ML20236C353
| ML20236C353 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/14/1987 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#487-4641 OL, NUDOCS 8710270110 | |
| Download: ML20236C353 (11) | |
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EO October 14, 1987 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OF 00 nf fgf UC'Y45Y 1
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before the I
ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of.
)
)
PUBLIC SERVICE COMPANY
)
Docket Nos. 50-443-OL OF NEW HAMPSHIRE, EI AL.
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50-444-OL
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(Seabrook Station, Units 1
)
(Offsite Emergency i
and 2)
)
Planning Issues)
)
APPLICANTS' OBJECTION IN THE NATURE OF A MOTION IN LIMINE TO THE ADMISSION INTO EVIDENCE OF CERTAIN PORTIONS OF FEMA'S l
PREFILED TESTIMONY The Applicants object to the admission into evidence of the following portions of the Prefiled Testimony of FEMA: Pages (50),
(60) and (91) and Exhibit C (the Testimony) for the (59) reasons set forth below.
l DESCRIPTION OF THE TESTIMONY Pages (59) and (60) of the Testimony set forth FEMA's position on the so-called transient beach population issue.
FEMA itself states that the agency " considers its statement about the transient beach population largely to involve matters of policy."
FEMA Dir., Post Tr. 3088 at (3).
The essential thrust of this testimony is that under allegedly applicable regulations and guidance it must be concluded, based upon the facts of the Seabrook situation having to do with the transient beach population, that the NHRERP is inadequate as a matter of law.
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l Id. at (60).
Pages (50) and (91) of the Testimony simply, reference-pages (59) and (60).
Exhibit C to the FEMA profiled testimony is a letter from the Assistant General Counsel of FEMA j
l to counsel for the Applicants commenting upon, and arguing with, l
l a position taken by the Applicants in a brief to the Nuclear Regulatory Commission.
In essence it is argued in Exhibit C that i
appropriate guidance documents, as interpreted by FEMA, require the position FEMA has taken on the beach transient population l
issue.
The FEMA-witness has acknowledged that at least one of the major underlying bases of the FEMA position on the beach population or sheltering issue "is an interpretation which is being given to portions of NUREG-0654."
Ir. 3106.
Subsequently it was further characterized as an interpretation of NUREG-0654 I
as it relates to the facts at Seabrook.
II. 3109.
The position was reached in consultation with FEMA counsel, II. 3110, but
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-concurrence in the position was not received from NRC counsel, Id.
The FEMA witness further testified that the original position of the Regional Assistance Committee (RAC) of FEMA was that the NHRERP was satisfactory with respect to the beach population (except for "readily solvable" problems).
II. 3116-17.
That position was changed when certain information, previously supplied by NRC, II. 3120, was withdrawn, II. 3114, 3117.
The new position, once reached, was presented to the RAC l
where the NRC representatives expressed disagreement with the 2
l s
position, Tr. 3124, and a number of other members "had a lot of questions in their mind that they felt needed to be resolved before they would endorse that position." 'Ir. 3125.
The NRC member of the RAC took the view that the FEMA position included or constituted a wrongful interpretation of NUREG-0654.
II.
3126.
In addition, the FEMA witness testified that the information withdrawn from FEMA by the NRC was not withdrawn because it was erroneous in fact, Tr. 3162, 3167-68, and that had it not been l
withdrawn, FEMA's position would have been that initially adopted j
by the RAC rather than the one expressed in the prefiled testimony.
Ir. 3170.
And, finally, the FEMA witness described the effect of the withdrawal of the information as having the following impact:
"Well, in essence, it -- as we understand it, it required FEMA to develop a position using the standard parameters for emergency planning which are set forth in NUREG-0654,
)
FEMA Rep.
1, Revision 1, the joint guidance
- j document issued by FEMA and the NRC, and not to give special consideration, to, in essence, disregard the special features of the containment at Seabrook.
"And using that information in NUREG-0654 or FEMA Rep 1, using that as a base, together with the facts of the situation at Seabrook, led to the development of the FEMA posture."
II. 3160-61.
ARGUMENT Turning first to Exhibit C to the FEMA Testimony, it is j
clear from its face it is nothing but a legal argument, indeed a legal argument directly responding to a legal argument made to i
3 i___________.____
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4 the commission by the Applicants.
As such it has no place in the evidentiary record of the proceeding.
l Turning now to that portion of the Testimony which states the FEMA position on the beach sheltering issue.
In that portion of the testimony, FEMA forthrightly states that the " facts relevant to understanding this issue," FEMA Dir., Post II. 3088 at (59), are the followingt (1) NUREG-0654 requires FEMA to assume, inter alia, an accident at Seabrook which results in a release within one-half hour of the onset of accident conditions and transportation of the plume to the beaches in one-half hour
- after the release, FEMA Dir., Post II. 3088 at (60) para. (1) ;
(2) that there would be thousands of people on those beaches on peak summer days with no possibility of being sheltered, 14 para. (2);l and (3) the Evacuation Time Estimates (ETEs) for Seabrook reveal.that on a peak day it will take three and one-half hours to clear the beaches and up to five hours and fifty minutes to evacuate all the population on the beaches from the EPZ, id. para (3).
From these premises FEMA goes on to state:
"Therefore, using the standard guidance for the initiation and duration of radiological releases, and the current New Hampshire RERP including ETE, it appears that thousands of people could be unable to leave during an accident at Seabrook involving a major release of radioactivity without adequate i
shelter for as much as the entire duration of that release."
Id.
j i
The entire line of testimony is based upon an underlying 1The FEMA position of course was reached prior to the time the prefiled Applicants' testimony regarding the availability of shelter was available to FEMA for review.
1 4
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4 legal argument which is its major, and indeed critical, premise.
That legal argument is that NUREG-0654 and the applicable NRC regulations, 10 CFR 550.47; 10 CFR 50 App.
E, are to be read as l
l requiring a demonstration that in the case of all accidents, or any particular accident, there is a guarantee that radiological injury will be reduced to a certain set acceptable amount.
Without this legal premise, the Testimony cannot stand.
The legal premise is wholly erroneous.
On three separate occasions the Commission has made perfectly clear that the regulations require an applicant to demonstrate that the emergency plans will result in dose savings which are reasonable and achievable, not that there will be no injury in all possible situations or that any certain minimum dose savings will be achieved.
"It was never the intent of the regulation to require directly or indirectly that state and local governments adopt extraordinary measures, such as construction of additional hospitals or recruitment of substantial additional medical personnel, just to deal with nuclear plant accidents.
The emphasis is on crudent risk reduction measures.
The regulation does not require dedication of resources to handle every possible accident that can be imagined.
The concept of the regulation is that there should be core planning with sufficient planning flexibility to develop a reasonable ad hos response to those very low probability accidents which could affect the general public."
Southern California Edison Comoany (San Onofre Nuclear Generating Station, Units 2 and 3), CLI 10, 17 NRC 528, 533 (1983).
"Our emergency planning requirements do not require that an adequate plan achieve a 5
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preset minimum radiation dose saving or a o
' minimum evacuation time-for the plume l
exposure pathway emergency planning zone in the event of a-serious _ accident.
.Rather, they attempt to achieve reasqnable and 1
feasible dose reduction under the circumstances; what may be reanonable or l
L feasible for one olant site may not be for another."
Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC 22, 30 (1986) (emphasis supplied).
a "The existing emergency planning regulation
~
i does not require that plans achieve any preestablished minimum dose savings in the l
event of an accident.
For example, approved emergency' plans with full. State and local governmental 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 l;
inherently variable in effect and there are no bright-line, mandatory minimum projected dose savings or evacuation. time limits which could.be viewed as performance standards for emergency plans in the existing regulation."
Notice of Rulemaking Licensing of Nuclear Power Plants Where State and/or Local Governments Decline to Cooperate in Offsite i
Emergency Planning, 52 Fed. Reg 6980, 6982 j
(March 6, 1987).
11 Likewise, this Board, over one year ago stated "As the Staff maintained, particular postulated accidents are inappropriate for litigation under our regulations.
We quote, with approval, the Staff's statement in its response of March 14, 1986 that 'the basic goal of emergency planning is achievement of maximum dose savinas in a radiological emeroency.
Towards this end the Commission requires that reasonable estimates be provided as to the time in which an evacuation may be accomplished under I
different conditions, for use by responsible authorities in formulating their protective action recommendations.
There is no l
regulatory basis, however, to support the 6
l l
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";p Massachusetts. Attorney General's apparent belief-that protective actions must be developed which assure that any.particular
- level'of. radiological. dose' consequences do not occur in the event of an accident.'
H Staff Response,-March 14, 1986, at 3
.4; citing Cincinnati Gas & Electric Co. (William Zimmer Nuclear Power Station, Unit No. 1),
ALAB-727, 17 NRC 760,.770 (1983)." MEMORANDUM AND ORDER (Ruling on Contentions and Establishing.Date and Location for Hearing)
(Apr. 29, 1986) at 43 - 45.
i The-testimony is nevertheless premised upon.a different I
reading of the requirements of NPC Regulations and Guidance.
It 1
is premised upon a-legal argument that NUREG-0654 and the j
l applicable. regulations should be read as requiring the refusal of l
an operating license to a plant located upon a site which has. met all the siting criteria set forth in 10 CFR 100 simply because in a certain hypothetical accident, there will be radiological 1
injury to some members of the public given the. facts extant at the site.
In short, the Testimony which, as noted-earlier, admittedly is considered by FEMA "largely to involve matters of I
policy" is in reality premised on a wholly erroneous legal position which is at total variance with the precedents of this agency.
As such, to the extent the testimony recites facts, they are irrelevant to any issue properly before the Board; to the extent it constitutes legal argument it is a matter for briefing, 3
j not inclusion in the evidentiary record.
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l CONCLUSION The objection should be sustained.
ExPibit C should be i
1 excluded as being pure legal argument.
The remaining portions of the. Testimony should be excluded as irrelevant or as being. legal I
1 l
argument.
l gg i
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/ g[Y,=Q, j Thdmas G.
D 6an, Jr.
j George H.n ewald Kathryn A. Selleck
]
Ropes & Gray 1
225 Franklin Street
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Boston, MA 02110 l
(617) 423-6100 1
Counsel for Applicants l
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I a-W m 19 All:28 CERTIFICATE OF SERVICE l
(FE y
I, Thomas G.
Dignan, Jr., one of the attBE B
Applicants herein, hereby certify that on October 987, I made service of the within document by depositing copies thereof with Federal Express, prepaid, for delivery to (or, where indicated, by depositing in the United States mail, first class postage paid, addressed to):
Administrative Judge Ivan W. Smith Robert Carrigg, Chairman Chairman, Atomic Safety and Board of Selectmon I
Licensing Board Panel Town Office U.S.
Nuclear Regulatory Atlantic Avenue 1
f Commission North Hampton, NH 03862 j
East West Towers Building
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4350 East West Highway Bethesda, MD 20814 Judge Gustave'A. Linenberger Diane Curran, Esquire Atomic Safety and Licensing Andrea C.
Ferster, Esquire Board Panel Harmon & Weiss U.S.
Nuclear Regulatory Suite 430 Commission 2001 S Street, N.W.
East West Towers Building Washington, DC 20009 4350 East West Highway Bethesda, MD 20814 Dr. Jerry Harbour Stephen E. Merrill Atomic Safety and Licensing Attorney General Board Panel George Dana Bisbee U.S.
Nuclear Regulatory Assistant Attorney General Commission Office of the Attorney General East West Towers Building 25 Capitol Street 4350 East West Highway Concord, NH 03301-6397
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Bethesda, MD 20814 Atomic Safety and Licensing Sherwin E. Turk, Esquire Board Panel Office of the Executive Legal U.S.
Nuclear Regulatory Director Commission U.S. Nuclear Regulatory East West Towers Building Commission 4350 East West Highway Tenth Floor Bethesda, MD 20814 7735 Old Georgetown Road Bethesda, MD 20814
- Atomic Safety and Licensing Robert'A. Backus, Esquire Appeal Board Panel 116 Lowell Street U.S. Nuclear Regulatory P.
O.
Box 516 l
Commission Manchester, NH 03105 Washington, DC 20555 l
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t___..
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Philip Ahrens, Esquire Mr. J.
P.
Nadeau Assistant Attorney General Selectmen's office Department of the Attorney 10 Central Road General Rye, NH- 03870 Augusta, ME 04333 Paul McEachern, Esquire Carol S.
Sneider, Esquire Matthew T.
Brock, Esquire Assistant. Attorney General Shaines & McEachern Department of the Attorney i
25 Maplewood Avenue General _
i P.O.
Box 360 One Ashburton Place, 19th Fir.
Portsmouth, NH 03801 Boston, MA' 02108 i
Mrs. Sandra Gavutis Mr. Calvin A.
Canney Chairman, Board of-Selectmen City Manager
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RFD 1 - Box 1154 City Hall s
Route 107-126 Daniel Street i
Kensington, NH 03827 Portsmouch, NH 03801 1
- Senator-,Gordon J. Humphrey Mr. Angie Machiros U.S.
Senate Chairman of the Board of Washington, DC 20510 Selectmen (Attn:
Tom Burack)
Town of Newbury Newbury, MA 01950 s
- Senator Gordon J. Humphrey Mr. Peter J.
Matthews One Eagle Square, Suite 507 Mayor Concord, NH 03301 City Hall (Attn:
Herb Boynton)
Newburyport, MA 01950
.Mr. Thomas F.
Powers, III Mr. William S.
Lord Town Manager Board of Selectmen Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 i
Exeter, NH 03833 H. Joseph Flynn, Esquire Brentwood Board of Selectmen Office of General Counsel RFD Dalton Roadd
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Federal Emergency Management Brentwood, NH 03833 Agency 500 C Street, S.W.
Washington, DC 20472 l
Gary W.
Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street 1
Hampton, NH 03841 Concord, NH 03301
-2 1
r-4-
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.Mr. Ed Thomas Judith.H.'Mizner, Esquire FEMA, Region I.
Silverglate, Gertner, Baker, 442 John W. McCormack Post Fine, Good & Mizner Office and Court House
- 88. Broad Street Post Office Square Boston, MA 02110 Boston, MA 02109 Charles P.
Graham, Esquire McKay, Murphy and Graham 100 Main Street Amesbury, MA 01913 i
/YfY s'.
Th6 mas'G.-
'an, Jr.
(*= Ordinary U.S. First. Class Mail) j i
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