ML20070V294

Memorandum in Support of Licensee Motion for Summary Disposition of Record Clarification Directive in ALAB-939.* Motion Should Be Granted Since Shelter Option for General Beach Population Unavailable.W/Certificate of Svc

ML20070V294
Person / Time
Site:	Seabrook
Issue date:	03/29/1991
From:	Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:
References
CON-#291-11634 ALAB-939, OL, NUDOCS 9104110113
Download: ML20070V294 (10)

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U%i<C March 29,1991 TPR -3 P2 :17 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING BOARD In the Matter of PUBLIC SERVICE COMPANY Docket Nos. 50-443-OL OF NEW HAMPSHIRE, at al.

50-444-OL (Seabrook Station, Units 1 (Offsite Emergency and 2)

Planning Issues)

MEMORANDUM IN SUPPORT OF LICENSEE 8' MOTION FOR

SUMMARY

DISPOSITION OF RECORD CLARIFICATION DIRECTIVE IN ALAD-939 In ALAB-939,1 the Appeal Board addressed certain questions concerning the so-called " beach-shelter" issue in this proceeding which questions had been referred to the Appeal Board by this Licensing Board.2 These questions arose during this Licensing Board's consideration of the remand of the " beach-shelter" issue by the Appeal Board in ALAB-924.3 In the course of addressing the referred questions, the Appeal Board stated:

1Public Service Comoany of New Hampshira (Seabrook Station, Units 1 and 2), ALAB-939, 32 NRC 165 (1990).

Egg Public Service Company of New Hampshire (Seabrook 2

Station, Units 1 and 2), LBP-90-12, 31 NRC 427 (1990).

3Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-924, 30 NRC 331 (1989).

93950MEM.SB 9104110113 910329

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"As we have previously ir.dicated, it was not the intent of our remand in ALAB-924 to direct planning officials to adopt sheltering of the general beach population as a protective action and we do not do so now."'

However, the Appeal Board went on to state:

"In light of (New Hampshire's) post-remand filings clarifying the existing adjudicatory record concerning the scope and details of the sheltering option for the transient beach population under condition (1), in the context of the intervenors' challenges to the adequacy of the sheltering option for the general beach population, we find it incumbent upon the Licensing Board to ensure that, as a consequence of evidence previously submitted by applicants in the course of the

hearing, clarified.",veral related matters are se The first of the seve al matters to be clarified was:

"(B)ecause the evidence presented by applicants indicates that automobiles are assigned no cloudshine sheltering 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 be directed to go to their cars and evacuate, in terms of condition (1) 's purpose of utilizing

-sheltering for ' achieving maximum dose reduction.'"6 The second matter was:

"[G)iven the testimony by New Hampshire emergency planning officials suggesting the need to distinguish between suitable and unsuitable shelter, the Licensing Board should ensure

'32 NRC at 178.

532 HRC at 179.

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that the record is clear as to whether such measures are necessary relative to the

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

And the third, and last, of the several matters was:

"[G)iven (Licensees'] evidence acknowledging the central importance of quality emergency notification 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."7 All of the several matters as to which clarification was directed by the Appeal Board, assumed that under the so-called

" Condition (1)" the New Hampshire Radiological Emergency Response Plan (NHRERP) called for sheltering (shelter-in-place) of the

" beach. population."

On November 14, 1990, this Licensing Board issued an unpublished Memorandum and Order directing all parties and requesting the' State o'f New Hampshire to submit memoranda reflecting their views with respect to the three remanded issues.

All of these entities complied.

The Licensees took the position that the record did contain the information called for with respect to the first two matters, but also stated that, "In light of the-filings of the State of New Hampshire and FEMA which we understand will be made, the question posed now appears to.be 71d. l L

_m._

irrelevant."8 The Intervenors New England Coalition on Nuclear Pollution (NECNP) and the Attorney General of The Commonwealth of Massachusetts (MAG) filed a joint response in which they took the position that none of the remanded issues had been addressed on the record, and, therefore, further hearings were required.'

Responses were also filed by the Federal Emergency Management Agency and the NRC Staff.

Both of these responses indicated that in the judgment of both the Staff and FEMA, the questions posed by the remand were moot.

The Staff seemed to believe this was so because the NHRERP does not set forth shelter-in-place as-an option with respect to ERPA A (which includes the " beach population") in the event of a general emergency and that the " shelter-in-place" option for condition (1) is a " null set" in any event.'O FEMA stated that "it is impossible to have the~ combination of events necessary to have

' Condition l'.

8 Licensees' Response to the Memorandum and Order of November l

14, 1990 of the Atomic Safety and Licensina Board Re ALAB-939 at E

3 (Jan. 10, 1991)._

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'In addition, Seacoast-Anti-Pollution League (SAPL), 'without seeking leave to do so, filed a late response.

The Board has not L

considered this response.

10NRC Staf f Views on Matters Referred in ALAB-939 at 2-3 (January 11, 1991).

" Advice of the Federal Emeraency Manaaement Acency Recardina Issues Raised by ALAB-939 at 2 (January 11, 1991). l l

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In addition, the State of New Hampshire responded."

In its response, signed by the Deputy Attorney General of the State, New Hampshire asserted unequivocally that ".

. evacuation is the planned protective action in a general emergency for ERPA A,"U and that ".

. with respect to Condition (1), the short duration non-particulate gaseous puff release, evacuation - not shelter-in-place - is the planned protective action.""

These factual assertions were confirmed on the record during the prehearing conference under oath by the Director of the New Hampshire Office of Emergency Management (NHOEM)."

On January 24, 1991, this Licensing Board directed the Licensees to prepare a " common reference document" derived from copying respective portions of the various revisions of NHRERP and associated: document which "contain the protective actions to be-taken in ERPA A" thus showing the evolution of the provisions governing this matter and also to obtain a stipulation from the other parties that the reference document was i.ufficiently complete for the purpose stated in the Licensing Board's' Order."

This was done."

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" Memorandum _of the State of New hamashire on ALAB-939' (January 10, 1991).

"Id.'at 1.

"Id. at 1-2.

"II. 28493.

" Unpublished Memorandum and Order (January 24, 1991).

" Licensees' ResDonse to Memorandum and Order of January 24, 1291 (January - 28, 1991); S__t_inulation (February 12, 1991). --

Under date of March 12, 1991, this Licensing Board, in light of all of the foregoing addressed the following certified question to the Appeal Board:

"May the Licensing Board treat the post-hearing amendments to the New Hampshire Radiological Energency Response Plan (NHRERP) and the January 10, 1991 Memorandum of the State of New Hampshire, attested to by Mr.

Iverson (Tr. 28493), to the effect that evacuation is the only planned protective action for the general beach population in ERPA-A at the General Emergency Level under AIAB-939?", as resolving the matters posed in the NHRERP In the Memorandum, this Licensing Board also made the following observations:

"The shelter-in-place concept has not existed ERPA-A since October 1988."gmergency for in the NHRERP in a general

'On March 20, 1991 the Appeal Board responded to the action of this Licensing Board in a " Memorandum Regarding Certified Question. "20 In its response, the Appeal Board did not directly

-answer the question posed by this Licensing Board; rather, after discussing the substantive issues at-bar at length, the Appeal.

Board:

"(left) it to the (Licensing) Board tePublic service company of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-91-8, 33 NRC (March 12, _1991), Slip Op.

at 22-23 (hereinafter referred to as "LBP-91-8" and cited to the slip opinion).

"LBP-91-8 at 16, 20]b?blic Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-945,_33 NRC (March 20, 1991),

(hereinafter referred to as "ALAB-945" and cited to the slip opinion). - - -

to ensure, in the first instance, that the-administrative record, as develooed throuah summary disoosition or other appropriate-procedural avenues, reflects any information necessarytoitsresolutgonofthematters identified in ALAB-939. "

However, prior to the above quoted declaration, the Appeal Board, in discussing the filings which had been made to the Licensing Board, stated:

"These-filings make clear that the entities-most directly responsible for the administration and evaluation of the NHRERP now insist that sheltering is not a planned protective action option for the general beach population in any foreseeable circumstance.

If accepted, this assertion would negate the premise upon which our record' clarification directive in ALAB-939 (and, in.large part, our initial remand of the beach sheltering-issue) was anchored.

This acceptanua hinges, of course upon whether the record itself reflects that the

' evolution' of the consideration of sheltering as a protective. action for the general beach population has_ reached the point where it effectively has been discarded as an option.

If that is-the case, the issues:we identified in ALAB-939. relating'to cthe use of a sheltering option:for_the general beach. population would in essence have become moot and so would be resolved."22 l

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-The summary disposition motion filed by the Licensees places l-the materials which formed the basis for this Licensing Board's conclusion that the NHRERp no longer.contains a shelter option for the~ general beach population in'the hearing record in a procedurally acceptable way.

The Appeal Board has stated that a finding to the_effect that such an option is no longer a planned l

1' 21ALAB-945 at 5-6 (emphasis added).

22ALAB-945 at 4-5 (footnotes omitted). - - - -

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l option would moot its concerns expressed in ALAB-939.

A fortiori, the notion for summary disposition should.be granted.

Respectfully submitted, Y k s __

J-Thomas 'G.Olgnan, Jr.

George H. Lewald Kathryn Selleck Shea Ropes & Gray One International Place Boston, MA 02110-2624 (617) 951-7000 Counsel for Licensees t

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LM RO u#C 91 APR -3 P2 17 CERTIFICATE OF SERVICE

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I, Thomas G. Dignan, Jr., one of the attorneysOfbr \\th( j ""

Licensees herein, hereby certify that on March 29, 1991,~I made service of the within document by depositing copies thereof with Federal Express, prepaid, for delivery to (or, where indicated, by depositing in the United States mail, first clase postage paid, addressed to):

Administrative Judge Ivan W. Smith Adjudi;atory File Chairman, Atomic Safety and Atomic Safety and Licensing Licensing Board Board Panel Docket (2 copies)

U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building' East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 Administrative Judge Richerd P.

Cole Robert R. Pierce, Esquire Atomic Safety and Licensing Board Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board East West Towers Building U.S.. Nuclear Regulatory 4350 East West Highway Commission.

Bethesda, MD-20814 East West Towers. Building 1350 East West Highway Bethesda, MD 20814 Administrative Judge Kenneth A.

Mitzi A. Young, Esquire McCollom Edwin J. Reis, Esquire 1107 West Knapp Street Office of the General Counsel Stillwater,~OK-74075 U.S. Nuclear Regulatory Commission

-One White Flint North, 15th Fl..

11555 Rockville Pike Rockville, MD 20852 John P. Arnold, Attorney General Diano Curran, Esquire

. George Dana Bisbee, Associate Andrea C.lFerster,-Esquire Attorney General Harmon,. Curran & Tousley Office-of the Attorney' General Suite 430 25' Capitol: Street 2001 S Street, N.W.

Concord,llH 03301-6397 Washington, DC 20009

• Atomic Safety and Licensing Robert A.

Backus, Esquire Appeal Panel 116 Lowell Street U.S. Nuclear Regulatory P.

O. Box 516 Commission Manchester,1H1 03105 Mail Stop EWW-529 Washington, DC 20555

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Jeffrey Pidot, Esquire Suzanne P. Egan, City _S.olicitor Deputy Attorney General Lagoulis, Hill-Whilton '& -

Department of the Attorney Rotondi General 79 State Street Augusta, ME 04333 Newburyport, MA 01950 Paul McEachern, Esquire Leslie Greer, Esquire Shaines & McEachern Matthew Brock, Esquire 25 Maplewood Avenue' Massachusetts Attorney General P.O.

Box 360 One Ashburton Place Portsmouth, NH 03801 Boston, MA 02108 Barbara J.

Saint Andre, Esquire R. Scott Hill-Whilton, Esquire Kopelman and Paige, P.C.

Lagoulis, Hill-Whilton &-

101 Arch Street Rotondi Boston,L MA 02110 79 State Street Newburyport, MA 01950 H. Joseph Flynn, Esquire Judith H. Mizner, Esquire Office of General Counsel 79 State Street, 2nd Floor Federal Emergency Management Newburyport, MA- 01950 Agency 500 C Street, S.W.

Washington, DC 20472 Gary W. Holmes, Esquire Ashod N. Amirian, Esquire' Holmes & Ells 145 South Main Street 47 Winnacunnet Road P.O.-Box 38 Hampton, NH 03842

-Bradford, MA 01835 Mr. Richard R.

Donovan Mr. Jack Dolan Federal Emergency. Management Federal Emergency Management Agency-Agency - Region I Federal Regional Ctater.

J.W. McCormack Post Office &

130.228th Street, S.W.

Courthouse-Building,-Room 442 Bothell, Washington 98021-9796 Boston, MA 02109 George Iverson, Director N.H. Office of Emergency Management

-State House Office Park South 107= Pleasant Street Concord, NH 03301 3

Thomas G'.

Dignan, Jr.-

(*= Ordinary U.S.

First Class Mail).

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