ML20070A094
| ML20070A094 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 01/08/1991 |
| From: | Backus R, Curran D, Greer L BACKUS, MEYER & SOLOMON, HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#191-11280 ALAB-942, OL, NUDOCS 9101170109 | |
| Download: ML20070A094 (10) | |
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00;r.LH.0 USHFC UNITED STATES OF AMERICA
'91 R1 -9 P 4 :24 before the NUCLEAR REGULATORY COMMISSION a;
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In the Matter of
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Docket Hos. 50-443-OL-PUBLIC SERVICE COMPANY
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50-444-OL-OF NEW MAMPSHIRT., ET AL.
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(Off-Site Emergency
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Planning and Safety Issues)
(Seabrook Station, Units 1 and 2)
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INTERVENORS' PETITION FOR REVIEW OF ALAB-942 Pursuant to 10 C.F.R. $2.786(b) of the Commission's regulations, the Massachusetts Attorney General, the Seacoast Anti-Pollution League, and the New England Coalition on Nuclear Pollution ("the Intervenors") hereby petition the Commission to review ALAB-94 21/ on the ground that it is erroneous with respect to important issues of law and policy.
The Decision BelqE In ALAB-942 the Appeal Board af firmed several unpublished E/
orders and bench rulings of the Licensing Board that rejected contentions proffered by the Intervenors on the Seabrook Plan for Massachusetts Communities ("SPMC") and the 1/
Public Service company of new Hampshire (Seabrook Station, Units 1 and 2), ALAB-942, 32 NRC (1990)', hereafter cited as ALAB-942 and to slip opinion.
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See ALAB-94 2 at 65.
910:170109 910100 PDR ADOCR 05000443-g i
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June 1988 FEMA Graded Exercise ("the Exercise").
While the Appeal Board agreed with the Intervenors that they "could not
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properly be precluded by th9 Licensing Board from introducing i
evidence on ' issues that pertained uniauelv to the SPMC,'"1/
i the Board then went on 1.o af firm the rejection of several f
contentions that were unique to the SPMC on the grounds that l
similar issues had been litigated in the hearings on the New f
Hampshire Radiological Emergency Plan ("NHRERP").
The Appeal Board ruled that it was incumbent on the Intervenors at the i
pleading stage when contentions were being submitted to make an evidentiary showing that the conditions and population within l
the SPMC EPZ differ from those in the New Hampshire EPZ.A/
The Appeal Board' held that absent such a showing the Licensing Board properly rejected Mass AG Contentions EX-18, No. 29, No.
30, No. 74, No. 34, No. 35, No.48, No.49 Basis A, and No. 83.
l The Appeal Board similarly imposes evidentiary requirements on l
t the Intervenors in rejecting Maso AG Contention Nos. 26 and 39.
For the reasons below this ruling was in error.
Where the Matters ar.g Raised Below All matters were raised by the parties in briefs below.
f
-Why the Rulina Was Erroneous Although licensing boards have discretion to limit the introduction of redundant evidence in a proceeding, the f
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ALAB-942-at 5.
1/ 'ALAB-942 at 10-11, 20-21, 23, 25.
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rejection of contentions on that ground at the pleading stage of the SPMC litigation had the ef fect of preventing issues from being litigated under the SPMC simply because similar issues 1
had been litigated under NHRERP.
The rejection of contentions on that ground ignores the fact that the SPMC is a separate
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emergency plan with a separate response organization, separate and distinct procedures and separate resources.
The Appeal Board's holding that the Intervenors had to,show differences in the conuitions and demographics of the New Hampshire and Massachusetts EPZ's for SPMC contentions to be admitted ignores I
the fact that differences exist in NHRERP and SPMC totally apart from whatever differences exist in the zones themselves.
Central to the dif ferences in the plans is the f act that the SPMC is a utility sponsored plan.
It was developed in a vacuum without input from the persons in the Massachusetts EPZ most i
familiar with emergency response needs.
It relies upon personnel who do not normally engage in emergency response activities.
In many instances it relies upon personnel such as hospital and nursing home wor);ers who are completely untrained and unprepared to assume an emergency response role.
The Licensing Board rejected the SPMC and Exercise contentione before there were findings by the Board on issues similar to those contained in them in the NHRERP proceedings.
Instead, the-Licensing Board' stated that it was rejecting the L
contentions because evidence on similar issues had been-received under the NHRERP.
Such reasoning disregards the l l
object of pleading contentions.
In plending their contentions on the SPMC and Exercise, the Intervenors were pointing out what they perceived to be flaws in the Massachusetts emergency plan and Exercise.
They were entitled to do that even if similar flaws existed in the NHRERP.
At the time that contentions were submitted on the SPMC, no decision had yet been rendered on the NHRERP.
The Intervenors were entitled to raise issues pertaining to the inadequacies of the SPMC even if they were identical to challenges raised in connection with the NHRERP.
A contrary holding illogically permits flaws to go unchallenged in plans even if they were actually found to exist in other plans simply because they were raised in previous litigation.
Indeed, in ALAB-937 the Appeal Board found that similar role abandonment problems among teachers were likely under the NHRERP and the SPMC.
Since the Licensing Board excluded the issues contained in the rejected contentions from being raised in connection with the SPMC, the Intervenors were in turn precluded from introducing evidence on those issues that pertained uniquely to the SPMC.
In many instances such evidence could not have been introduced earlier on similar issues in the NHRERP proceeding because it would have been irrelevant to the NHRERP.
For example, the Intervonors could not have introduced evidence in the NHRERP hearing that concerned hospital or nursing home workers in Massachusetts, or concerning' Massachusetts trailer parks, snow removal difficulties, the limitatious of
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1 s Massachusetts reception centers, or Massachusetts traffic problems.
That evidence would have been irrelevant to the adequacy of the NHRERP's provisions.
The Appeal Board's requirement of an evidentiary showing that there act dif ferent conditions in the EPZs, logically leads to the anonalous result that had all similar issues under the NHRERP been found to constitute flaws in that plan, the residents of Massachusetts would have been forced to live with such flaws in the SPMC.
At the time the contentions were submitted, there had been no ruling on the adequacy of the NHRERP.
The ruling on the SPMC contentions predated the Licensing Board's finding on the NHRERP.
Had the Licensing Board found flaws.in-the NHRERP on issues similar to those already rejected under the SPMC's contentions, it would have them permitted the SPMC to continue as an inherently flawed plan while forcing corrections in similar provisions in the NHRERP.
Such a result flies in the face of logic and public policy.
At the time the Intervenors were compelled to file i
contentions on the SPMC and Exercise they had no notice that they were to be subjected to the requirement of presenting evidentiary showing that there are. unique _ characteristics in the Massachusetts EPZ that the Appeal Board-imposes in 4
ALAB-942.
Indeed, it is not surprising that the Appeal Board cites to no cases or other authorities in claiming that such a requirement is proper, for none exist.
While the.Intervenors
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do not quarrel with the proposition that contentions must have basis, that is a far cry from requiring that Intevenors at the pleading stage submit evidence that d!.fferent conditions exist in the NHRERP and SPMC EPZ's.
The contentions specifically referenced flaws in SpMC and the unique characteriatics of the SPMC that gave rise to those flaws.
There is no precedent for the requirement that intervenors document unique characteristics of EPZ's to be permitted to challenge flaws in emergency plane.
The Appeal Board's requirements as to what showings must be made by Intervenors are designed to limit the rights of Intervenors to participate in the licensing process.
As such they undercut the purpose and policy under the Atomic Energy Act of poruitting public participation in such proceedings.
The barrier being established by the Appeal Board in ALAB-942 is highlighted by its findings in connection with Mass AG Contention Nos. 28 and 39.
In rejecting both contentions the Appeal Board requires the referencing of expert testimony for the contentions to be admitted.
It claims the failure to reference a twice previously rejected piece of testimony (the Sholly/Beyea/ Thompson / Leaning testimony) demonstrates a lack of specifity in the basis of No.-39.
There is' absolutely no reason to think that Licensing Board would have admitted that contention by referencing that testimony already rejected as-irrelevant.
Similarly, it_ rejected Mass AG Contention 28 for failure to reference expert opinions that trailers have lower -
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t sheltering factors than houses.
There is no precedent or other requirement for such an evidentiary showing at the pleading stage.M At the pleading stage, intervenors need only allege i
i the reason (s) for their concern that a particular emergency l
planning standard is not met.
In ALAB-942 the Appeal Board is i
simply grasping at straws to create barriers to Intervenors challenging flaws is~ emergency planning.
4 CONCLUSION Therefore, for the above reasons the Commission should review ALAB-942 and reverse the findings of the Appeal Board on the above referenced contentions.
Respectfully submitted, NEW ENGLAND COALITION ON JAMES M. SKANNON NUCLEAR POWER ATTORNEY GENERAL s
O kM L[ar d h Diane curran, Esh.
Ledlie Greer Harmon, curran & Towsley Assistant Attorney General Suite 430 Nuclear Safety Unit 1
-2001 S Street, N.W.
One Ashburton Place Washington, DC 20008 Boston, Massachusetts 02108 617-727-2200 SEACOAST ANTI-POLLUTION LEAGUE W 0 b s k LOA Robert Backus,-Esq7 Backus, Meyer & Solomon 116 Lowell. Street P.O.: Box 516 Manchester, NH 03106 Dated:
January 8, 1991 1965n 5/
Houston Power and _ Liahtina' Co.,- (Allens Creek Nuclear Generating Station, Unit 12), ALAB-590,.11 HRC 542, 551 (1980i; Mississinoi Power and Licht Co._,
(Grand Gulf Nuclear Station),
ALAB-130, 6 AEC 423, 426 (1976).
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lAN 10 '91 10:10 FROM AT7Y-GEN-BOSTON-MA PAGE.002
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UNITED STATES OF AMERICA
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In the Matter of
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Docket Nos. 50-443-OL-PUBLIC SERVICE COMPANY
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S0-444-OL-OF NEW HAMPSHIRE,~RT AL,
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(Off-Sito Emergency
)
Planning and Safety Issues)
(Seabrook Station, Units 1 and 2)
)-
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QERTIFLCATE_OF SERVICE I, Imslie creer, hereby certify that.on January 8 1991, I neta service of the within INTERVENORS' PETITION FOR REVIEW OF AIAB-942, by first class anil, and by Federal Express mail, as indicated by [*] to the following parties:
Ivan W. Smith, Chairman Kennoth A. McCollom Atomic Safoty & Licensing Board 1107 W. Knapp St.
U.S. Nuclear Regulatory C03 mission Stillwater, OK 74075 East West Towers Building 4350 East West Highway Bethesda, ND 20814 Dr. Richard F. Cole Robert R. Pieroo, 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
- Docketing and Service Thomas G. Dignan, Jr..V U.S. Nuclear Regulatory Commission Ropes & Gray Washington, DC 20S55 One International Place Boston, MA 02110 V
Hand delivery was also made on January 9th by 10:00am.
J AN :10 '91 10 10 FROM ATTY-GE -BOSTON-MA PAGE.003 l
- Marjorie Nordlinger, Esq.
Paul McEachern, Esq.
U.S. Nuclear Regulatory Commission Shaines & McEachern office of the General Counsel 25 Maplewood Avenuo 11555 Rockville Pike, 15th Floor P.O. Box 360 Rockville, MD 20852 Portsmouth, Nil 03801 H. Joseph Flynn, Esq.
Atonio Safety & Liooncing Assistant General Councel Appeal Board office of General' Counsel U.S. Nuclear Regulatory Commission Federal Energency Management Washington, DC 20SS5 Agency 500 C Strt.et, S.W.
Washington, DC 20472 Robert A. Backus, Esq.
Atomic' Safety & Licensing Board Backus, Meyer & Solomon U.S. Nuclear Regulatory Commission 116 towell Street Washington, DC 20555 P.O. Box 516 Manchester, NH 03106 Jane Doughty
-Diane Curran, Esq.
1 Seacoast Anti-Pollution League Harmon, Curran & Towsley 1
rive ;.arket street-Suite 430 Portsmouth, NH 03801 2001 S Street, N.W.
Washington, DC 20009 Barbara St. Andro, 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 33 Low Street-79 State Street Newburyport,.MA 01950 Newburyport, MA 01950 Ashod N. Amirian, Esq.
Sonator Gordon J. Ilumphrey I
145 South Main Street U.S. Senate-P.O. Box 38 Washington, DC 20510 Bradford, MA 01835 (Attn:
Tom Buraek)-
~
Senator Gordon J. Humphrey John P.-Arnold, Attorney General one Eagle Square, Suite 507 office of the Attorney General 50ne rd, NH 03301 25 Capitol Stroot (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 1
Augusta, ME 04333 Amesbury, MA 01913 2
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Paul Bollwork, III, Chait an S. Ronenthal Atomic Safety & Licensing
.konic Safoty & Liooncing Appeal Board Appeal Board O.S.
Nuc3 car Regulatory Commissiia U.S. Nuclear Regulatory Commission F,act West Tovors Building East West Towers Building 4350 East West !!ighway (350 East West liighwoy Bothesda, MD 20814 Bethosda, MD 20814 Howard A. Wilbar
- Renneth M. Carr Atomic Safety & Licensing Chairman Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Rogulatory commission 11555 Rockville Piko Cast West Towers Duilding Rockville, MD 20852 4350 East West Highway Bethesda, MD 20814
- Thomas M.
Roberts, Commissioner
- Eonnoth C.
Rogora, Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 11555 Rockville Piko 11555 Rockville Pike Rockvillo, MD 20B52 Rockville, MD 20852
- James R. Curtiss, Commissioner Jack Dolan U.S. Nuclear Regulatory Commission Federal Emergency Management Agency 11555 Rockv1110 Piko Region i 1
Rockville, MD 20852 J.W. McCormack Post Offico &
courthouso Building, Room 442 Boston, MA 02109 George Iverson, Director
- Edwin Reis, Esquiro N.M. office of Emergency Management U.S. Nuclear Regulatsry Commission state House office Park South office of General Counsol 107 Pleasant Street 11555 Rockvillo Pike 15th Floor concord, NH 03301 Rockvillo, MD 20052
- Forrest J. Remick U.S. Nuc1 car Regulatory Commission 11555 Rockville Piko Rockville, MD 20852 Respectfully submitted, JAMES M.
SHANNON ATIVRNEY GENERAL h/
Lo Leslie Greer l
Assistant Attorney General Department of the Attorney General l
One Ashburton Place Boston, MA 02108 (617) 727-2200 Dated:
January 8, 1991 1966n ** TOTAL
) AGE,004 **