ML20043E516

Intervenor Memorandum in Response to Appeal Board Order of 900518 Re Issues Referred by LBP-90-12.* Board Should Hold That Findings Re Condition 1,contrary to Law & Issue Order Ceasing Facility Operation Above 5%.W/Certificate of Svc

ML20043E516
Person / Time
Site:	Seabrook
Issue date:	06/08/1990
From:	Curran D, Traficonte J HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#290-10439 LBP-90-12, OL, NUDOCS 9006130081
Download: ML20043E516 (12)

Text

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33 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

(( gg$'g$RD r g ATOMIC SAFETY AND LICENSING APPEAL BO /

b Before Administrative Judges: 1 @

G. Paul Bollwerk III, Chairman Alan S. Rosenthal i Howard A. Wilber l

)

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

) 50-444-OL PUBLIC SERVICE COMPANY )

OF NEW HAMPSHIRE, El AL. )  !

)

(Seabrook Station, Units 1 and 2) ) June 8, 1990

)

INTERVENORS' MEMORANDUM IN RESPONSE TO APPEAL BOARD ORDER OF MAY 18 RE: THE ISSUES REFERRED BY LBP-90-12 The Massachusetts Attorney General and the New England Coalition on Nuclear Pollution (the "Intervenors") submit this memorandum in response to this Board's Order of May 18 regarding the issues referred by the Licensing Board in LBP-90-12, (slip opinion at 55).

1. In LBP-88-32 the Licensing Board found as follows:

the absence of implementing detail for sheltering in the NHRERP is not so material as to foreclose a finding by the Board that the NHRERP provides '

reasonable assurance that adequate protective measures will be taken in the event of a radiological emergency '

at Seabrook.

28 NRC 667, 769 (1988). This Appeal Board reversed thic ,

finding on November 7, specifically holding that in the absence 9006130081 900600 PDR ADDCK 0D000443 I O PDR W) g

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L1 of a sheltering plan for the large beach populations, the-NHRERP was n21 an approvable plan and did not, support the Licensing Board's " reasonable assurance" finding. ALAB-924, 30 NRC 331, 369-370, 372 n.194. On November 9 the' Licensing Board falsely asserted that "our ultimate conclusions that the NHRERP provides reasonable assurance that adequate protective measures can and will be taken are not changed" by ALAB-924. LBP-89-32, 30 NRC 375, 651'n.87.

This unique and clearly unlawful action has returned for review again by this Appeal Board, in this iteration as a referral by the Licensing Board. For the reasons that follow, this Board should hold:

a. that the NHRERP as described and defended in 1988 contained an actual sheltering option for that large portion of the beach population with access to shelter;

b. that this option was held to be the dose-minimizing protective action for these beach populations for a limited set of circumstances, including a " puff release";

c. that this limited utilization of shelter for these beach populations was found appropriate by the Licensing Board; i

d. that this Appeal Board made no mistake of fact or law when it interpreted the Licensing Board's discussion and approval of this limited utilization;

, e. that the Licensing Board erred on November 9 and November 20 when it ignored this Board's express holding that

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the absence of sheltering detail precluded the " reasonable I assurance" finding; 3 1

f. that the absence of this sheltering detail continues-to preclude the " reasonable assurance" finding; ]

g. that to the extent;the Applicants, NRC Staff, FEMA, the State of New Hampshire and the Licensing Board (the ,

" licensing proponents") now assert that the NHRERP does not.

call for sheltering the'large beach populations under condition 1 and never did they are '

i. revising the plan by exploiting ambiguities in the language used to describe protective actions set-forth therein;

11. proposing to no longer shelter the large beach populations in those very circumstances in which actual sheltering has been held to be the dose-minimizing response; and 111. trying to avoid the embarrassing fact that the Licensing Board authorized a license in November based on its assertion that the sheltering detail = called for in ALAB-924 could be put in place before the summer crowds of 1990 would arrive; s

h. that to the extent the State of New Hampshire continues to assert that its plan simply does not have a sheltering option for the large beach populations with access to shelter, the Applicants have not met their burden of establishing that there is " reasonable assurance that adequate protective measures can and will be taken"; and finally

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i. that the largo beach populations already present as of June 8, 1990 in the-Seabrook EPZ call for immediate cessation of operations above F4 of rated power pending either:

1). an adequate sheltering plan for the beach populations being put in place; or 2), record support for and an adjudicatory finding of the newly-advanced proposition that sheltering those in the beach areas already in shelters and otherwise evacuating the vast majority of the others on the beaches is dose-savings superior to actual sheltering in all circumstances, even in those circumstances (like the " puff release") in which the uncontradicted sworn testinony had earlier established that sheltering all these beach people would be dose-savings superior to evacuating them. .,

2. Intervenors do not repeat again their citations to the NHRERP record on actual sheltering for the general beach population. The Licensing Board's decision in December 1988 is unambiguous on this point in any event. For example,

a. 18.38 (28 NRC 667, 759): l 1

For implementation of the sheltering protective '

action option under any of the three conditions discussed above (dose-savings, local conditions, transients without transportation), New Hampshire decisionmakers.will rely on the mechanisms now in  !

place, or to be put in place, in the NHRERP for recommending shelter to the public whether on the beach or any other place .... It is expected ,

that people will comply with EBS announcements to I take' shelter and that owners / operators of public-access facilities will make their facilities available for this very limited instance. Appl. Dir. No. 6, ff. Tr. 10,022, at 1

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b. 18.73(769) l We do not believe that any additional planning detail is necessary for that group (transients without transportation). However,.with respect to the so-called "98%" -- the balance of the transient population at the beach - FEMA'a position is not clear. I l

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c. 18.81 (771) (emphasis supplied) the Board (has) recast the issue as being whether the State of New Hampshire has given careful and adequate consideration to sheltering as a protective action. Subsumed in that issue is the oremise that if exoected shelterina can readily afford dose-savinas over immediate evacuation for the soectrum of accidents in the NUREG-0654 olannino assumotions, shelterina should be orovided for, or its omission should be iustified. In this case the State of New Hamoshire has orovided for shelterina under the very limited circumstances discussed above.

Therefore, to the limited extent that sheltering l is a protective option for the beach population, some thought must be given to whether there is enough sheltering even for those limited cases, or if not, whether evacuation would be the choice.

d. 18.83 (772)

Indeed, according to the Applicants and Staff, even accepting Mass AG's Witnesses' estimate of the peak population involved and their further-estimates of inaccessible shelter space ... there is sufficient available space to adequately ,

accommodate that population ....

3. Moreover, it is obvious that the Licensing Board's distinction between " actual sheltering" only of those already.

in shelters and evacuating all others when " shelter-in-place" is employed for the beach areas is of recent vintage. In November, when it issued its licensing " explanation" (LBP-89-33) the Licensing Board said nothing in this vein at all. It clearly continued to view the NHRERP as calling for.

" actual sheltering" the general beach population-in certain  ;

p circumstances, just as all the parties had understood it and 1-the Applicants, et al. had defended it, i

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i (S)heltering available for the outdoors transient j' beach comulation is concentrated in a relatively

, compact and well-defined area ....' When shelterina is the chosen protective action, transit-dependent transients will not differ from the general transient group. Their sheltering needs will be exactly the same.*

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• In the rare sheltering case - gaseaus release of  !

predictably short duration arriving before evacuation can be effected - evacuation is ngt called fgI.

LBP-89-33, 30 NRC 656, 671-72 n.17.(first and third emphasis supplied).

4. Thus, the " finding" made by the Licensing Board in LBP-90-12 and referred to this Board directly contradicts the Licensing Board's earlier finding as well as this Board's decision in ALAB-924. Absolutely no technical basis has been proffered to support the notion that in a " puff release" evacuating the large beach populations will be superior to (actual) sheltering them. Indeed, it is obvious that the NHRERP is being described and interpreted not to augment public health and safety:but to circumvent with linguistic artifice this Board's holding in ALAB-924. For. example, " shelter-in-place" has those outdoors with access to shelter being told to shelter. (It was no doubt by this route that the " general beach population" was going to end up in shelters under Condition (1)). Now, we find the licensing proponents focusing ,

their attention on the notion of " access". The Licensing Board states at 24 of LBP-90-12:

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The distinction between persons already at shelter and persons.with access to shelter is blurred. The  ;

essential point is that there would be no time or j confusion barrier between the persons to be sheltered and their sheltering.

FEMA puts the point expressly:

According to the shelter-in-place concept of the NHRERP, (1) people already in buildings (or who may elect to enter buildings immediately without directign from emercency manaaement officials] would utilize those buildings as shelter, and (2) everyone else is expected to evacuate.

FEMA's May 30 Memorandum Regarding LBP-90-12 at'2 (brackets in I original) (emphasis supplied).

Why is " access" to shelter now defined as access in tha absence gi direction from officials? There can be no technical-basis for this distinction: if a sheltering plan (including official " direction") could move beach people in a timely fashion to pre-marked shelters their level of protection from a '

" puff release", for example, would clearly be superior to a Indeed, this is the very reason why those long evacuation.

already in shelters are told to stay there and not evacuate under " shelter-in-place". Why does FEMA, then, distinguish between those outside who can access shelter without direction and those who cannot? The answer, of course,-is that FEMA and the other licensing proponents are just trying to avoid the dictates of this Appeal Board's decision in ALAB-924. If only those who do not need a sheltering plan are defined as having

" access" to shelters and therefore would be told to shelter l

e then there is no point to requiring a sheltering plan. But the NHRERP nowhere mentions this distinction. Indeed, this distinction makes no technical sense because those who would have " access" if a sheltering plan were in place are being told to evacuate even though sheltering them has already been determined to be dose-minimizing. The fact that a sheltering plan is necessary in order to achieve this comparative advantage is itself no reason for foregoing it. Only because this Board has required such a plan before the " reasonable 4

assurance" finding can be made, have the licensing proponents  ;

defined " access" in this way.

5. Finally, ALAB-924 is the law of the case. Petitiores for review are pending before the Commission. This Board I should apply the existing law to the questions referred. Thus, 1

as set out above, the NHRERP is not an approvable plan in the absence of sheltering detail. There is no present sheltering i

detail even though the beach populations are now large and the  ;

reactor is again operating above 5% of rated power. In these l circumstances, in response to the referral, this Board should hold that the Licensing Board's " finding" concerning condition 1 is contrary to law and should issue an order that operations l

above 5% of rated power immediately cease. I The Commission's emergency planning regulations are premised on the assumption'that a serious accident might occur .... The adequacy of a given emergency plan therefore must be adjudged with this underlying assumption in mind. As a corollary, a possible deficiency in an emergoncy olan cannot properly be 1 disregarded because of the low probability that action pursuant to the plan will ever be necessary.

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- e ALAB-924 at 30 NRC~331,-371 auctina ALAB-832, 23 NRC at 155-156 (auctina Philadalchia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 713 (1985).

Certainly, were the circumstances calling for (actual) sheltering the general beach population to occur.at this time, .

1 these truths again would be held self-evident.

Respectfully submitted, COMMONWEALTH OF MASSACHUSETTS NEW ENGLAND COALITION ON JAMES M. SHANNON NUCLEAR POLLUTION ATTORNEY GENERAL Adt. uth. "f

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Diane Curran, Esq.'V ~ hn Traficonte Harmon, Curran, & Tousley hief, Nuclear Safety Unit Suite 430 Department of the Attorney General 2001 S Street, N.W. One Ashburton Place Washington, DC 20008 Boston, MA 02108 (202) 328-3500 (617) 727-2200 DATED: June 8, 1990 1901n i

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s. Paul McEachern, Esq. Shaines & McEachern -25 Maplewood Avenue, 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 Appeal Board, 5th FL. Region i 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 Respectfully submitted, JAMES M. SHANNON ATTO EY GENERAL / .- Jo Traficonte istant Attorney: General l hief, Nuclear Safety Unit Department of the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200 , l ,- l Dated: June 8, 1990 l l l 1 l