ML20042G842
| ML20042G842 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/11/1990 |
| From: | Traficonte J MASSACHUSETTS, COMMONWEALTH OF |
| To: | |
| References | |
| CON-#290-10357 LBP-90-12, OL, NUDOCS 9005160162 | |
| Download: ML20042G842 (84) | |
Text
ft)1bli}7 CXKEIED U5HHC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 10 MAY 14 R2:26 ATOMIC SAFETY AND LICENSING APPEAL BOARD Before Administrative Judgest {-f0C fl G (iRANCH 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 ) ,
OF NEW HAMPSHIRE, ET AL. ) !
)
'(Seabrook Station, Units 1.and 2) ) May 11, 1990 .
)
NOTICE OF APPEAL AND RELATED i EOTION AS TO LBP-90-12 <
The Commonwealth of Massachusetts by the Attorney General, i
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the Seacoast Anti-Pollution League and the New England j Coalition on Nuclear Pollution (the "Intervenors") notice their !
appeal of the Licensing Board's May 3, 1990 Memorandum and Order (Ruling on Certain Remanded and Referred Issues), h LBP-90-12.
Again, Intervenors note that their appeal is protective in nature. In Intervenors' view, this agency has taken final agency action in the Seabrook licensing' proceeding and Intervenors' timely petition for review filed in the cognizant court of appeals has passed plenary jurisdiction over'this !
. proceeding to that court. This loss of jurisdiction precludes further agency appellate processes as well as further trial-level processes. This agency, of course, takes a different view and presently pending in the Court of Appeals 3
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t- D for the District of Columbia Circuit, Docket Nos. 90-1132~and 89-1306, is Intervenors' notion seeking clarification of that Court's appellate jurisdiction.- Pending a ruling on that motion, Intervanors seek to protect their rights to further administrative review in the event the Court were to agree with il the agency's jurisdictional position. Obviously, Intervenors 4'
do not seek further agency review in derogation of their right to judicial review. Indeed, from Intervenors' perspective the-ruling appealed from here, LBP-90-12, is a legal nullity because the Licensing Board had no jurisdiction to issue it and :
this agency did not' seek the Court's permission to continue to I make rulings in this proceeding. j ;
Intervenors further note1/ that LBP-90-12 constitutes the Licensing Board's " final" resolution of certain of the issues remanded to it by this Board in ALAB-924. As such, it.is now clear that this ruling should moot the present controversy surrounding Intervenors' alleged failure to adequately appeal i from the Licensing Board's November 20, 1989 decision, LBP-89-33. Sag, n Intervenors' February 6 Emergency Motion (1) To Clarify the Status of the Appeal of LBP-89-33; and the Mass AG's April 27 Motion to Amend Brief in Support of his Appeal of LBP-89-32. It is now clear that the Licensing Board viewed LBP-89-33 as an' interlocutory decision, the purpose of which was only to explain why in its view it was free to authorize a license on November 9 notwithstanding ALAB-924 1/ In what follows, Intervenors assume that the Licensing Board did have jurisdiction to issue LBP-90-12.
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which issued on November 7. Thus, LBP-89-33.made interim determinations-about the safety significance of the remanded
. issues but-was not-intended to be the Licensing Beard's " final wordM on any of the remanded issues.2/ Now having issued its final rulings on at least some of these remanded issues,2/ .
tho Anterim findings set out in LBP-89-33 are now reviewable in e any event.
There can be no question that LBP-90-12 is the Board's
" final" ruling on certain issues:
- 1. Letters of Aareement with Teachers: The Board dismissed this issue as abandoned and,_in the alternative, - '
ruled that its " discussion" in LBP-89-33 (LBP-90-12 at 8) resolved it on the merits in any event;A!
2/
Intervenors appealed to the-Commission the issue whether a licensing board has the capacity to postpone resolution of
- issues after remand until after licensing and in particular L whether the Smith Board had this capacity in light of the specific holdings by this Board in ALAB-924 as to the scope, nature and effect of the issues remanded. As noted in Mass AG's April 27 Motion, the Commission in an adjucatory posture addressed only the first of these points.
2/ The fact that LBP-90-12 does not address all remanded issues might indicate that it is not yet " final" in a different sense -- because other remanded issues still remain open. But after remand the final disposition of some but not all remanded-issues meets the Davis-Besse test for an appealable order.
Seabrook ALAB-894, 27 NRC 632, 636-637 (1988).
A/ Intervenors do not believe further, briefing of this issue is necessary at all as to its merits aspects. As noted in the Mass AG's April 27 Motion to Amend Brief, the inconsistencies between ALAB-924's holding on this issue and the " discussion" set out in LBP-89-33 were fully briefed at 36-40 of (footnote continued) l l
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- 2. The Soecial Needs Survev: The Board, just as-predicted by Intervenors at 48 of their December 1 Supplemental i Motion and Memorandum, has now granted summary disposition a second time without any further evidentiary hearing ~(and.indeed
! even in the absence of any renewed motion) in flagrant violation of ALAB-924 and basic norms of appellate due l
process;E/ <
f 3. ALS and ETES for Soecial Ponulations: The Board issued its final determination on one significant (footnote continued)
Intervenors' December 1 Supplemental Motion and Memorandum filed with the Commission. The new independent ground -- the dismissal of the issue as abandoned -- has not been briefed.
Attached as Exhibit 1 hereto is the Intervenors' February 7 Opposition to Applicants' January 26 Motion.to Dismiss Abandoned Remand Issues. This Opposition sets:out in detail Intervenors' arguments as to why the remand issues have not been abandoned and is submitted herewith as Intervenors' brief L on appeal of that aspect of LBP-90-12. ,
5/ Again, there is little in the way of further briefing necessary regarding the Licensing Board's now quite open and repeated flouting of basic legal norms. Intervenors' December '
7 Supplemental Motion at 40-48 sets out the errors in the Board's interim discussion of the Special Needs Survey issue and attached as Exhibit 2 is the Intervenors' February 12 Reply to the Applicants' (February 1) Response to Licensing, Board Order of January 11, 1990. In this Reply at 4-6, Intervenors set out in detail why ALAB-924 prevented summary. disposition.
The Smith Board does not address a single argument made by l Intervenors in this pleading as it nonetheless grants summary L
disposition a second time. LBP-90-12 at 9-13. These pages from the Intervenors' Reply (Exhibit 2) are herewith submitted as Intervenors' further brief on'this legal error.
I aspect 5/ of this remanded issue: the need for individualized-ETEs for special facilities as noted by this Board in ALAB-924 (30 NRC at 352 n.71). It rejected outright Intervenors' claims that ALAB-924 and the regulations cited therein establish that .
the NHRERT is inadequate in the absence of such individualized ETEs. LBP-90-12 at 23. This issue is' fully briefed at 49-50 of Intervenors' December 1 Supplemental Motion. ,
- 4. Shelterina the Beach Pooulation The situation is much more complex regarding the present posture of issues and Intervenor claims surrounding the NHRERP and its provision or lack thereof for sheltering the general .
beach population. LBP-90-12 runs the gamut'from " final" rulings on distinct subissues which are appealable as of.right to " final" rulings on subissues probably not appealable yet as of right to interlocutory rulings also not appealable as of i right. But because the Smith Board has referred certain l
rulings to.this Board and because the interlocutory rulings not referred are so egregiously wrong as to again put at issue whether further process before this Licensing Board is consistent with minimum standards of fairness and due f/ As a significant and discrete subissue this ruling, too, meets the finality test articulated in ALAB-894, suora at 636-637.
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process2 / Intervenors seek review now over all the following rulings:
- a. " Actual sheltering" vs. " Sheltering-in-place" -
This Board needs no review of the increasingly l
sophistic use of the phrase " shelter-in-place" as it has been used in this proceeding to shuttle real sheltering of real :
i people on real beaches in and out of the NHRERP.when the l litigation so demands. The Smith Doard, finally understanding how to play this game, enters it with reckless abandon.- At 25 i
and 34-38 of LBp-90-12, the Smith Board asserts that the State ,
under the NHRERP has always intended to evacuate the general '5 i'
beach population and Dnt shelter them even under those limited circumstances in which literally everyone -- the parties, the 3 Licensing Board, this Board, the Commission -- thought that (real) sheltering them would be dose minimizing. This " ruling" ,
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2/ The interlocutory standards -- an order must'cause irreparable harm or otherwise affect the basic structure of the :
proceeding in a pervasive or unusual way -- are met here both i because a sham legal process is a form of irreparable injury and affects its basic structure and because further processing by the Smith Board of the sheltering issue as it now-remains-after the Board's literally absurd interlocutory rulings concerning its nature and scope, is a waste of judicial resources and itself a further aspect of the sham character of this proceeding. For this reason, Intervenors request that 4 this Board issue an order preventing any further Licensing Board process of the sheltering issue until this Appeal Board can address the rulings referred by LBP-90-12 as well as the other rulings set out here. Thus, this Board should order the Smith Board to defer the sheltering issue in toto and not address it at the presently' scheduled' June 5 prehearing conference. (This Board should also be aware that Intervenors will shortly seek from the commission an order enjoining the Smith Board from All further trial level process in this case as such obviously interferes with the record of-this case which was certified by the Commission to the Court of Appeals.)
as to the meaning of the NHRERP is a legal-error as it flatly contradicts LBP-88-32 which stated:
a.36. In response to comments by FEMA, on February 11,
- 1988, the State provided a detailed explanation of the use it intends to make of sheltering as a protective response for Seabrook area beach populations . . . , ,
i 8.37. Beach closure or evacuation of the beach areas-are the preferred courses of action-for the beach area population. Sheltering as a protective action option for this segment of the population would be considered in only
- a very limited number.of circumstances characterized by one or more of the following conditions:
(1) Dose Savings:
Sheltering could be recommended when it-would be the' most effective option in achieving maximum dose reduction.
28 NRC 667 758 (1988). This ruling was appealed on the ;
grounds, inter alia, that real sheltering was being i
This Board under-utilized because of the long beach ETEs.
uoheld this ruling in ALAB-924. Thus, on remand the Licensing i Board is not free to modify it and the efforts in LBP-90-12 to ,
do so are a nullity.E/ The Board cites to its discussion of i
" shelter-in-place" at 18.35 of LBP-88-32, 28 NRC at 758, asserting:
I g/ Not just a nullity. The Licensing Board discussion of this issue in LBP-90-12 omits all reference to 118.36 and 8.37.
l This is evidence-that the legal process before the Smith Board is a sham. At some point legal error.becomes so blatant, so engrained, so audacious, so contemptuous of norms of legal reasoning that the process is properly adjudged as in " bad faith" and therefore a sham. The Board's ruling in LBP-90-12 omitting any reference to its-earlier contrary ruling affirmed on appeal is such legal error.
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Curiously, Intervenors skip our Finding 8.35 purporting to I believe that our decision on the matter began in the next )
Finding, 8.36.
of course, as review of page 672 makes clear, the Board understood'" Beach Sheltering" as a separate issue with regard l
l to which, under FEMA's goading, the State formulated a specific s interpretation during the hearings.EI Moreover, careful reading of 18.35 indicates that only the transients "without ,
i access to an indoor location" will be advised to evacuate.
- t obviously, the purpose of the Stone and Webster survey and the
, Smith Board's findings set out at 118.78-8.85 regarding the availability of shelter space was to establish that for the .
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vast majority of beach transients " access to an indoor.
i location" was~available.ASI Thus, even the linguistic trick l
l 2/ Recall that FEMA in September 1987 found the NHRZRP-not adequate because of the absence of real sheltering.- When FEPUt i
- flipped its view it defended that flip on the basis of its
" technical" analysis and the fact that New Hampshire had considered sheltering and was usina it in those limited-
, circumstances when it would be dose minimizing. Amended
- Testimony of Cumming/Keller ff. Tr. 13,968 at 11. Now we are i supposed to believe that real sheltering was-never part of the ;
NHRERP. Why, then, did FEMA actually change its evaluation?
i 12/ Since usual rules of semantic usage no longer govern this matter, it may be necessary to nail this point down further.
~
. The phrase " transients without access to an indoor location"
! must refer to a group of people not at. time (T l ) indoors. If this were not indoors so,lat" access have T to an indoor location."then it is a null Thus, set since all people i this group of people outdoors at Tl must then be divisible into two subgroups: (1) those with access and (2) those without access. Under " shelter-in-place" in light of the findings by the Licensing Board as to the quantity and location of shelters in the beach areas, the vast majority of beach transients would have access to an indoor location and would be
- "actually sheltered" and not evacuated when " shelter-in-place" is the PAR.
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of definina evacuation of beach people as " shelter-in-place" is not availing. Obviously,-the only beach transients that would i
be told to evacuate under " shelter-in-place" are those few (on Pluge Island) for example for whom no access to a shelter la available-at-all. ,
- b. Intervenors' February 6 Motion to Roopen:
The Board denied this motion as moot. LBP-90-12 at
- 30. This was error since that motion, inter alia, sougat to reopen the record because under Condition (1) beach transients.
on the beaches would be evacuated and not sheltered even though 4
it has been adjudicated in this case that at least under -
certain circumstances sheltering this beach population would be This motion is obviously notLmoot since as dose minimizing. ,
the Board,'as just discussed, has now ruled that under Condition (1) beach transients will be evacuated and not cheltered.11/
i c. Intervenors' February 28 Motion to Reopen.
The Board denied this motion at 31-40 of LBP-90-12.
l This was error at all points. The motion repeated Intervenors' claims that evacuating the vast majority of beach transients instead of sheltering them was an adjudicated plan inadequacy for reasons set-out above. The Board ruled:
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11/ No further briefing of this issue is necessary. Attached as Exhibit 3 is the February.6 motion at issue and Intervenors submit it herewith as argument in support of this claim of-error.
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(1) the motion was not timely. (LBP-90-12 at 38).
Indeed, in further establishing that it is unable to provide
- process that is even minimally fair or in accord with due process the Board ruled The Board concludes that the Intervenors'have had early, frequent, detailed and accurate information that the NHRERP would employ the " shelter-in-place" concept.12/ Their failure to deal with that fact convinces the Board that the i motion was not submitted in good faith. They knew that the motion was not well grounded in fact.
LBP-90-12 at 38. In. light of the discussion set forth above about the Smith Board's own express findings'concerning. ,
sheltering the beach population (findings now suppressed),
these statements are probably more fruitfully analyzed from a nonlegal instead of a legal perspective.12/
In any event, 4
the timelinese findings are patently wrong.
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l l 12/ This is obviously true but irrelevant. Either l " shelter in-place" was modified on the record for-the beach j transients or, as more likely, its precise meaning was developed (as discussed above) and the vast majority of the beach people were determined to be " transients with access to indoor locations." In any event, the beach people were held to l
be sheltered under Conditions (1) and (2). Any contrary ,
l conclusion produces the result that there was repeated L perjurious testimony on this precise point.
l 12/ At a minimum, these statements establish that this Appeal Board to the extent these rulings are not-appealable now as a matter of right should review them on an interlocutory' basis as they reflect a proceeding so damaged by illogic and unreason as to be meaningless. Indeed, this manifest Licensing. Board bias against the Intervenors, although not evidenced in any extra-judicial statements to date, certainly supports interlocutory review.
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t o e (2) As to the.other factors pursuant to 10 CFR 52.734, the Intervenors rely on the Motion itself (attached as Exhibit 4) as their brief in this regard. The Smith Board's
. discussion is conclusory and again does not address the specific arguments for reopening made in both the February 6 and February 28 motions.
(3) In an exquisite display of_its virtuosity the-Board even rules against-the Intervenors' February 28 motion on the grounds that the motion fails to meet-the standards set out ;
in 10 CFR 52.714 (a) (1) (i) through (v) . LBP-90-12 at 39-40. Of ,
course, the motion seeks to reopen and summary disposition on issues already part of this proceeding which makes these
- late-filed st'andards irrelevant in any event.
- d. Interlocutory Rulings on Sheltering for Condition (2).
The Board frames the remaining sheltering issue in such a way as to make it meaningless and this Board should review this .
ruling now. Its meaninglessness is, indeed, not; lost on the Smith Board whose observations of the adjudicatory landscape that remains after its rulings analyzed above are both pithy and deeply humorous.lA/ LBP-90-12 at 44-55. Of course, the ld/ For example, the Board states:
While it seems that New Hampshire had committed to making
, some new change in the NHRERP, it is not clear exactly what i that change is. It has not redefined " shelter-in-place."
l Apparently, then,.even during an impediment to evacuation (condition (2)), beach transients without immediate access to shelter and-with transportation will be ordered to evacuate. This and other questions need further resolution.
LBP-90-12 at 46-47.
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Board has artificially limited Condition (2) so that it appears difficult to imagine the presence of large beach. populations.
This ruling is in error because the NHRERP contemplates large crowds on the beaches as it itself a " local condition" which might lead to a Igal sheltering PAR.1E/ ,
CONCLUSION
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In sum, although Intervenors dispute this agency's present jurisdiction to take any further steps at both the appellate and trial levels, pending clarification on this jurisdictional. h l
l dispute, they notice the appeal of LBP-90-12 to protect their rights. They further move, in the event it is determined that .
l this Board does have jurisdiction, for interlocutory review of -
those' portions of LBP-90-12 not appealable as of right, for an [
order preventing the Smith Board from any further. processing of the sheltering remand issue until this Board rules on those
- aspects of that issue for which Appeal Board review is now sought. Finally, Intervenors move for an order deeming this pleading and the pleadings attached hereto as Intervenors' 15/ This issue is set forth in adequate detail at 7-10 of.
Intervenors' pleading attached here as Exhibit 2.- As usual'the Board fails to even mention any of these arguments.
Intervenors rely for further argument on this attached discussion and the exhibits:2 and 3 attached thereto.
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brief and argument on those specific claims of error in LBP-90-12 identified herein.15I Respectfully submitted, JAMES M. SHANNON ATTORNEY GENERAL kn b$ l i %
(JghnTrafico@e ( /69) mief, Nucle &r Safety Unit .
Department of the Attorney General One Ashburton Place Boston, MA 02108 (617)727-2200 ON BEHALF OF:
NEW ENGLAND COALITION ON l NUCLEAR POLLUTION '
Diane Curran, Esq.
Harmon, Curran, & Tousley Suite 430 2001 S Street, N.W.
Washington, DC 20008 !
(202) 328-3500 SEACOAST ANTI-POLLUTION LEAGUE Robert Backus, Esq.
Backus, Meyer, & Solomon 116 Lowell Street P.O. Box 516 Manchester, NH 03106 (613) 668-7272 DATED: May 11, 1990 i 15/ To the extent Intervenors notice of appeal of LBP-90-12 l protects their right to claim. error as to any other rulings not specifically identified herein they reserve their right to brief any such issue as provided by the Commission's Rules of Practice.
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. -e; UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION-
-ATOMIC SAFETY AND LICENSING BOARD Before the Administrative Judges:
Ivan W. Smith,= Chairman I Dr. Richard F. Cole i Kenneth A. McCollom l
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In the Matter of- ) - Docket Nos. 50-443-OL )
) 50-444-OL.
PUBLIC SERVICE COMPANY ) !
OF NEW IIAMPSHIRE, fit AL. )
)
(Seabrook Station, Units 1 and 2) ) February 7, 1990 ,
)
INTERVENORS' OPPOSITION TO. -
APPLICANTS' JANUARY 26 MOTION TO DISMISS ABANDONED REMAND ISSUES-The Massachusetts Attorney General (" Mass AG") and'the New England Coalition on Nuclear Pollution .("NECNP"): (the "Intervanors") file this opposition to Applicants' January 261 !
Motion to Dismiss Abandoned Renand Issues.- That motion should be denied for the reasons that follow.
A. This Board's January 11, 1990 Orderl/ Provides No Basis for this Motion
- 1. The Board's Order was precatory and not mandatory. It provided an opportunity to advise the Board but did not require 1/ The Intervena", do not repeat here what they have already argued in theit February 1, 1990 Response to the Order i concerning this Board's lack of jurisdiction to proceed with i the remanded issues. Obviously, this jurisdictional.failing also prevents this Board from granting the Applicants' motion in any event.
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or command that SAPL (or anyonecalse) make use of this '
opportunity. -
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- 2. Similarly,.the order'said nothing about the l--
possibility that a substantive failure to respond with adviceA / could have the legal effect of an abandonment or
, withdrawal.
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- 3. Significantly, the Board's order clearly anticipated (for good and sound reasons as discussed' infra) that interested a'
parties would advise the Board as to the remanded issues.
l Thus, nothing about the order would support the notion that any one party like SAPL by its response (or failure to substantively respond)1could unilaterally withdraw or. abandon
- . the remanded issues. Indeed, Intervenors did file a timely response in accordance with the terms of the. order which ran to all remanded issues.
B. Other Intervanors had already adopted the remanded-issues before January 19. 1990.
j Assuming preuendo that SAPL withdrew or abandoned certain remanded issues on January 19, 1990, this is of no moment because other Intervanors had already adopted these issues and had (and have) taken all s.acessary steps to secure their rights to participate in their resolution.
2/ Intervenors do not repeat but simply adopt SAPLfs arguments made in opposition regarding the intent or meaning of its January 19, 1990 letter.
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- 1. At the point at which the Intervanors filed their ,
briefs on appeal of LBP-88-32 (March 1989) each Intervenor;had o the right to appeal on all issues in the proceeding. Esa $4 .;
i i Fed. Reg. 33168, 33177 (August 11, 1989). The Appeal Board in review of LBP-88-32 expressly ordered that the various ,
intervenors Det duplicate arguments in their. briefs. Thus, the l
Mass AG and NECNP wara just as much seeking appeal on the l
l issues briefed or argued by SAPL-to the Appeal Board as SAPL was. Indeed, NECNP in its March 24, 1989.Brief on Appeal of- !
LBP-88-32 expressly stated at 1:
In light of the Appeal Board's directive to avoid f repetitive' arguments, NECNP has not briefed all of the issues that are of concern to it. Therefore, we adopt and incorporate by reference the briefs filed by the other
- Intervenors.
- 2. On November 9, 2 days after ALAB-924 issued, the Mass AG asserted the Commonwealth's right as an interested state to-involve itself in the further resolution of all the remanded
, issues. Egg Intervenors' November 9 Request for Prehearing i'
i Conference in Response to ALAB-924 at 3 n.1:
l The Mass AG hereby asserts his right as an interested state to participate fully in all remanded issues.
In effect, even if the Mass AG is deemed not to.have '
l participated below in three of the four remanded issues (the-teachers, the special facility ETEs and the Special Needs.
survey) and otherwise not to have briefed any of these issues on appeal, upon the issuance of ALAB-924, the Mass AG' expressly asserted his right under NRC law to come into this part of the
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proceeding, as it were, alate # and involve itself in any l l lurther resolution of the remanded issues. As'auch the Mass AG takes the proceeding as he finds it which is precisely what he "
l nas done since November 9, 1989:
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l a. The Mass AG- (with SAPL and' NECNP) filed a motion for mandatory relief on November 13 with the Appeal Board l pursuant'to its jurisdiction over LBP-88-32, claiming that this '
Board's disposition of the remanded issues in LBP-89-32 i
violated the mandate of ALAB-924. .This motion representaLand l
reflects the Mass AG's and NECNP's independent involvement in
- . and prosecution of the issues surrounding the ALAB-924 remand. '
. b. Further, after LBP-89-33 issued, the Mass AG'and '
! NECNP again asserted theit . independent involvement in the
! remanded issues by supplementing their earlier November 13 i
motion with a further motion' to the Commission. This December 1 motion 1 / discussed in great detail the factual and i
J legal errors made by this Board in its-disposition of the remanded issues as explained in'LBP-89-33.- Obviously, o Intervenors' unambiguous prosecution of-the remanded issues in i
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l-l 3 2/ This December 1 mandamus motion was an " appeal" using mandamus as the appellate procedural vehicle of LBP-89-32 and l LBP-89-33 to the extent that those decisions erred in disposing
, of the'ALAB-924 remand.' (It was also a continuation of i Intervanors' appeal of LBP-88-32.) Thus, Intervenors '(Mass AG l
and NECNP) have already amoealed this' Beard's disnosition of the remanded issues and they did this prior to January 19, 1990. Egg Intervenors' February 6, 1990 Emergency Motion: (1) to Clarify the Status of the Appeal of LBP-89-33 (Rig.) at
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, 3-7. -The-Mass AG also noticed his appeal of LBP-89-33 on November 22, 1989.
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l this regard took place prior to January-19, 1990. Indeed, the j Commission itself in its orders of November 16 (taking j jurisdiction over the Intervenors' November 13 Motion),
November.21 (setting a schedule for briefs) and November 22 (amending that schedule) acknowledged the obvious involvement by the Mass AG and NECNP in the proper disposition of the ;
i ALAB-924 remanded issues by giving these Intervenors an express i
.onnertunity to brief this Board's disposition as set out in
. LBP-89-33. '
l In sum, there is unequivocal evidence that the Mass AG and NECNP have prosecuted the issues remanded in ALAB-924 from .
November 9 forward to this date, taking all steps to preserve their rights, both trial and appellate. Their prosecution of these issues has been acknowledged in orders of the Appeal i Board, the Commission and even in the January 11 Order of this Board which the Applicants argue as the legal predicate 'for i~ their Motion. Even assuming arcruendo,- that this Board were to rule that SAPL's January LA, 1990 letter effected a withdrawal or abandonment by SAPL, or that the letter's tone or content is otherwise sanctionable, the Mass AG and NECNP are independently prosecuting these issues and have been vociferously prior to January 19. Thus, the Applicants' motion seeking dismissal of these issues should be denied.A/
A/ Intervenors' do not repeat but simply adopt SAPL's policy arguments concerning public safety and adjudicated deficiencies in emergency planning at Seabrook.
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-i QONCLUSION ;
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For all of the reasons set forth above, the Applicants' '
January 26, 1990 Motion to Dismiss Abandoned Romand-Issues )
should be dismissed.
j- Respectfully submitted, 4
,. COMMONWEALTH OF MASSACHUSETTS ,
NEW ENGLAND COALITION ON JAMES M. SHANNON
. NUCLEAR POWER ATTORNEY GENERAL M noen/[W '
I
- Diane curran, Esq.' n Traficohte Harmon, Curran, & Towsley ef, Nuclear safety ~ Unit
(- Suite 430 na Ashburton Place i 2001 S Street, N.W. Boston, MA 02108 Washington, DC 20008 (617) 727-2200 Dated: February 7, 1990 i
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UNITED STATES OF AMERICA (
NUCLEAR REGULATORY COMMISSION j ATOMIC SAFFTY AND LICENSING BOARD Before the Administrative Judges:
Ivan W. Smith, Chairman Dr. Richard F.. Cole Kenneth A. McCollom
) .
In the Matter of ) Docket Nos. 50-443-OL
) 50-444-OL PUBLIC SERVICE COMPANY )
OF NEW HAMPSHIRE, E,T E.- )
) '
(Seabrook Station,, Units 1 and 2)' ) February 12, 1990 L )
INTERVENORS' REPLY TO THE APPLICANTS' RESPONSE l TO LICENSING BOARD ORDER OF JANUARY 11, 1990 l
The Massachusetts Attorney General,-the Seacoast Anti-Pollution League and the New England Coalition on Nuclear Pollution (the'"Intervenors") submit this reply to,the Applicants' February 1 Response (" Response") to this Board's January 11, 1990 Order concerning the issues remanded in ALAB-924.1/ h
- 1. LOAs for Teachers l
In its Response, the Applicants claim this Board
" resolve (d)" the teacher LOA issue, when the Board provided l
I 1/ Intervenors again note that this Board has no jurisdiction to proceed in this matter because of-the pendency of the Board's " final agency action" on review before-the Court of-Appeals.- Also, Intervenors' simply' adopt by reference-their February 7 opposition to Applicants' January 26 Motion to Dismiss Abandoned Remand Issues as to Applicants arguments l concerning a withdrawal'by SAPL of certain issues.
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reasons for its licensing action, notwithstanding the pendency of the ALAB-924 remand. Response at 3 citing LBP-89-33. Those reasons are irrelevant to the further LOA proceedings mandate 4 ,
by ALAB-924. The Appeal Board ruled as a matter of law that the present record is not adequate to determine whether or not teacher LOAs are required, since "the present record fails to
- j. disclose any definitive evidence addressing whethar school personnel usually would (or would not) be expected to accompany l
their students in emergency evacuation situations." ALAB-924 at'10. Until the factual record is supplemented by further.
- evidentiary haarings on the " usual role" of teachers in an .
emergency, 333 ALAB-924 at 9, there is no rational basis'for this Board to make the leoal determination, required by ALAB-924, as to whether teachers are " service providers" for whom LOAs are required. San ALAB-924 at 7-11. Egg 3139 id. at 10 (role abandonment issue is irrelevant to independent legal i requirement for LOAs).
4 At remand hearings, and by way of example, Intervanors intend to offer evidence from teachers who will testify in substance 1) that it is ngt the usual role of teachers "to
, accompany their students in emergency evacuation situations,"
ALAB-924 at'10; and 2) that the NHRERP imposes certain additional emergency duties, which are D21 Part of the teachers' usual role, such as requiring teachers to remain with students potentially for hours awaiting evacuation buses. Egg ALAB-924 at 9. By this evidence Intervenors will establish conclusively that teachers are " service providers" within the
l
.- 3 I
controlling test approved by ALAB-924, and that LOAs from these providers therefore are required.2/
Finally,' Applicants make the irrelevant claim, citing this
{ Board, that teacher participation is not " essential" to evacuate school children. Response at 4 n.11. citing LBP-89-33 at 8 citing Tr. 3388-89. The Board made no such express finding. Id. The portions of the record cited also establish
! that New Hampshire refused to adopt the view that teachers-were i <
"not necessary", and acknowledged that the NHRERP has no- p f
compensating measures in the event' teachers do not respond.- ,
Tr. 3388-9.
3 This is consistent with the uncontradicted testimony of I
Intervenors' teacher panal:
! Q. In your opinion, how many teachers would be required. i to. reasonably and promptly evacuate students from your J
schools?
i
- A. In our opinion, a substantial majority of teachers t
within each school would be required to promptly and i
reasonably locate and supervise the students, and ensure l their boarding and supervise their transportation to l
relocation centers. For example,.if even'a single teacher ,
failed to remain with her/his class, those unsupervised students could attempt torleave their schools on their own, r
or otherwise become unaccounted for. Additionally, the j students may likely become frightened, and disrupt other V
2/ Applicants suggest the teacher LOA issue arose solelv from i
a SAPL contention, and that SAPL allegedly, for all I
Intervenors, has. waived this issue.- Response at 4. Applicants are reminded that the Town of Hampton challenged the failure to obtain LOAs from school officials, agg Revised Contention.IV to
- Revision 2, Basis D(1) (Oct. 31, 1986), sponsored a panel of i thirteen teachers representing fifteen schools throughout the EPZ, and successfully pressed the LOA issue on appeal to the Appeal Board. ALAB-924 at 7.
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students, we would anticipate'these conditions to magnify during the time necessary for evacuation buses to arrive.
Under these conditions, at a minimum, a substantial majority of EPZ teachers would be required to remain with their students. For reasons previously stated, we do not believe this will occur. ff T3945 at 10.
- 2. Snacial Needs survev e l
Although the Appeal Board expressly reversed this Board's ,
L grant of partial summary disposition on the contentions I
" assert (ing) that adequate procedures for identifying persons with special needs do not exist," ALAB-924 at 15, and remanded this issue for " additional proceedings," id. at 19, Applicants invite this Board to repeat its error and again grant summary disposition without conducting any further proceedings mandated by the Appeal Board. Ega-Response at 7 n.20. Intervanors reply to Applicants' request to disregard (again) the Appeal Board mandate as follows:
a) Applicants offer the'clain, without record support or _
legal citation, that "it is also clear that at least some of j [the issues concerning the special needs survey) did not survive Applicants' summary disposition motion." Response at 6 l n.20. This is absurd in view of the Appeal Board's express I
i reversal and romand, without~aualificatiSD, of the survey
! issue, ALAB-924 at 19, 70, and the conspicuous absence from L
ALAB-924 of any order either granting Applicants partial
[ summary disposition on any issue or "specifying the facts that j appear without substantial controversy." ERA Fed. R. Civ. P.
56(d) 21. ALAB-924 at 70.
Applicants also erroneously claim that SAPL's 14 b)
Statement of the Material Facts as to which SAPL Contends that d
- -4 -
i '
. ._ . _ _ . __ _ _ _ _ _ __ __ ~ _ . _ . . _ _ _ _ _ - _._ ___ _ . . . _ .
-I SAPL Contentions 18 knd 25 Raise Genuine Issues as to Identification of those with Snecial Needs " defines the maximum scope of the issues to be litigated." Response at 6.n.20. Of course, it does not.. It is black-letter law that Applicants, as novants for narti ; tsummary disposition, had the burden to establish "that there is no genui'ne issue to be heard." 10 CFR
$2.479(a). As novants, Applicants may stak summary disposition 'f on an entire contention or, as here, on only a portion of the contention. Obviously Anolicants, not Intervenors, determine how broadly or narrowly the motion is focused, and Intervenors need only respond in opposition to the extent Amplicants have put issues in controversy. In this_ case, Applicants " motion is concerned only with the issue of identification" of special needs persons.2/ ALAB-924 holds that this issue-should not have been disposed of by summary disposition. ALAB-924 at 16 (disputed issues of material fact include those concerning
" methodology utilized to identify the'special needs l population"). By reversing the grant of partial summary ,
disposition, the Appeal Board returned the matter to the status euo ante, and all issues raised by the contentions are open in any further proceeding.S/
l l
l
, 2/ Applicants' Motion for Partial Summary Disposition of South Hampton Contentions No. 8, NECNP Contention NHLP-4, and SAPL Contentions 18 and 25 (May.20, 1986) at 2 (Exhibit 1 to this l motion). -l 1
1/ If Applicants intend to refer to their own Statement of Material Facts allegedly not in dispute, 333 Ex. 1, Intervenors concur that a portion of these statements, beyond the disputed
- - issues-identified in ALAB-924, perhaps may be stipulated to 4
preliminarily to conducting further proceedings.
l I
c) Finally, Applicants suggest that defects in the methodology for identifying those with special needs have been i
, addressed "by subsequent developments in the record" or by I equally flawed survey updates. 333 Response at 6-7 n.20. This is factually inaccurate /E and the Applicants are again simply requesting that this Board disregard the Appeal Board mandate -
for " additional proceedings" to fairly test the adequacy of the survey methodology. Until these proceedings are conducted, neither this Board nor the Appeal Board can even decide the ,
issues concerning the adequacy of transportation resources under the NHRERP.
ALAB-924 at 19-20 and . n. 47,
- 3. Loadina Time for ALS Patients The Applicants at 8 of their Response propose to make the
{ plan changes described by this Board in LBP-89-33 at.29. At 48-56 of Intervenors' December 1 Supplemental Motion filed with l
the Commission and attached as Exhibit 1 to Intervenors' February 1 Response to this Board's January 11 Order, the Intervenors analyze in detail why this proposed plan change not l
only does not resolve the remanded issue but is.itself an egregious error and makes the plan worse! Intervenors note that in the December 8 Response to this December 1 Supplemental l Motion (at 27-30), the Applicants provide no resoonse whatever
(
4 1/ This Board excluded testimony of one of the foremost survey experts in the country when Intervenors attempted to litigate this issue in the SPMC proceedings. 133. Tr. 19987-88.- Egg also Intervenors' December 1 Supplemental Motion at 47-48.
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to Intervenors' detailed analysis of the issue and the NHRERP.
Moreover, the Appeal Board also noted that special facility j planning in annaral under the NHRERP does n21 comply with the
]
guidance of NUREG-0654. ALAB-924 at 27 n.71. The Applicants completely ignore the mandate of ALAB-924 to this Board to ensure that in annaral all special facility planning conforms-i with the command of the guidance that "relach special facility
, shall be treated on an individual basis." NUREG-0654, App. 4 at 4-9 to-4-10 (emphasis supplied).II Thus, this Board i should indicate that the NHRERP.is presently inadequate as a j
matter of law under ALAB-924-in the absence of individualized r j special facility planning and these changes must be forthcoming- i before the NHRERP can be approved.
l i
- 4. Imolementina Detail for Shelterinel /
Intervanors have already moved for reopening of the NHRERP l record based on the astounding disclosures concerning the l
f/ Intervanors at 50 n.35 of their December 1 Supplemental Motion indicate that the absence of individualized ETEs for special facilities is significant for the formulation of dose minimizing PARS for this-portion of the population.
2/ Intervenors in response to the Applicants' February 1 Response have filed 2 pleadings which they reference here in incorporate if at any later time it is determined that this Board was-the appropriate entity for the submission for these pleadings'(and the arguments set forth therein): Intervenors' February 6, 1990 Emergency Motion: (1) To Clarify the Status of the Appeal of LBP-89-33 and (2) To Reopen the Record.on the NHRERP as to the Need for Sheltering in Certain Circumstances filed with the Appeal Board and- Intervenors' February 8, 1990 Request'for an Opportunity to Brief ALAB-924 filed with the !
Commission.
i
nature of the changes made to the NHRERP in October 1988.
(Intervenors do note here that FEMA, the State of New Hampshire, the NRC Staff and the Applicants never brought the
! meaning of these october 1988 changes to the attention of this Board which as recently as November 20 repeated its i
understanding concerning the use of sheltering for the general beach population in condition (1). LBP-89-33 at 32 n.17. Egg alan id. at 33 n.18 noting the october 1988 plan changes and -
the apparent resolution of FEMA's concerns about implementing detail without understanding that October 1988 changes had .
eliminated sheltering for Condition (1).
i As to the need for sheltering detail for Condition (2), the Applicants assert that what changes are needed are minor and can be left to Staff oversight. The changes are minor because, argue the Applicants, the beach population at condition (2) is small by definitions if egress routes are blocked then ingress
. routes are likely blocked keeping the day tripper populatien down. Applicants' February 1 Response at 10 n.33. In response Intervenors asserts
- a. Condition (2) is not limited in the way Applicants now assert. Attached as Exhibit 2 hereto is Attachment C to Appendix U to Vol. 4A of the NHRERP which sets forth the local conditions which are evaluated by decision makers pursuant to Appendix U step IV. B.4 (General Emergency) cited by the Applicants at 10 of their February 1 Response. (Although dated 2/88 Exhibit 1 was current and part of the October 1988 ;
update.) obviously, local condition b. (" population density and distribution") could well signify that large beach populations without more, are a local condition which is j considered a constraint on evacuation thereby resulting in a :
sheltering PAR. (Attached as Exhibit 3 is the corresponding j portion of Revision 3 of the NMRERP dated February,1990.)II I
- b. The Applicants simply ignore the holding of ALAB-924 that sheltering detail is needed when they assert that somehow the amount of detail is a function of the quality of the 4 i
sheltering afforded. Egg Applicants Response at 11.
- c. The Applicants also ignore the holding of ALAB-924 as to the right of the Intervenors to participate in any further
- proceeding that results in the determination that the sheltering detail put in place in response to the ALAB-924 remand is adequate
When the potential shelters have been identified pursuant t
to our remand, it then will be appropriate for the '
Licensing Board (and for us) to address any intervenor concerns relative to the adequacy of that shelter.
A/ Intervanors note that in the February 1990 revision of the NHRERP at Vol. 8 there is repeated ambiguity concerning the use of sheltering for the general beach population under condition (2); i.e., evacuation constraints.
At 66.1, Section 8 (at 6.1-8), it is clear that (just as in the October 1988 iteration) sheltering is considered for the beach areas if the constraints (as identified at $6.4, Exhibit 2 here) on evacuation exist. But at $6.10 (" Protective Action for Seasonal Beach Populations") at Section 4 (at 6.10-3 to 6.10-4) it is nel clear that sheltering is considered even if the ovacuation constraints as set out at $6.4 are existant.
-9_
.__ __ _ . _ . . . _ _ . . _ _ _ _ _ _ _ _ _ _ _ _ ~ . _ . . _ _ _ _ . _ . . _ . . _ _ _ _ _ _ .
i !
ALAB-924 at 68-6,. In light of this clear mandate, the l
- adequacy of sheltering detail for Condition (2), no matter how I condition (2) is now interpreted, can not be left to Staff !
oversight as (what in effect would be) a post-post-licensing condition.
~
Respectfully submitted,
- COMMONWEALTH OF MASSACHUSETTS $
! NEW ENGLAND COALITION ON JAMES M. SHANNON
- i NUCLEAR POWER ATTORNEY GENERAL
-C
, Diane curran, Esq. n Traficontef i Harmon, curran, & Towsley [ Chief,NuclearSafetyUnit l
i Suite 430 Matthew Brock 2001 S Street, N.W. Assistant Attorney General i
Boston, MA 02108 one Ashburton Place
} Washington, DC 20008 Boston, MA 02108 (617) 727-2200 i
SEACOAST ANTI-POLLUTION LEAGUE 6bert Backus, Esq.
Backus, Meyer, & Solomon 116 Lowell Street '
P.O. Box 516 Manchester, NH 03106 3 Dated: February 12, 1990 4
5
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k Dated: May 20, 1966 UNITED STATES OP AMCRICA NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING BCARD [
)
In the Matter of ) ,
)
PUBLIC SERVICE COMPANY OF ) Dockwt Nos. 50-443-OL NEW HAMPSHIRE, et al. ) 50-444-OL (Seabrook Station, Units I r.nd 2
) off-site Emergency
) Planning Issues
)
)
APPLICANTS' MOTION FOR PARTIAL
SUMMARY
DISPOSITION OF SOUTH HAMPTON CONTENTION NO. 8, NECNP CONTENTION NHLP-4 AND SAPL CONTENTIONS 18 AND 25 Pursuant to 10 CFR 6 2.749, on the basis of the Affidavit of Richard H. Strome Re South Hampton Contention l No. 8, NECNP Contention No. NHLP-4 and SAPL Contentions Nos.
l 18 and 25 ("Strome Affidavit") and tho' Statement of Facts Not in Dispute attached hereto and for the reasons set forth below, the applicants move the Board to enter a decision summarily disposing of South Hampton Contention No. 8, NECNP l Contention NHLP-4 and SAPL Contentions Nos. 18 and 25 insofar as these contentions assert that there do not exist '
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adequate procedures for identifying persons with special needs, t
REASONS POR GRANTING THE MOTION South Hampton Contention No. 8, in part contends that
" adequate arrangements-have not been made to identify . . .
persons who do not own an automobile." NECNP Contention NHLP-4 was for the most part rejected by this Board but was 4
" admitted as limited to notification of persons with special notification needs as specified in part (e) of the basis statement." Memorandum and order (April 29, 1986) at 67. ;
i SAPL Contention 18 raised the issue of whether the methodology utilized to calculate the numbers of non-auto owning population had understated the number of persons who would need transportation. SAPL Contention No. 25 raised '
the issue of whether " mobility impaired" individuals have been identified. Some of these contentions also raise'd issues as to whether, even using adequete identification procedures for "special needs" persons, proper assistance could be implemented. But this motion is concerned only with the issue of identification.
The Strome Affidavit demonstrates that an effective survey technique has been implemented to identify "special needs" persons and goes on to recite that this survey will be ongoing and the data annually updated and'kept current, f
o i
P It is respectfully submitted that the survey techniques being carried out and to be carried out constitute a fully ,
adequate method of identifying special needs persons. Any additional requirements would fall into the category of
" extraordinary measures" not required by the regulations. ,
Southern California Edison Co. (San Onofre Nuclear -
Generating Station, Units 2 and 3), CLI-83-10, 17 NRO 528, I 533 (1983).
By its attorneys, '.
h # gnan,J'.
G Robert K. Gad III Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 (617) 423-6100 Dated: May 20, 1986 f
-t i
k MATERIAL FACTS AS TO WHICH THERE IS No DISPUTE
- 1. The State of New Hampshire has conducted a survey within the New Hampshire portion of the PEPZ to determine who needs transportation, special notification, special help because of health conditions, or foreign language notification.
- 2. This survey will be updated annually. '
- 3. Results of the surveys are compiled according to individual jurisdictions within the PEPZ and supplied to local civil defense officials. -
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EXHIBIT 2 W
t ATTACHMENT C i EMERGENCY ORGANIZATION STATUS AND LOCAL COND A.
Resconne status of the state and Town'Emerrenev Orrentrations 1.
The protective dction decision must take into consideration the status of state and town emergency personnel and resources and the t the protective action announcements to the publje .
t 2.
Of particular tapartance to precautionary actions for the beach s arei
. is the status of the State Police and local pollt:e and access controls. to Amplement traffic ;
3.
Status r.onsiderations include:
4.
Avallobility of personnel b.
Time required for mobilization c.
Degree to which nobilisation has prngressed '
i d.
Time required for implementation of emergency actions B.
i Local Conditions 1.
i Local conditjons within an affected area may constrain protective I
i action decisions and their laplementation.
2.
Local conditions should be reported to decision makers by local EOC personnel through the IFO at Newington, 3,
. Pertinent local conditions include:
a.
Conditions of road and evacuation routes considering:
(1) Seasonal travel lapedinents (2) Status of road repairs (3)
Surface conditions due to weather Vol. 4A U-36 Rev. 2 2/88 d ~ , _ _ _ -. -- ~
L i
ATTACHMENT C fcont'd) 4 (4) Natural or man-made 1*peciments IS)
Effect of traffic 31rnals'on traffic flow an ofrection of evacuation, i
- b. i Population density and distributton i
- c. Evacuattun route capabilities h d.
. Inclement heavy werther canditions that would affect travel rains. stc.) . tog. lunow e.
Local events whic'h may present requirements for special not' fica-tion traffic control transportation assistance i i f.
Status of schouls and other special facilitics. '
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Vol. 4A U-37 Rev. 2 2/88
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- 1. h
'Jhe protective action decisicm nust take dato consideration the stataas of
{ state and town assegency persennel and zumources and the timing of the
- i protective action announosusnts to the public. '
j 2.
Of particu24r inportance to precautionazy actions for the beach areas is the i
status of the State Police and local police to inplanant traffic and acomes i controls.
l
- 3. Status considerations include:
I o Avai1
- 14ty of paramnal l
j o Time zequired for *ilization
! o Degree to Wch unhilization has progressed i l
o Time required for implementation of amarauncy actions Sectim 2 T~=1 Canditie-is 1.
Iocal conditions within an affected area may constrain protective action decisions and their implementaticm.
2.
Local ceruittiens should be repcetad to decisien makare by local Drew.cy Operations Centar (EC) persconel through the Incident Field Offica (IfD) at Nwingten.
- 3. Pertinent local conditims include:
t I
l 6.4-1 Vol. 8/Rev. 3 i
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N OtGANIZATICN h"US AND WAL CncrfICNB (cont.)
] o Conditions of road and evacuation 21:mtes ocmsideringt sensemal travel iHJ_ manta Status of road repairs Surface ocmditicos due to weather Natural or man eads L W i==nts Effect of traffic signals on traffic ficw ut directicm of evacuation. '
i o Populatica density and distriluticm i .
- o Evacuaticm route capabilities o
Inclement weather ocmditions that would affect travel (sncw, fog, heavy
- rains, etc.)
o
- Incal events Weh any present ruptizusants for special notification, traffic cantzel, L=i.eMution assistance l
f o
Status of schccis and other & =1 facilities.
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[
l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION j i
j ATOMIC' SAFETY AND LICENSING APPEAL BOARD I Before Administrative Judgest '
G. Paul Bollwerk III, Chairman j Alan S. Rosenthal Howard A. Wilber t
)
In the Matter of ) Docket Nos. 50-443-OL
' ) 50-444-OL PUBLIC SERVICE COMPANY ) ,
OF NEW HAMPSHIRE, ET hL. )
(Seabrook Station, Units 1 and 2)
)
) February 6, 1990 l
)
i EMERGENCY MOTION OF THE INTERVENORS:
(1) TO CLARIFY THE STATUS OF THE APPEAL OF LBP-89-33 AND (2) TO REOPEN THE RECORD ON THE NMRERP AS TO THE NEED FOR SHELTEp HG IN CERTAIN CIRCUMSTANCES 4
IETRODUCTION i,
The Massachusetts Attorney General (" Mass AG"), the Seacoast Anti-Pollution League and the New England Coalition On Nuclear Pollution (the "Intervenors") received the Applicants' I
February 1 Response to the Licensing Board Order of January 11, '
- 1990 on February 2, 1990. This pleading is attached hereto as f
Exhibit 1. Certain representations in this pleading require a response by the Mass. AG to this Board. Specifically, the -
i Applicants assert that the Licensing Board's November 20 ,
" explanation" (LBP-89-33) concerning ALAB-924's remanded issues was itself either never appealed, or if appeal'd, e the ,
i Intervenors' claims of error were never briefed to this Board.
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i Further, astoundingly, the Applicants now assert igt the first
}
time that an October 10, 1988 plan revision to the NMRERP '
effectively eliminated sheltering as a protective measure [
t option for what was called in ALAB-924 at 50 Condition (1):
those circumstances in which sheltering for the general beach i
population would maximize dose savings. The Intervenors move ;
in response for permission to clarify and have this Board i ,
j P
confirm that there has been no failure to seek review of I LBP-89-33 by the Intervanors. Further, Intervenors move to '
reopen the record on the NHRERP in light of the Applicants' .
4 February 1, 1990 disclosure of the meaning of the October 1988 plan revision. If the plan is now to be interpreted as -
represented by the Applicants to the Smith Board, even under i
l those circumstances when sheltering the beach population would be the dose-minimizing strategy 11 found by thm Smith 59.4Id And i uoheld 2D anneal in ALAB-924, sheltering-nonetheless would ngt
'l be recommended. Thus, new evidence--the October 1988 plan changes as interpreted as of February 1, 1990--should be i considered in determining whether.the NHRERP makes the most effective use of sheltering and otherwise contains protective action decision criteria which maximize dose savings under the i
circumstances of the Seabrook site. The Intervanors move to reopen the record to have this Board consider this "new" NHRERP revision. Further they seek summary disposition on.the NHRERP sheltering contentions based on the principles-of ran iudicata.
- W j
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)
J I. INTERVENORS KAVE PRESERVED THEIR RIGHT TO APPEAL LBP-89-33 AND HAVE OTHERWISE EXRAUSTED ALL INTRA-AGENCY APPELLATE OPPORTUNITIES AVAILABLE To DATE To CHALLENGE LBP-89-33 The Applicants assert that: I LBP-89-33 is now the law of the case, subject only !
to gun sponte Appeal Board review. This is so because two Intervenors, NECNP and SAPL, never filed i
' a Notice of Appeal with respect to LBP-89-33, and l the remaining intervenors never sought an extension ;
of time to brief their appeals with respect to that !
decision. Thus, there is no appellate challenge to !
LBP-89-33. ,
Exhibit 1 at 3, n.6. This statement is simply wrong. ,
- 1. First, the Applicants no doubt make this assertion i because they intend to argue, if and when necessary, to the -l Court of Appeals (before whom appeal of the Smith Board's November 9 licensing action is now pending) that Intervenors i did not preserve their appellate rights regarding LBP-89-33 and that, therefore, based on principles of exhaustion of administrative remedies, they can not claim error in the Licensing Board's disposition of the ALAB-924 romand. ,
- 2. In fact, Applicants' statements are based on a fundamental misunderstanding of the nature of Intervenors' efforts to have the Licensing Board's errors regarding the ALAB-924 remand corrected. As this Board is. aware, on November 13, Intervenors filed a motion to revoke the November 9 licensing action on the grounds, inter alla, that the Smith l Board had violated the letter and spirit of the mandate of ALAB-924. This November 13 motion for mandatory relief was filed pursuant to this Board's jurisdiction over LBP-88-32 and
! Intervenors' appeal thereof. On November 16, the commission 4
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1 took jurisdiction over this motion away from this Board I indicating that it would rule on this motion. On November 20.
the Smith Board issued LBP-89-33. On November 22, the Mass AG i noticed the appeal of LBP-89-32 and also specifically noted that he was appealing LBP-89-33. On December 1, the Intervenors then supplemented their mandamus motion before the ,
i commission to include a discussion of the errors made by the Board in LBP-89-33 as further support for mandatory relief.
Then, on January 24, 1990, the Mass AG (and other Intervenors) filed briefs on LBP-89-32, excluding from these briefs the legal errors already briefed at length on December 1 in support
- a of the mandamus petitions pending before the commission. At j 1-2 of his January 24 Brief on Appeal of LBP-89-32, the Mass AG
- l noted the absence of any briefing on the issues surrounding the disposition of the remanded issues and stated i
The Mass AG believes those errors entitle Intervenors -
to mandatory relief revoking the November 9 license authorization. The merits of Intervenors' notions for such mandatory relief are presently pending before the i
l Commission.
1 ;
- 3. Applicants' notion that LBP-89-33 has never been challenged by the Intervenors in briefs is a remarkable misreading of this record. Mandamus, of course, is an l
anne 11 ate remedy available to enforce the mandate of a superior tribunal when it has been disobeyed. Mandamus can lie AE AD I-alternative to appeal and error if the disobedient tribunal's order is otherwise final and reviewable. On November 13, l Intervenors sought mandatory relief as a form of appellate l
remedy for the Smith Board's contravention of ALAB-924 (which l
l had issued on review of LBP-88-32). That mandamus remedy was l .
- g , - - - - - '-,. --~
, .e.- c_ .y.,e... . .,, ., - - , - , . - ,
i i
- (and is) available as part of the ongoing appeal of the New t Hampshire decision and was available on November 13 notwithstanding the fact that no appeal of LBP-89-32 had been
]
l filed at that time. After the commission took jurisdiction s
{ over the Intervenors' mandamus away from this Board on November l 16, all sitian that tha disposition gf the ALAB-924 remand by
.tha Smith Board WAa in error Mara ng longer hefore thia Board.
i i
This is the case whether those claims are part of the continuation of Intervenors' appeal of LBP-88-32 (the November l
J 13 Motion) or are part of Intervenors' appeal of LBP-89-32 (the '
i j December 1 supplemental Motion). Indeed, Intervenors
! supplemented their mandamus with the clear errors committed by j the Smith Board in LBP-89-33 (which of course simply
" explained" the errors actually committed in and by LBP-89-32).1/ Thus, the Intervenors hays briefed the errors I
1/ It was actually unnecessary for the Mass AG to separately identify LBP-89-33 in his November 22 Notice of Appeal. SAPL and NECNP by noticing an appeal of LBP-89-32 also, in effect, were appealing all post-facto " explanations" for this licensing action. The alternative proposed by the Applicants would result in either a final and annenlable decision being noticed '
for appeal and the lengthy series of post-facto " explanations" that issue afterward not being considered as part of that decision or if each later decision is appealed separately each would become a separate decision on appeal needing to be consolidated with the first. But then how and why was the first decision " final" and " reviewable"
" explanations" are necessary to it? The procedural morass if the later-issued t arises because of the. inherent intellectual confusion of the=
smith Board which issued a " final" and " reviewable" decision on i November 9 (beginning the immediate effectiveness review, for '
e.xample) and then a lengthy series of " post-final" decisions.
Intervanors were under no obligation to file separate notices of appeal each time as each post-facto " explanation" must be deemed (if it is to be even considered at all) part of the
" final" and " reviewable" decision issued'in LBP-89-32.
Regarding the exquisite procedural complexity that results'when a Board first decides _ to license and only later decides how and why, aan Intervenors' January 22 Brief on Appeal of LBP-89-38 at 4-13.
-5~
in LBP-89-33 and that decision has been challenged 12 thR full irlfm1 ponnihle before .this acancy.
I Apparently, the Applicants understand some of this and yet i they assert that the Mass AG should have sought "an extension of time to brief (his) appeals" with respect to LBP-89-33 and the disposition of the remanded issues. Exhibit 1 at 3 n.6.
But this Board after November 16, 1989 did not have appellate jurisdiction over the disposition of the ALAB-924 romand and LBP-89-33. Moreover, Intervenors had already briefed these '
issues on December 1. So, it is simply incoherent to asuert l
i that Intervenors should have asked for more times 1) to brief <
issues he (with other Intervenors) had already briefed; and 2)
- to put these briefs before a Board which no longer had i
j jurisdiction.
of course, in the avant the Commission grants the Intervenors' November 17 itotion for Reconsideration and returns the mandamus claims -- asserted after November 22 pursuant to .
appeal of h21h LBP-88-32 And LbP-89-32 -- to this Board, then I
this Board can proceed to determiae whether the Smith Board ,
disobeyed its mandate.2/ In that event, the Commission would l
- 2/ For example, this Board could than decide the not-very-difficult question whether ALAB-924 was~ disobeyed when the impact Smith onBoard asserted findings the " requisite (LBP-89-33 at 4) that ALAB-924.did of raasonable assurance ofD21 1
public safety" even though ALAB-924 held that the NMRERP was not an approvable plan and no reasonablo assurance finding could be made without sheltering detail. ALAB-924 at 68, n.194 i
and ganga cited therein. Indeed, no terribly difficult analysis is needed to determine .3dut necessi11 ISI A mandamus i
when one compares LBP-88-32, 28 NRC at 769-?70 with ALAB-924 at 60-61, 63-64 and then with LBP-89-33 at 29-33.
1 k
-y, ,. , ~v. ..
4 4
l be returning to this Board the mandamus motions in their ,
present posture with LBP-89-33 fully briefed. It was in this l sense and in light of these circumstances that the Mass AG on l January 24 asserted to this Board that he had not briefed these
! romand issues again and that the merits of his challenge to the
- was before the Commission.
! 4. Because of the potential importance of any argument -
that might later be made concerning the exhaustion of j j administrative remedies regarding this all-important error '
- which Intervanors are seeking to have the Court of Appeals ;
r review, the Mass AG moves that this Board clarify the present posture of Intervenor efforts to seek intra-agency appellate '
review of the errors in the disposition of the ALAB-924 remand ,
and issue an order that states:
A. Intervenors, (SAPL, NECNP and the Mass AG) did timely i
file Notices of Appeal of LBP-89-32. The Mass AG expressly referenced LBP-89-33'in-his Notice of Appeal. SAPL and NECNP are deema.1 to have appealed LBP-89-33 when they noticed the Appeal of LBP-89-32 on 7
November 22, 1989.- Indeed, their notices of appeal were filed 2 days after LBP-89-33 issued. '
L l B. Intervenors, (SAPL, NECNP and the Mass AG) have timely briefed the errors they claim the Smith Board committed in its disposition of -the ALAB-924 romand.
' Intervanors ware under no obligation on January 24 to ;
file briefs with this Appeal Board which repeated what i 4
they had already argued to the Commission and were under no obligation to seek an extension of time from l this Board in which to file or refile such briefs. As of November 16, 1989, the Commission and not this j Board had jurisdiction over these claims of error.
t l
I
_. _ _ _ _ _ _ _ _ . _ ~ _ _ _ _ . _ _ _ _ . _
r i
II. THIS BOARD SHOULD IMMEDIATELY REOPEN THE RECORD ON THE ,
i NMRERP AND GRANT INTERVENORS
SUMMARY
DISPOSITION ON THE l SHELTERING CONTENTIONS. '
i A. Background ;
j This Board is intimately familiar with the issues surrounding sheltering as a protective action in the NMRERP for [
~
the general beach population at Seabrook. ALAB-924 at 47-69.
In brief outline, in earlier versions of the NMRERP, it was stated that " sheltering may not be considered a feasible i r protective action on the seacoast beach during the summer."
l NHRERP, 62.6.5. In response to FEMA's concerns about the absence of adequate consideration or exploration of a sheltering option, the State of New Hampshire between i
approximately September 1987 and October 1988 determined that i sheltering for the general beach population would be i
appropriate in certain circumstances. 333 App. Direct i
Testimony No. 6 at 19-20 and Appendix 1 at 7-8, ff. Tr. 10022.
l At the hearings on the NMRERP in May and June 1988,-witnesses I for the Applicants and the State of New Hampshire asserted that certain changes2 / to the NHRERP indicated that there would 1/ Attached as Attachment II to Appendix 1 (beginning 42 of
- 47) of the Applicants' Direct Testimony No. 6, ff. Tr. 10022,
' were proposed modifications to the protectiveLaction decision criteria in the NHRERP. ERA A182 Attachment i to App's Direct Testimony No. 6 (1-35). These proposals were as of April 27,
- 1988, the date of the testimony, which wan received on May 2, 1988. These changes were not made before the record closed in
- June 1988. At 18.14 of LBP-88-32, the Smith Board noted that l
revisions would be made in the NHRERP reflecting the proposals litigated.
i I
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i be,2 different sets of circumstances or conditions when l
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sheltering would be recommended for the general beach !
I populations ;
l (1) if sheltering is the dose minimizing protective
- action; and j (2) if there are physical constraints on evacuation.
j ALAB-924 at 50, pitinn record at notes 133-136. Condition (1) was represented to include a certain kind of release for which it was asserted sheltering would be the dose minimizing ,
action. ALAB-924 at 50-51. EAR &lA2 52 at notes 140-142 and l
accompanying text. FEMA's Keller reviewed the proposed .
l sheltering option and found it appropriate at this site "not to shelter the summer beach population areent in very limited i
circumstances." Amended Testimony of Cumming/Keller, ff. Tr.
i 4
13,968 at 11 (emphasis supplied), of course, those limited i
circumstances are the same identified as conditions (1) and (2) >
aboVe.
The Licensing Board in December 1988 approved the NRRERP based on the use of sheltering as a protective action for the general population in these limited circumstances.$/ '
Although this Board then reversed the Emith Board regarding the i need for sheltering detail, it affirmed the Board regarding l
I A/ Intervenors argued (and continue to argue) that: 1) i sheltering is underutilized for.the beaches in light of the l.ong ETEs and 2) comparative efficacy of protective actions ,
l cannot be determined in the absence of dose comparisons which j were excluded when proffered.
l
n-the appropriateness of limiting sheltering to these identified conditions in November 1989. ALAM-924 at 50-58. Indeed, at oral argusant in July 1989 this Board (Judge Rosenthal) explored at some length the precise circumstances under which sheltering is considered by New Hampshire as the dose minimizing protective action. Tr. of Oral Argument, July 27, 1989 at 15-17.
JUDGE ROSENTHAL: Well accepting for the moment that thesis, your oppon,ents argue quite vigorously that the plan deals with the sheltering alternative.
would like your response to that. . . . (88) And I l
MR. DIGNAN: [ Condition) (n) umber one is, I use the example -
of the " puff release", and I mean the true puff release. I don't mean the one you have to predict in advance, because that's pretty difficult. But technical people tell me it is possible you could have an accident situation develop where you had a pressurization situation and you would have a planned releaset you would know you're going to release, or how long you're going to release and you could reach a decision, a rational decision as an emergency planner at that point to shelter instead of evacuate because you would know your duration. -You would know the type of release you're going to get and so forth and so on. That's itea (or condition) number one.
JUDGE ROSENTHAL: Well, now here is iten number onet now let's say that you have this puff release and we're invoking number one. . . .
l l
What does the plan do with respect to sheltering.
MR. DIGNAN: New Hampshire is all sheltering-in-place; that's what the plan. And the shelter-in-place concept in laid out in the plan. . . . (90-91)
B. Amendment and Revision of the NMRERP Applicants and the State of New Hampshire .represer.ted to the Smith Board in sworn testimony that the NMRERP would be updated and revised to reflect the changes in protective action criteria. As noted above, at 18.14 of LBP-88-32, the Smith
i l ;
i i
] Board noted that revisions would be made in the decision ,
4
! criteria reflecting changes proposed in Attachment 1 to the Applicants' Direct Testimony No. 6, ff. Tr. 10022 (to be
! distinguished from Attachments I and II to Appendix 1 to that
! same testimony). At 18.20 the Board noted: ,
NHRERP is being updated to reference the emergency
- classification and plant conditions under which i precautionary and protective action recommendations would be made. App. Dir. No. 6, ff. Tr. 10022, at 11-12, i] Attachment 2.
Indeed, the FEMA's approval of the plan on which the Smith Board then relied, is predicated on the identification of those circumstances, albeit limited, when sheltering would be employed as the protective action for the general beach i
- population. ERA Appendix 1 to Applicants Direct Testimony No.
6 at page 1 of 47 (Strome quoting FEMA's January 25, 1988 position). These circumstances were identified in the testimony and representations were made that the NHRERP would be or was being updated to reflect these circumstances. In l
l fact, the Smith Board made these revisions into a license condition:
(IJssuance of an operating license for Seabrook Station shall be subject to the satisfaction of the following conditions (b) The Director of Nuclear Reactor Regulation, in consultation with the (FEMA), shall verify that the NHRERP revisions committed to by the State of New Hampshire, as discussed herein, have been made.
LBP-88-32 at 110.4 -
In October 1988, the NHRERP was amended, ostensibly in I compliance with the representations made during the hearings. l 1
, . . - . - - . -, . - . . <- ,,, , .-n, ,,w-, .,....--rn
- \
4 l .
In December 1988, LBP-88-32 issued with its holding regarding i the circusstances in which sheltering would be recommended. In ,
i l July 1989, oral argument before this Board was held as noted I ,
above. In November 1989, this Board issued ALAB-924 reversing i l the Smith Board regarding the need~for sheltering detail. On ,
- January 11, 1990 the Board for the first tima sought guidance l from the parties as to how to proceed to resolve the remanded
) issues. Then on February 1, 1990 for the first time the l Applicants asserted that plan changes in october 1988 actually eliminated shelterina for the annaral beach nonulation under
- condition (1) an dimeussed abovel Since only Condition (2) is -
! left, say the Applicants, and the beach population by definition is small under these conditions,E/ there is nothing left to resolve regarding the absence of sheltering detail. Eta Exhibit 1 at 8-12.5/ Thus, in an attempt to-l 5/ Intervenors do not question here the accuracy of Applicants' characterization of Condition (2). That is a matter for the Smith Board. The elimination of Condition (1),
however, is a matter not remanded to the Smith Board. E33 infra.
1/ Applicants identify Step IV.B.4 (General Emergency) as the key change made in October 1988 that.apparently put the Board and the parties on notice that the State of New Hampshire was i not going to update the NHRERP as it represented that it would during the hearings and as the Board required with a license '
i condition regarding the use of sheltering. Attached as Exhibit '
l 2 hereto are the relevant pages from the october 1988 revisions <
' to Appendix U to Volume 4A of the NHRERP. (Appendix F to Volume ,
4 and Appendix U to Volume 4A are virtually identical.)
Certainly, these pages do R21 assert or state that even under those limited circumstances when sheltering is dose minimizing (like the " puff release") evacuation is always nreferred.
- ' obviously, the Board and parties read the October 1988 revision in light of the representations made by the witnesses for the Applicants and the State of New Hampshire regarding the appropriate conditions for sheltering the general beach
, population. ;
l i
eliminate the blatant errong the Smith Board made in finding
" reasonable assurance" without sheltering detail in place (in sxpress contradiction to ALAB-924) and in denying Interveners' their prelicensing hearing rights regarding sheltering detail, the Applicants now simply assert for the first time that since october 1988 sheltering has up.t been the recommended protective action under the NHRERP even when, as Applicants' counsel described it at oral argument in July 1989, technical conditions make sheltering the dose-minimizing action! Thus, the NHRERP has essentially been returned to that state where it had started in 1985 and 1986 in which sheltering the general beach population is simply not considered feasible or implementablet C. Motion to Roonen This Recgrd and For Su===ry i Discosition.
Under normal adjudicatory conditions it seems obvious that ,
Applicants would be and should be estopped from asserting that the NHRERP was amended in October 1988 as represented by them for the first time in February 1990. However, emergency planning is not a static but an ongoing process. If the NHRERP has been changed as Applicante represent and sheltering for condition (1) has been eliminated, then based on the record developed during the New Hampshire proceeding concerning the dose minimizing aspects of sheltering in certain circumstances, '
and the holdings of the Smith Board-and this Board, the effect i
i s
l of that change la AD inadequate El&D not in comn11ance with the l-reaulations because'the orotective actions nrovided therein do not mavimize done savinas in cartain ciren==tances. Thus, Intervenors move to reopen the record on the NHRERP regarding the sheltering contentions (NECNP/RERP-8, SAPL-16 and TOH-VIII) 1 and to have this Board review new evidence not available before
! February 2, 1990; E11. the October 1988 NHRERP revisions as now interpreted by the Applicants.
- 1. ' Jurisdiction This Board has jurisdiction over LBP-88-32. In ALAB-924, certain issues were remanded to the Smith. Board. Regarding sheltering detail, this Board stated:
l TTlhe. Licensing Board should have required that <
tha same implementation actions that are being AsKen for the beach population without :
transportation under sheltering condition (3) be taken for the entire beach population under conditions'(1) and (2) . Therefore, we romand-the ;
matter for appropriate corrective action by the Licensing Board.
i ALAB-924 at 68, From this it is clear that this Board held that implementing detail is necessary for conditions (1) and l
(2). Thus, if the record must now be reopened regarding the adequacy of the NHRERP in the absence of sheltering as the
! protective action for condition (1) then thig Board and not'the Smith Board has jurisdiction over this matter. Obviously, the Smith Board is not free to violate the mandate of ALAB-924 and
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now find that sheltering is nat necessary for Condition (1).2/
, 2. Timeliness 4
As discussed above, there was no reason for the Board l
and the parties to read the October 1988 revisions as anything .
other than the revisions and updates promised in the State of l
New Hampshire's and Applicants' sworn testimony in May and June, 1988. The Applicants did not amend.their proposed
(
findings on sheltering after October 1988 (filed on July 15,
\ ,
j i
1988) from which much of the Board's decision is taken. Thus,-
at Applicants' PF 10.1.41 (at 19 of the July 15, 1988 filing) the conditions for sheltering the-general beach population are sut out. The Applicants did not alert the Board that this 4
l proposed finding was no longer accurate after October 1988.
1 Thus, although the State of New Hampshire'is not astopped or otherwise prevented from changing its plan (or now disclosing
)
l that it had earlier changed its plan), on the narrow issue of timeliness, the Applicants gra estopped from asserting that Intervenors were on notice as of October 1988.concerning the l
2/ Even though. Applicants' representations about the October 1,
1?88 revision and the elimination of Condition (1) fly directly in the face of what they represented to the Smith l Board in 1988 and what that Board expressly found.in LBP-88-32, I they now seek literally by magic to have that Board simply I reverse itself and eliminate the need for sheltering. Of course, the Smith Board is con ts rained on this issue by the l
affirmance in ALAB-924 of its earlier holding in LBP-88-32 regarding the circumstances in which sheltering is-l appropriate. An affirmance on appeal on an issue is just as much a " mandate" on remand of a linked issue as a reversal. In-any event, the remand back to the Smith Board did net include the authority to decide whether' sheltering should be.or would be appropriate and therefore nggessary for condition- (1) .
l I
a meaning and significance of these earlier changes.II
?
- 3. safety sianificance This Board has already held that the absence of' sheltering detail for those conditions in the NHRERP in which L
sheltering is appropriate prevents the reasonable assurance -
finding.II ALAB-924 at 68, n.194, And cases cited therein. 4 It follows that if sheltering is no longer to-be_ relied upon at i
all in those very circumstances in which it was established and-held to be the appropriate dose. minimizing protective action, then this deficiency too prevents a~ reasonable assurance finding and is safety significant.- ALAB-924 at 58 n.164-a R/ Of course, had Intervenors moved to reopen the record in October 1988, the Applicants and the State of New Hampshire '
could easily have asserted that the October revisions were precisely what were described in the May and June 1988 testimony. This is because nothing in the October'1988-revision is expressly inconsistent gith stin retainina shelterina for Condition (1). Obviously, the Board read the revisions the same way when it received them before it issued-LBP-88-32 and nonetheless proceeded to adopt the Applicants'
[
, findings on the conditions for which sheltering is appropriate.
i 2/ Intervanors believe that if there is a planning' deficiency in the NHRERP which prevents'the reasonable assurance finding, then if this deficiency is discovered and asserted.after the record has closed, it is of sufficient safety significance to
- i. merit reopening the record under 52.734. The alternative is absurd: a deficiency sufficient to prevent the 50.47 (a) (1) finding and preclude licensing until remedied is somehow net j_ sufficient to reopen a closed record if established after i
licensing. Of course, if the record is reopened after a license authorization but before that license has been made j effective by the lifting of the 52.734 immediate-effectiveness t stay, that authorization is stayed as a matter of' law until the material issues now reopened are adjudicated and-then any i deficiencies found are corrected.' Such a procedural posture is distinct from the record being reopened gitar a license has j become effective.
16 -
E i
4
, . - . . ,. ..,,...,.<,-y -
-.-- . - - - , , . . , _ _ . , , , - . . ~ , . , - , n - ,,
1
, l (noting that-although sheltering is not nar as required by the I
" range" requirement'of 50.47 (b) (10) or by the " adequate !
1 protection" underpinings of 50.47 (a) (1) , - it is required when found appropriate by planners based upon " site-specific- l 1
circumstances").
- 4. Materially Different Result Had the Smith Board and this Board been apprised of ,
the meaning of the October 1988 update of the NHRERP it is quite obvious that that evidence would have likely affected the
! disposition of Intervenors' claims that sheltering is l
underutilized for the general beach population at Seabrook. As !
T this Board noted:
Intervenors' central concern is whethtY *ining sheltering;to such a limited use under . .an is, in i
accordance with the first condition s1#s NHRERP, the most effective use of this J., itutive~
M in the action option to achieve maximum dose reauctions.
t
.5 LAB-924 at 51. If the use were-gyan further limited -- not even to be used when as set forth in condition (1) it is i
dose-minimizing for the population --'Intervenors would have prevailed ~on this issue.for the very reasons this Board ruled j against them. Egg ALAB-924 at 51-58.
- 5. Affidavit Recuirement Intervenors rely in support of their motion to reopen on the February 1, 1990 uncontradicted representation by the Applicants regarding the meaning of the October 1988.NHRERP-update and those portions of the. record of the NHRERP proceeding cited by the Smith Board and this Board in which 17 -
- - . ._~ . . . _ . . - . - _ --
I i
sworn testimony was received regarding the conditions under which sheltering the beach population-would be the dose- l minimizing strategy. ALAB-924 at 51 at notes 135 and 136 and accompanying _ text: 52, notes 141 and 142 and accompanying text. LBP-88-32 at 18.70. 133 3132 Tr. 14231. t 4
- 6. Su===ry Disnosition '
1 As discussed above, the material change in the NHRERP '
disclosed for the first time on February 1, 1990 supports the reopening of the record on the NHRERP. Moreover, summary j disposition is appropriate in light of the principles of rag iudicata.1E/ Thus, based on the same adjudicated facts as i
found by the Licensing Board _and.this Board regarding the i appropriateness of sheltering for Condition (1), Intervanors 4- are entitled to summary disposition on their sheltering
( contentions as a matter of law.
- 7. Ernaditious Consideration j The representations made by the Applicants in their i
February 1, 1990 pleading are remarkable and indeed j
astounding. The NHRERP'has been approved 11/
I i
12/ Again: the State of New Hampshire and the Applicants are free to change the plan-(or now disclose that the plan was-changed). .However, on principles of ran iudicata-the .
l inadecuaev of the NMRERP in light of this change is established. Thus, without further evidence in the record that would support this change and permit the holding of LBP-88-32 and ALAB-924 in this regard to be modified, the absence of ,
sheltering for Condition (1) is a deficiency precluding the reasonable assurance finding.
11/ Intervenors ignore the conundrum that it was also disapproved by this Board on November 7 regarding a related but
, legally distinct issue.
by the Smith Board on November 9, 1989, based on an apparent and understandable failure to comprehend the significance of plan changes made in october 1988. 'As is now clear, the NHRERP l
1s D91 AD adequate ElAD ADA h&g nel been adequate since October ,
1988. As'this Board is aware, the Commission is nearing the end of its immediate effectiveness review which may lead to plant operation. This motion should be entertained immediately and ruled.upon so that the commission.can be apprised about the significance of those changes.. Obviously, if.Intervenors are now entitled as a matter of law to have'the record reopened, this should occur before operations would actually begin so that any deficiencies would be corrected beforehand.12/
CONCLUSION For all the reasons set forth above, this-Board should
- 1. Issue an order declaring the status of Intervenors' efforts to appeal LBP-89-33 and the disposition of the remanded issues by the Smith Board as set out above; 12/ Applicants and the NRC Staff may urge the Board to refer this motion to the Commission. That would-be an inappropriate disposition for the following reasons: 1):this Board has appellate jurisdiction over LBP-88-32 and the record on the NHRERP - it has lost jurisdiction gnir overL the disposition of the remanded issues in LBP-89-32 (and LBP-89-33) as that disposition supports a mandamus for-violation of ALAB-924; 2) the integrity of thig Board's adjudicative processes are at issue in this motion; and 3) the Commission has not taken review of ALAB-924 and otherwise has not put the NMRERP record before it.
,,. . -,o -,~--,"' ~
1' 4
, i l
- 2. Grant expeditious consideration of Intervenors' motion j to reopen the record on the NHRERP; )
- 3. Grant Intervenors' Motion to Roopen that record in the particulars as set out above; and
- 4. Grant Intervenors' Motion for Summary Disposition on
(
l the present inadequacy of the protective action decision i
criteria in the NHRERP.
l l Respectfully submitted, .
COMMONWEALTH OF MASSACHUSETTS NEW ENGIAND COALITION ON JAMES M. SHANNON NUCLEAR POWER ATTORNEY GENERAL ,
W f224t%l Yi '
l Diane Curran, Esq. " hn Traficdnte Harmon,-Curran, & Towsley. hief, Nuclear Safety Unit Suite 430
~
' One Ashburton Place 2001 S Street, N.W. Boston, MA 02108 Washington, DC- 20008- (617) 727-2200 SEACOAST ANTI-POLLUTION LEAGUE l
QWY W3 ffY '
Robert Backus, Esq.
Backus, Meyer, & Solomon l=
l 116 Lowell Street P.O.. Box 516 Manchester, NH 03106-d l Dated: February 6, 1990
! i 1
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t r1 ' frw r - .m., ..c A q N
f UNITED STATES OF AMERICA -
NUCLEAR REGULATORY COMMISSION-ATOMIC SAFETY AND LICENSING APPEAL BOARD
- Before Administrative Judges
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 )
OF NEW HAMPSHIRE, ET AL. )
)
(Seabrook Station, Units 1 and 2) ) February 28, 1990
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l EMERGENCY MOTION OF THE INTERVENORS TO REOPEN-THE RECORD, FOR
SUMMARY
DISPOSITION AS TO THE NEED FOR-SHELTERING-IN CERTAIN CIRCUMSTANCES AND FOR LICENSE REVOCATION The Massachusetts Attorney General, Seacoast Anti-Pollution League, and the New England Coalition on Nuclear Pollution
("Intervenors") hereby move the' Appeal Board 1/ to reopen the record and grant summary disposition on Intervenors' sheltering contentions,2/ and revoke the license authorization.for Seabrook Station.
1/ The Appeal Board has presently raised the issue as to the proper forum for consideration of a-Motion to Reopen.the Record ~
concerning the sheltering issue. Order at 3 (Feb. 14, 1990).
For this reason, Intervenors also have filed this motion with the Commission and the Licenes c Board.
2/ NECNP/RERP-8, SAPL-16, and TOH VIII.
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l As discussed hereafter, this relief is warranted based upon:
- 1) the Licensing Board's ruling and condition of licensing, affirmed by the Appeal Board, that the NHRERP provide for sheltering the entire beach population under circumstances where that protective action'will maximize dose savings for the public (" condition 1") , ERA LBP-88-32 5 5 8.14, 8.20, 10. 4 (b) ,
mag also ALAB-924 at 68 n.194; ,
- 2) the recent comments by the State of New Hampshire, and responses by the Applicants and FEMA, which indicate that sheltering for the beach population under Condition 1 has been' eliminated, except for those already in shelters at the time 1an emergency is declared; and
- 3) the fact that the FEMA approval of the NHRERP apparently was predicated upon an interpretation of that plan that sheltering for the beach population, except for those already in shelters at the time an emergency is declared, would never be ordered under Condition 1. FEMA'therefore approved a C . J version of the NKRERP which was never reviewed or approved'by the Licensing Board'or the Appeal Board. There is~no requisite FEMA finding to-support licensing. 10 C.F.R. 550. 47 (a) (2)..
1 Procedural Summarv On February 6, 1990, the Massachusetts Attorney General-i l
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(MASS AG), with Intervenors SAPL and NECNP, filed an EMERGENCY MOTION OF THE INTERVENORS: (1) TO CLARIFY THE STATUS OF THE APPEAL OF.LBP-89-33 AND (2) TO REOPEN THE RECORD ON THE NHRERP AS TO THE NEED FOR SHELTERING IN CERTAIN CIRCUMSTANCES ("First i
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Motion"). The First Motion addressed, inter alia, Applicants' February 1 filingA / which for the first time advised Intervenors and apparently this agency that sheltering as a protective action for the entire. beach population had been eliminated in the NHRERP even under circumstances. where that PJul
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would achieve maximum dose reduction (" Condition 1"). Ean First i Motion 8-15.
I On February 16, 1990, the State of New Hampshire filed a comment with the Licensing Board on Applicants'. proffered view of the current state of the NHRERP for sheltering the beach e
! population under Condition 1.S/ While the State's comment did
! 'not formally respond to Intervenors' First Motion, theLState advised the Board that Applicants had " erred" in their conclusion f
- that "the State of New Hampshire's October 13, 1988 Amendments to-l l Revision-2 of the NHRERP '(eliminated)' sheltering as an option.
l under the first of the two circumstances contemplated b'y the l
l Appeal Board" (i.e. Condition 1). State Response at 2. (emphasis added). Based upon the State Response,.first Applicants,E/
2/ APPLICANTS' RESPONSE'TO LICENSING BOARD ORDER OF JANUARY 11, 1990.
f/ STATE OF NEW HAMPSHIRE'S COMMENTS REGARDING APPLICANTS' RESPONSE TO LICENSING' BOARD ORDER OF JANUARY 11,-1990. (" State Response").
5/ APPLICANTS' RESPONSE TO EMERGENCY MOTION OF INTERVENORS:
(1) TO CLARIFY THE STATUS OF THE APPEAL OF LBP-89-33 AND (2) TO REOPEN THE RECORD ON THE NHRERP AS TO THE NEED FOR SHELTERING IN CERTAIN CIRCUMSTANCES (FEB. 16, 1990) (" Applicants Response").
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i then the Staff,5/ filed responses in opposition to the First
! Motion. FEMA also responded to the First Motion,2/ claiming L that-Intervenors had "inaccurately characterized the NHRERP."
l Id. at 2.
,' These responses form the' predicate for the present-motion, '
l and also obliterate the apparent consensus reached by the i
L parties and the Licensing' Board at the New Hampshire hearings as to the proper interpretation of the NHRERP regarding' l
sheltering for the beach population.
I What The Parties Said In New Hamnshire
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i Intervenors believe that the record from the New Hampshire hearings is clear that the NHRERP, as interpreted in sworn testimony before the Licensing Board by New Hampshire officials, the Applicants, and FEMA, did provide for sheltering the entire beach population under Condition 1. According to l the testimony, this sheltering PAR would be ordered under- i circumstances where that PAR would maximize dose savings for the beach transients Eith transportation (the "98%"'
population) , see Tr. 13184, as well as the remaining 2% of the f/ NRC STAFF's RESPONSE To " EMERGENCY MOTION OF THE i INTERVENORS: -(1) TO CLARIFY THE STATUS OF THE APPEAL OF LBP-89-33 AND (2) TO REOPEN.THE RECORD ON THE NHRERP AS TO THE NEED FOR SHELTERING IN CERTAIN CIRCUMSTANCES (FEB. 23, 1990) '
- l. (" Staff Response").
2/ RESPONSE OF THE FEDERAL EMERGENCY MANAGEMENT AGENCY TO EMERGENCY MOTION OF THE INTERVENORS TO REOPEN THE RECORD AS TO
, THE NEED FOR SHELTERING IN CERTAIN CIRCUMSTANCES (FEB. 16, 1990) (" FEMA Response").
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i 4 9 beach population of transients without transportation. Egg APPLICANTS' DIRECT TESTIMONY NO. 6, post Tr. 10022 at 20. As the New Hampshire / Applicant panel testified:E/
Q. 1Well, isn't it true'then that even when :
sheltering was found to be the most effective l optfon'in achieving maximum dose reduction, it
, would notJalways be recommended for the beach r
! population?
A. (Bonds)' Sheltering is found to be the most effective recommendation. That's the most effective recommendation for everybody, not for-
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- just some segment of the population in that area. We don't differentiate in the three communities, Hampton, Hampton Falls and'Seabrook, between_ general population and beach-population. '
We make the recommendation on the basis of those communities.
If there are beach people there, the '
recommendation applies to them as well.
Tr. 10421 1
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Q. And does the State of New Hampshire have any estimate of the time to implement the entire option for the 98 percent of the beach population sheltering option?
A. (Bonds) The entire 1 option being --
Q. What I understood Mr. Callendrello was saying was to.mean both the sheltering and.the relocation; correct?
A. (callendrello) That's correct. The timing is important in the event that you have an incident or an accident that results in the deposition of radionuclides. ,And therefore the timing that is important is the timing associated not only with the time to. implement the sheltering portion but also the relocation ,
portion.
H/ Further citations to the record on this issue are set out in OBJECTION TO' PETITION OF EMERGENCY MANAGEMENT AGENCY FOR LEAVE-TO FILE FEMA'S RESPONSE TO EMERGENCY MOTION OF THE INTERVENORS TO REOPEN THE RECORD'AS TO THE NEED FOR SHELTERING IN CERTAIN CIRCUMSTANCES (Feb. 23, 1990). 5,gg-Aln.q Tr.
10719-20 discussing release characteristics where sheltering would be appropriate.
Q. Right. So we have to know.how long it takes to get people in and then how long it takes to get people back cut; correct?
A.- .(Callendrello) When you say, get in, you mean into a shelter, yes.
Q. Yes.
l .A. (callendrello) As well-as to remove them l from the area where deposition has occurred.
Q. Yes. Does the' State.of New Hampshire..have any estimates of how much time that will take?
A. (Bonds) The State of.New Hampshire, as '
explained previously, would not consider -- I-won't say would not, ver*4_Jikely would not consider recommendina shelter when there is any potential for relocation afterwards through-a -
radioactive material.
We would be concerned of a period of.
exposure prior to sheltering, and that's why we adopted the shelter-in-place as opposed to another sheltering strategy.
Q. Do you have any estimate of how long it ,
would take to'get the people off,the beach on a peak summer. day into a shelter?
MR. DIGNAN: I object. I recall at least 15 minutes between the Attorney General and Mr. ,
Bonds on this very subject of how long it would take to get everybody from the beach to a shelter. At least 15 minutes. Asked and answered. Tr. 10734-35. See also'Tr. 10464-6 (recommendation to shelter will. include " general beach population" if it is "the best thing to do").
According to FEMA:2/
1 2/ Purther discussion as to FEMA's knowledge and
-testimony as of May 1988 thatlthe NHRERP would provide for sheltering the entire beach population under Condition 1 is set out in MASSACHUSETTS ATTORNEY-GENERAL'S REPLY TO THE PETITION AND RESPONSE OF THE FEDERAL EMERGENCY MANAGEMENT AGENCY TO EMERGENCY MOTION OF THE INTERVENORS TO REOPEN'THE RECORD AS TO THE NEED FOR SHELTERING IN CERTAIN CIRCUMSTANCES (Feb. 27, 1990)-
Q. . . .- Isn't it true that the:New Hampshire RERP already includes a shelter option for the beach population as a whole?
l A (Cumming) The version'I talked about, basically, had ;
rejected sheltering until it was subject-to the submissions in February where it was reopened.
Q. Well,. fact of the matter is, the current-plan contains circumstances under which --
A.- (Cumming) Yes, three. limited options for sheltering. *
( Q. Right. And without any implementing detail; correct? '
A. (Cumming) Yes. That's why we put this in here.
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, Q. Let's focus cut the sentence. You say, when the choice is incorporated into the NHRERP, and you agree with me that' ,
there is a sheltering option in the NMRERP. And then the sentence says, " Implementing. detail will be necessary." . I think you'd also agree with me there's no implementing detail?
- A. (Cumming) . It is somewhat unusual, perhaps, but we are saying that the plan is. adequate in. concept. ,
Q. But you expect implementing detail -- let's be very '
l clear about this.
1 A. (Cumning) Before FEMA issues its final finding,.yes, j it expects implementing detail.
- Q. For the general beach population, the 98 percent? i i
! A. (Cumming) Yes. Tr. 14219-20, gl. 14252-54.
l The record in the New Hampshire proceeding is abundantly clear that all parties (in a rare display) reached consensus as i
to the proper interpretation of the NHRERP, which would provide '
for sheltering the entire beach population under condition 1.
NRC Review of Shelterina Based upon the above, and related, sworn testimony, the 4
Licensing Board, in its PID, identified the circumstances, including Condition 1, where sheltering would be recommended 4
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I "for Seabrook area beach populations". LBP-88-32 H 11 8.36-8.37. At 1.8.14, the Licensing Board noted that- ,
1 revisions,in the NHRERP would-be made'in the decision criteria reflecting changes proposed in Attachment 1 to the Applicants' Direct Testimony No. 6, ff._Tr.;10022 (to be dirtinguished from Attachments I and II to Appendix 1 to that same testimony.) 'At 1 8.20 the Board noted:
NHRERP is being updated to reference the emergency classification.and plant conditions under which precautionary and protective action recommendations would be made. App. Dir. No'. 6, ff. Tr. 10022, at 11-12, .
Attachment 2.
Egg also 1 8.76 (" FEMA and the State of New Hampshire will appropriately resolve any differences on the point (implementing detail for sheltering beach. population) upon '
reviewing the Board's concerns".)
The Licensing Board thea'made'these revisions a condition of licensing:
(I)ssuance of an operating license for Seabrook Station shall be subject to the satisfaction of the following-conditions:
(b) The Director of Nuclear Reactor Regulation, in consultation with the (FEMA), shall verify that the NHRERP revisions committed to by the State of New Hampshire, as L discussed herein, have been made.
LBP-88-32, 1 Although this Board reversed the Licensing Board regarding the need for sheltering detail, it affirmed the Board's finding as to the appropriateness of sheltering the New Hampshire beach population under the identified circumstances, including i
Condition 1. ALAB-924 at 50-58. Based upon the recent responses of the parties, however, the NHRERP no longer appears
'to provide for sheltering the entire beach population under' I
condition'l.
Easoonses of the Parties ,
l' In its response,-the State of New Hampshire asserted that' the Applicants " erred" in interpreting the current NMRERP Jus s "eliminat(ing) sheltering as an option under the-first of the two circumstances contemplated by the Appeal Board".
State Response at 2. Applicants may have erred in understanding the precise nature of the change regarding sheltering PARS in the i
October, 1988 revisions to the NHRERP. Nevertheless, it is now i
clear for the first time that these revisions did materially
- modify the NHRERP from the plan'as approved by the Licensing l
Board, by eliminatina shelterina for the beach noculation.
excent for those already in shelters at the time of emercency.
While it may be true, therefore, that the October revisions did not totally eliminate sheltering under-Condition 1, the present <
NHRERP nevertheless has been substantially altered and will not maximize dose savings under Condition 1. The plan, therefore, is inadequate as a matter of law.
The State of New Hampshire, as proponent and final arbiter of the NHRERP, provided affidavits with its response from two state officials on the present provisions in the NHRERP for sheltering ERPA-A, which includes the beach populations. Both affiants state:
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. . . evacuation is preferred and generally will be the selected protective action option. (Citation omitted) Tha l October 1988 amendments to the NMRERP confirmed'the gggeadures underivina this Drotective action ootion by eliminatina a shelter-in-clace recommandation for ERPA-A ,
L whenever the notential remains for a later evacuation of the beach area. State Reso6q23 at affidavits pp. 5-6.
The State clearly states, therefore, that certain PARS hRyg been "eliminatfed)" for ERPA'A, including the beach population,.
in the October, 1988 amendments.
Applicants recently provided information relevant to the meaning of=the change.
Applicants have been informed by the. State of New. Hampshire that on naae 11 of the filine of February 1. 1990. the-words "croceed immediatelv to the nearest available fully-enclosed buildina and remain there." more-Dronerly should read " shelter in niace."AS/ -l The State now resists, even under circumstances where~there would be immediments to evacuation (i.e. # condition'2"), the statement that beach. transients would be directed,to nearby i shelters. This suggests that'the October revisions.apparently L
have eliminated sheltering for those on the beach under-both conditions 1 And 2. In addition, the definition of'" shelter in place", referenced by the State, on its face provides for evacuation.for "those transients without access to an indoor location." NHRERP Rev. 3. Vol. 8, p. 2.6-8.
Finally, the FEMA response quite clearly establishes that, in FEMA's view, since February, 1988, the NHRERP was not
- intended to provide for sheltering the entire beach populat' ion under Condition 1.
19/ APPLICANTS' ADVICE TO LICENSING BOARD RE ERRONEOUS j STATEMENTS IN APPLICANTS' RESPONSE TO LICENSING BOARD ORDER Ci l
JANUARY 11, 1990 (Feb. 16, 1990) at 2-3.
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.. e In fact,_the " shelter-in-place" concept'was presented by the Applicants and the State of New Ham 1 Licensing Board in pre-filed testimony pshire on Aprilto-the 15, 1988,.
l and was a part of the NHRERP at least since February 11, 1988. As noted above, the " shelter-in-clace" concent nrovides for the transient beach Doculation to avacaute and l
l the neonia indoors to remain indoors.
l FEMA Response at .
l c In the two weeks since the FEMA response was-filed, the L ' State has taken De action to dispute this FEMA position. The i
Staff also " concurs with FEMA's reading of the NRRERP". Staff
- Response at 6.
The record evidence, therefore, supports a finding that the i
current NHRERP does not provide for sheltering the entire beach population under Condition'1. This-represents a material
- change from the NHRERP as approved by this Board,_ violates a -
j license condition imposed by the Licensing Board, _ suprg, and as l a matter of law will not maximize dose savings fo'.the r public.
Even if the plan had not been so changed, however, the FEMA '
response establishes that_the FEMA review was predicated upon a i version of the NMRERP which did not provide for sheltering the entire beach population under Condition 1. Therefore, there is a fundamental discrepancy between the NHRERP as approved by the Licensing Board and by FEMA. There is no requisite FEMA finding to support licensing. 10 CFR 550.47 (a) (2) . For these .
j reasons, and as discussed below, the record should be reopened, summary disposition on the sheltering contention granted, and the license authorization revoked. '
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,9 il e O Reopen Standard A. Timeliness This motion is predicated upon the responses'of the. State,. )
the Applicants, FEMA, and the Staff, received by the Intervenors between about February 20-26, 1990. From these 4 responses, Intervenors for the first time-vere apprised that f theEcurrent NHRERP now apparently has eliminated sheltering for f the beach population, under conditions 1 and 2, except for those already in shelters at the. time of the emergency.
Intervenors also learned for the.first-time.the nature of the .
FEMA review and the basis for its approval of the NHRERP.
Before Applicants' February 1 filing, and the responses thereto, there was no reason for the Board.and the parties to interpret the provisions for sheltering in the NHRERP other than as the promised revisions and updates which were to l conform to the. sworn testimony by the State, Applicants, and.
FEMA at the New-Hampshire hearings. On the narrow issue of timeliness, these parties are estopped from charging Intervenors with earlier knowledge of the plan change.
B. Safety Sionificance This Board has already held that the absence of sheltering detail for those conditions in the NHRERP in which sheltering 1
is appropriate prevents the reasonable assurance finding.
,. ALAB-924 at 68, n.194, add cases cited therein. It follows .
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that if sheltering is no. longer to be relied upon at all in l those very circumstances in which it-was established-and held l'
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4 to be the appropriate dose minimizing protective action, then
.this deficiency too prevents a reasonable assurance finding and l
{ is safety significant. ALAB-924 at 58 n.164 (noting that l
although sheltering is not par 33 required by the " range" I
{ requirement of 50.47 (b) (10) or by the " adequate protection" underpinnings of 50.47 (a) (1) , it is required'when found -
appropriate by planners based upon " site-specific '
i- circumstances").
l In the alternative, even if the present NKRERP were to
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conform to that approved.by the Licensing Board, there was'no FEMA review or finding for that plan. The FEMA view, which formed the basis for'its plan. review, is that under the NHRERP l
r- sheltering would never be ordered for the entire beach I
population under Condition 1. This cor.tradicts' the basis for v
NHRERP approval by=the Licensing Board. As a matter of Commission regulation, the Licensing Board did'not-have the-( requisite FEMA finding to support licensing, since FEMA never even reviewed the NHRERP as interpreted by the Board. This I
regulatory failure, which eliminates a necessary predicate for licensing, 550.47(a)(2), must be deemed to satisfy the l requirements for reopening the record, both as to safety
! significance and materially different result.
C. Materially Different Result l
l Had.the Smith Board and this Board been apprised of the
- neaning of the October 1988 update of the NMRERP it is quite obvious that that evidence would have-likely affected the E
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. i underutilized for the general beach population at Seabrook. As this Board-notedt.
Intervanors' central concern is whether confining-sheltering to such a limited use under the plan is, in accordance with the first condition specified in the 1 NHRERP,.the most effective use of this protective action option to achieve maximum dose reductions.
ALAB-924 at 51. If the use were AYAD further limited -- not even to be used when as set forth in Conditions (1) and (2) it is dose-minimizing for the population -- Intervanors.would.have prevailed on this issue for the'very reasons this Board ruled against them. Ega ALAB-924 at 51-58.
l D. Affidavit Recuirement Intervanors rely in support of their motion to reopen on-the responses of the State, FEMA,.the Applicants, and the Staff regarding the meaning of the October 1988 NHRERP pdate,.and those portions of the record of the NHRERP proceeding cited above and by the Smith-Board and this Board in which sworn l testimony was received regarding the: conditions.under which sheltering the beach population would be the dose minimizing I
strategy. ALAB-924 at 51 at notes 135 and 136 and accompanying text; 52, notes 141 and 142 and accompanying text. LBP-88-32 at 18.70. EBi A182 Tr. 14231. ,
E. Summary DiMDomition As discussed above, the material' change in the NHRERP, disclosed for the first time in the Responses provided to I-Intervenors after February 16, 1990, supports the reopening of
-, e the record'on the NHRERP. Moreover, summary disposition is ;
appropriate in light of the principles of ran iudleata.11/
Thus, based on the same adjudicated facts as found by the Licensing Board and this Board regarding the appropriateness of sheltering for Conditions (1) and (2), Intervenors are entitled to summary _ disposition on their sheltering contentions'as a
, matter of law.
EXPEDITIOUS CONSIDERATION i This motion should be entertained immediately and ruled-upon so that the commission can be apprised about the ,
- significance of those changes. Obviously, if Intervenors are now entitled as a matter of law to have the record reopened, this should occur before operations would actually begin so that any deficiencies would.be corrected beforehand.
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11/ Again: the State of New' Hampshire.and the-Applicants !
are free to change the plan (or now disclose that the plan was changed). However, on principles of ran iudicata the;
.inadeaunev of the NHRERP in light of this change is established. Thus, without further evidence in the record that would support this change and permit the holding of'LBP-88-32 and ALAB-924 in this regard to be modified, the absence of i sheltering for the entire beach population for condition (1)
! and condition'(2) is a deficiency precluding the reasonable l assurance finding.
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CONCLUSION Intervenors therefore request the record to be reopened, summary disposition granted on the sheltering-contenticns, and the license authorization revoked.
Respectfully' submitted, COMMONWEALTH OF MASSACHUSETTS NEW ENGLAND COALITION ON JAMES M. SHANNON NUCLEAR POWER ATTORNEY GENERAL
\MC Oh Diana Curran, Esq. Matthew T. Brock Harmon, curran, & Towsley Assistant Attorney General 1 Suite 430 One Ashburton Place 2001 S Street, N.W. Boston, MA 02108 Washington, DC 20008 (617) 727-2200 d
SEACOAST ANTI-POLLUTION LEAGUE' G I k V$
l Robert Backus, Esq.
Backus, Meyer,~& Solomon 116 Lowell Street P.O. Box 516 Manchester, NH 03106 l-Dated: February 28, 1990 l
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000KE1E0 UNITED STATFS OF AMERICA USNRC' NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING- APPEAL BOXEb gmr 14. R2 :26 Before Administrative Judges: (,rf ICE Of SECRET AR'l 00CKLIING ^ SIi'VICI-G. Paul Bollwerk III,~ Chairman BRANCH Alan S. Rosenthal Howard A. Wilber l -)
l In the Matter of ) Docket Nos. 50-443-OL j
). 50-/44-OL !
L PUBLIC SERVICE COMPANY- ) j '
OF NEW HAMPSHIRE, ET AL.. )
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(Seabrook Station,-Units 1 and 2) ) May 11, 1990
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CERTIFICATE OF SERVICE i
I, John Traficonte, hereby certify that on May 11, 1990, I j made service of the enclosed NOTICE OF APPEAL AND RELATED MOTION AS TO LBP-90-12 via Federal Express as indicated by (*), by hand ]!
as indicated by (**), and by first class mail to. i Ivan W. Smith, Chairman Kenneth A. McCollom Atomic Safety & Licensing Board 1107 W. Knapp'St.
U.S. Nuclear Regulatory Commission Stillwater, OK 74075 East West Towers Building i 4350 East West Highway )
Bethesda, MD 20814 Dr. Richard F. Cole Robert R. Pl.erce, Esq.
Atomic Sifety & 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 Last West Highway 4350 East West Highway Betheaoa, MD 20814 Bethesda, MD 20814 l l
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- Docketing and Service ** Thomas G. Dignan, Jr.1/
U.S. Nuclear Regulatory Commission Ropes & Gray Washington, DC 205S5 One International Place >
Boston, MA 02110
- Mitzi A. Young, Esq. Phillip Ahrens, Esq.
Edwin J._Reis, Esq. Assistant Attorney General U.S. Nuclear Regulatory Commission Department of the Attorney General
- Office of the General Counsel Augusta, ME 04333 11555 Rockville Pike, 15th Floor Rockville, MD 20852 H. Joseph Flynn, Esq. Atomic Safety & Licensing Assistant General Counsel Appeal Board
-Office of General Counsel U.S. Nuclear Regulatory Commission
. Federal Emergency Management Washington, DC 20555 Agency
, 500 C Street, S.W.
Washington, DC 20472 Robert A. Backus, Esq. Atomic Safety & Licensing Board h Backus, Meyer & Solomon U.S. Nuclear Regulatory Commission l 116 Lowell Street Washington, DC 20555 P.O. Box 516 j ,
Manchester, NH 03106 Jane Doughty- Diane Curran, Esq.
Seacoast Anti-Pollution League Harmon, Curran & Towsley Five Market Street Suite 430 l Portsmouth, NH 03801- 2001 S Street, N.W.
i Washington, DC 20008 Barbara St. Andre, Esq. Judith Mizner, Esq.
Kopelman & Paige,-P.C. 79 State Street 77 Franklin Street Second Floor Boston, MA 02110 Newburyport, MA 01950 Charles P. Graham, Esq.
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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) i Senator Gordon J. Humphrey John P. Arnold, Attorney General l ~One Eagle Square, Suite 507 Office of the Attorney General l
Concord, NH 03301 25 Capitol Street (Attn: Herb Boynton) Concord, NH 03301 1/ Hand delivery was made on May 14, 1990 by 10:00am l
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Paul McEachern, Esq.
Shaines & McEachern 25 Maplewood Avenue, PO Box 360 Portsmouth, NH 03801
- G. Paul Bollwerk, Chairman
- Alan S. 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 -
- Howard A. Wilber .
Jack Dolan Atomic Safety & Licensing Federal Emergency Management Agency i Appeal Board, 5th FL. Region 1 U.S. Nuclear Regulatory Commission J.W.-McCormack Post Office &
Bethesda, MD 20814 Courthouse Building, Room-442 >
Boston, MA 02109 George Iverson, Director N.H. Office of Emergency Management .
State House Office Park South 107 Pleasant Street Concord, NH 03301 l
Respectfully submitted, JAMES M. SHANNON l ATTORNEY GENERAL 1.
hL 'ik gqlhn Traficorf'te
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Msistant Attorney General Chief, Nuclear Safety Unit Department of the Attorney General One Ashburton Place l Boston, MA 02108 l
(617) 727-2200 1
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L Dated: May 11, 1990 4 5
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