ML20066H258

Response of Ma Atty General & Necnp to ASLB Order of 910124.* Intervenors Believe ASLB Should Reopen Record, Permit Discovery & Hold Hearing on Beach Sheltering Issues. W/Certificate of Svc

ML20066H258
Person / Time
Site:	Seabrook
Issue date:	02/14/1991
From:	Curran D, Greer L HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	Atomic Safety and Licensing Board Panel
References
CON-#191-11429 OL, NUDOCS 9102200235
Download: ML20066H258 (12)

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'91 FEB 15 P4 :02 February 14, 1991

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UNITEDSTAbbbk:AMERkdA NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING BOARD

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In the Mstter of

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Docket Nos. 50-443-OL

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50-444-OL PUBLIC SERVICE COMPANY

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OF NEW HAMPSHIRE, ET AL.

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. (Seabrook Station, Unita 1 and 2)

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RESPONSE OF THE MASS AG AND NECHP TO THE LICENSING BOARD'S ORDER OF JANUARY 24, 1991

'In AIAB-939, Public Service Comoany of New Hampshire. eb gl.- (Srsabrook Station, Units 1 and 2), 32 NRC 165 (1990), the Appaal Board once again remanded to the Licensing Board the beach? sheltering issue.

In remanding the issue the Appeal Board stated:

"First, b'c se the evidence presented by applicants indicate 6 at automobiles are assigned no cloudshine

-shelteri).3 value by planners, the Board should ensure-that

-the record contains an adequately supported explanation for distinguishing between those nontransportation-dependent beachgoers already_within a building, who will be directed to: shelter, and all other beachgoers, who will'bc directed to (pa to their cars.and evacuate, in terms of condition (1)'s_ purpose of utilizing sheltering for " achieving In addition, given the testimony

> maximum dose reduction."

by New Hampshire emergency planning officials suggesting the need to distinguish-between suitable and unsuitable shelter, the Licensing Board should ensure that the record is clear as to whether such measures are necessary relative a

to the " shelter-in-place" option as now described by the State.

Finally, given applicants' evidence acknowledging the~contral importance of quality emergency notification-9102200235 910214 90>

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i messages, the Licensing Board should ensure that any EBS/ beach public address message proposed for use relative to condition (1) makes clear the steps that all members of the beach population are to take in the event that a

" shelter-in-place," as now described by the State, is recommended."

Footnotes omitted.

ALAB-939 at 179.

As indicated in the Licensing Board's Order of January 24, 1991 during the course of a pre-hearing conference conducted i

via telephone on January 23, 1991, the Licensing Board decided to certify a question to the Appeal Board with the intention that an affirmative response by the Appeal Board would provide a framework for a resolution of the remanded s.heltering issue.

In determining to certify a question to the Appeal Board the Licensing Board apparently is seeking to avoid reopening the evidentiary record and holding further hearings on the beach sheltering issue.

Seemingly, the purpose of the certified question is to gain approval from the Appeal Board for accepting as part of the record the submission of the Assistant Attorney Genera! Bisbee, as endorsed orally by George Iverson during the course of the January 23 pre-hearing conference.

Presumably, if such approval is given, the Licensing Board then intends to enter a finding that since the only protective action that will be taken in ERPA A will be evacuation, not sheltering, the beach sheltering issue is moot.

Thus, the need for any further proceedings on the sheltering issue would be obviated.

The Massachusetts Attorney General and New England b

Coalition on Nuclear Pollution submit that the proposal to

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certify the question to the Appeal Board is ill conceived for the reasons provided below.

The proposed certified question does not address the i

i In that-concerns identified by the Appeal Board in ALAB-939.

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decision the Appeal Board was reacting _to an apparent conflict 4

in the record between the State of New hampshire's stated

- purpose for PAR's, ie. achieving maximum dose reduction, and the updated ~ shelter-in-place concept in which some portion of the beach population will be evacuating under conditions, where by ostablished PAR calculations sheltering would afford the greatest dose savings.

The State of New Hampshire has previously: identified certain conditions under which it

. believes that-sheltering will afford the greatest dose savings including a condition (1) release.

Now, under their updated shelter-in-place concept they are proposing the evacuatica of a portion of the population even in those circumstances where shelterihg would afford the greatest of savings.

The certified question proposed by the Applicants and the e

intended resolution of the issue that it contemplates does not 3

address the problem posed by an emergency plan that seems to call for evacuation even when sheltering would maximize dose savings.- Indeed, if'one reads the recent-submission by-Assistant Attorney General Bisbee on behalf'of the State of New Hampshire asl indicating the elimination of sheltering as a-

-protective action option for ERPA A, then the problem is

' compounded rather than resolved.

In ALAB-939 the Appeal Board observed that)

"Instead, interpreting the " shelter-in-place" option's l

.provisc_that " access to an indoor location" means actually being indoors, the State now avers that what is contemplated for~the general beach population is that under

' condition' (1), those beachgoers who have their own

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transportation will-be directed to employ sheltering as a

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TT protective: action option only-if_they are-already'in a n

l building.- Everyone else in the beach area with-transportation will be advised'to go to;their vehicles and to evacuate (although they may of their own volition and without direction from emergency management officials elect

- to# enter a building in the immediate vicinity).

Footnote

- omitted.

The Appeal Board's-observations were based upon the filings of fthe State of New Hampshire prior to September 1990.

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- When the Appeal Board expressed concern in ALAB-939 that-the? portion of the beach population.who.would be directed to go s

to theirJears and evacuate under the above described shelter-in-place concept would receive the benefit of no-i

' sheltering l factor, its concern was only addressed to a portion s

ctethe1 population 4.n ERPATA, ie. the non-transit dependent 2

Ltransient ; beach' pc;,ulation.

Now.it appears that if'everyone in m

ERPALAlis going to be called on to evacuate,-including-the m

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full-time residents with accessuto year round domiciles, an i

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.even larger. number'of~ people-will.be at r sk of rece v ng no.

i dose reduction.

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Presumably, the Licensing. Board-seeksato avoid the.

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-necessity-of further3 hearings on,the1 beach 1shelteringLissue'by-1means of obtainingiansaffirmative response to the proposed ~

j certified: question;from the Appeal 1 Board.. Such a procedure--

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.would appearcto vi'olate the Intervenors'-hearing.-rights-under-j v

i he: Atomic EnergyfAct.and,the ComeAssions own regulations.

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Lfinding;that-there is reasonabletassurance-for adequate J~

uh4 protective measures by-a Licensing Board is to be based upon an

adjudicatory record. -By means of-a certified question,;the' s

Licensing Board appears to be looking for a way to open the l"

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adjudicatory record for acceptance of one piece of evidence, ie. New Hampshire's most recent submission as endored by Iverson, and then shut the record without p:oviding Intervenors an opportunity.to present. countervailing evidence, or to even examine the foundations of the submitted piece of evidence.

If the statements of Assistant Attorney General Bisbee and Mr.

1verson.are to be accepted as evidence, the Intervencrs should be allowed to inquire into the factual underpinnings of that submission and whether they are consistent with maximum dose savings.

The state of the record on this issue is at best extremely murky.

In the State of New Hampshire's January 10. 1991 submission to the Licensing Board it was averged that:

The state of New Hampshire rgsffirms here that with respect to Condition (1), the short duration non-articulate gaseous puff releasc, evacuation - not shelter-in-place - is the olanned protective action.

Egg State of New Hampshire's Comments Recardina Applicants' Response to Licensina Board Order of January 11, 1990 (February 16, 1990) and Comments of the State of New Hampshire Reaardina NHREPP Shelterina and LBP-90-12 (May 28, 1990). (Emphasis added.)

Nevertheless, the State of New Hampshire has never stated that evacuation is the 2 DAY protective action for ERPA A.

It has only gone so far as to characterize evacuation as "the planned" protective action.

That is in reality saying no more than it is the preferred protective action for ERPA A, and the only protective action for which the NHRERP contains specific emergency planning provisions.

In other words, sheltering-in-place will have to be implemented on an ad hos basis by the beach population..

If one interprets the word " planned" to mean that it is the 4

i onlyLprotective action that the State of New Hampshire will ever recommend for ERPA A, then the January 10, 1991 filing of the State of New Hampshire appears to be'to contradict the state's February 16,_1990 and May 28, 1990 submissions.

Those submissions dealt directly with the issue of sheltering the beach population.

In-both of those submissions the State of New Hampshire asserted that shelter-in-place was still a protective action option under certain circumstances for the beach populations.

Indeed, the State-of New Hampshire in its February 16, 1990 submission stated specifically that:'"The Applicant erred in inferring that the October.1988 amendments

'tm 'the NHRERP Volume - 4, Appendix F precludes sheltering ERPA'A iin response-to a general emergency classification."

In New

- Hampshire's January 10, 1991. filing it claims to " reaffirm" its previous statements and cites to its' filings of January 11, 1990 and-May_28, 1990.

The NHRERP states that

"For ERPA A, evacuation is the

- preferred protective action."

NHRERP Rev 3 2/90 at 6.4-1.

- Licensees' Common Reference Document dated January 28, 1991, Global Page 85.

The clear implication of_the NHRERP's statement that evacuation is the oreferred protective action ~ is that -there are' other protective actions, such as sheltering which may be implemented in the event of an emergency.

If one

'is to make any sense ofz the various statements of the. State of-New Hampshire, the only interpretation that can be given to the January. 10'^1991 submission that is consistent with the other statements is that it is saying nothing more than: (1) 4 v.

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t evacuation is the-preferred protective action for ERPA A; and

_(2)1 t is the only ene for which the State of New Hampshire has 1

done any affirmative planning by placing provisions in the NHRERP.

The shelter-in-place option as described by the Appeal Board in ALAB-939 is still a protective action option, but the State of New Hampshire has not included in the NHRERp any 1

specific provisions for implementing that option.

While evacuation is a " planned".for option, sheltering is an i

unplanned option.

For example, the State of New Hampshire has 1

not identified any buildings that would be suitable beach shelters.

It appears then that certifying the question proposed by the Applicants will-not in any way further a resolution of the beach sheltering issue.

One is still left with the stated intent of the State of New Hampshire to in some instances, such as a Condition (1) release, implement _ sheltering-as a PAR for the beach population in ERPA A.

See New Hampshire's February 16, 1990 and May 28, 1990 pleadings.

The three directives of t

i the Appeal Board to the Licensing Board retain their vitality.

If the Licensing Board feels compelled to certify a question to the Appeal Board, it is suggested that the Licensing-Board consider certifying the following question in lieu of the one posed by the Applicants:

"If. shelter-in-place as described in ALAB-939 remains a protective action option under the NHRERP, should there be evidence in the edjudicatory record to establish that the non-transit depenuent transient beach population,_ie. that portion of the beach population who will be evacuating under-a shelter-in-place option, will be afforded maximum dose savings by this option."

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The positions taken.by!the Intervanors during the January -23,

--1991 pre-hearing conference are reiterated herein by reference.

It is the position of the Intervenors that the Licensing Board should recpen the record, permit discovery, and

- hold a hearing on the beach' sheltering issues.

The Licensing

-Board should not simply certify a question back to the Appeal Board. = If the Licensing Board is determined to certify a question back to the Appeal Board, it should not be the one q

l proposed by the Applicants, but'rather the one set forth above.

Respectfully submitted, L

NEW ENGLAND COALITION ON SCOTT HARSHBARGER HUCLEAR POWER ATTORNEY GENERAL hd

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Diane Curran, Esq.V Lh-lie Greer

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Harmon, Curran-& Towsley Assistant Attorney General l

Suite-430 Nuclear Safety Unit

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.2001 S Street, N.W.

One Ashburton Place Washington, DC '20008 Boston, Massachusetts 02108 617-727-2200 Date:- February 14',

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ot.ni. !LO 09.i4C UNITED STATES OF AMERICA NUCLEAP REGULATORY COMMISSION g) FEB 15 P4

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In the Matter of

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Docket Nos. 50-4A$ios.-!U"

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50-444-OL PUBLIC SERVICE COMPANY

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OF NEW HAMPSHIRE, EI S.

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(Seabrook Station, Units 1 and 2)

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February 14, 1991

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CERTIFICATE OF SERVICE I,

Leslie Greer, hereby. certify that on February 14, 1991, I made service of the enclosed Mass AG's and NECNP Response to -

the Licensing Board's Order of January 24, 1991 by Federal Express as indicated by (*) and by first class mail to:

SEABROOK SERVICE LIST 1

c 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 4350 East West Highway Bethesda, MD 20814 9.Dr. Richard F. Cole Robert R. Pierce, Esq.

-Atomic Safety-& Licensing Board Atomic Safety & Licensing Board U.S. Nuclear _ Regulatory Commission U.S. Nuclear Regulatory Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD ;20814 Bethesda, MD 20814 1

c Dockcting and Service Thomas G. - Dignan, Jr.

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U.S. Nuclear Regulatory Commission Ropes & Gray

-Washington,_DC 20555 One International Place.

Boston, MA. 02110 Marjorie Nordlinger, Esq.

Paul McEachern, Esq.

U.S. - Nuclear Regulatory Commission Shaines & McEachern Office-of the General Counsel 25 Maplewood Avenue 11555 Rockville Pike,_15th Floor P.O.

Box 360

'Rockville, MD 20852 Portsmouth, NH 03801-1/

Hand delivery was made on February 4, 1991 by 10:00 am

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 Backus, Meyer & Solomon U.S. Nuclear Regulatory Commission 116 Lowell Street Washington, DC 20555 P.O.

Box 516 Manchester, NH 03106 Jane Doughty Dianne Curran, Esq.

Seacoast Anti-Pollution Imague Harmon, Curran & Towsley Five Market Street Suite 430 Portsmouth, NH 03801 2001 S Street, N.W.

Washington, DC 20008 Barbara St. Andre, Esq.

Judith Mizner, Esq.

Kopelman & Paige, P.C.

79 State Street 77 Franklin Street Second Floor Boston, MA 02110 Newburyport, MA 01950 Charles P. Graham, Esq.

R. Scott Hill-Whilton, Esq.

Murphy & Graham Lagoulis, Hill-Whilton & Rotondi I

33 Low Street 79 State Street l

Newbu ryport, MA 01950 Newburyport, MA 01950 Ashod N. Amirian, Esq.

i 145 South Main Street P.O.

Box 38 Bradford, MA 01835 Senator Gordon J. Humphrey John P. Arnold, Attorney General One Eagle Square, Suite 507 Office of the Attorney General Concord, NH 03301 25 Capitol Street (Attn:

Herb Boynton)

Concord, NH 03301 Phillip Ahrens, Esq.

William S.

Lord Assistant Attorney General Board of Selectmen Department of the Attorney General Town Hall - Friend Street Augusta, ME 04333 Amesbury, MA 01913.

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Paul Bollwerk, III,-Chairman Alan S. Rosenthal Atomic Safety & Licensing Atomic Safety & Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Commission U.S._ Nuclear Regulatory Commission East West Towers Bui. ding East West Towers Building i

4350-East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 Howard A..Wilber Kenneth M. Carr L

_ Atomic Safety &_ Licensing Chairman

-Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear. Regulatory Commission 11555 Rockville Pike East West' Towers Building Rockville, MD 20852 4350 East West Highway Bethesda, MD 20814 e

-Thomas'M. Roberts,: Commissioner Kenneth C. Rogers, Commissioner U.S.. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 11555 Rockville-Pike 11555 Rockville Pike Rockville, MD_ 20852 Rockville, MD 20852 James R. Curtiss, Commissioner Jack _Dolan U.S. Nuclear Regulatory Commission Federal Emergency Management 11555 Rockville Pike Agency Rockville, MD 20852 Region 1 J.W."McCormack Post Office'&

Courthouse Building, Room 442 Boston, MA 02109

• Edwin Reis, Esquire George!Iverson,_ Director U.S. Nuclear Regulatory Commission N.H. Office ofEEmergency Management

-i State House Office Park South Office of General Counsel 107 Pleasant Street 11555 Rockville Pike 15th Floor Concord, 101 03301 Rockville, MD 20852 i

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Thomas S. Moore,. Chairman-

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- Atomic Safety. E' Licensing -

Appeal' Board 4

U.S. Nuclear Regulatory Commission

-East' West Towers Building 4350._ East West. Highway Bethesda, MD-20814-.

Respectfully submitted, SCOTT HARSHBARGER ATTORNEY GENERAL 4484 k

1 Leslie B. Greer, Assistant Attorney General Nuclear Safety-Division one Ashburton Place Boston, Massachusetts- 02108

-617-727-2200

~ Datet February: 14,;1991-

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