ML20043E471

Seacoast Anti-Pollution League Response Re Referred Question.* Appeal Board Being Asked to Recant Clear Holding in ALAB-924.Svc List Encl

ML20043E471
Person / Time
Site:	Seabrook
Issue date:	06/07/1990
From:	Backus R BACKUS, MEYER & SOLOMON, SEACOAST ANTI-POLLUTION LEAGUE
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#290-10446 ALAB-832, ALAB-924, LBP-88-32, LBP-89-32, LBP-89-33, LBP-90-12, OL, NUDOCS 9006130032
Download: ML20043E471 (9)

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llSNRC June 7, 1990 j UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

,f rg c c; FCEnuv BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL"sdkkbS$

G. Paul Bollwerk, III, Chairman Alan S. Rosenthal '

Howard A. Wilber ,

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In the Matter of )

) Docket No. 50-443-OL //kh g PUBLIC SERVICE COMPANY OF ) (Offsite Emergency NEW HAMPSHIRE, et al. ) Planning Issuet:)

(Seabrook Station, Unit 1) )

)

SAPL'S RESPONSE TO APPEAL BOARD i ORDER REGARDING REFERRED OUESTION INTRODUCTION In ALAB-924, this Appeal Board held that the lack of a sheltering plan for the beach population at Seabrook was a deficiency in the NHRERP that "must be remedied." It so held notwithstanding the low probability of sheltering being the '

preferred protective action for this portion of the public. This Board reversed and remanded the Licensing Board's decision approving the NHRERP (LBP-88-32) on this glound. (ALAB-924, Slip Opinion, p. 68, n. 1694, p. 70).

In LBP-90-12, May 3, 1990, the Licensing Board, with the hearty approval of the Staff, Applicants, FEMA, the State of New Hampshire, has referred the question of whether the Licensing Board must actually carry out the mandate of ALAB-924, 9006130032 900607 PDR ADOCKODOOgg3 D2

As phrased by the Licensing Board, given the "vanishingly improbable" likelihood of sheltering, "must we continue to press the State of New Hampshire to renounce that choice, or to amend the NHRERP to include implementing detail for some type of sheltering?" (Slip Opinion, p. 54). At the same time, the Licensing Board has held, subject to this referral, that, notwithstanding ALAB-924, (and notwithstanding the Licensing Board's own decision and the testimony sponsored by the State of New Hampshire), no sheltering plan for condition 1 (when sheltering would provide the maximum dose savings) is necessary at all.

SAPL's position is two-fold. First, the Licensing Board is simply refusing to fulfill its duty to carry out the mandate of ALAB-924 and, second, the State of New Hampshire is at best guilty of being disingenuous, and at worst guilty of sponsoring perjured testimony in this proceeding. This Board should be under no illusions: it is being told by its inferior tribunal that it should confess its decision in ALAD-924 was wrong.

DISCUSSION  ;

The shelter issue at the Seabrook area beaches has a long history. At the outset, the NHRERP as it was marked into evidence clearly indicated that sheltering may not be considered a protective action at the beach. NHRERP. REV. 2, Vol. 1 Section 2.6.7.

In response, FEMA initially filed testimony, in September of 1987, saying that the NHRERP was fundamentally inadequate because of the long (then 2 to 4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br />, now found to be 7 1/2 to 8 1/2 l

a hours) evacuation time estimates, and the lack of any consideration of sheltering as a protective action. In January 1988, FEMA filed its " interim" testimony saying it "could" find the NHRERP adequate if the State would indicate that it had considered the use of sheltering. In February, the State filed its new position, (letter of February 11), saying it had now considered whether it would use sheltering, and found that sheltering would be tne preferred protective action in certain, albeit limited, circumstances. These were referred to as conditions 1, when it would have provided maximum dose savings, 2, when there were physical impediments to an evacuation and 3, for that portion of the beach population without its own transportation, the so-called "2 percent." (Notwithstanding the State's current waffling, there was no doubt that this limited use of sheltering was what is now called " actual sheltering," not

" sheltering-in-place means evacuate in your car.")

FEKA then promptly filed new testimony, (March 14, 1988) which-with some changes became itu final testimony, (June 10, 1988) indicating that in view of the New Hampshire consideration of sheltering, it could now find that the NHRERP met the relevant planning standards of its regulations, including the requirement of its regulation, and the NRC regulation, for a " range of protective actions."

The testimony concluded, however, by pointing out that for this protective action, " implementing detail" would be necessary.

On appeal of the Licensing Board decision, approving the NHRERP, the Appellants urged that the use of sheltering was too

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limited, and that there were additional situations in which it might be the preferred protective action. In addition, the Appellants urged that, insofar as sheltering was now a planned protective action, there had to be a plan to carry it out, and it could not be left to an ad has response.

In ALAB-924, this Board approved the limited use of shelter as contemplated in the NHRERP, that is, as limited to the three conditions, but reversed and remanded the Licensing Board, insofar as it held that the plan should not be " cluttered" with implementing detail. Relying on ALAB-832, this Board held that the furnishing of an actual sheltering plan was required.

In LBP-89-32, the Licensing Board held the fact it had been reversed on the sheltering issue, as on certain other issues, did not preclude its authorization of the "immediato issuance" of a license. In LBP-89-33, the Licensing Board explained that this was in part because, as to the sheltering issue, it was then only November, and it could certainly anticipate the necessary

" implementing detail" would be provided by the time tho summer crowds arrived. (The Appeal Board can take notice that the summer season has now arrived, and the beach population is now at or close to its maximum, and that the anticipated "fix" has not been l made.)1 on March 1, the commission, in its immediate effectiveness i

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decision, said none of the remanded issues was safety significant.

on May 3, in LBP-90-12, as noted, the Licensing Board has urged 1

/ For no explained reason, however, the Licensing Board deems the beach population problem to arrive on July 1, although the I

l special plan features for the beach begin on May 15.

this Appeal Board to forget the whole sheltering implementation requirement, and in effect, asks this Appeal Board to reverse its decision in ALAB-924, while itself eliminating sheltering as a protective action for condition 1.

Meanwhile, the State of New Hampshire has twisted and turned to avoid the problem. (The one thing it has not done, the Appeal Board will note, is any implementing of the sheltering option.)

First, the State, aided and abetted by FEMA, falsely said that the NHRERP had never called for actual sheltering for the beach population, but rather included only " sheltering-in-place."

" Shelter-in-place" for the transient beachgoers, according to the State, means to evacuate in your car.2 (This provided an interesting range of protective actions, something FEMA had found the NHRERP provided, as amended by the State in its February 11, 1988 submission. The range was either to shelter-in-place, or to evacuate. If you are a transient beachgoer, in either event, you evacuate in your car.) In so representing its position, the state either was guilty of sponsoring untrue testimony, or was disingenuously changing its position before this Board. When 2

/ The attached colloquy from the April 18 argument before this Board succinctly disposes of this frivo)ity.

Judge Rosenthal: What does shelter in place mean in the context of individuals on the beach?

They dig a big hole in the sand and dive in?

Mr. Dignan: It means if they don't have access to a shelter they get in a car and leave. That's what it means.

Judge Rosenthal: That's not shelter at all.

(Transcript of Oral Argument before the Appeal Board, April 18, 1990, p. 76.)

i:

i neither this Board, as indicated in the transcript of the April '

18, 1990 argument, nor the Licensing Board could swallow this one, i.e., that shelter-in-place means to evacuate in your car, and that this provides a range of protective actions, the State then tried another tact, saying its plan was indeed " shelter-in-place",

but that this did not preclude the use of Ad h2g, that is, unplanned, " actual sheltering." See May 28, 1990 Memorandum of the State'of New Hampsh're regarding Licensing Board consideration of remanded issues, forwarded to this Board in connection with its comments of the State of New Hampshire regarding NHRERP sheltering in LBP-90-12. There, on page 2, the State says the following:

As noted by the Licensing Board, the NHRERP contains no provision calling for ' actual sheltering' as a protective action recommendation in any circumstance. Rather, the State of New Hampshire has employed the concept of ' shelter-in-place' as part of the NHRERP. The concept quite simply envisions i that people already in buildings who may access buildings without delay or directions from emergency management officials will 5

utilize those buildings as shelter, and others l will be expected to evacuate. This shelter-in-place concept constitutes a significantly ,

l different protective recommendation than one calling for actual sheltering of the population at specific locations as may have been contemplated by this Board in ALAB-924. 1 In so doing, the State never acknowledges, much less deals with, the testimony of the witnesses it sponsored before the Licensing Board (Strome and Bonds), or the Applicant witness with which-it was allied. (callendrello). Their testimony, on cross- I examination, contemplated the NHRERP did include a planned (actual) she]terina option for the beach population, not the i

presently-claimed ad has option of sheltering not being l 1

" precluded," although the State felt, contrary to this Board's a holding, that ad hng implementation of its sheltering option would  !

suffice. (see testimonial excerpts in SAPL's February 23, 1990

" Objection" for relevant testimony, pp. 4-8.)

In so doing, the State sinks to the same level of dishonesty as the NRC Staff, the Licensing Board, and FEMA, and this proceeding has come full circle, back to an NHRERP that provides no plannned " range of protective actions" for the beach population, and has egregiously long evacuation times, but is still held to be adequate. This revised position flatly contradicts, not only the testimony on record of Strome, Bonds and callendrello, but also the Licensing Board's findings in LBP 32. (See 8.37, 8.44, 8.96(6)).

CONCLUS1QH SAPL awaits with interest the decision of this Appeal Board on the referred questions. Let there be no n1 stake about it.

What this Appeal Board is being asked to do is to recant its clear holding in ALAB-924.

It is interesting that the Licensing Board frames the referred question as to whether it must continue to press on the State of New Hampshire to " recant" its position on sheltering, since the referred question is actually nothing more than a -

petition to this Appeal Board to recant its sheltering holding in ALAB-9 2 4 .

This has already been a very strange proceeding. After all, ALAB-924 is t.he first appellate decision of which SAPL is aware that had absolutely no benefit to the prevailing parties and no

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impact on the decision reversed. The ultimate irony will be, to see if the Licensing Board, having been reversed, can succeed in itself reversing the Appeal Board. -

Respectfully submitted, '

Seacoast Anti-Pollution League .

By its Attorneys, BACKUS, MEYER & SOLOMON By:- /

M-Sob'ert'A. Ahickus, Esq'uire 116 Lowell Street P.O. Box 516 Manchester, NH 03105 .

(603) 668-7272 '

Dated: June , 1990 I hereby(rcertify that SAPL's Response to Appeal Board order ,

Regarding Referred Question has been telefaxed this date to Barbara Tompkins, Secretary of the Appeal Board, and copies of have been forwarded by Federal Express to the parties on the attached service list indicated by an asterisk (*), and copies have parties been forwarded on the attachedfirst-class, postage prepaid, to the remaining service list.

R o b e r t 'A . ~Backus, Esquire 9

a g Nhlap S,. mthal b ting & Servios Sec. SAPL 4 Atomi? Safety and Licensin9 Offioc of Secretary 5 Market Street  !

Aweal Panel US mC Port.snouth,141 03801 LE Nic Washington, DC 20555 I ahlilL'

• Washington, IC 20555 v'aNHC

'90 JLN -8 P4 :19 Hcward A. Wilber George W. Watson, EsquitelICE OF SitGMrge Dana Bisbee, Esquire Atanic Safety and Licensin9 ra3eral Dnergency DOCKL ling >. AttoWey General's Offlue A m eal Board Managanent Agency MM% tate of New !!anpshire US MC 500 C Street, S.W. Concord, Nil 03301 ,

Washington, DC 20555 Washington, DC 20472 l

i NG, Paul Bollwerk, III, Chrmn. Mrdwin J. Reis, Esquire Sandra Gavutis Atanic Safety and Licensing ' Office of 12xec. Ingal Dir.

c/o C 10 Appeal Panel US inc P.O. Box 382 US NIC Washington, DC 20555 Amesbury, m 019.13 Washington, IC 20555 Fenneth A. McCollon Jchn Trafloonte, Esquire Senator Gordon J. Ilunphrey Atande safety and Assistant Atty. General US Senate Licensing Board one Ashburton Place Washington, DC 20510 US NIC 19th Floor Attn. Go.* don MacDanald Washington, IC 20555 Boston, m 02108 Richard P. Cole Judith 11. Mizner, Esquire Atonic Safety and Atomic Safety and Licensin9 79 State Street Licensing Appeal Board Board Newburyport, m 01950 Panel US Mc OS 100 Washington, DC 20555 Washington, DC 20555 Ivan W. Smith, Chrun. Paul McEachern, Esquire Atanic Safety and:

Atanic Safety and Shaines & McEachern Licensing Board Panel  !

Licensing Board 25 Maplewood Avenue US NIC 1 US NIC P.O. Box 360 Washington, DC 20555 I Washington, DC 20555 Portsmouth, tal 03801 1

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- Diane Curran, Esquire # Tianas Dignan, Esquire George L. Iverson, Director Hannon, Curran & Tousley Ropes & Gray 20001 S Street IM Office of Drergency Managemeng One International Place State of New llanpshire l Suite 430 Boston, m 02110 Executive Dcpartment Washington, DC 20009 107 Pleasant Street Concord,tal 03301 l 4

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