically, the Appeal Board found that so long l

as sheltering for the beach population is identified as the appropriate protective action in certain circumstances, the commission's emergency planning regulations require preplanning and not ad has response.

ALAB-924 at 63.

The Appeal Board-4 noted that a sheltering plan for the beach population would include a designation of what shelters are " suitable and available for use" (14. at 68) and a means of effectively I

i

'l j

1 I

i l

communicating the need for and_the location of these shelters to the beach populations.

Id. at 67.

The issue was remanded 1

tor

}

appropriate corrective action by the Licensing Board.

When i

i the potential shelters have been identified pursuant to our l

romand, it then will be appropriate for the Licensing Board (and for us) to address any intervenor concerns relative to the adequacy of that shelter.

Id. at 68-69.

As discussed at length above, the Appeal Board-also found that the absence of a sheltering plan prevented the NHRERP from being approved in its present. posture.AE/

Lt. at 68 n. 194.

The Licensing Board's " analysis" of this remanded issue is l

brief.A1/

Supp. at 31-33.

The Board acknowledges the 12/

Of course, the Appeal Board reversed the Licensing Board's approval of the NHRERP in each of the particulars surrounding.

the remanded issues.

In each case, had the existing level of planning and implementing detail been-sufficient notwithstanding the issues remanded, the Appeal Board would not have reversed but simply directed the lower Board to establish certain (post-hearing) pre-and/or post-licensing conditions to ensure that the details presently lacking are put in place in a timely fashion.

(The Appeal Board, for example, itself directed a revision of the NHRERP regarding nonhost community q

fire department personnel.

ALAB-924 at 70.)

Thus, what the Appeal Board said expressly about sheltering _ detail (that the NHRERP is not approvable without it) it indicated by necessary inference about the need to determine whether LOAs for teachers are required, the need to litigate the 1986 Survey and' establish a record basis for approving the level of transportation resource planning, and the need to determine whether the NHRERP recommends the correct protective actions for the special facilities in the EPZ.

A1/

Half of its discussion is based on the Board's misinterpretion of the Appeal Board's references to the sheltering implementing procedures for transients without transportation that are in the NHRERP.

The Smith Board asserts, that it is " directed to assure that the same implementation action" (32) is taken for the general beach population as for the transit-dependent transients.

It then proceeds to an irrelevant discussion of the differences between these groups.

Of course, the Appeal, Board never said " treat transit-dependent transients the same as transients with_

(footnote continued)

i

)

likelihood "that this issue cannot be resolved on the existing record."

(31)

Thus, the Board expressly acknowledges that the-remanded issue is not of the type amenable.to post-hearina i

resolution under NRC law.

Nonetheless, is totally ignores the i

relationship between an issue requiring a hearing that is l

t i

identified and presented before licensing and that licensing I

action.

As a result, it denied Intervenors' AEA rights to a l

t hearing prior to licensing'on all issues material to that-licensing. E Equally remarkable was the Board's complete failure (on November 9 and November 20) to attach ag post-licensing conditions on the license related to this unresolved issue.

Instead the Board's " analysis" was as.

follows:

(footnote continued) transportation." (32).

Instead, the Appeal Board simply found

.~

that the same level (net kind) of planning and implementing detail is required for both groups.

AIAB-924 at 67.

The Appeal Board obviously understood that " sheltering" for beach transients without transportation which is in the plan is part' of the evacuation procedure and that ne present planning has-been done for sheltering (as opposed to evacuating) the beaches.

Thus, nothing the Smith Board says in this regard even begins to " question the reasoning" (33) of AIAB-924 since that reasoning remains elusive for it.-

W It is beyond argument that the remanded issue is material.

The Smith Board noted that the " Appeal Board ruled that implementing detail for the sheltering option is a deficiency that must be remedied before the plan can be approved."

Supp.-at 4 n. 3.

Also, it hardly seems credible that the NRC could interpret the AEA to mean that Intervenors get a hearing on emergency planning before licensing-but then if they successfully challenge the plan in a material way at this hearing, a license may then issue and further hearings be.

held after licensina.

A successful challenge on a material issue requiring a hearing before resolution ga a matter 31 l a '

e prevents the NRC from lawfully issuing a license. _ _ _

.. ~

-)

- l I

i As a safety matter, that same low probability would permit i

post-licensing consideration.

The New Hampshire beach population does not peak until July.12/

Implementing measures may not be difficult to effect.

(31)

The l

Board concludes that the very low probability of selecting the sheltering option for the beach population and the fact l

that the beach population does not reach large numbers until July, provides adequate safety pending the resolution j

i j

of the remanded sheltering issue.

(33) l It is obvious, as discussed at length above,<that the l

l l

Licensing Board is simply applying a "no significant hazards" analysia to this remanded issue and postponing the required hearing until after the licensing action.-.This it simply can not do.

Moreover, even its stated rationale for its irrelevant safety judgment is obviously flawed.

First, as noted above, j

the Board confuses evacuation with sheltering concerns when it i

refers to peak beach populations in July.

obviously, any j

transients on the beach at all at any time need a sheltering plan if sheltering is the appropriate response.

Second, the Board's assertion that because the circumstances under which sheltering would be the appropriate 12/

Apparently, the significant although not peak' populations that visit the beaches year round can simply be disregarded in 1912 for the purposes of the Board's " analysis.".obviously, the Board here is confusing beach ETE issues whose focus in i

" peak" beach population for. purposes of establishing an upper limit on an ETE with beach shelterina issues whose' focus is on Any transient beach population requiring shelter.

Indeed, there is De record support even for the assertion that in the middle of Januarv there are ng transients-on the beaches who

?

would need to shelter in the appropriate circumstances.

As a Hampton police detective testified without contradiction "on a 40-degree day in January, that (Hampton) beach is jammed with people."

Tr. 3708-09.

In fact, in light of the number of summer time use only structures that would be closed up or boarded up in.the winter, an Ad h22 sheltering response for the no doubt comparatively small wintertime transient beach-population might be just as unworkable.

59-e - - -

+-e,-,

n.

,.-.n.-.,

,,m,,

--,~,--.-.nn.,,.w,-

-n.,,,-w-,.

a..,,,

..v-,,,, - -.,,

an.-.-;..

---n.,,v

~-~~~..,w

.=

i

]

i i

protective action are limited there is no safety significance to this deficiency is also confused.AS/

The Board simply

[

asserts that there is a " low probability of selecting the i

i sheltering option for the_ beach population."

(33)

But the l

basis for this statement has to do with the Board's understanding that at the time of an emergency uncertainties as-5 to key decision criteria will tend to favor evacuation as'the 5

protective action of choice.AE/

LBP-et-32, 28 NRC 775.-

Assuming the Board is correct and further that na assumptions ara nada about what hind 31 accident Mill ani;;ng, then there is in ueneral a low probability of selecting sheltering as compared to evacuation.

However>, this is not the same as asserting that the particular kind of accidents for which sheltering la appropriate are gg low nrobability gaggarad gg all other accidents in the plannina basis. E This is an empirical guestion which the Board does not even address.

r F

11/

Intervenors have already pointed out that the Appeal Board expressly held that this deficiency precludes plan approval and the " reasonable assurance" finding prior to resolution..

Obviously, the Smith Board does not see any safety significance in the fact that existing planning does not permit that finding.

In this regard, as discussed below, the Smith Board's i

licensing action directly raises the issue of the nature of emergency planning as a first or second tier regulation.

11/

This discussion assumes the Board's analysis 13 correct.

Intervenors challenged it vociferously in Mass AG's Appeal Brief at 56-71 and again in Intervenors Petition for Review of ALAB-924 filed November 22, 1989.

l 11/

All accidents are low probability events.

This truism would nei support a judgment that a planning deficiency is not safety significant.

The Smith Board is obviously asserting j

(without any basis) that the accidents for which sheltering is appropriate are agra improbable than All Ethat accidents when it made its safety judgment.

i It is possible that the very accidents for which' sheltering would be appropriate are more probable.than all other accidents in the planning spectrum.

Saa AIAB-924 at 50-51c 52 (quoting Intervenors' witness Goble that puff releases are "less severe").

Although this may appear paradoxical, upon reflection it is clear that there is a difference between'.the

]

lower Board's approval of the NHRERP's use of sheltering In very limited circumstances based on the need to plan for a' 1

Ianga si accidents only a small percentage of which would require sheltering, and any determination that this small j

percentage of accidents are less probable than all the other t

accidents for which evacuation would be appropriate.

The Board is simply wrong in basing its safety assessment on the purported low probability of these kind of accidents. 'Indeed, to the extent they are less serious design-basis accidents they are agra probable than the others in the planning basis.

The Board has confused the probability of a specific accident occurring with the probability that evacuation would be preferred over sheltering assuming planning is necessary for an entire ranae of accidents.

Indeed, if sheltering was

[

appropriate at this site for only one accident sequence and evacuation appropriate for all other accidents it would obviously be correct to limit sheltering to that one accident.-

Yet, if that accident were more probable than all other i

accidents (as is likely if it "less serious" and within tha l

t <

i 4

.-..,,,mmr,-r,,-

--...y,,.,,,

,-.,-n...

.._.,,.,n.,..._,,,._n,.,

,,,.a.,

.s

~...

1 1

l I

l design basis) having a sheltering plan would be more not less i

l safety significant than adequate provisions for an evacuation.

i t

Thus, there is absolutely no basis for the Board's judgment l

that the absence of beach sheltering provisions are of no i

)

safety significance either because beach populations do not peak until July (which is irrelevant) or because accidents l

requiring sheltering are " low probability" accidents (which is l

unsupported in the record and probably false).A2/

C.

The Relevance of 50.47(cif1) i r

In its November 14 Order in-response to Intervonors' November 13 Notion to Revoke, the Appeal Board intimated that the Smith Board's licensing action on November 9 may have had some undisclosed relationship to 10 CFR 50.47(c) (1).

The Smith Board o: tously saw no relationship.AI/

Instead, it chose to 1

12/

Intervenors are at a loss to grasp the relevance to any rational judgment of safety significance that the

"[ijaplementing measures may not be difficult to effect." (31)

An emergency core cooling system, or a containment structure "may not be difficult to effect" either but this fact has no bearing in assessing the safety significance of these measures.

No doubt, the Smith Board. intended this statement only as further support for its irrelevant point that beach populations will not peak until July.

Providing a sheltering plan by July does little good for beach transients in need of such a plan before July.

11/

In its November 9 decision, the Board made no reference to-

50. 47 (c) (1) in its brief comments on the impact of ALAB-924 on the vitality of its NMRERP findings.

Even though the Appeal Board pointed it in that direction on November 14, the Smith Board's November 20 " explanation" makes no reference at all to 50.47 (c) (1).

That should be the end of it since no findings have been made pursuant to 50.47(c) (1) on the record.

Intervenors, however, at this juncture take no chances, and in the text above indicate in detail why 50.47(c)(1) provides no solace for those who would license Seabrook in the present state of these proceedings.

i-

~62-r

..-.--. ~-.,----...~..._.-__._- _. _,

... ~., _ -.,.. - - -.

base its action, as analysed above, on the clear denial of Intervenors' hearing rights, the illegitimate routterance of its findings and judgments reversed in ALAB-924 and the illicit substitution of its own personal view of the equities for law.

In what follows, Intervenors explain why in the circumstances of this case, 50.47(c) (1) would also not support the-Board's actions.

1.

Possible Relevance of 50.47(c) (1)

The Appeal Board's reference to 50.47(c)(1) may have been based on its understanding that if the Smith Board were obedient to ALAB-924, it would acknowledge that its determination that the NMRERP was in compliance with the planning standards of 50.47(b), in part, had been reversed.

Thus, the Appeal Board may have reasoned that the only conceivable way the Smith Board could nonetheless have l

authorized license issuance was pursuant to 50.47(c)(1).which establishes a different legal basis on which licensing could Without relying on (c) (1), in other words, the Smith occur.

Board by necessity must simply be contravening ALAB-924 and the law of the case.

2.

Proper Interpretation of 50.47 (c) (1)

In the present circumstances of this case, however, (c)(1) provides no alternative basis for licensing.

That section has-a fairly obvious application:

if " deficiencies" (defined as failures to meet the (b) standards) exist in an emergency plan i

then licensing is nonetheless appropriate 11 the deficiencies are not significant for the plant in question, or there are

~63-4 d

L i

-l l

i l

l adequate interia compensatory actions that have been or will be taken promptly or there are other compelling reasons to permit i

plant operation.

Nonetheless, it is quite obvious that before licensing under (c)(1) is possible'the present state of t

planning must permit the (a)(1) " reasonable assurance" finding to be made.

First, (a) (1) states clearly that "no operating 1

license.

. will be issued unless a (" reasonable assurance")

finding is made."

Nothing in (c)(1) removes this overarching prelicensing requirement.

Instead, (c)(1) only relaxes t$e stringency of 50.47(b) which states that offsite plans "aust i

i meet the following standards."

second, when the commission amended (c) (1) to establish criteria for evaluating utility plans it expressly incorporated the (a)(1) standard into j

(c) (1).

See (c)(1)(iii) (identifying public endangerment standard with (a) (1) 's " reasonable assurance" standard),

obviously, there is no basis for the position that utility ElAng evaluated pursuant to (c)(1) have to meet the (a)(1) standards but governmental plans do not.

This persistence of the need for the (a)(1) finding in the (c)(1) posture is confirmed by express Commission statements in this regard.

The Commission has noted that some " deficiencies" cal 1[] into question whether reasonable assurance may be found that public health and. safety will be adequately i

protected in a radiological emergency.

However, some deficiencias may be found that only reflect tha' actual state of preparedness which may be easily remedied; these l

types of deficiencies should not delay licensing action.

See 10 CFR 50.47(c). $

m.

.. -. -. - - - ~ ~ - - - - - - - - *

,7 I

3.

" Reasonable Assurance" in Light of ALAB-924 At the outset, the saith Board's "significant safety"

{

standard (imported perhaps from 10 CFR 5 2.734) must be rejected in addressing this issue.

As noted, the Smith Board did n t mention (c)(1).

Moreover, ang "deficiencv"EE/ in_3 (b) standard in " safety minnificant" hv definities.

Further, f

to the extent an (a)(1) finding requires at laamt that a plan j

be in compliance with the (b) standards, a " deficiency" with regard to those standards precludes the " reasonable assurance" finding.E1/

The " safety significance" of each of the (b) standards is obvious from the fact that the commission required 1

t compliance with each of thema standards before a " reasonable assurance" finding could be made, and, in turn, made tho'

" reasonable assurance" finding a precondition to licensing.

l Thus, as a necessary consequence of the regulations themselves, I

a Licensing Board facing " deficiencies" in an emergency plan (such " deficiencies" being at present the law of the case on remand) is not free to assess the " safety significance" of i

12/

Of course, there has to be a " deficiency" in the plan as measured against the (b) standards for (c)(1) to be relevant.

A minor omission or detail that is amenable to post-hearing resolution (either as a pre-or post licensing condition) is n21 a " deficiency" under 50.47 (c) (1).

As discussed at-length above, ALAB-924 expressly characterized.the remanded issues in liaht of the existina record as requiring further proceedings, and either by implication or expressly (in the case of i

sheltering) characterized these issues as significant enough to prevent plan approval at this time.

11/

Intervenors have asserted in their briefs on the certified question that the (a) (1) finding requires a rule of reason-judgment, which begins with compliance with the (b) standards but does not end there.

4 e-n--

--wa n

.,,,e.a-,-w--,.-w.,-,.

v -.

-,vn---.,,-,-....-..--.-m,---m-a n

v w-----

3 i

those deficiencies to any

• reasonable assurance" finding j

pursuant to (a) (1).

such a course is tantamount to a challenge j

to the regulations.

Nonetheless, '(c) (1) obviously normits the (a)(1) finding 1

notwithstandina these deficiancima.

Thus, what is permitted under (c)(1) is an assessment whether at this narticular niant the deficiencies (which are generically at least safety significant and prevent the (a) (1) finding) are nonetheless not sianificant.

The Board's " explanation" offers nothing to l

indicate that it has found that the " deficiencies" in the NMRERP are not significant for the Seabrook plant.

It appears simply to have ruled in general that the " deficiencies" are not safety significant.

4.

Issues are "significant" and there are not compensatory measures The Board's failure in this regard is rooted in the facts themselves.

The remanded issues arm significant'for this plant.

First, it is unclear why the Appeal Board would have reversed and remanded innlanificant issues.

Indeed, to the extent the Appeal Board rejected arguments that the 1

" deficiencies" in question were not important at this site 'and, therefore, did not prevent a " reasonable assurance" finding, any ruling on this issue pursuant to (c)(1) is controlled by the law of the case.

ALAB-924 at 19 n. 47 (expressly rejecting transportation resource excess as basis for " harmless error" or lack of significance of issue because no record basis supports finding of " excess"); 68 n. 194 (expressly noting that I

^

\\

i

~

-j in " absence of any concerted attempt to! incorporate i

s implementing ~ details" " deficiency-'aust be remedied" for plan

~

approval).EA/

Second, nothing about this plant makes'these deficiencies-in the (b)1 standards insignificant and there are no j

'i compensatory measures-at all in place.

As detailed above,1the

-}

issues involve:

1) availability and agreement of_ teachers to j

i t

accompany stvlents in an evacuation; 2)Labsence offany finding _

l i-that' transportation resources for specieltneeds-population are' adequater 3) accuracy of the ETEs for the special-facilities,_

including those close-in to the reactor; and 4).the absence:of; an implementable protective measure for the beach population.

j i

i 1.

In an evacuation at Seabrook,-as at any other plant, i

deficiencies.1) - 3) are significant-to public safety, and;

'i there are no compensatory' measures in existence.E2/' In an l

'!j 12/

In fact, it is quite obvious that to issue a-Seabrook i

license in the present posture of this-proceeding is-nothing less than to grant an exemption pursuant to 10 CFR'50.12(a))

l from the " reasonable assurance" finding required before j

licensing by 50.47.

123. Limerick, 21' NRC: ggIn at.1610-1613.

1 There simply is no way on the present' record in light of.

existing law'that the " reasonable assurance" finding'can be made.

of course, SAPL v. NRC, suDra, makes any exemption for

(

Seabrook from the emergency planning regulationsclogally impossible.

t 12/.This is hardly surprising'aince'ALAB-924 identified the' i

deficiencies on November 7 and a111 cense was authorized on.

-t November 9 without conditions.

I r

1 l

!(

34 -

\\

\\

d:

d.

,e.

-5 li i

emergency at Seabrook in which' sheltering-was appropriate for R

the' beach population, it would obviously be significant if a L

L sheltering plan _did not exist.ES/

Again, thereDis not compensatory measure in existence in this regard.

i Third, it is not ailittle ironic to find the: Licensing L

Board proceeding as if that." reasonable assurance" is a

~

judgment-call it is able.to make independentlyLof compliance:

\\

with the (b) standards basedion:some assessmentLof the presentL level of public safety afforded by the plan. : of course, - just -

such-a risk-based assessmentLwas rejected:by the' Smith Board' when it rejected the Sholly/Beyea testimony.EE/ ^ Fourth, any

-l finding that the deficiencies in the (b) stahdards are not significant for the' plant in questionfor'are otherwise adequately compensated for effectively putstan and to any further proceedings on the romandediissues'because resolution y

_AA/

Intervenors, above, disposed of the: Smith Board's confused-notions involving " peak" beach-periods of the year and the asserted low probability of the accidents requiring sheltering.

As to this last point,'the Appeal Board already-rejected the notion that the unlikelihood of using sheltering at the site eliminates any'" deficiency.".ALAB-924 at 65.

How something would be a " deficiency" in.a plan for a site even

')

though it is unlikely to be utilized, and yet not.be i

"significant for.that plant" based on this. unlikelihood,

-l Intervenors leave to others-to' explain.

J 51/

of course, the Smith Board has turned the issue oniits i

head:

Intervenors-asserted 'that - the (a) (1) reasonable L

assurance finding required a judgment of risk and public safety Sygr and above compliance with-the (b) standards.

The Smith Board made a judgment "under and below" such compliance. l 4

- - - - - - " ^ ^ ^ - ^ ^ ^ ' ^ ^ ^ ^ ^ ^ ^ ' ~ ^ ~ ~ ^ ^ ^ ^ ^

^^

y.

-f Qi a t l

+

i of these issues would no longer _be " material"Lto' licensing.

.The remanded issues AKA " material" (and indeed were' remanded).'

,p because theJAppeal Board held tbdy were significant to the-issue of emergewey planning adequacyJat Seabrook,Lcould not bea l

resolved on Ett procant, record and prevented!" plan approval",

i.e. the reasonable' assurance finding, There is no record b

-t support for. simply closing out-these~ issues at this:pointLand; yet that is what a 50.47(c) (1). finding would" entail.

5.

50. 47 (c) (1) and Intervenors' hearing rights.:

50.47 (c) (1) can not be used-to circumvent Intervanors'-

hearing rights under the AEA.

herefore, if-theDramandedt T

issues require further hearing, that hearing-mustibe held; prior; to licensing.

Moreover, Intervenors have never'been? heard'on the issue of whether the " deficiencies"'in the NHRERP.are.-

significant for the plant in question or whether there-are:

s l(

adequate interim compensatory measures.

Certainlyk the Applicants have never so demonstrated as required by 50.47 (c) (1).

Egg Intervanors' November 15, 1989~ Request for'

~

L

-Hearing Regarding Any Determination That a Seabrook-Full' Power:

License May be Authorized Based on 50.47(c) (1)'.. ' Finally,-

50.47(a)(2) requires that an NRC finding of " reasonable assurance" be based on FEMA's findings and~ determination.- FEMA-has never opined on whether the deficiencies identifiedlin ALAB-924 are significant for the plant in question or whether

-there exist adequate interim compensatory measures.

1

.> a b

...n s

000KE1E0

. UNITED > STATES OF1 AMERICA USNRC-NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING - APPEAL BOARD '50 JPR 30 P4 S

-Before AdministrativeLJudges:'

ncE Of SECRkiARY

, DOCKlinnG A MimCL G.

Paul Bollwerk.III, Chairman =

BRANCH:

Alan S. Rosenthal Howard A. Wilber-P

)

In the Matter of

)

Docket.Nos. 50-443-OLf

-)

50-444-OL:

PUBLIC SERVICE COMPANY

)

OF NEW HAMPSHIRE, ET AL.

-)

)'

(Seabrook Station, Units 1 and 2)-

)

April 27, 1990

)-

CERTIFICATE OF SERVICE I, John Traficonte, hereby certify,that on-April'27, 1990,_I made service of the enclosed.MASSTAG'S MOTION TO: AMEND BRIEF IN SUPPORT OF HIS APPEAL OF LBP-89-32,_ LBP-89-33 AND RELATED RULINGS-via Federal Exprees as indicated by1(*), by_ hand.as: indicated by

(**),

and by first class mail to:

o Ivan W. Smith, Chairman

.Kenneth A.fMcCollom Atomic Safety & Licensing Board 1107 W.

Knapp-St.

U.S. Nuclear Regulatory Commission Stillwater,-OK 74075 East West Towers Building l

4350 East West Highway Bethesda,_MD 20814 Dr. Richard F.

Cole Robert R. Pierce, Esq. _

Atomic Safety &' Licensing Board Atomic Safety & Licensing, Board' U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East West Towers Building East West. Towers Building:

4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD -20814 4

j

t u

• Docketing and Service

• • Thomas.G. Dignan, Jr.1/

U.S. Nuclear Regulatory Commission

-Ropes.&' Gray L

Washington, DC 20555-

'One International Place l

Boston, MA,02110

• Mitzi A.

Young, Esq.

Phillip Ahrens,'Esq.

.i Edwin'J. Reis,-Esq.

Assistant-Attorney. General jl U.S.: Nuclear Regulatory Commission Department of the Attorney General Office of the General' Counsel Augusta, ME- 04333 3

11555 Rockville Pike, 15th Floor i

Rockville, MD 20852 H. Joseph Flynn, Esq.

Atomic Safety & Licensing 1

Assistant General Counsel.-

> Appeal 1 Board 4,

Office of General Counsel U.S.. Nuclear Regulatory Commission l

Federal Emergency Management Washington,,DC 20555

~

Agency

~

L 500 C Street, S.W.

Washington, DC.20472 Robert A.

Backus, Esq.

_AtomicfSafety & Licensing Boardf Backus,.Meyer & Solomon-U.S.' Nuclear Regulatory Commission 116 Lowell Street Washington,1DC 20555 P.O. Box 516 Manchester, NH 03106 l

Jane Doughty Diane Curran', Esq.

Seacoast Anti-Pollution League

.Harmon~, Curran & Towsley 4

Five Market Street Suite 430 Portsmouth, NH 03801 2001'S Street, N.W.

Washington, DC 20008-Barbara St. Andre, Esq.

Judith Mizner,,Esq.

i Kopelman & Paige, P.C.

79 StatenStreet:

77 Franklin Street Second Floor-i Boston, MA 02110 Newburyport, MA- 01950 j

Charles P. Graham, Esq.

R. Scott Hill-Whilton', Esq.

Murphy & Graham Lagoulis, Hill-Whilton & Rotondi 33 Low Street 79: State Street Newburyport, MA 01950 Newburyport, MA 01950 Ashod N. Amirian, Esq.

Senator Gordon J. Humphrey 145 South Main Street U.S. Senate P.O.

Box 38 Washington, DC 20510 Bradford, MA 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 u

1/

Hand delivery was made on April 30, 1990 by 10:00am

[

-2

)

t

r fy.**

Paul McEachern, Esq..

Shaines &lMcEachern 25 Maplewood Avenue, PO Box 360 Portsmouth, NH 03801

• G._ Paul Bollwerk,' Chairman

• AlanLS. Rosenthal Atomic Safety & Licensing Atomic Safety & Licensing' Appeal Board, 5th;FL.

Appeal' Board,_5th FL'..

~

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Bethesda, MD-20814 Bethesda, MD-20814' 1

• Howard A.'Wilber Jack Dolan-Atomic Safety & Licensing Federal Emergency Management Agency Appeal Board, 5th FL.

Region 1 U.S. Nuclear Regulatory Commission J.WL McCormack Post' Office &

Bethesda, MD 20814-Courthouse Building, Room::442 '

Boston, MA 02109 j

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

Respectfully submitted, JAMES M. SHANNON ATTORNEY' GENERAL' 7

a l

[18%lbb-J,6hn Traficdnte ssistant Attorney General-

/

Chief, Nuclear-Safety Unit Department of the Attorney General One Ashburton Place

' Boston, MA 02108 (617) 727-2200

?

Dated:

April 27, 1990

) I l

4