ML20073E130

Opposition of Ma Atty General & New England Coalition on Nuclear Pollution to Licensee Motion for Summary Disposition.* Board Should Reopen Record,Permit Discovery & Hold Hearing on Beach Sheltering Issues

ML20073E130
Person / Time
Site:	Seabrook
Issue date:	04/22/1991
From:	Curran D, Greer L BOSTON, MA, HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20073E132	List: ML20073E130 ML20073E164
References
CON-#291-11685 OL, NUDOCS 9104300067
Download: ML20073E130 (9)

Text

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' HSFB 00Cr,EIED UwhC April 22, 1991  !

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UNITED STATES OF AMERICA F % DiY,"j.[

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NUCLEAR REGULATORY COMMISSION NCE before the ATOMIC SAFETY AND LICENSING BOARD i

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

) 50-444-OL 4 PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, ET AL.

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(Seabrook Station, Units 1 and 2) )

) i OPPOSITION OF THE MASS AG AND NECNP TO THE LICENSEE'S MOTION FOR

SUMMARY

DISPOSITION In ALAB-939, Egblic Service Company of New Hamoshire, et t al. {$cabrook Station, Units 1 and 2), 32 NRC 165 (1990), tha Appeal Board once again remanded to the Licensing Board the beach sheltering issue. In remanding the issue?the-Appeal Board stated:

n "First, because the evidence presented by_ applicants '

indicates / that - automobiles are assigned ino 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,1who willcbe-directed; L to go-to their cars and evacuate, in terms.of condition U

_(1)'s purpose of1 utilizing sheltering for_" achieving maximum dose reduction." In addition, given the testimony by New Hampshire emergency planning officials suggesting 1

the need to' distinguish-between suitable.and unsuitable D$ '

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shelter, the Licensing Board'should ensure 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. Finally, given applicants' evidence acknowledging i the central importance of quality emergency notification  !

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

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

recommended." Footnotes omitted. ALAB-939 at 179.

The Licensees have moved for summary disposition of the beach sheltering issues remanded in ALAB-939 on the ground that the issues have become moot and thus resolved. The i Massachusetts Attorney General and the New England Coalition on Nuclear Pollution ("Intervenors") oppose that motion for-the reasons set forth below and request that the Licensing-Board-deny the motion.

The standard under which to evaluate a motion for-summary i

disposition is set forth in.10 CFR 92.749(d). Under that provision a moving party is entitled to summary _ disposition only if it can establish that there.is no genuine issue _-as-to any material fact, and it is otherwise- entibled- to judgment as a matter of law. In the-present. instance the_ Licensees are not entitled to summary disposition on the remanded issues because I

there are genuine issues :as to material- facts -in, dispute. )

1 In the StateLof New Hampshire's January-lo, 1991 submission i

to the Licensing' Board'it'was-averred that:

The state of~New Hampshire:rgaffirms.here that.with-respect to Condition' (1) , the short duration non-articulate gaseous a puff release,' evacuation - notoshelter-in-place - is-the

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e planned protectivo action. Egg State of New Hamoshire's Comments Recardina Aeolicants' Resoonse to Licensinc Board Order of January 11, 1990 ( Februa ry 16,-1990) and Comments of the State of New Hamoshire Recardina NHRERP 'Shelterina and LBP-90-12 (May 28, 1990). (Emphasis added.)

The State of New Hampshire has never stated that evacuation is the 9nlY 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 h2g basis by the beach population..

If the word " planned" in New Hampshire's January 10, 1991 submission, as confirmed by George Iverson,- is interpreted to mean that it is the only protective action that the State of 1 New Hampshire vill over recommend for ERPA A, then the January 10, 1991 filing of the State of New Hampshire-_ contradicts'the state's February -16, - 1990 and-May ~ 28,-1990 submissions. cThose submissions dealt directly with the issue of f sheltering-the

! beach population. In both-of those submissionsithe State;of New Hampshire asserted that shelter-in-place was still a g protective action option under..certain circumstances for _the beach populations. Indeed, the' State'of'New Hampshire in i its February 16, 1990 subrdssion stated; specifically ' that: "The ~

Applicant erred in' inferring that'the: October 1988: amendments.

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to the NHRERP Volume 4, Appendix F precludes sheltering ERPA A in 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 ovacuation is the argferred protective action is-that there are other protective actions, such as sheltering, which may be implemented in the event of an emergency. The only reasonable interpretation that can be given to the January 10, 1991 submission that is consistent with New Hampshire's other statements is that it.is saying nothing more than: (1)-

evacuation is the preferred protective action for ERPA A,-and (2) it is the only one for which the State of New Hampshire _has done any af firmative 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 specific _ provisions for implementing that= option. . While evacuation.is a " planned" for option, sheltering is an- ,

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unplanned option. For example, the State of New H1mpshire has not identified any buildings that would be suitable beach shelters.  ;

The affidavit of Jeffrey Hausner attached hereto confirms that sheltering is still a protective action option under the NHRERP. It is his opinion that since it-is an option and implementing procedures for that option are currently lacking, procedures should be developed for sheltering'the beach population of ERPA-A. While there are no implementing procedures for sheltering the_ general beach population in-ERPA-A in the NHRERP, sheltering is still a protective action i option for that population under the NHRERP in forseeable circumstances such as might arise in a puff release: situation. i The stated intent of the State of New Hampshire is to implement sheltering a3 a PAR for the' beach population in ERPA A in some instances, such as a Condition- (1) release. In its February 16, 1990 pleading,.New Hampshire stated:

While the procedures outlined in1the NHRERP1(as amended in October 1988)- clearly reflect New: Hampshire's position that-evacuation is the preferred protective action recommendation in nearly all circumstances',=neither the .

October 1988 amendments nor any subsequent: amendments to  !

the NHRERP " eliminate" the shelter-in-placeLoption_from consideration by the State's decision makers in the first-of the two limited circumstancesEcited by!the= appeal' Board in-ALAB-924-(i.e. a limited puffLrelease-onia-summer beach  ;

day).  ;

'The State of.New Hampshire has adopted.no. changes _to  !

the.NHRERP which foreclose the use of shelter-in-place'as part of the plan, or.which are inconsistent with testimony by state officials before this-Licensing 1 Board in May--1988.

l Again in its May 28, 1990 pleading New Hampahire stated:

Evacuation is the preferred protective action recommendation for the beach population. Though the shelter-in -place option has not been precluded for the condition 1 (" puff release") scenario, New Hampshire decision-makers would necessarily require advance notice that all the elements comprising a true puf f release scenario were present and would remain present through the emergency, . . . . . it is New Hampshire's position, that the NHRERP not preclude implementation of this option so long as appropriate preconditions cannot be catagorically ruled out. Page 2-3.

In discussing the February 28, 1990, May 28, 1990 and January 10,1991 pleadings, counsel for.New Hampshire catagorically stated that the January 10, 1991 pleading does not differ from the previous two pleadings. Tr.28487. Thus,-

nothing has changed with regard to the beach sheltering issue since ALAB-939 was issued. The sheltering issue'was not moot at that time and is not moot now.

In ALAB-939 -the Appeal Board was reacting to an apparent conflict in the record between the State of New Hampshire's stated-purpose-fcr PAR's, i.e. achieving maximum dose reduction, and the updated shelter-in-place concept in ~which some portion of the beach population will tua evacuating under conditions, where-by established PAR-calculations sheltering would afford the greatest dose savings. In.that decision the Appeal Board observed that:

"Instead, interpreting the-" shelter-in-place"' option's proviso 1that " access ~to an' indoor location" means actually' -

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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 transportation _ vill be directed to employ sheltering as a protective action option only if they-are already in a building. Everyone else in the b3ach 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 the State of New Hampshire prior to September 1990. The State _

of New Hampshire previously identified certain condit' ions under-which it. represented that sheltering will af ford -the greatest dose savings including a condition -(1)crolease.

The same sheltering problems exist today:as existed in September 1990 when ALAB-939 was issued. ' The State of New Hampshire has represented that its January. 10,.1991 submission-is fully consistent-with.its earlier 1 pleadings. IfLthe J statements of Assistant Attorney General Bisbee as affirmed by-Mr. Iverson are to be_ accepted as : evidence, the Intervenors 4 should be allowed to inquire into- thef factual ~ underpinnings of-that submission-and whether they are consistent with maximum dose savings. .The sheltering issuecisinot moot. As indicated above ind.in the affidavit ~of Jeffrey,Hausner, there are genuine" issues as to material facts that: require a hearing before-this Board.

Because genuine ~ issues exfit,La hearing on:the matter ,

- chould be held.- It is the position of the ?Intervenors that the-7-

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Licensing Board should reopen the record, permit discovery, and-hold a hearing on the beach sheltering issues.- The Licensing Board should deny the Licensees motion for summary disposition. It is predicated on a semantic misapplication of the word " planned", rather than any true resolution of the issues. ,

Respectfully submitted, NEW ENGLAND COALITION ON SCOTT HARSHBARGER NUCLEAR POWER ATTORNEY-GENERAL k C- un Diane Curran, Escf. --

- faa Leslie Greer Harmon, Curran & Towsley Assistant Attorney General suite 430 Nuclear Safety Unit-2001 S Street, N.W. One Ashburton Place Washington,, DC 20008 Boston, Massachusetts 02108

{ - 617-727-2200 Date: April 22, 1991 f

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- STATEMENT OF MATERIAL FACTS AS TO WHICH-THERE IS A QENUINE ISSUE TO BE HEARD I

1. Whether sheltering is an anticipated and thus, planned, protective action _ option under the NHRERP.

2. Whether sheltering as it is presently a protective action option _under the NHRERP accomplishes the stated goal.of maximizing dose savings for the beach popultion of-ERPA-A under=

the current provisions of the plan which contain no -

implementing procedures for that option and which apparently -

distinguish between different classes of beach goers.

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