ML20076N083

Massachusetts Atty General Response to Appeal Board 910308 Order.* Opposes Licensing Board Issuance of Full Power OL Based on Reliance of Adequacy of Plan.W/Certificate of Svc

ML20076N083
Person / Time
Site:	Seabrook
Issue date:	03/21/1991
From:	Greer L MASSACHUSETTS, COMMONWEALTH OF
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#191-11570 OL, NUDOCS 9103280070
Download: ML20076N083 (10)

Text

,)/573 POL Pc.. il 0 UWFC UNITED STATES OF AMERICA *M ER 22 P4 2()

NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD" Before Administrative Judgest G. Paul Bo11werk III, Chairman Alan S. Rosenthal

< Howard A. Wilber

)

In the Matter of ) Docket Hos. 50-4 43-OL

) 50-444-OL

-PUBLIC SERVICE COMPANY )

f OF.NEW HAMPSHIRE, KT hL. )

)

March 21, 1991 (Seabrook Station, Units 1 and 2) )

)

, MASSACHUSETTS ATTORNEY GENERAL'S RESPONSE TO THE APPEAL BOARD ORDER OF MARCH 8. 1991 j In an Order dated M* 18, 1991 the Appeal Board observed that it in light of the recent issuance of Executive Order No.

303 -by Governor William Weld, it was obliged to consider the affect'of the change in_the Commonwealth's emergency planning I

status upon the Licensing Board's findings, conclusions, and interlocutory-rulings on the SPMC that are still pending on  !

l appeal. Therefore, the Appeal. Board directed thatt "Each intervenor.should advise us as to those pending appellate issues sponsored by him or it that, As in to hiseach or-its opinion, are affected by the Executive Order.

such issue, the intarvenor should fully explicate the basis for his or1its conclusion and, additionally, should' set forth with particularity the courue that he or it believes we should now follow in disposing of-the issue."

The Massachusetts Attorney General (" Mass AG") makes the l

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following response to the directive of the Appeal Board.

9103200070 910321 gDR ADOCK0500g3 )M l - - ________--____ _

V Preliminary Observationg The Mass AG has appealed to this Board the licensing decision contained in Public Servig.e Comoany of New Hamoshire (Seabrook Station, Units 1 and 2) LBP-89-32, 30 H.R.C. 175 (1989). The Licensing Board's authorization of the isuaance of a full-power operating license in that decision rested, at least in part, on a finding by the Licensing Board that the beabrook Plan for Massachusetts communities ("SPMC") providos reasonable assurance of adoquate protectivo measures in the event of radiological emergency at Seabrook Station. The fact that the commonwealth of Massachusetts is now commoncing emergency planning under Executivo Order No. 303 does not climinate the reliance on the adequacy of the SPMC as a basis for that licensing decision. The correctness of the Licensing Board's finding as to the adequacy of that plan is still key to the Licensing Board's decisjon authorizing the losuance of a full-power operating license for Seabrook Station. The licensing decision was not made on the speculation that at some point in the future the Commonwealth might commence emergency planning. Therefore, even tnough the Commonwealth is now undertaking emergency planning in accordance with Executive Order No. 303, appellate review of the Licensing Board's decision on the SPMC is still appropriato.

Moreover, the practical reality exists that even though the Commonwealth 16 participating in emergency planning, it will take a substantial potiod of time to actually develop planning

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4 strategies for the Seabrook EPZ and to train state personnel to implement those strategios. Given the unformed state of emergency planning by the Commonwealth for the Seabrook EPZ, the SPMC is, and is likely to remain for some period of timo, the only planned response to a radiological emorgency at Scabrook Station. While Executive Order No. 303 creates the potential that various icaues raised in the appeal of the SPMC may at some point in timo be rendered moot, at leant for the present, few issues pending on appeal appear to be directly affected by the Exocutive Order. Furthermoro, it is the Mass AG's position that given the unique characteristics of the Seabrook EPZ, even the best planning efforts will fall to provide reasonable assurance of adequate protection for the public.

Furthormore, the Executive Order is limited in its affect.

While the Governor has authority to, and does direct, state agoncios under the Executive Branch to commence omorgency planning and begin working in cooperation with the operators of Seabrook Station, the Executivo order does not, and in all legal probability could not, direct the government officials of the six Massachusetts towns in the Seabrook EPZ to engage in planning. While the Executive Order urgos the six Massachusetts towns to commence cmorgency planning, the Executivo Order, in and of itself, does not provido an adequate basis to assume that the towns will commence such planning and cooperate with Seabrook Station.

4 Issues Pondina On Acusal That Arg hifacted Sv Executive Order 303 i

The most obvious group of issues pending on appeal affected by Executive Order No. 303 is the series of Licensing Board's rulings challenged by the Mass AG concerning the utility rule of 10 C.F.R. 550.47 (c) (1) . The Mass AG appealed the Licensing Board's rulings on the utility plan rule on several grounds.

The Mass AG challenged: 1) the Licensing Board's rejection of Contention MAG 2; 2) the Licensing Board's rulings on the presumption that non-participating governments would generally follow the utility plan; 3) the-Licensing Board's ruling with respect to the delegation of authority issues under the utility rules 4) the Licensing Board's presumption that not only would -

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state and local governments follow the SPMC in the event of a radiologica) emergency, but also that response would be adequate; and 5) the Licensing Board's findings made in connection with the role of FEMA. Those challenges to the Licensing Board's rulings on the utility rule all pertained to the lack of participation by local governments as well as the state government. Since Executive Order No. 303 applies only to state government, the Licensing Board's rulings applicable to local governments appear to be unaffected by the order.

Therefore, it appears that this Board should proceed with its review of those rulings as they apply to local governments.

The Mass AG's challenge to the Licensing Board's rejection of Contention MAG 2, and-the ruling that governments will

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generally follow the utility plan appear to be rendered moot as they pertain to state government. First, now that the Commonwealth is participating in emergency planning, the factual premise of MAG 2 no longer applies to the state.

Furthermore, since there is at the present time no other emergency plan and state government officials are directed to cooperate with Seabrook Station, it is likely that the state government officials will in the event of an emergency follow the SPMC, at least until some alternative plan is developed.

Similarly, the Mass AG's challenge to the delegation of authority issue appears to be mooted as it applies to the Commonwealth. While it is still the Mass AG's position that certain governmental powers, such as the polico power, are non-delegable, since the commonwealth is now participating in emergency response activities, as a factual matter the Governor will not have to delegate such powers. Instead, he can direct state employees to assume the non-delegabic responsibilities.

The Mass AG's challenge to the Licensing Board's presumption that a state response following the SPMC will be an adequate response still appears to retain its vitality at this time. Since emergency planning efforts by the conmonwealth are to date inchoate, it can not be presumed that emergency responso efforts by state officfala, even if they follow the SPMC, will be an adequate response. Finally, the Mass AG's appeal of the Licensing Board's rulings on the role of FEMA in connection with its review of utility plans appears to be

unaffected by the state's participation in planning because the SPMC is still the only plan relied upon for licensing purposes. No state plan has to date been drawn up or proposed to supplant the SPMC.

The other issues pending on appeal that appear to be affected by the Executive Order are the challenges to the Licensing Board's findings that the state and local police will come to the assistance of traffic guides during an evacuation and can be relied upon to identify road impediments in the first hours of an evacuation. It would appear that in accord with the Executive Order state pclice will endeavor to follow the SPMC and fulfill those responsibilities. However, at present there is no basis upon which to conclude that local police will similarly assist traffic guides or function to identify road impedinents in the first hours of evacuation.

Furthermore, it is unclear merely from the existence of the Executive Order whether there will be sufficient state police to respond promptly throughout the Massachusetts EPZ to adequately fulfill the roles assigned to them. Since the SPMC relies upon the participation of local as well as state police to fulfill these functions, presumably the SPMC views the participation of local police as as necessary to an adequate response. Thus, it appears that the Mass AG challenges to the Licensing Board's findings at PID 3.81, 3.84,and 3.106 still are not moot.

4 PROPOSED COURSE Of_AC'fION FOR THE APPEAL BOARD While in light of Executive Order No. 303, it now appears that it can be presumed that state personnel will follow the SPMC, that presumption does not extend at this point in time to local officials. Almost all the issues presented in the Mass AG's appeal to the extent that they are in any way affected by the Executive Order, also address local government responses as well as stato response. Those issues appear to still be open and unresolved as they apply to local governments, and it appears that this Board should proceed to decide them. Whero all parties agree that an issue is noot, the Board muy proceed to dismiss it as moot per stipulation. Where parties disagroo as to whether an issue is moot, the Board may call upon the proponents of mootness to file appropriate motions to dismiss, and after considering the motions and any responses thereto, may rulo upon the motions.

Respectfully submitted,

! SCOTT HARSHBARGER ATTORNEY GENERAL l

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By Leslie B. Greer Assistant Attornoy General Nuclear Safety Division One Ashburton Place Boston, Massachusetts 02108 617-727-2200 l

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! Dato: March 21, 1991 l

l 1994n 1

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION phl:

ATOMIC SAFETY AND LICENSING APPEAL BOARD Before Administrative Judges: 91 ER 22 P4 :20 G. Paul '.'ollverk III, Chairman .* '?"'

! i 4 i t ir <

' i"'

Alan S. Rosenthal * :# "

Howard A. Wilber

)

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

) 50-444-OL PUBLIC SERVICE COMPANY )

OF NEW HAMPSHIRE, ET bL. )

)

(Seabrook Station, Units 1 and 2) ) March 21, 1991

)

CERTIFICATE OF SERVICE I, Leslie Greer, hereby certify that on March 21, 1991, I made service of the enclosed Massachusetts Attorney General's Response to the Appeal Board's Order of March 8, 1991 by Federal r;xpress as indicated by (*) and by first class mail to:

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 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 ToWors Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814

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• Docketing and service

• Thomas G. Dignan, Jr.1/

U.S. Nuclear Regulatory Commission Ropes & Gray Washington, DC 20555 One International Place Boston, MA 02110 l l

• Elaine Chan Philip Ahrens, Esq.

Mitzi A. Young, Esq.

Assistant Attorney General Edwin J. Reis, Esq. Department of the Attorney General U.S. Nuclear Regulatory Commission Augusta, ME 04333 office of the General Counsel 11555 Rockville Pike, 15th Floor Rockville, MD 20852 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 Diano Curran, Esq.

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

Washington, DC 20008 Barbara St. Andre, Esq. Judith Miznor, 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. Senator Gordon J. Humphrey 145 South Main Street U.S. Senato P.O. Box 38 Washington, DC 20510 Bradford, MA 01835 (Attn Tom Burack)

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 Herb Boynton) Concord, NH 03301 (Attn:

1/ Hand delivery was made on March 22, 1991 by 10:00 a.m.

Paul McEachern, Esq. Michael sinclair Shaines & McEachern Graystone Emergency Management 25 Maplewood Avenue, Associates Portsmouth, NH 03801 13 Summer Street '

Hillsboro, NH 03224

• G. Paul Bollwerk, Chairman

• Alan S. Rosenthal Atomic Safety & Licensing Atomic Safety & Licensing l 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 Emargency Management State House office Park South 107 Pleasant Street Ccncord, NH 03301 i

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Respectfully submitted, SCOTT HARSHBARGER ATTORNEY GENERAL 4f5 Leslie Greer l . Gk __

Assistant Attorney General Department of the Attorney General one Ashburton Place Boston,-MA 02108 (617) 727-2200 Dated:- March 21,.1991

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