ML20149F126
| ML20149F126 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 02/09/1988 |
| From: | Traficonte J MASSACHUSETTS, COMMONWEALTH OF |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#188-5572, RTR-NUREG-0654, RTR-NUREG-654 OL-1, NUDOCS 8802120035 | |
| Download: ML20149F126 (25) | |
Text
r-i SSTL DOCKETED USNRC 18 FEB 10 P2:40 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSbDi%CL C; Eii.iAr '
00CXETmG A SUM 0E ATOMIC SAFETY AND LICENSING APPEAL BdgggCH Before Administrative Judges Alan S.
Rosenthal, Chairman Thomas S.
Moore Hcward A. Wilber
)
IN THE MATTER OF
)
Docket Nos.
)
50-443-01-1 PUBLIC SERVICE COMPANY OF
)
50-444-01-1 NEW HAMPSHIRE, ET AL.
)
(Off-Site Emergency
)
Planning and Safety (Seabrook Station, Units 1 and 2)
)
Issues)
)
February 9, 1988
)
ATTORNEY GENERAL JAMES M.
SHANNON'S MOTION FOR RECONSIDERATION On January 7, 1988, the Massachusetts Attorney General
("Mass AG") filed with this Board a Motion for Directed certification seeking interlocutory review of certain orders of the Atomic Safety and Licensing Board ("ASLB").
On February 4, 1988, this Board denied that motion on the single ground that it was untimely filed.
The Mass AG now seeks reconsideration of this decision.
In support of this motion, the Mass AG states:
h 0
0S03
+
i~
_p; 1;
1.
LThe~1egal issues presented in'the original motion are central ~ issues.in the_ ongoing' proceedings on the adequacy of emergency; planning.-
Moreover,. the standard of adequacy to be applied by the NRC to emergency. preparedness is a. matter of substantial. concern not only to those contemplating ~, reviewing, defending and' attacking existing emergency. plans but to the
-genera.public as well.
l 2.
Uncertainty regarding the proper interpretation of the "reasonable assurance" standard of planning adequacy set forth at 10 C.F.R.
S-50.47 (a)(1) has continued to affect the ongoing
' adjudication of the adequacy of-the.NHRERP.
Specifically, counsel for FEMA has indicated on the record that that agency is not certain.how to interpret the adequacy standard appiled by the NRC.
Transcript at.pp. 8540 - 8543 attached as Exhibit 1.1/ - (see also pages 8551 - 8556.)
i 1/
As a consequence, FEMA was not prepared to submit and Hefend its pre-filed testimony of September 1987 when hearings resumed on January 11, 1988.
FEMA filed Supplemental Testimony on January 25, 1988.
In response to this filing the NRC Staff moved during telephone conferences on January 27 and 28, 1988 to defer further evidentiary hearing on sheltering issues until the State of New Hampshire files a response to the FEMA supplemental filing and FEMA again files its testimony.
This motion was granted by the ASLB on February 3, 1988.
M s
~,
av
.. ~,,
,--m,
--,--n--
.. +
r-
--,r
J. -
3.
The Mass AG's. delay in filing its Motion for Directed Certification ~was not in any manner an effort to 'elay or d
artificiall'y extend these proceedings.2/
In fact, the~ Mass AG decided at'some point in light of the evolving sche'duling posture of-the proceeding that a fuller development of the issues in its motion was more important than an immediate filing. !
4.
Finally, assuming that the standards for interlocutory review have been net, there is nothing gained from deferring judgment on the issue until an appeal under 10 C.F.R 2.762.
2/
One attorney was responsible for this motion..That attorney was present in New Hampshire and actively participating (including cross-examining witnesses) during the two hearing weeks that were held between November 18 and January 7, 1988.
Further, Thanksgiving, Christmas and New Years holidays occurred in the intervening period.
- Finally, the argumento presented in the Motion to certify at pages 22 through 32 represent, at least to the author, a large amount of further research and analysis in comparison to the Mass AG's filing of October 15, 1987.
3/
obviously, this judgment was incorrect.
Although in mid-November 1987'it appeared that these hearings might conclude before the end of January 1988, by mid-December it was clear that rebuttal testimony on ETEs as well as the presentation of the sheltering portion of the case would push these proceedings into February, 1988.
The present much more extended delay did not become apparent until after January 11, 1988.
The Mass AG was looking prospectively, and perhaps without good grounds, to the time still available for hearings in the event this Board granted interlocatory review and reversed the ASLB and not retrospectively to the time already past since November 18, 1987.
In fact, the Mass AG interpreted the requirement that such motions be timely filed in this way assuming that an objective test of actual impact on the proceeding would be applied to the issue of timeliness.
- Again, this was incorrect.
1, ~,
K 3
This is particularly so in-light of the present delay-in the hearings on_the sheltering issue _which affords ample time for scheduling the: disputed. testimony in the event the ASLB has erred.~
For all the reasons set forth above, this Board should reconsider its denial of the Mass AG's Motion for Directed Certification and permit interlocutory review of.the ASLB's orders of November 16 and 18, 1987.
Respectfully submitted, ATTORNEY GENERAL JAMES M.
SHANNON 7
7 A
l$
(Cr o.hn Traficonth A sistant Attorney General
?uclear Safety Unit e / Department of the Attorney General One Ashburton Place i
l Boston, MA 02108 l
(617) 727-3393 DATED:
February 9, 1988 0537n:EJK/ JCT l _ _ _ _
i
--EXHIBIT l--
o
(
00CKETE0 USNRC 8 FEB 10 P2 50 1
understand in weighing that testimony.
2 Eo -
,yrre e: r: -
D6CH.
3 JUDGE SMITH:
If -- would it make ' sense to begin 4
with, to begin with Mr. Thomas or someone from FEMA Regional 5
Office, Mr. Thomas, I assume, to give us a factual explanation 6
of what happened in the RAC committee, so that we can determine 7
if such be the case that there has been or has not been any 8
change in any factual data, technological considerations, that 9
it's been a change in whatever.
10 Then we might have a better feeling for what 11 additional discovery would be required.
If there has been no 12 new technological data, no new facts established during 1987, l
13 then the need for. discovery, it seems to me, would be not 14 perhaps eliminated, but the scope of it certainly would be 15 reduced.
16 Would that make sense to at least begin to have on 17 the record what considerations took place at the RAC meeting, 18 so at least we can identify whether or not there have been any 19 technical bases for any change in positions?
20 MR. CLESKEY:
Yes, that would be a very good way to 21 begin.
22 MR. FLYNN:
Your Honor, I think I can shed some light 23 on what has gone on and perhaps aid you in the decision that 24 you need to make.
25 In fact, there has not been any new technical
_L Heritage Reporting Corporation (202) 628-4888
4 854:
1 ke i
1 information which has caused us to reexamine our earlier 2
position.
The facts that we are looking at now are the same 1
3 facts that we' ve been looking at all along.
I 4
What is driving the reexamination of our position is 5
principally a question of the interpretation of our 6
regulations, particularly as they relate to the NRC's 7
regulations and interpretation of the requirements of the 8
guidance expressed in NUREG-0654.
l 9
And if our position does change, and I am not saying 10 that it will or it won' t, it will be for that reason, that 11 we' ve refined our thinking on what the regulations and the 12 guidance mean.
13 (Continued on the next page.)
14 15 16 17 18 19 20 21 22 23 l
24
,25 1
Heritage Reporting Corporation (202) 628-4888 i
b;.:.7 854a T313 1
Let me identify what I think the issues are, and a
wnat I see the issues as, and, again, maybe that will help you 3
and the parties come to some resolution.
4 The factual issues are what sheltering is available, 5
how many people can be sheltered, where are the shelters, what 6
level of protection do those shelters offer.
7 The policy issues are what is required by a range of 8
protective actions with the phrase in NUREG-0654 that says 9
there should be a range of protective actions.
Is sheltering -
1 10
- is evacuation without explicit provision for sheltering a i
11 range?
That' n one of the questions that we' re looking at.
~
12 Another question that we' re looking at is when FEMA 13 makes a determination of reasonable assurance, or lack of 14 reasonable assurance, should we confine ourselves to looking at 15 simply whether the requirements of NUREG-0654 have been 16 satisfied, or is there a larger question there; namely, the 17 qualitative judgment or the subjective judgment about 18 reasonable assurance that adequate protective measures can be 19 taken to protect the public.
Is that a larger question than 20 Just, have the elements in NUREG-0654 been satisfied?
21 Another issue is whether best efforts is the 22 appropriate standard to apply.
That's really another aspect of 23 the question that I Just mentioned.
24 One way of expressing that is a plan is acceptable so 25 long as it provides some dose savings; that is, compared to ks Heritage Reporting Corporation (202) 628-4888
8543 b:/
1 having no plan, there are dose savings, and that the plan takes 2
mcximum advantage of every readily available opportunity for 3
dose savings, and the plan can be implemented.
If those three 4
conditions are mat, the best efforts standard is satisfied'.
5 So the question --
6 JUDGE SMITH:
Are you announcing now an issue, or are 7
you announcing a position?
8 MR. FLYNN:
An issue.
We haven' t decided yet where 9
we stand on this.
10 JUDGE SMITH:
Okay.
11 MR. FLYNN:
And that's. my point.
That's the thinking 12 process that we' re going through.
13 And the other thing that I -- I want to respond to i
14 the suggestion that pressure is being put on FEMA from outside 15 sources to change its position.
The pressure to reexamine this 16 is coming from within FEMA, and frankly, some of it is coming 17 from me.
I have been pushing the policymakers in FEMA to 18 2Aarify their thinking on these issues, and that is what is 19 going on.
20 And I don' t even want to get into a question of where 21 people imagine the pressure might be coming from, but it's not 22 my perception that that is what is happening.
23 Now, I want to go on to a couple of other sub.jects.
24 I agree with Mr. Turk and Mr. Dignan on the question of
- .25 allowing the proposed testimony on the beach population issue f
Heritage Reporting Corporat ion (202) 628-4888
8546 1
and the sheltering iusues to come in without any explanation.
2 If it comes in in a vacuum, it doesn' t tell anybody very much, 3
and it's simply a record that at one time FEMA was willing to 4
say --
5 JUDGE SMITH:
All right, this is the point really 6
that I' m having dif ficulty understanding.
7 It seems to me no matter which way FEMA goes somebody 8
is going to argue that sheltering in the beach is or is not as 9
stated.
You know, it's going to be poor or good.
And there is 10 going to remain factual issues which have already been 11 identified and submitted written testimony, no matter what 12 happens.
13 MR.'FLYNN:
Yes.
14 JUDGE SMITH:
The Goble panel testimony will still be 15 relevant no matter what happens.
16 1 don' t really understand, well, without having t
17 looked at your test imony, Mr. Dignan, in the context of these 18 developments, what portions would not be relevant.
I mean, if 19 FEMA changes its position, you may call part of it rebuttal, 20 you may not, but still it seems to me that there is no 21 impediment to us going ahead, or no reason to delay taking the 22 factual -- the testimony on factual issues.
23 MR. DIGNAN:
If those be factual issues.
24 JUDGE SMITH:
How can they avoid being factual 25 issues?
b Heritage Reporting Corporation (202) 628-4888
~- -
8543
'l 1
MR. DIGNAN:
Oh, some of them can definitely cease 2
being factual issues, depending upon the FEMA position finally.
3 JUDGE SMITH:
Explain that.
Track it through.
How 4
woul'd this work?
5 MR. DIGNAN:
Let us assume that FEMA's final position 6
was as follows:
7 FEMA gets ups and stands up there and says, we find 8
the plan as it stands, without anything further, adequate, and 9
some beach sheltering.
We all understand that's all we' re 10 talking about, and they may have other views on other aspects 11 of the plan.
12 At that point that's the rebuttable presumption, and 13 they explain it, they lay it out.
They say that the 14 sheltering, in our judgment, they might reach a conclusion that 15 says, we don' t think you can shelter at this site, period, 16 that's it.
We don' t think you can do it, and therefore FEMA's 17 position is the plan as it stands is adequate, because that's 18 the best that can be done.
19 What relevance has all that shelter study got to 20 anything at that point?
That's point one.
l 21 Point two, FEMA comes in with a posit ion that's 22 somewhere in between, and some of it may favor the position 23 I' ve got, some of it may not, and I would then want to be 24 targeting the testimony not so much a general discussion of 25 shelter, which is what this piece is now in large part, but I i_.
Heritage Re port ing Corporation (202) 628-4808 L,
8544
-b 1
may want it to be targeted at those aspects of the FEMA 2
position which we feel are erroneous and that should be 3
rejected by the Board.
4 And I' m not saying that the panel that is sitting 5
here and the testimony that's baen profiled will definitely 6
become irrelevant if FEMA makes any change in position, or a
_ 7 complete change in position.
8 I will say that you' re going to sit through, I bet, a 9
long cross-examination that may turn to have been of stale 10 testimony, and I see very litt le -- and, frankly, as a tactical 11 matter, Your Honor, I too would Just as soon not commit my 12 witnesses until I know what FEMA's posit ion is.
And I would be 13 kidding you, and I,
frankly, would be remiss in my duties to my 14 client if I did otherwise as a tactical matter.
15 MR. CLESKEY:
You see, Judge, I think where we might 16 be is this.
I 17 If FEMA says we' ve examined all these legal issues 18 and now, applying a different interpretation of the guidance 19 and the regulations and our own internal process to the same l
20 facts, we think, as Mr. Dignan has just said, that there can' t 21 be effective sheltering there but that's okay.
22 And our testimony, which relien on FEMA's January 6th 23 position, would have to be changed because we could no longer 24 rely on it, and in fact we' d have to attack their position to 25
. rebut the presumption.
l
[s.
Heritage Reporting Corporation (202) 528-4888
8547 1
Mr. Dignan, presumably, is going to withdraw, as he 2
said, any testimony, because he' d be taking the position that's 3
one-half of the two horses he's always ridden in this case in 4
sheltering, which is that's right, there isn' t good sheltering 5
there, but it's okay.
My best efforts are to get people out of 6
there fast.
There won' t be any major problems that require 7
sheltering.
FEMA is right.
So I don' t file anything.
I rest, 8
as he said yesterday, on the rebuttable presumption.
9 So where we then are is he has no testimony, and we 10 have testimony that addresses the wrong target.
So we have to 11 retailor our testimony and only to address a different legal 12 standard, but more importantly, to address different facts as 13 FEMA now interprets those facts.
That's why we get into a 14
,very different situation both for the Applicant and for 15 ourselves.
16 MR. FLYNN:
Your Honor, a couple more points that I 17 want to make.
18 With what we know now, I don' t foresee that FEMA is 19 going to say there is no effective way to shelter people.
That 20 may be the case but, first of all, it's not FEMA's role to make 21 that case.
If the State of New Hampshire wants to, or the 22 Applicant in connection with the State of New Hampshire wants 23 to make that case to us, we will listen to that.
We' re not 24 going to write the plan for the State of New Hampshire.
25 That's why I identified a few moments ago that one of IL Heritage Reporting Corporation (202) 628-4888
8540 1
the issues is what is the inventory of existing shelter, and 2
what level of protection can it offer.
You know, not that 3
there's any minimum that has to be satisfied, but that's one of 4
the things that we need to know.
5 JUDGE SMITH:
You' re saying that as an issue.
6 MR. FLYNN:
That's an issue.
7 JUDGE SMITH:
Not as a position.
8 MR. FLYNN:
Right, right.
And I would tend to agree 9
with what you suggested earlier that whatever ultimately 10 happens, the testimony is relevant.
11 JUDGE SMITH:
The factual aspects of it.
12 M R.
FLYNN:
The f act ual aspect s, right.
13 JUDGE SMITH:
It may not come in through the FEMA 14 gateway necessarily.
I mean, the tendency of the parties now 15 is to argue everything as in support of or against a FEMA 16 position.
You can call it that anyway you want t o, put it 17 through the gateway of what FEMA does if you wish, but in the 18 last analysis the factual evidence is going to be relevant to 19 our decision no matter what FEMA does.
20 M R.
FLYNN:
Well, yes.
I 21 JUDGE SMITH:
Even if we agree with Mr. Dignan that 22 the Massachusetts Attorney General is not foreclosed from 23 making their case on this theory that they wish to make it, and 24 that i s, FEMA is wrong if FEMA comes up with a position that no 25 sheltering -- that sheltering is necessary because a range of k.
i i
Heritage Reporting Corporation (202) 628-4888
F 8549 L
1 protect ive act ions are necessary and you don' t have it, they 2
have a right to make that case unless we should rule as a 3
matter of law before then that they can' t make their case that 4
way, but we haven' t come to that point.
5 MR. FLYNN:
Well, another thing, Your Honor, is that 6
in this particular case, I mean, so much attention has been 7
given to the rebuttable presumption.
But in this particular 8
case where FEMA's position depends so heavily on an 9
interpretation of regulations and guidance, no matter what we 10 say, you, the Board, have the ultimate say on what these 11 documents mean.
12 So if -- I mean, that's why I say that I think this 13
. factual information is relevant no matter what FEMA ultimately 14 decides.
15 JUDGE SMITH:
Well, it is true that much of the 16 Appl icant s' testimony, nonfactual testimony, would change 17 depending upon if FEMA -- I mean, depending upon what FEMA 18 does.
\\
19 It seems to me that yours would remain essentially l
20 the same.
You know, the Attorney General's would remain 21 essentially the same.
22 MR. OLESKEY:
Well, i f --
23 JUDGE SMITH:
Go ahead.
24 MR. OLESKEY:
If FEMA changes its position and Mr.
25 Dignan files nothing, then I assume that the Stone & Webster L
Heritage Reporting Corporation (202) 628-4888 l
~
- - - -l
8550
?.'
i shelters, everything else falls away from the case as evidence 2
before you, and you' re left with a decision whether evacuation 3
carries the day en the adequacy of the plan.
4 We will continue to argue, clearly, as you have just 5
suggested, that sheltering is required, and that there is 6
nothing factually in the case that shows that there is any possibility of adequate sheltering even though they are no 7
8 longer advocating for sheltering as a protective action.
9 JUDGE SMITH:
You might do that as a case in chief, 10 or you might do it as whatever.
It may be rebuttal or 11 whatever.
12 MR. OLESKEY:
Yes, depending on how -- what FEMA 13 says, and that Mr. Dignan in fact withdraws his panel, and 14 therefore his direct testimony with all this supporting 15 documentation about how sheltering could work for the beach 16 population, because the plan would then have no sheltering 17 provision for the beach population, which is a very important 18 fact.
19 JUDGE SMITH:
Okay.
All rignt.
So I think that we 20 have somewhat of a consensus, or at least lack of objection to 21 approaching it.
Either we' ll take Mr. Flynn's representat ion, 22 if you will, that the RAC meeting, the recent RAC meeting, did 23 n' t bring up any new technical or factual issuest that the o
24 issue before the decisionmakers at FEMA is, as he outlined the 25 issue, the application of the regulation, the application of L
Heritage Reporting Corporation (202) 628-4888
855L Le 1
the NUREG, essentially policy and legal issues.
If that is the 2
case, then we would have what I would regard as a rather 3
limited discovery effort, if any, against FEMA, because it 4
certainly is going to be relevant as to what the rebuttable 5
presumption is.
6 But the law of the case is for us to decide, and we 7
Just would not support a very large discovery effort on legal 8
issues.
9 As sorry as you may be to hear that, Mr. Backus, that 10 is the fact.
11 MR. BACKUS:
Well, Mr. Chairman, it seems to me all 12 along this has been a very frustrating proceeding with the plan 13 being in the state of evolvement, the position of FEMA being in 14 the state of evolvement.
15 I think the root issue here is the legal standard 16 that's going to be applied.
I said it in my opening statement.
17 18 JUDGE SMITH:
I agree with you.
I think that the 19 law -- the legal issues are bubbling to the top as being the 20 controlling issues.
21 MR. BACKUS:
And what I wanted to suggest is why 22 doesn't this Board consider deciding what the lagal issues are.
23 Is it, as Mr. Flynn says, a best faith effort or isn' t it?
24 JUDGE SMITH:
Well, we haven' t been called upon to do 25 that.
,L Heritage Reporting Corporation (202) 628-4888
(1,'
855J:
i 1
MR. BACKUS:
Pardon me?
2 JUDGE SMITH:
We have not been called upon to do I
3 that.
4 MR. BACKUS:
Well, I may -- I just raise this as a 5
suggestion, and I may follow up with a pleading on it.
It may 6
be time to ask the Appeal Board and maybe the Commission itself 7
to decide what these emergency planning rules mean so that we j
8 can properly litigate them.
9 JUDGE SMITH:
We have to a large extent in respect to 10 your testimony on the Sho11y-Beyea testimony, but we have not 11 addressed the legal issues, nor have we been requested to and 12 invited to, that control this situation here.
13 MR. BACKUS:
Ultimately the NRC is going to have to 14 decide that in terms of this case.
And I think we ought to all 15 know.
Our position is clear.
It's been clear from October 5th 16 when I made my opening statement.
There should be some 17 substantive requirement for protective actions to be achieved 18 by emergency planning; that a best faith ef fort is not enough.
19 But if a best faith effort is enough, we should know 20 that.
21 JUDGE SMITH:
Now --
22 HR. BACKUS:
I think we should have known it before 23 we started the hearing, but better new than waiting longer.
24 JUDGE SMITH:
Okay.
E113 25 (Continued on next page.)
\\C Heritage Reporting Corporation (202) 628-4888
8553 ko/
1 MR. BACKUS:
I think it would be a breach of faith a
with the citizens of New Hampshire; I think it would be a 3
breach of f aith on the NRC's --
4 JUDGE SMITH:
All right, come on.
5 MR. BACKUS:
-- own statements to the Court of 6
Appeals in SAPL versus NRC, but if that is going to be the 7
position I think we should know it.
8 JUDGE SMITH:
All right, let's keep our arguments 9
legal.
10 MR. TRAFICONTE:
Your Honor, if I could be just 11 heard briefly on the Shelly-Beyes discussion, we have filed 12 last week a motion to certify that issue, that evidentiary 13 decision. And --
i 14 JUDGE SMITH:
With us?
15 M R.
TRAFICONTE:
No, with the Appeal Board.
16 JUDGE SMITH:
Oh.
17 MR. TRAFICONTE:
And I wou'.d just like to make these 18 comments.
It is quite clear to me after reviewing the law on 19 certification, interlocutory review before the NRC, that it is 20 very rare for an evidentiary issue -- for example, the 1
21 exclusion of evidence, as we had in this case -- to be given i
22 interlocutory reviews that is rare.
I am fairly certain there 23 are no cases in which an evidentiary issue has been taken on 24 interlocutory.
l 25 In the brief that I filed with the Appeal Board, I L
Heritage Re port ing Corporation (202) 628-4848
L 8559 1
cited, I had record support for the proposition that in making 2
your evidentiary ruling you spent a lot of time, the Board 3
spent a lot of time on, heard argument on, considered and 4
weighed lengthy argument by, I think, all parties -- I know Mr.
5
- Flynn, I guess Mr. Flynn did not argue this issue at that time 6
-- but on all other, argument from all other parties as to what i
7 the legal standard along the lines Just sketched by Mr. Backus 8
is.
9 And certainly it is our position that if not 10 directly, at least indirectly, this Board has addressed as a 11 first cut, has addressed this legal standard issue in ruling 12 that the Sholly-Beyea testimony is not relevant.
i 13 Now, I am concerned that, first, that I 14 misinterpreted -
your recent comments to Mr. Backus make me 15 think I may have misinterpreted, but more importantly, 1 think 16 that we may have an opportunity right now, with our motion that 17 is before the Appeal Board and no doubt will be heard, briefed 18 by Mr. Dignan, and heard in this hiatus that we are about to 19 enter into here of two or three weeks, or whatever it is the 20 Board decides.
21 It seems to me that we could, we might already be in i
22 a position to have the legal standard issue heard as an initial
)
23 matter before the Appeal Board.
24 JUDGE SMITH:
The one issue that I don' t see being, 25 working its way up to the Appeal Board, based upon the Beyea b~
Heritage f.oporting Corporation (202) 628-4808
k./
855$
1 Sho11y testirony is the issue that Mr. Flynn Just diseu sed, 2
and that is, does the NUREG and the regulation require, "a
3 range" of protective --
4 MR. TRAFICONTE:
No, I agree.
5 JUDGE SMITH:
And I think that is sort of becoming 6
the core issue that we are going to be dealing with here, and 7
that we haven' t been invited to rule upon; we have no record to 8
rulo upon it.
9 MR. TRAFICONTE:
No, I agree that issue is still 10 open, but the other issue that Mr. Flynn hinted at, as to the 11 qualitative, as to whether or not there is a qualitative 12 standard against which the plan is to be measured?
13 JUDGE SMITH:
I think that that's ripe for -- as we 14 said it in ruling upon it -- we recognize that it was an issue 15 that would affect the proceeding in a pervasive way and --
16 MR. TRAFICONTE:
Right, and the only reason why I 17 raise these comments now, is because a minute or two ago, Your 18 Honor, said that it was your view that these legal issues 19 outlined by Mr. Flynn have not been presented in this 20 proceeding for your review, and I just wanted to clarify, 21 because I know we may hear this later in front of the Appeal 22 Board.
23 Today's trenscript obviously would be part of what 24 the Appeal Board may want to look at, and I just want to make 25 sure that we are clear that at least the qualitative standard L
Heritage Report ing Corporation (202) 628-4888
7 6556 b-.
1 issue has been addressed in the context of the Sho11y-Beyea 2
ruling.
3 JUDGE SMITH:
I agree.
4 MR. TRAFICONTE:
Okay.
5 MN. OLESKEY:
Just one additional point there.
6 My colleague, Ms. Sneider, reminds me that our office 7
filed motions for summary disposition based upon the issue of 8
the range of protective actions, I think last March and last 9
June before Your Honor was a member of the Board, which were 10 obviously denied.
11 So -
12 MS. SNEIDER:
They weren' t heard.
13 MR. OLESKEY:
They were not heard.
They are 14 presumably, then, sitting there.
Maybe that does furnish a 15 vehicle.
16 MR. TURK:
Your Honor, just so the record is clear, I 17 don't think it's fair to say that the current plan has no range 18 at all for protection of beach populations.
19 I think arguments can be made that even the 20 provisions that are there now, with respect to evacuation, 21 provide within the scope of evacuation certain ranges, which is 22 something which may be explored in factual testimony.
23 For instance, the opportunity to evacuate certain 24 portions of the beach areas before other areas are evacuated; 25 the opportunity to not direct people to evacuate, however,
.h Heritage Reporting Corporation (202) 628-4888
s V.
3 DOCKETCO UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION W FB 10 P2 50 OFFICE Gi SECRaapy DOCKf7niG&Stwygj; BRhkCH
)
In the Matteroof
)
)
PUBLIC SERVICE COMPANY OF NEW
)
Docket No.(s) 50-443/444-OL HAMPSHIRE, ET AL,
)
(Seabrook Station, Units 1 and 2)
)
)
f
)
t CERTIFICATE OF SERVICE I, John Traficonte, hereby certify that on February 9, 1988, I made service of the within ATTORNEY GENERAL JAMES M.
SHANNON'S MOTION FOR CONSIDERATION, by mailing copies thereof, postage prepaid, by first class mail to, or by Express Mail to those individuals as j
indicated by *:
Ivan Smith, Chairman Gustave A.
Linenberger, Jr.
Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S.
Nuclear Regulatory U.S. Nuclear Regulatory Comnission Commission East' West ToWets Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 Dr. Jetty Harbour Sherwin E. Turk, Esq.
Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S.
Nucleat Regulatory Office of General Counsel Commission 1717 H Street East West Towers Building Washington, DC 20555 4350 East West Highway 4
Bethesda, MD 20814 I
H. Joseph Flynn, Esq.
Stephen E. Mettill Assistant General Counsel Attorney General t
Office of General Counsel George Dana Bisbee i
Federal Emergency Management Assistant Attorney General Agency Office of the Attorney General 500 C Street, S.W.
25 Capitol Street Washington, DC 20472 Concord, NH 03301 i
I
-m 4.
,t.
- t
- Docketing.and. Service Paul A.
'U.S. Nuclear Regulatory Pt-itzsche, Esq.
Commission Office of the Public Advocate Washington, DC.
20555' State House Station 112
- r
. Augusta, ME 04333 Roberta C. Pevear State Representative Diana'P. Randall Town of Hampton Falls 70 Collins Street Drinkwater Road Seabrook, NH 03874 Hampton Falls, NH' 03844
- Atomic Safety & Licensing Appeal Board Panel Robert A. Backus, Esq.
U.S. Nuclear Regulatory Backus, Meyer &LSolomon Commission 116 Lowell Street P.O. Box 516 Washington, DC 20555 Manchester, NH 03106 Atomic Safety & Licensing Jane Doughty Board Panel Seacoast Anti-Pollution League l
U.S. Nuclear Regulatory 5 Market Street i
Commission Portsmouth, NH 03801 Washington, DC 20555 Paul McEachern, Esq.
J. P. Nadeau
-Matthew T. Brock, Esq.
Shaines & McEachern Board of Selectmen 25 Maplewood Avenue 10 Central Road P.O. Box 360 Rye, NH 03870 Portsmouth, NH 03801 Sandra Gavutis, Chairperson Board of Selectmen Calvin A. Canney RFo 1, Box 1154 City Manager Rte. 107 City Hall 126 Daniel Street E. Kingston, NH 03827 Portsmouth, NH 03801 i
Senator Gordon J. Humphrey U.S. Senate Angelo Machitos, Chairman Board of Selectmen Washington, DC 20510 25 High Road (Attn: Tom Burack)
Newbury, MA 10950 Senator Gordon J.
Humphrey Edward G. Molin 1 Eagle Squate, suite 507 Mayor i
Concord, NH 03301 City Hall (Attn: Hetb Boynton)
Newburyport, MA 01950 Donald E. Chick Town Managet William Lord Town of Exeter Board of Selectmen 10 Front Street Town Hall Friend Street Exeter, NH 03833 Amesbury, MA 01913 i
Y k
n.
j' Brentwood Board of Selectmen Gary W.
Holmes, Esq.
RFD. Dalton Road Holmes & Ellis Brentwood, NH 03833 47 Winnacunnet Road Hampton, NH _03841 Philip Ahrens, Esq.
Diane-Curran, Esq.
Assistant Attorney General Harmon & Weiss Department of the Attorney Suite 430 General 2001 S Street, N.W.
State House Station #6 Washington, DC 20009 Augusta, ME 04333 Thomas G. Dignan, Esq.
Richard A.
Hampe, Esq.
R.K.
Gad III, Esq.
Hampe & McNicholas Ropes & Gray 35 Pleasant Street 225 Franklin Street-Concord, NH 03301 Boston, MA 02110 2
Beverly Hollingworth Edwat A. Thomas 209 Winnacunnet Road Federal Emergency Management Hampton, NH 03842 Agency 442 J.W. McCormack (POCH)
Boston, MA 02109 William Armstrong Michael Santosuosso, Chairman i
Civil Defense Director Board of Selectmen i
Town of Exeter Jewell Street, RFD 2 10 Front Street South Hampton, NH 03827 Exeter, NH 03833 Robert Cattigg, Chairman Anne E. Goodman, Chairperson Board of Selectmen Board of Selectmen Town Office 13-15 Newmarket Road Atlantic Avenue Durham, NH 03824 North Hampton, NH 03862 Allen Lampert Sheldon J. Wolfe, Chairperson Civil Defense Director Atomic Safety and Licensing i
Town of Brentwood Board Panel 20 Franklin Street U.S. Nuclear Regulatory Exeter, NJ 03833 Commission Washington, DC 20555 Dr. Emmeth A. Luebke Charles P. Graham, Esq.
5500 Friendship Boulevard McKay, Murphy & Graham Apartment 1923 Old Post Office Square Chevy Chase, MD 100 Main Street Amesbury, MA 01913 i
l i
w,,
w
.w, r-
L
- Alan S.
Rosenthal, Chairman'
- Thomas S. Moore Atomic Safety & Licensing Atomic Safety & Licensing
-Appeal Board Appeal Board U.S.
Nuclear Regulatory.
U.S. Tuclear Regulatory Commission Commission East West Towers Building East West Towers Building Third Floor Mailroom Third FloorMailroom 4350 East West Highway 4350 East West. Highway Bethesda, MD 20814 Bethesda, MD-20814
- Howard A.'Wilber Atomic Safety &. Licensing Appeal Board U.S.
Nuclear Regulatory Commission East West Towers Building Third Floot Mailtoom 4350 East West Highway Bethesda,-MD 20814 l
e J
Traficonte Sdistant Attorney General
' U'epartment of the Attorney General One Ashburton place Boston, MA 02108 t
(617) 727-4878 Dated:
February 9, 1988