ML20196B059
| ML20196B059 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 02/02/1988 |
| From: | Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#188-5521, CON-#188-5759 OL, NUDOCS 8802080020 | |
| Download: ML20196B059 (15) | |
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00LMETED thNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '88 FEB -4 P3 :52 BEFORE THE ATOMIC SAFETY AND LICENSING Abbf5dkhb $[
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In the Matter of
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Docket Nos. 50-443 OL PUBLIC SERVICE COVPANY OF
)
50-444 OL NEW HAMPSHIRE, ej g.
)
Off-site Emergency Planning
)
(Seabrook Station, Units 1 and 2
)
NRC STAFF'S RESPONSE TO ATTORNEY CENERAL JAMES M. SHANNON'S MOTION FOR DIRECTED CERTIFICATION f
Sherwin E. Turk i
Senior Supervisory Trial Attorney
' February 2,1988 388oR888RBi88lha
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a UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
.iri the Matter of
)
)
Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF
)
50-444 OL NEW HAMPSHIRE, et al.
)
Off-site Emergency Planning
)
(Seabroolc Station, Units 1 and 2
)
NRC STAFF'S RESPONSE TO ATTORNEY GENERAL JAMES M. SHANNON'S MOTION FOR DIRECTED CERTIFICATION Sherwin E. Turk Senior Supervisory Trial Attorney February 2,1988 i
e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF
)
50-444 OL NEW HAMPSHIRE, el al.
)
Off-site Emergency Planning
)
(Seabrook Station, Units 1 and 1)
)
NRC STAFF'S RESPONSE TO ATTORNEY CENERAL JAMES M. SHANNON'S MOTION FOR DIRECTED CERTIFICATION INTP.ODUCTION On January 7,
- 1988, Massachusetts Attorney General James M.
Shannon filed a "Motion for Directed Certification of the November 16 and 18, 1987, Atomic Sa fety and Licensing Board Rulings Concerning the Admissibility of Certain Evidence"
("Motion"),
in which he seeks interlocutory review, pursuant to 10 C.F.R. 6 2.718(l), of certain evidentiary rulings made by the Licensing Board seven weeks earlier in this proceeding.
In support of the Motion, the Massachusetts Attorney General ("Mass AG") asserts that the Licensing Board's rulings, which excluded certain testimony proffered by the Mass AG, O "affects the ongoing proceeding in a pervasive and unusual way and, therefore, merits interlocutory review" (Motion, at 3).
1/
"Commonwealth ot' Massachusetts Corrected Testimony of Steven C.
Sholly on the Technical Basis for the NRC Emergency Planning Rules, Dr. Jan Beyea on Potential Radiation Dosage Consequences of the Accidents That Form the Basis for the NRC Emergency Planning (FOOTNOTE CONTINUED ON NEXT PACE)
For the reasons set forth below, the NRC Staff ("Staff) submits that the Motion falls to satisfy the standards governing interlocutory _ review by directed certification.
Further, even if the standards for directed certification had been met, the Licensing Board's rulings correctly appiled NRC regulations in accordance with established precedent and Commission guidance. Accordingly, the Motion should be denied.
Background
The excluded testimony was filed by the Mass AG on September 14, SI in support of three admitted contentions concerning the
- 1987, protection afforded by the New Hampshire Radiological Emergency Response Plan
("NHRERP")
for seasonal beach populations in New Hampshire. 3/ As reflected therein, the testimony consists of four parts:
(1) a description of "the technical basis for the current NRC emcroency planning rules" (Sholly, Testimony at 12);
(2) an attempt to model "the radiation doses to the population that would follow releases of radioactivity" from the p! ant, based upon "accident sequences that are similar to the NRC's generic versions, but which take into account reactor specific differences at Seabrock" (Beyea, M. at 13-14);
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
- Rules, Dr. Gordon Thompson on Potential Radiation Release Sequences, and Dr. Jennifer Leaning on the Health Effects of Those Doses" ("Testimony"), attached to the Motion as Exhibit 1.
1/
The testimony was refiled in corrected form on November 17, 1987.
3/
The three contentions, all of which were filed by parties to the
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proceeding other than the Mass AG, are NECNP Contention RERP-8, Town of Hampton Contentlen Vill, and SAPL Contention 16.
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(3) an analysis of "the potential for an atmospheric release, similar to that designated as PWR1.... to occur from a steam explosion or high pressure melt ejection event," coupled with an analysis of certain variables helleved to have the potential to affect plume rise, and potential variations in the source code (Thompson, l_d,. at 15); and d
(4) a discussion of the health consequences that might result from radiation doses associated with the foregoing events and conditions postulated in the testimony (Leaning, M. at 15).
On October 1, 1987, the Applicants filed an objection, in the nature of a niotion in ilmine, to the admission into evidence of the proffered testimony. U Written responses to the Applicants' motion were filed by the Mass AG and by New England Coailtion on Nuclear Pollution
("NECNP"), and the matter was argued before the Licensing Board on November 6, 1987 (Tr. 5531-82).
Upon the resumption of hearings on November 16,
- 1987, the Board indicated that it would grant the Applicants' motion (Tr.
5608-09),
finding that the testimony was irrelevant and may not properly be considered under the Commission's emergency planning regulations (Tr. 5608; see grally, Tr. 5594-5616).
On November 18, 1987, the Licensing Board rejected the testimony upon its being proffered, on grounds of relevance (Tr. 5961, 5979), and it 4/
"Applicants' Objection in the Nature of a Motion In Limine to the
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Admission into Evidence of Commonwealth of Massachusetts Testimony of Steven C.
Sholly on Technical Basis for the NRC Emergency Planning
- Rules, Dr.
Jan Beyea on Potential Radiation Dosage Consequences of the Accidents That Form the Basis for the NRC Emergency Planning
- Rules, Dr.
Cordon Thompson on Potential Radiatl6n Release Sequences, and Dr. Jennifer Leaning on the Health Effects of Those Doses," dated October 1,1987.
l;
-4_
6 denied the Mass AG's request that the Board refer its ruling to the Appeal Board under 10 C.F.R. 6 2.730(f) (Tr. 6004-07). 5,,/
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A RGUME_NT
- l. THE MOTION FAILS TO SATISFY THE STANDARDS FOR INTERLOCUTORY REVIEW The standards governing motions for interlocutory review by directed certification are well-estab!!shed, in sum, interlocutory review is disfavored and ordinarily will not be undertaken on a motion for directed certification, absent a showing that the Licensing Board's ruling either (1) threatens an affected party "with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal," or (2) affects "the basic structure of the proceeding in a pervasive or unusual manner." Public Service Co. of indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190,1192 (1977).
An analysis of the Licensing Board's rulings as to which the Mass s
AG complains requires that the motion for directed certification be denied.
Here, the Licensing Board simply ruled, upon consideration of Applicants' motion in limine, that the proffered testimony should be excluded from evidence as irrelevant.
While the Mass AG claims that the Licensing 5/
Evidentiary hearings on other issues were held on November 30-December 4 and December 14-17, 1987, and January 11-13,1988; an additional week of hearings on other issues is scheduled to commence on February 8, 1988.
Hearings on the beach shelter issue have been deferred pending the submittal of additional information by the State of New Hampshire and review thereof by the Federal Emergency Management Agency -(FEMA); those hearings are expected to commence in Aprli 1988.
Board's ruling satisfies the "second prong" of the standard governing directed cer'.lfication, i.e., that it "affects the ongoing proceeding in a pervasive and unusual way" (Votion at 3), no such effect may fairly be
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said to be present.
The Board's ruling merely excluded a piece of testimony proffered with respect to the beach shelter issue -- one of the many issues raised in this proceeding. 6,/
By agreement of the parties, all other issues were litigated before the beach shelter issue and, apart from some rebuttal testimony on ETEs, only the beach shelter issue remains to be heard at this time.
Rather than having a pervasive effect on the proceeding, the Licensing Board's ruling affects only a discrete and severable portion of the case.
Even if the Board's ruling was incorrect -- which it is not -- a reversal of that ruling upon subsequent appeal following the issuance of a Partial Initial Decision (PID) would readily cure any harm caused by the Board's ruling. 7/
In this regard, the Appeal Board has already had occasion to observe that evidentiary rulings "rarely, if ever," should be viewed as having a pervasive or unusual effect on a proceeding sufficient to warrant interlocutory review:
6/
The current litigation addresses the adequacy of offsite emergency planning in New Harrpshire under the NHRERP.
Dozens of contentions have already been litigated in the proceeding, relating to such issues as letters of agreement, personnel resources, transportation of special needr, populations, evacuation time estimates (ETEs), communications / notification, and reception centers.
-7/
In this regard, we note that the Mass AG makes no attempt to claim
-- nor could he claim -- that the Board's ruling threatens him with "immediate and serious irreparable impact which, as a practical
- matter, could not be alleviated by a later appeal,"
thereby warranting interlocutory appeal under the' first prong of the applicable standard for review.
Virtually every adverse evidentiary ruling tends to skew the overall evidentiary presentation in favor of one or another party.
Such rulings, however, may turn out to have little, if any, effect on a ilcensing -
boa rd's ultimate substantive decision.
Perhaps more important, even an erroneous prejudicial ruling of this
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type can be corrected on appeal at the end of the pro-ceeding. Thus, determinations regarding what evidence should be admitted rarely, if ever, have a pervasive or unusual effect on the structure of a proceeding so as _to warrant our interlocutory intercession.
Metropolitan Edison Co.
(Three Mile Island Nuclear Station, Unit 1),
ALAB-791, 20 NRC 1579,1583 (1984) (footnote omitted).
Finally, it must be noted that the Mass AG's own delay of seven weeks in seeking interlocutory review of the Board's ruling -- effectively permitting, without objection, many weeks of evidentiary hearings on other issues to proceed in the interim -- demonstrates that even the Mass AG does not seriously contend that the Board's ruling threatens to have a pervasive effect on the proceeding which requires immediate interlocutory review. 8_/
- 11. THE L'lCENSING BOARD CORRECTLY EXCLUDED THE PROFFERED TESTIMONY.
An evaluation of the nature of the proffered testimony demonstrates that the 1.icensing Board properly excluded it from evidence.
As 6/
The Mass AG's assertion that the Board's ruling will have a pervasive effect upon the not yet scheduled litigation of the
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Massachusetts emergency plan (Motion, at 4-5) is to no avail.
The proffered testimony here essentially addressed accident doses postulated to be received by persons in New Hampshire beach areas, within approximately two miles of the plant.
Even if simliar testimony is proffered during litigation of the Massachusetts plan, concerning dosea postulated to be received by persons in Massa-chusetts beach areas (located further than 2 miles from the plant),
the effect of any future ruling excluding such testimony from cvidence could readily be cured upon appeal from the resulting PID.
described supra at 2-3, the proffered testimony sought to introduce into litigation a quantitative analysis of the probablittles and consequences of various postulated accident sequences and conditions.
The acknowledged purpose of the testimony was to demonstrate that the level of protection afforded by the NHRERP to seasonal beach populations in the vicinity of the plant is inadequate (Motion, at 10-12) -- i.e., that "too many people would be put at too great a risk by operation of the Seabrook plant" (M.
at 16).
There is a fundamental flaw in the Mass AG's approach which compels the exclusion of the proffered testimony from oldence:
The emergency planning regulations, as establishec by precedent and Commission guidance, do not contemplate consideration of such matters in evaluating the adequacy of an offsite emergency plan.
As the Mass AG recognizes (p. at 14, 16-18), the emergency planning regulations do not establish any minimum dose savings, quantitative level of protection, or acceptable level of risk to be afforded by an emergency plan.
For this reason, even if the proffered testimony had been admitted, it would prove nothing -- i.e., it would be irrelevant -- in the absence of a rule estab-lishing the appropriate dose consequence or risk standard to be met. EI Further, even if one were to be persuaded that such a standtrd should be delineated, only the Commission (and not the Licensing B oa rd, as urged by the Mass AG (ld.)), has the authority to establish such a rule.
9/
Rule 401 of the Feosral Rules of Evidence defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
The current emergency planning regulations, set forth at to C.F.R.
6 50.47 and Part 50, Appendix E, present certain requirements which an offsite emergency plan must satisfy before an operating license may be granted.
Central to these provisions is the requirement of a finding of "reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency."
10 C.F.R. 6 50.47(a).
Nowhere, however, do those regulations establish a quantitative dose or risk standard to be met by an offsites plan -- and the Commission has clearly indicated that no such standard has been established:
Our emergency planning regulations.
differ in character from most of our siting and engineering design requirements which are directed at achieving or maintaining a minimum level of public safety protection.
e 10 C.F.R.
I 100,11.
Our emergency
- See, g,
planning requirements do not require that an adequate plan achieve a preset minimum radiation dose saving or a minimum evacuation time for the plume exposure pathway emergency planning zone in the event of a serious accident.
Rather, they attempt to achieve reasonable and feasible dose reductions under the circumstances; what may be reasonable or feasible for one plant site may not be for another.
Long Island Lighting Co.
(Shoreham Nuclear Power Station, linit 1),
CLl-86-13, 24 NRC 22, 30 (1986).
The Commission recently reiterated this view, upon its adoption of an amended rule providing criteria for use in the evaluation of offiste emergency plans where state and/or local governments decline to participate in emergency planning b There, the Commission recited 10/ Statement of Consideration, "Evaluation of the Adequac" of Off-Site Emergency Planning for Nuclear Power Plants at the Operating License Rev!ew Stage Where State and/or Local Governments Decline to Participate in Off-Site Emergency Planning," 52 Fed. Reg. 42078 (Nov. 3,1987).
_ _.m
_.g with approval its decision in Shoreham, supra, and further clarlfled that offsite emergency plans are not to be evaluated Ir terms of the level of dose protection they may afford:
'1 hat decision [CLI-06-13] also included language which could be interpreted as envisioning that the NRC must estimate the radiological dose reductions whh a utility plan would achieve, compar.a them with the radiological dose reductions which would be achieved if there were a
state or local plan with full state and local participation in emergency
- planning, and permit licensing only if the dose reductions are "generally comparable."
Such en Interpretation would be contrary to NRC practice, under which emergency plans are evaluated for adequacy without reference to numerical dose reductions which might be accomplished, and without comparing them to other emergency plans, real or hypothetical.
The final rule makes clear that every emergency plan is to be evaluated for adequacy on its own merits, without reference to the specific dose reductions which might be accomplished under plan or to the capabilities of any other plan.
It further makes clear that a finding of adequacy for any plan Is to be considered generally comparable to a
finding of adequacy for any other plan.
Id., 52 Fed. Reg. at 42,084-085. N I 11/ C f. Pro 3osed Rule, "Licensing of Nuclear Pom e Plants Where State and/or
.ocal Governments Decline to Cooperate la Offsite Emergency Planning," 52 Fed. Reg. 6980, 6982 (March 6,
The existing emergency planning regulatios.s [ sic] does not require that plans achieve any pre-established minimum dose savings In the event of an accident.
For example, approved emergency plans with full State and local cooperation have highly variable evacuation time estimates ranging from several hours to over ten hours and the projected dose savings for such plans would vary widely.
Thus the regulation is inherently variable In effect and there are no bright-line mandatory minimum projected dose savings or evacuation time limites [ sic] which could be viewed as performance standards for emergency plans in the existing regulation.
Moreover, the dose savings achieved by l
(FOOTNOTE CONTINUED ON NEXT PACE) i I
l l.
A reading of these pronouncements by the Commission compels the conclusion that the Licensing Board properly rejected the proffered testimony.
In essence, the standard to be applied by a Licensing Board in ~ evaluating the adequacy of an offsite emergency plan is whether it provides "reasonable and feasible dose reduction under the circum-stances. "
Shoreham, supra, 24 NRC at 30.
As the Commiss!on further noted, "what may be reasonable or feasible for one plant site may not be for another."
id.
The testimony excluded here, addressing postulated accident dose consequences and the level of risk believed to exist for seasonal beach populations in the Seabrook area, was simply irrelevant to the standard that is to be applied by the Licensing Board.
CONCLUSION For the reasons set forth above, the Mass AG's motion for directed certification should be denied.
Respectfully submitted, bt<Nt
{
Sherwin E. Turk Senior Supervisory Trial Attorney Dated at Rockville, MD this 2nd day of February,1988 (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) implementation of on emergency plan under adverse conditions, le.., during or following heavy snow, could be substantTaTy less than under perfect conditions.
This variability is consistent with a concept or approach to emergency planning and preparedness that is flexible rather then rigid.
s DOCKETED thMRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'88 FEB -4 P 3 :52 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD.;
80CNfli I 504VICI-BRANCb in the Matter of
)
)
Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF
)
50-444 OL NEW HAMPSHIRE, g al.
)
O ff-site Emergency Planning
)
(Seabrook Station, Units 1 and ?
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO ATTORNEY GENERAL JAMES M.
SHANNON'S MOTION FOR DIRECTED CERTIFICATION" in the above-captioned proceeding have been served on the following by deposit in the United States mall, first class or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mall system, this 2nd day of February,1988.
Ivan W. Smith, Chairman
- Atomic Safety and Licensing Administrative Judge Board
- Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Gustave A. Linenberger, Jr.'
Docketing and Service Section*
Administrative Judge Office of the Secretary Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Dr. Jerry Harbour
- Thomas G. Dignan, Jr., Esq.
Administrative Judge Robert K. Cad, lil, Esq.
Atomic Safety & Licensing Board Ropes & Gray U.S. Nuclear Regulatory Commission 225 Franklin Street Washington, DC 20555 Boston, MA 02110 H.J. Flynn, Esq.
Atomic Safety and Licensing Assistant General Counsel Appeal Panel
- Federal Emergency Management Agency U.S. Nuclear Regulatory Commission 500 C Street, SW Washington, DC 20555 Washington, DC 20472
Philip Ahren, Esq.
Calvin A. Canney Assistant Attorney General City Hall Office of the Attorney General 126 Daniel Street State House Station Portsmouth, NH 03801 Augusta, ME O!!333 Mr. Angle Machiros, Chairman Carol S. Sneider, Esq.
Board of Selectmen Assistant Attorney General 25 High Road Office of the Attorney General Newbury, MA 09150 One Ashburton Place,19th Floor Boston, MA 02108 George Dana Bisbee, Esq.
Allen Lampert Assistant Attorney General Civil Defense Director Office of the Attorney General Town of Brentwood 25 Capitol Street 20 Franklin Concord, NH 03301 Exeter, NH 03833 Ellyn R. Weiss, Esq.
Wililam Armstrong Diane Curran, Esq.
Civil Defense Director Harmon & Weiss Town oF Exeter 2001 S Street, NW 10 Frr.rt Street Suite 430 Exeter, NH 03833 Washington, DC 20009 Robert A. Backus, Esq.
Gary W. Holmes, Esq.
Backus, Meyer & Solomon Holmes & Ellis 116 Lowell Street 47 Winnacunnet Road Manchester, NH 03106 Hampton, NH 03842 Paul McEachern, Esq.
J. P. Nadeau Matthew T. Brock, Esq.
Board of Selectmen Shaines & McEachern 10 Central Street 25 Maplewood Avenue Rye, NH 03870 P.O. Box 360 Portsmouth, NH 03801 Judith H. Mizner, Esq.
Charles P. Graham, Esq.
Silvergiste, Gertner, Baker, McKay, Murphy & Graham Fine 6 Good 100 Main Street 88 Board Street Amesbury, MA 01913 Boston, MA 02110 Sandra Gavutis, Chairman Robert Carrigg, Chairman Board of Selectmen Board of Selectmen PFD #1, Box 1154 Town Office Kensington, NH 03827 Atlantic Avenue North Hampton, NH 03870 e
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- - William S. Lord Peter J. Matthews, Mayor Board of Selectmen City Hall Town Hall - Friend Street Newburyport, MN 09150 Amesbury, MA 01913 Mrs'. Anne E. Goodman, Chairman Michael Santosuosso, Chairman Board of Selectmen Board of Selectmen 13-15 Newmarket Road South Hampton, NH 03827 Durham, NH 03824 Hon. Gordon J. Humphrey United States Senate 531 Hart Senate Office Building Washington, DC 20510 kb/W L., N Sherwin E. Turk Senior Supervisory Trial Attorney i
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