ML20082D450
| ML20082D450 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 07/11/1991 |
| From: | Curran D, Greer L HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#391-11981 ALAB-924, ALAB-939, ALAB-945, LBP-90-12, LBP-90-44, LBP-91-24, OL, NUDOCS 9107240094 | |
| Download: ML20082D450 (27) | |
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UNITED STATES OF AMERICA
'91 JA 15 Fi2 33 NUCLEAR REGULATORY CO!! MISSION 4
BEFORE THE COMMISSION Ivan Selin, Chairman Thomas M.
Roberts Kenneth c.
Rogers James R. Curtiss*
Forest Remick*
)
In the Matter of
)
Docket Nos. 50-443-OL
)
(Offsite Emergency PUBLIC SERVICE COMPANY
)
Planning Issues)
OF NEW HAMPSHIRE, ET 11.
)
)
(Seabrook Station, Units 1)
)
)
_)
BRIEF OF INTERVENORS ON THEIR APPEAL OF LBP-91-24 NEW ENGLAND COALITION ON COMMONWEALTH OF MASSACHUSETTS NUCLEAR POWER SCOTT HARSHBARGER Diane Curran, Esq.
ATTORNEY GENERAL Harmon, Curran & Towsley Suite 430, 2001 S Street, N.W.
Leslie B.
Greer Washington, DC 20008 Matthew T. Brock Assistant Attorneys General Department of the DATED:
July 11, 1991 Attorney General One Ashburton Place Boston, MA 02108 9107240094 910711
])5p3 PDR ADOCK 05000443 G
l TABLE OF CONTENTS Tabl e o f Autho r it i e s..................................... 11.
Statement of Issue......................................
111.
Introduction...............................................
1 I.
The Licensing Board Erred In Granting The Applicants' Motion For Summary Judgment On The Beach Sheltering Issue.. 2 The Evolution of the Beach Sheltering Issue.................................
3 Procedural Error................................
14 Substantive Errors..............................
15 II.
Conclusions..........................................
21 s. __.
TABLE OF AUTHORITIES NUCLEAR REGULATORY COMMISSION DECISIONS Public Service Co. of New Hampshire (Seabrook Station Unit 1)
A LAB-9 2 4, 30 NRC 331 (1989).............................
3,.9.
Public Service Co. of New Hampshire (Seabrook Station Unit 1)
ALAB-939, 32 NRC 165 ( 19 9 0 )......... 2,.10,.14,.16, 17,.19,. 21.
Public Service Co. of New Hampshire (Seabrook Station Unit 1)
A LA B - 9 4 5............................................ 2,. 1 6., 2 1 j!
Public Service Co. of New Hampshire (Seabrook Station Unit 1)
LBP-90-12, 31 NRC 427 (1990).........................
1,.2,.9 i
i Eublic Service Co. of New Hampshire (Seabrook Station Unit 1) 1 LBP-90-44, 32 NRC 433....................................
1,.2 1
Public Service Co. of New Hampshire (Seabrook Station Unit 1)
)
LBP-91-24, 3 3 N R C........................
1,. 2,.13,.14,.16,. 21 REGULATIONS 10 C.F.R. 5 2,740...................................... 2 10 C.F.R. 5 2.749(d).................................. 15 1
i l l
l STATEMENT OF ISSUES l
I.
Did the -Licensing Board err in granting the Appeal Motion for Summary Disposition in LBP 24.
1 4
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July 11, 1991
)
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION l
Ivan Selin, Chai rman Thomas M.
Roberts Kenneth
_;ogers James R.
!urtiss*
Forest emick*
)
In the Matter of
)
Docket Nos. 50-443-OL
)
(Offsite Emergency j
PUBLIC SERVICE COMPANY
)
Planning Issues)
OF NEN HAMPSHIRE, EI AL.
)
)
(Seabrook Station, Units 1)
)
)
JNTRODUCTION Pursuant to 10 CFR $2.762 (b) and the Order of the Atomic Safety and Licensing Appeal Board Order of June 28, 1991, the Massachusetts Attorney General and the New England Coalition on Nuclear Pollution ("Intervenors") submit this brief in support of their appeal of the Licensing Board's Orders LBP-91-24, 33 NRC (1991) and all other prior decisions, actions and orders made final thereby.
This brief is divided into three parts.
The first part describes the history of the beach sheltering issue.
The second describes the procedural errors of LBP-91-24.
The third part sets out the substantive errors of the Licensing Board in that decision.
4
i
?
4 I.
The Licensina Board Erred In Grantina The Applicants' Motion For Summary Disposition Of The Beach Shelterina Ipsue.
In LBP-91-24 the Licensing Board granted the Applicants' motion for summary disposition of the New Hampshire beach sheltering issues.
The Licensing Board granted the motion on j
the grounds that there is no " genuine issue of fact heard within ' the scope of the remand in ALAB-939 and ALAB-945".
LBP-91-24, Slip Op. at 11.
The standard under which a motion for summary disposition may be granted is well known.
Under 10 CFR 52.749 (d) a Licensing Board may allow a motion for summary disposition "if j
the filings in the proceeding, depositions, answers to interrogatories, and admissions on file, together with the statements of the parties and the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law."
In support of their motion for summary disposition the Applicants submitted a statement as to which they claimed that there is no genuine issue to be heard:
"Sneltering is not a planned protective option under the NHRERP for the general beach population in ERPA-A in a general emergency or in any other forseeable circumstance."
Applicants' Motion at 3.
Therefore, the Applicants' argued that since such an option is no longer a planned option, the concerns expressed in ALAB-939 are moot.
Applicants' Memorandum in Support of Motion at 7-8.
The Intervenors opposed the motion arguidg that the filings in..
the proceedings, statements of the parties, and affidavit submitted by Jeffrey Hausner demonstrated that there was a genuine issue of fact to be heard.
As demonstrated below, the Licensing Board was in error in concluding that there was no genuine issue of fact and that the issue was moot.
A.
The Evolution Of The Beach Shelterina Issue.
f An understanding of the history of the beach sheltering issue is necessary to appreciate whether there remains no genuine issue of fact on the matter.
The most recent controversy on that issue sprang from the remand of the sheltering issue by the Appeal Board in ALAB-924, 30 NRC 331 (1989).
In that decision the Appeal Board disagreed with the Licensing Board's finding that because there was a low probability that the sheltering opilon would ever be implemented for the beach population, there was no need to utilize a sheltering survey or engage in other activities to facilitate the implementation of the sheltering option.
A LAB-9 2 4, 30 NRC at 370.
The Appeal Board remanded the matter to the Licensing Board with a directive that sheltering implementation details should be required by the Licensing Board.
ALAB-924 at 372-373.
In an order dated January 11, 1990 the Licensing Board invited interested parties to advise the Board on how to proceed on the remanded issues, including sheltering.
In response to that invitation the Applicants filed with the Board -
l on February _-1, 1990 a pleading in which they took the-position that.the October, 1988 changes in the NHRERP effectively eliminated sheltering as an option under a condition (1) puff release scenario.
The Applicants argued that because sheltering is no longer a " planned protective action option i
under these circumstances implementing provisions for sheltering the beach population do not have to be developed.
h Applicants' Response at 10.
The Applicants' stated:
"During the hearings on the NHRERP, FEHA took the position,
-[f through its witness Joseph Keller, that evacuation (when physically possible) would always be the preferable protective action for the Seabrook beach population in light of, 1DipI alia, the uncertainties of release composition and duration, the effects of groundshine, and the poor quality of the shelter available in the Seabrook beach area.
This FEMA position was vigorously contested by the Intervenors, both at trial and on appeal,-and was upheld by'both the Licensing Board and the Appeal Board.
In October 1988, the NHRERP, Rev.
2, Vol.~4, Appendix F was,
\\
revised to conform to the FEHA position that was litigated
-(and subsequently uphold);
at step IV.B.4-(General Emergency)-it is recommended _to evacuate ERPA A, an approximate two-mile radius'that includes Hampton and Seabrook beaches, based on a declaration of a~ General Emergency subject only to constraints to evacuation.- This revision to bring the plan into: conformity with the FEMA position was served on the-Board and parties on October 13, 1988.
The effect of_the chance is to eliminato sheltering ps an Qption under____the firut_qf the two circulustancqa contemplated __bv the Apocal Doard.. Since sheltering 11s no lonaer a planned _protog.tJve action option under thong gircJmstanges, noJJ1ementina detall_is required in that gaEat" Applicants' Response at 9-10.
(Emphasis added.)
Following the Applicants' Response, tlur State of New Hampshire also responded to the Licensing Board's Order of January 11, 1990.
In that response the State of New Hampshire took vigorous exception to the statements of the Applicants in their
-4
i February 1, 1990 filing.
N "While the State of New Hampshire did not respond to the Licensing Board's January (11] Order, it now finds that it is necessary to address certain statements made in the Applicants' February 1, 1990 pleading concerning the New Hampshire Radiological Emergency Response Plan ("NHRERP").
In ALAB-924, the Appeal Board acknowledged that the NHRERP provides for sheltering the general beach populi sn in two very limited circumstances (1) when the prote 9.ction option of sheltering will maximize dose reductic, in circumstances characterized by "a short duration, non-particulate (gaseous) release that would arrive at the beach within a relatively short time period when, because of a substantial beach population, the evacuation time would be significantly larger than the exposure duration" (i.e. a limited puf f release on a summer beach day); and (2) when physical impediments make evacuation impossible.
The Applicants, without consultation with state officials, stated in its February 1, 1990 pleading, that the State of New Hampshire's October 13, 1988 Amendments to Revision 2 of the NHRERP "[climinated) s'eltering as an option under the first of the two circumstances contemplated by the Appeal Board."
This conclusion is incorrect.
Specifically, the Applicant erred in inferring that the October 1988 Amendments to NHRERP Volume 4, Appendix F preclude sheltering ERPA-A in response to a general emergency classification.
Egg Affidavits of George Iverson and William Wallace, February 16, 1990.
While the procedures outlined in the NHRERP (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-place option frcm consideration by the State's decision makers in the first of the two limited circumstances cited by the Appeal Board in ALAB-924 (i.e. a limited puff release on a 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 Board in May of 1988.
Indeed, plan amendments made subsequent to the licensing proceedings rerlect New Hampshire's position stated in its filing nf February 11, 1988 entitle U;w Hampshire's Response to FEMA Supplemental Testimony (and
-5_
attached to Applicants' Direct Testimony No. 6 as Appendix 1), in prefiled testimony adopted at transcript page 10,020, and in response to intervenor questioning at transcript pages 10,210-11, 10,354, and 10,716.
The Applicants' conclusion that the October 1988 amendments substantively changed the NhRERP so as to eliminate shelter-in-place does not reflect the interpretation of its own plan."
Etate of New Hampshire's comments reaarding Applicants' Response To Licensina Board Order qf January 11, 1990 at 1 through 7 On the same day that the State of New Hampshire filed the abovo quoted comments, the Applicants filed a pleading titled Applicants' Advice To Licensina Board Re Erroneous Statementg In Applicants' Response To Licensina Order Of January LLt 1990.
In that pleading the Applicants withdrew its statement that sheltering is no longer planned protective action option under condition (1) and acceded to New Hampshire's interpretation of the NHRERP as amended October 1988.
Thus, it appears that as of February 16, 1990, it was the position of both the Applicants and the State of New Hampshire the October 1988 amendments to the NHRERP did not eliminate the shelter-in place option for a condition (1) scenario, a limited puff release on a summer beach day.
Between the time that the Applicants filed their February 1, 1988 Response and their February 16, 1990 pleading, the Intervenors filed a motion to reopen the record on the basis that the Applicants' Response indicated a change in the NHRERP from the version of the NHRERP that was litigated in the evidentiary hearings before the Licensing Board.
In a February 16, 1990 pleading the Federal Emergency Management Agency
(" FEMA") filed a Response to the Intervenors' moticn.
In that pleading FEMA referenced the October 1988 Revision (2) of the NHRERP as well as and even more recent February 1990 Revision (3) and asserted that the shelter-in-place concept under both Revision 2 (10/88) and Revision 3 (2/90) of the NHRERP was the same as that presented in the evidentiary hearings before the Licensing Board on the NHRERP.
FEMA quoted a statement in a letter from Richard Strome, ther. director of the New Hampshire office nf Emergency Management that was incorporated into the record as Appendix 1, 2,
Applicants l
Direct Testimony No.
6, April 15, 1988.
In that pleading FEMA went on to assert that:
i "When " shelter-in-place" is the recommended protective I
action, transients without access to an indoor location (e.g., a private residence, beach cottage, or hotel room, would be directed to evacuate in their own vehicles.
Those transients without transportation would be directed to predesignated' temporary shelter locations while waiting for l
busses to evacuate them.
as noted above, the
" shelter-in-place" concept provides for the transient beach population to evacuate and the people indoors to remain indoors."
FEMA's Response of February 16, 1990 at 5-6.
l FEMA asserted that "the ' shelter-in-place' concept of the NHRERP ha[d] since at least February 11, 1988 called for the transient beach population to evacuate and for the people indoors to remain indoors."
FEMA Response at 2.
Thus, it l
I appears that as of February 16, 1990 FEMA was under the l
impression that at least for some portion of the beach population sheltering was still an option under the NHRERP.
l FEMA specifically quoted the identical language in Revision 2 L l
. _ _ _ _. _ -. _ _ -. ~
(10/88), Revision 3, (2/90) and the Strome letter that stated:
"New Hampshire employs the " shelter-in-place" concept._
This concept provides.for sheltering at the location in whien the sheltering instructions-is received.
Those at home are to shelter at home; those at work or school-are to be sheltered in the workplace or school building.-
Transients located indoors or in private homes will be asked to shelter at the locations they are visiting if this is feasible.
Transients without access to an indoor location will be advised to evacuate as-quickly as nossible in their own vehicles (i.e..
the vehicles in-which they arrived).
(Emphasis in the original.) FEMA Response at'2-4.
The clear implication of FEMA statement *.' hat " transients without access to an. indoor location (e.g. a proper residence, i
beach cottaae, or hotel room)", FEMA. Response at 5 (emphasis added), would evacuate is that transients with access to such indoor locations would remain in shelter.
That is consistent with the_above quoted language that " transients located indoors or in' private homes will be asked to shelter in the locations they are visiting if this.is' feasible."
On the basis of the FEMA Response, the Intervenors filed a second' motion to reopen the record on February 28, 1990. _The Intervenors argued that FEMA's assertion in its. Response at 5 that there is no-provision in the NHRERP for the transient beach population to attempt to find a building and enter.it was La.new interpretation of the NHRERP that has not been presented in the evidentiary hearings before the' Licensing Board.
The motions to reopen were referred to the Licensing Board, and in LBP-90-12, 31'NRC 427 (1990),. the Licensing Board issued a-,
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"Therefore, even prior to February 1988, Intervenors had already been long informed that New Hampshire's
' shelter-in-place' concept, contemplated evacuating, not sheltering, beach transients with transportation but without immediate access to shelters."
LBP-90-12 at 445.
The Licensing Board went on to say that since it understood ALAB-92 4 to require implementation provisions for the general population only in the event that sheltering remained an option for that group, the Licensing Board viewed its interpretation of the NHRERP as not comporting with ALAB-924.
Therefore, it referred the issue back to the Appeal Board.
LBP-90-12 at 4 4 8
- n. 51.
- New Hampshire submitted to the On May 28, 1990 tne ocu.
Appeal Board a pleading entitled COMMENTS OF THE STATE OF NEW HAMPSHIRE REGARDING NHRERP SHELTERING AND LBP-90-12.
In that
}
ple fing New Hampshire again affirmed that sheltering was still j
i an protective action option that might be used by protective action decisions makers in a general emergency:
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 puff 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 categorically ruled out.
(Footnotes Omitted.) COMMENTS at 2-3.
Following that submission to the Appeal Board and a prehearing conference held by the Licensing Board on June 5, I
1
1990, the Licensing Board issued a decision claiming that it was clear that the_ remanded beach sheltering issue had been resolved.
It-is now clear that there is no provision in the NHRERP iE for actually sheltering the general beach population other d
than the " shelter-lin-place" concept.
Accordingly, we conclude that the remanded sheltering issue has_been resolved.
In addition, because_of-the clarification provided by the State of New Hampshire ~and FEMA concerning
- )
o the provisions of the plan, this Board no longer requires
(
guidance 1from the Aopeal Board as' requested in LBP-90-12, H
.31 NRC_at 453-55._
de recommend that the respective referrals, having since been accepted by the Appeal Board, be vacated.
LBP-90-20, 31 NRC 581, 585(1990).
The Appeal Board disagreed with the Licensing Board on that point and on September.28, 1990 issued ALAB-939, 32 NRC l
165(1990)..The Appeal Board held that the language of the-plan 1_
itself did not foreclose the use of sheltering as a protective action. option:
The plan does state-that one of the main reasons-sheltering is.a valuable protective action option is that "it=can be implemented quickly, usually in~ a matter of minutes.
Even with-this emphasis:on implementation-time, however, nothing o
on Lthe-face of the plan forecloses utilizing the sheltering.
option for the-general beach population..-Indeed,-the-L beaches _ in question _ generally are located ' a. short distance l-from commercial-and other buildings in beachfront l
communities that potentially could serve as shelters.
(
.Moreover,' adding to the plan's ambiguity concerning how the sheltering option for the beach population'is to be l.
utilized is the fact that it offers only the explanstion that an EBS message."will' include,'but is not limited;to:'
...(2)
Special instruction for transients, campers, e t c.,.
including the location of public shelter, if applicable.
Again,: this-provides no concrete indication that sheltering of the general' beach population.has, in fact, been ruled i
- out _of : the'. plan. ALAB-939 at 175.
E Furthe rmore, the. Appeal Board' agreed with the assertion put
~
l forth by the _Intervenors in'their motions to reopen that there I !
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,. _. _.. -.... _. _.,.. _.. ~.
i I
had been a fundamental change in the way the State of New Hampshire contemplated using sheltering under the NHRERP in 1990.from the manner it was described in the testimony submitted during the evidentiary hearings on the NHRERP.
The Appeal Board found that while New Hampshire in 1990 disavowed the use of sheltering for the non-eransit dependent transient beach population in a general emergency, at the evidentiary hearings the use of sheltering was contemplated for the entire beach population.
Mr. Bonds' testimony thus makes clear that, at the time of his testimony, the planners contemplated that under condition (1), as opposed to condition (3), sheltering could be a protective option for the entire beach population (or at least a very substantial portion of that population) and that emergency messages would direct the beach population to go inside to obtain protection.
Further, and contrary to the Licensing Board's apparent view, we think the record also makes manifest that at the time they testified it was the understanding of FEMA of ficials that the State had not ruled out sheltering for the entire beach opulation, which in turn could warrant development of implementing details.
Finally, this same point - that the State was contemplating sheltering for the entire beach population under condition (1) - was presented to us during oral argument in July 1989.
With counsel for the NRC staff and FEMA present, in response to a question concerning what the NHRERP plan reflected regarding sheltering for the beach population, counsel for applicants explained that "what their plan reflects is exactly what I said and that is, should you use this - well, in any of the situation (s), either one and three, you use this method.
The methodology will be to announce a shelter-in-place and the theory is people who are not inside will go to the nearest place they can and shelter.
This statement, which was essentially corroborated by counsel for the staff, clearly reflects the view that condition (1) sheltering would encompass the entire beach population, not just those already in beachfront buildings.
Nothing in the briefs of the staff or applicants suggest anything to the contrary.
(Footnotes omitted.) ALAB-939 at 177.
Nevertheless, the Appeal Board went on to say that it would not require the New Hampshire to utilize sheltering for the e
entire beach population if it now desired to use that option I
for only a portion of the beach goers. Id. at 178.
- However, l
l the Board held that the sheltering question was not resolved l
1 because if New Hampshire was not to use sheltering for the i
entire beach population, the question arose as to whether the present interpretation of the NHRERP was consistent with the j
stated goal of PAR decision making under the NHRERP of j
" achieving maximum dose reduction". App. Dir. Test. No.6, at 19.
The Appeal Board directed the Licensing Board to further f
consider the sheltering issue.
i In light of the State's post-remand filings clarifying the existing adjudicatory record concerning the scope and details fo the sheltering option for the transient beach l
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 incumbentupon the Licensing Board to ensure that, as a L
consequence of evidence previously submitted by applicants l
in the course of the hearing, several related matters are clarified.
First, because the evidence presented ay 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 l
building, who will be directed to shelter, and all other beachgoers, 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" In addition, given the testimony by New Hampshire emergency planning of f.icials suggesting the need to distinguish between suitable and unsuitable shelter, the Licensing
'1 l
l l
l
T I
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.
(Footnotes Omitted. ) ALAB-939 at.179.
Given this.further remand by the Appeal Board, it is_ clear that as of September 28, 1990 the Appeal Board believed that sheltering was still a PAR option under the NHRERP and that there were open questions on the beach sheltering issue.
The simple question for this appeal then becomes what ocurred 1
between September 1990 and May 30, 1991 when the Licensing Board issued LBP-91-24 to justify that Board's decision that sheltering was no longer an option under the NHRERP and therefore, the remanded beach sheltering issue was moot.
Any justification for the Licensing Board's findings in LBP-91-24_can rest on only two events.
First, on January 10,-
1991 the State of New Hampshire submitted a pleading in which it averred that:
The state.of New Hampshire reaffirms here that with respect to Condition (1), the short duration _non-articulate gaseous puff release, evacuation - not shelter-in-place - is the planned protective action.
See State of New Hampshire's Comments Regardina Applicants' Response to Licensina Board Order of January 11, 1990 (February 16, 1990) and Comments of the State of New Hampshire Recarding NHREP Shelterino and LBP-90-12 (May 28, 1990).
(Footnotes Omitted.)-
MEMORANDUM OF THE STATE OF NEW HAMPSHIRE ON ALAB-939 at 1-2.
The.second event was the endorsement of that statement by George Iverson, the Director of the New Hampshire Of fice of Emergency Management, during a conference call on January 23,-
1991.
Tr.28,493.
Nothing else ocurred that could possibly-form a basis for the Licensing Board's conclusion in LBP-91-24
\\;
that sheltering is not a protective action option for the beach population under the NHRERP.
In reaching that conclusion in LBP-91-24 the Licensing Board committed both procedural and substantitive error.
B.
Procedural Error The Licensing Board allowed the Applicants motion for summary judgment in LBP-91-24 without permitti the Intervenors' discovery into the basis and meaning of the statement of New Hampshire and George Iverson that evacuation ll I
is the planned protection action in a Condition (1) scenario.
{
l Both in the January 23, 1991 conference call and the f
51 Intervenors' response to the Licensing Board's order of January 24, 1991, tne Intervenors protested the Licensing Board's contemplated procedure that permitted reliance by the Board on New Hampshire's January 10, 1991 pleading and Mr. Iverson's statement vithout allowing inquiry into their basis.
Tr.
28,475, 28,277, 28,486; RESPONSE OF THE MASS AG AND NECNP TO THE LICENSING BOARD'S ORDER OF JANUARY 24, 1991 at 4-5.
ALAB-939 established that New Hampshire's interpretation of the NHRERP in 1990 had changed from that described in the evidentiary hearings on the NHRERP.
Yet, the Intervenors were never allowed an opportunity to inquire into what New Hampshire planned to do in an emergency under its new interpretation.
Even the Applicants' counsel agreed that the State of New Hampshire was in control of critical relevant information on s
4 the sheltering issue. Tr. 28,282.
The Intervenors should have been permitted discovery under 10 CFR 5 2.740 prior to the Licensing Board allowing the motion for summary disposition.
The failure to permit discovery constituted a violation of due process and a denial of the Intervenor's hearing rights.
C.
SUBSTANTIVE ERRORS l
In LBP-91 7.ne Licensing Board certified the following question to the Appeal Board:
r "May the Licensing Board treat the post hearing amendments
{
to the New Hampshire Radiological Emergency Response Plan
('NHRERP') in 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 the NHRERP as resolving the matters posed in ALAB-939?"
LBP-91-8, 33 NRC 197, 208 i
(1991).
i The Licensing Board certified that question to the Appeal Board with the express purpose of finding a way to resolve the beach sheltering issue without reopening the evidentiary record in the proceedings.
LBP-91-8 at 20-21.
In is clear from LBP-91-8 that the Licensing Board had already prejudged the central question raised in the Applicants' motion for summary disposition that was decided in LBP-91-24.
In LBP-91-8 the Licensing Board stated:
"Thereafter, beginning in October 1988 evacuation is always the protective action for ERPA-A in general emergencies.
No aspect of shelter is provided for ERPA-A in a general emergency."
LBP-91-8 at 205.
In ALAB-945, 33 NRC 175 (1991), the Appeal Board did not answer the question certified by the Licensing Board.
Instead, the Appeal Board directed the matter back to Licensing Board.
In addressing the January 10, 1991 comments of the State of New Hampshire as endorsed by George Iverson the Appeal 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 forseeable 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 acceptance hinces. of course. upon whether the record itself reflects that the " evolution" of the i
consideration of shelterino_ap a orotective action for the Qeneral beach population _ hts reached the_noint where it effectively has been discarded as such an option.
If that is the case, the issues we identified in ALAB-939 relating to the use of s sheltering option for the general beach population would in essence have become moot and so would i
be resolved.
(Emphasis added.)
ALAB-945 at 177.
It appears that from the above quoted language that the Appeal Board in ALAB-945 was willing to allow that if sheltering was no longer a protective action option for the beach population that the issues of ALAB-939 may have become moot.
Howeve?,
that question revolved upon the issue of whether shelterisq had been discarded as an option for the general beach populatica on the basis of the record as it had evolved.
In opposing the Applicants' notion for summary disposition on the beach sheltering issue, the Intervenors argued that sheltering had not been discarded as a protective action option.
Therefore, the sheltering issues remanded in ALAB-939 had not been rendered moot.
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l 1
At no point in any of its pleadings or statements has the State of New Hampshire taken the position that uneitsring has been discarded as an option for the general beach population.
Nor, has the State of New Hampshire ever declared that evacuation is the Qnly 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 h22 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 New Hampshire will ever 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.
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, notably condition (1).
Indeed, the State of New Hampshire in its February 16, 1990 submission stated specifically that: "The Applicant erred in inferring that the
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October 1988 amendments to the NHRERP Volume 4, Appendix F precludes aheltering 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 Referance Docu'.nent dated January 28, 1991, Global Page 85.
The clear implication of the NHRERP's stateraent that evacuation is tl preferred protective action is that there are other protecti/e actions, such as sheltering, which may b' implemented in the event of an emergency.
The cnly reasonable interpretation that can be given to the January in, 1991 submission that is consistent with New Hampshire's other st-stevants is that it is saying nothie, more than (1) cvacuation is the preferred protective action for ERPA At and (2) it is the only one for which the State of.Nw Harpshirs has done any affirmative planning by placing provisior.1 in the NHRERP.
The shelter-in-place option as described if the Appeal Board in ALAB-939 is still a protective action opti 3n, 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
" unplanned" option.
For example, the State of New Hampshire has not identified any' buildings that would be suitable
i shelters for the beach population.
As demonstrated above a review of the record shows that sheltering has not been discarded as a protective action option j
in a general emergency.
In discussing the February 28, 1990, May 28, 1990 and January 10, 1991 pleadings, counsel for the I
State of New Hampshire categorically stated on January 23, 1991 that the January loth pleading did not differ in any way from the previous two picadings.
Tr. 20487.
Thus, the State of New Hampshire still contemplates the use of sheltering under a i
Condition (1) scenario.
In granting the Applicants' motion for summary judgment on the sheltering issue, the Licensing Board seized upon the semantic ambiguity of the word " planned" in the January 10, 1991 pleading as a means of disposing of the beach sheltering issue withcut ever having to address the issues romanded in ALAB-939.
In doing so, the Licensing Board ignored the fact that the evolution of the beach sheltering issue as reflected in the record of the proceedings did not indicate that sheltering had been discarded as an option.
In opposing the Applicants' motion for summary disposition, the Intervenors had cited directly to earlier pronouncements of the State of New Hampshire and the Appeal Board on the issue.
Rather than considcting the record in this proceeding, the Licensing Board in granting the Applicants' motion for summary dispositibn chose to focus on what it viewed to be deficiencies
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In the affidavit supplied by Jeffrey Hausner.
Despite the fact that Jeffrey Hausner in paragraph 2 of his affidavit stated that he had reviewed relevant portions of the record in the proceeding, the Licensing Board chose to conclude that Mr.
Hausner's opinion that "New Hampshire does anticipate implementing shelter as a protective action recommendation" was based upon something other than that record.
Rather, the Board speculated that Mr. Hausner based that opinion upon his belief that New Hampshire ghtpld have that option.
LBP-91-24 at Slip op. 10.
It is clear from Hausner's affidavit that he based his opinion that New Hampshire contemplates using shelter as a l
i protective action option in a general emergency for the beach population upon his review of the relevant portions of the record identified in paragraph 2 of the affidavit.
While in the affidavit, he also expressed the opinion that impicmenting procedures should be developed for sheltering under the NHRERP, that opinion was to distinct from his opinion that sheltering remains a prctective action option for New Hampshire officials in a general emergency under the NHRERP.
(The Licensing Board's assumption that Mr. Hausner was addressing protective action options in the general emergency in ERPA A is obviously correct since at no time have the remanded issues ever been concerned with sheltering under any other conditions.)
It is clear from the affidavit that Mr. Hausner as an expert is of
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l the opinion that sheltering remains a protective action option for New Hampshire in the event of a general emergency at Seabrook Station.
j Conclusions Thus, both the record in this proceeding and the affidavit of Jeffrey Hausner demonstrate that there is a genuine issue of fact to be heard within the scope of the remand in ALAB-939 and 945.
The Licensing Board erred in concluding that no issue of t
fact remained to be heard.
Therefore, the Commission shculd reverse the finding of the Licensing Board in LBP-91-24 and remand the beach sheltering issue in accordance with the directives of ALAB-939.
Respectfully submitted, NEW ENGLAND COALITION ON SCOTT HARSHBARGER NUCLEAR POWER ATTORNEY GENERAL
,Lu Lin b_ l-D
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Diane Curran, Esq. [
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 (202) 328-3500 (617) 727-2200 Date:' July 11, 1991 2027n i '
1
-1 i
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' N' C UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION Ivan Selin, Chairman
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Thomas M. Roberts H ~
Kenneth C. Rogers James R. Curtiss Forest Remick
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!l In the Matter of
)
Docket No. 50-443-OL d
)
(Offsite Emergency 1
PUBLIC SERVICE COMPANY
)
Planning Issues) l 0F NEW HAMPSHIRE, ET AL.
)
j
)
July 11, 1991 (Seabrook Station, Units 1)
)
)
i CERTIFICATE OF SERYlCE I,
Leslie Greer, hereby certify that on July 11, 1991, I made se;vice of the enclosed Brief 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,
'sq.
Atomic Safety & Licensing Boa d Atomic Safety & Licensing U.S. Nuclear Regulatory Commission Commission East West Towers ; ilding US NRC 4350 East West Highway Washington, DC 20555 Bethesda, MD 20814 s.
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Jeffrey Pidot, Esquire Thomas G. Dignan, Jr.
Deputy Attorney General Ropes & Gray Dept of the AttorenyGeneral One International Place
- Augusta, ME 04333 Boston, MA 02110 Mitzi A. Young, Esq.
James R. Curtiss Edwin J.
Regis, Esq.
Commissioner Office of the Executive Legal NRC Director Washington, DC 20555 US NRC washington, DC 20555 H. Joseph Flynn, Esq.
Atomic Safety & Licensing Assistant General Counsel Appeal Board Office of General Counsel U.S.
Nuclear Regulatory Commission FeJerJ 1 Emer;sncy Management Washington, DC 20555 Ayency 500 C St set, S.W.
Washington, DC 20472 Robert A.
Backus, Esq.
Docketing and Service Backus, Meyer & Solomon U.S.
Nuclear Regulatory Commission 116 Lowell Street Washington, DC 20555 P.O.
Box 516 Manchester, NH 03106 Steven Clark, Town Manager Dianne Curran, Esq Seabrook Town Offices Harmon, Curran & Towsley Seabrook, NH 03874 Suite 430 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 02100 Newburyport, MA 01950 R.
Scott Hill-Whilton, Esq.
Ashod N. Amirian, Esq.
Lagoulis, Hill-Whilton & Rotondi 145 South Main Street 79 State Street P.O.
Box 38 Newburyport, MA 01950 Bradford, MA 01835 Mr. Richard k. Donovan John P. Arnold, Attorney General Federal Emergency Management Office of the Attorney General Agency 25 Capitol Street Federal Regional Center Concord, NH 03301 130 228th Street, SW Bothell, WA 98021-9796 s 4
1
.l Paul McEachern, Esq.
Adjudicatory File Shaines & McEachern Atomic Safety and Licensing 25 Maplewood Avenue Board Panel Docket P.O.
Box 360 U. S. Nuclear Regulatory Portsmouth, N. H. 03801 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Thomas M. Roberts Commissioner Suzanne P.
Egan, City Solicitor US NRC Lagoulis, Hill-Whilton &
)
Washington, DC 20555 Rotondi 79 State Street Newburyport, MA 01950 Kenneth C. Rogers Forest Remick Commissioner Commissioner US NRC US NRC Washington, DC 02555 Washington, DC 20555 li Jack Dolan Ivan Selin, Chairman Federal Emgerency Management Agency US NRC Region 1 Washington, DC 20555 J. W. McCormack Post Office &
Courthouse Building, Room 442 Boston, MA 02109 i
George Iverson, Director Atomic Safety and Licensing N.H. Office of Emergency Management Appeal Panel State House Office Park South U.S.
Nuclear Regulatory Concord, NH 03301 Commission Mail Stop EWW-529 Washington, DC 20555 i
Respectfully submitted, SCOTT HARSHBARGER ATTORNEY GENERAL i
Leslie B.
Greer Assistant Attorney General Department of the Attorney General One Ashburtor. Place Bostnn, MA 02'08 (617;
'7' -z 2 0 0 Dated:
July 11, 1991 2028n -
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