ML20236H366
| ML20236H366 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/26/1987 |
| From: | Sneider C MASSACHUSETTS, COMMONWEALTH OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#487-4715 OL, NUDOCS 8711040089 | |
| Download: ML20236H366 (14) | |
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's e/ 7/JT DOCMETED USNRC UNITED STATES OF AMERICA
'87 OCT 30 20:23 NUCLEAR REGULATORY COMMISSION Before Administrative Judges:
[0 t
Ivan W.
Smith, Chairperson ORAhCH l
Gustave A.
Linenberger, Jr.
Dr. Jerry Harbour 1
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4
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In the Matter of
)
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PUBLIC SERVICE COMPANY OF NEN
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Docket Nos.
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50-443-444-OL l
(Seabrook Station, Units 1 and 2)
)
(Off-site EP)
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(October 26, 1987
)
AfTORNEY GENERAL JAMES M.
SHANNON'S RESPONSE TO APPLICANTS' OBJECTION IN THE NATURE OF A MOTION IN LIMINE TO THE ADMISSION INTO EVIDENCE OF CERTAIN PORTIONS OF FEMA'S DIRECT TESTIMONY NO. 6 ON SHELTERING CONTENTIONS Applicants have objected in the nature of a motion _in_
limine, dated October 14, 1987, to the admission into evidence of the Federal Emergency Management Agency's [ FEMA] entire pre-filed testimony on sheltering contentions.
As grounds for the objection, Applicants argue that FEMA's testimony is
" premised on a wholly erroneous legal pocition," Applicants' l
l Objection at p. 7, and therefore " recites facts (that] are irrelevant to any issue properly before the Board,"
id., or otherwise " constitutes legal argument that is a matter for briefing."
Id.
Applicants' objection should be overruled and I
B711040089 871026 I
gDR ADOCK 05000443 b } j PDR i
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its motion denied because:
(1) where FEMA is the agency charged with lead responsibility for assessing the adequacy of off-site radiological emergency response plans and is required to testify at NRC licensing proceedings wherein its findings constitute a " rebuttable presumption", its testimony may not be 1
excluded; (2) FEMA's testimony that the NHRSRP does not provide adequate protection for the summer beach population is based on j
i facts properly before the Board and directly relevant to the j
contentions admitted for hearing; (3) to the extent FEMA's I
ultimate finding of inadequacy is based on the agency's interpretation of " adequacy" and the requirements of NUREG-0654, FEMA-REP-1, that is not only permissible but required; and ( t. ) Applicants' view, based on its own legal analysis, that FEMA's testimony is based on an " erroneous legal position" is not a proper ground for excluding testimony.
A.
FEMA IS REQUIRED TO PROVIDE TESTIMONY AS TO ITS FINDINGS AT NRC LICENSING PROCEEDINGS.
Pursuant to Presidential Order of December 7, 1979, FEMA is the agency charged with the lead responsibility for assessing the adequacy of off-site radiological emergency resoonse plans.
Accordingly, 10 C.F.R.
S 50.47(a)(2) provides that with respect to emergency planning the NRC must " base its findings on a review of the Federal Emergency Management Agency { FEMA) findings and determinations as to whether state and local emergency plans are adequate and whether there is reasonable t
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assurance that they can be implemented, and on the NRC assessment as to whether the Applicants' onsite plans are I
adequate and whether there is reasonable assurance that they can be implemented."
10 CFR 550.47(a)(2) (emphasis added).
The " Memorandum of Understanding Between NRC and FEMA Relating to Radiological Emergency Planning and Preparedness,"
50 Fed. Reg. 15485, April 18, 1985, ("MOU"], specifically delineates FEMA's role in NRC licensing proceedings.
Under the MOU, FEMA is required to provide " findings and determinations" on the current status of off-site emergency planning in NRC licensing proceedings and to provide expert witnesses to l
support its findings.
Id at 15487, III.A.
FEMA is required, pursuant to its own regulations, to judge the adequacy of l
off-site plans against the appropriate planning standards of l
10 C.F.R.
S50.47(b) and the joint NRC and FEMA document, NUREG-0654, FEMA-REP-1, Rev.
1.
44 C.F.R. S350.5(a).
These findings are then accorded the weight of a rebuttable presumption in NRC licensing proceedings.
10 C.F.R.
S50.47 l
(a)(2).
Given these requirements that FEMA testify with respect to its findings in NRC licensing proceedings, and that the NRC i
must base its own findings on a review of FEMA findings on the adequacy of off-site plans, an extraordinarily heavy burden l
must be placed on Applicants to demonstrate that FEMA's l
l testimony may ever be properly excluded.
Yet, as set forth l
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l more fully below, Applicants have failed to demonstrate any basis that would justify excluding FEMA's testimony.
L B.
FEMA'S TESTIMONY IS BASED ON FACTS PROPERLY BEFORE THE BOARD AND DIRECTLY RELEVANT TO THE CONTENTIONS ADMITTED FOR HEARING.
Applicants argue that PEMA's testimony should be excluded because it is primarily " legal argument" and that any facts it cites are " irrelevant to issues properly before the Board."
Applicants' Objection at 7.
Applicants' argument, bordering on the frivolous, utterly fails on several counts, the first being that FEMA's testimony is primarily factual and that such facts as it recites are indeed relevant to the contentions this Board has admitted for hearing.
FEMA testifies essentially to the following facts as basis I
for its conclusions on the " sheltering contentions":
(a)
NUREG-0654, FEMA-Rep 1 provides that "the range of times between the onset of accident conditions and the start of a major release is of the order of one-half hour to several hours" with a major portion of that release occurring in a time frame as short as "one-half hour to one day after the release begins," and that the travel time from release to exposure ranges from "one-half hour to two hours at five miles and one l
hour to four hours at ten miles;" (b) on peak. summer days there i
are thousands of people on beaches in the EPZ beginning 1.7
(
miles from the plant; that the NHRERP does not consider sheltering of " day trippers" because "it is not possible to find reasonably accessible. shelter for them,1! and there are a number of other people on the beaches who would have access only to unwinterized cottages and motel rooms in which the protection afforded would'" definitely be less than that afforded by a normal wood-frame houses".and (c) evacuation time estimates for the Seabrook EPZ submitted by the State of New Hampshire indicates that it will take up~to five hours and i
fifty minutes to evacuate all the population on the beaches from the EPZ, and in some situations up to seven hours and fifty minutes.
FEMA Direct Testimony at global'60.
1 PEMA logically relies on these facts for its ultimate i
factual conclusion which states-
"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 cou:d be unable to leave during an accident at Seabrook involving a.
major release of radioactivity without adequate shelter for as much as the entire duration of that release."
Id.
There can be no question that this portion of FEMA's testimony relies l
1/
See also Cross-Examination of FEMA witness Edward Thomas, at TR. 4155-4156, wherein he testifies without objection:
there is no specific plan to..have personnel send people to shelters at any phase.
Nor, are there shelters, oer se, identified in the Plan."
2/
Significantly, testimony submitted by both the_ Applicants and Commonwealth of Massachusetts indicates that the ETEs would actually be longer than those provided in the NHRERP.
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=,
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i purely on facts and that.such facts are directly relevant to the contentions properly admitted in this proceeding.
The basis for Town of Hampton contention VIII, for example,
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.provides in part:
The Hampton RERP acknowledges that....
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" sheltering may not be considered as'a i
protective action on Hampton Beach during the summer."
The plan thereby fails to provide.
reasonable assurance that adequate and.immediate
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protection measures will be available to'the i
thousands of beachgoers in an emergency.
Under its RERP, therefore, the Town is required to 1
rely on evacuation as the sole-means of avoiding j
radiological exposure to large segments of the population.
Since a ' major portion' of' radioactive material may be released within one
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hour of the initiating event, NUREG pg. 17, and i
present estimates indicate evacuation could take
{
up to seven and one-half hours, RERP measures for evacuation are a wholly inadequate I
protective response to meet an emergency.
FEMA's factual testimony thus directly parallels the basis of I
this Town of Hampton sheltering contention.
(See also SAPL Contention 16).
Applicants may not now claim that facts specifically supporting this basis of a contention that was properly admitted for hearing are irrelevant.
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C.
FEMA HAS PROPERLY ENGAGED IN INTERPRETATION ~OF-OFF-SITE j
PLANNING STANDARDS IN MAKING ITS FINDINGS ON THE ADEQUACY j
OF THE NHRERP.
]
1 The only portion of FEMA's testimony that Applicants can possibly cite as " legal argument" is PEMA's final conclusion that PEMA is "not able to conclude that the New Hampshire State i
1 and local plans to protect the public in the event of an i j
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I accident at the Seabrook Nuclear Power Plant are adequate to meet our regulatory standard that such plans adequately protect the public health and safety by providing reasonable assurance that appropriate protective measures can be taken off-site in the event of a radiological emergency (see, 44 CFR 350.5(b))."
FEMA's Testimony at global 60.
Although Applicants may disagree with FEMA's ultimate conclusion, that is no basis for striking the agency's testimony.1!
This conclusion with respect to the adequacy of l
the off-site plans is precisely the type of finding that PEMA is required to testify to at NRC proceedings.
See 10 CFR i
S50.47(a)(2)
The regulatory standard against which FEMA is required to judge off-site plans is not a precise one.
Any determination of compliance with that standard will necessarily involve the agency's own interpretation of the meaning to be given such phrases as " adequate protection," " reasonable assurance," and " appropriate protective measures."
Indeed in this case where FEMA has found as a matter of fact, that " thousands of people could be unable to leave during an accident at Seabrook involving a major release of radioactivity without adequate shelter for as much as the l
3/
Indeed, a review of FEMA's entire testimony indicates that i
FEMA approached and applied its expertise to its analysis of the sheltering contentions in essentially the same manner that it approached and analyzed any of the other contentions on which it has submitted testimony -- testimony that, for the most part, has already been admitted and without any objection.
1 entire duration of that release," it cannot be said that PEMA has done anything more in reaching its ultimate finding than attribute to the term " adequate protection" the plain meaning of those words.
It is the Applicants who have delved into contortive legal analysis in their effort to demonstrate that FEMA's interpretation is based on " erroneous legal argument."A!
D.
APPLICANTS' OR EVEN NRC'S, DISAGREEMENT WITH FEMA'S INTERPRETATION OF THE REGULATORY STANDARD IS NOT A PROPER BASIS FOR EXCLUDING TESTIMONY.
The Memorandum of Understanding between FEMA and NRC makes clear that FEMA is the agency which has the lead not only in assessing the adequacy of off-site plans, and for making findings and determinations thereon, but for developing guidance on off-site planning and for adopting and interpreting off-site planning criteria.
45 Fed. Reg. at 15486-15488.
The fact that one person on the RAC from the NRC may have disagreed with FEMA'S interpretation of the planning standards, therefore, can have no relevance to whether FEMA's testimony is 4/
Interestingly, Applicants continue to mischaracterize FEMA's position as one requiring a " guarantee" that radiological injury will "in the case of all accidents be reduced to a certain set acceptable amount."
Applicants' objection at 5 (emphasis added).
Yet, Applicants at the same time object to the admission of Exhibit C to FEMA's testimony which was drafted just for this very purpose of clarifying the basis for its position and specifically to point out that it was not requiring a " guarantee."
See Exhibit C, at p.
- 2.
N admissible.5/
While the MOU obligates the two' agencies.to-work together to achieve uniform interpretation of planning criteria, it provides that ultimately FEMA will have the lead responsibility with respect to the off-site planning criteria.
45 Fed. Reg at 15488.
Certainly, FEMA must be entitled to the same deference in its interpretation of off-site planning standards that any other agency would be due in interpreting its regulations.
Finally, it is clear that Applicants' disagreement with FEMA'S legal position cannot be a proper basis for excluding testimony.
Rather, Applicants will have full opportunity _to argue against FEMA'S interpretation of the planning standard and the relevance of any portion of its testimony when it files its proposed findings of fact and conclusions of law.
See 10 C.F.R.
S2.754.
Similarly, Applicants had full opportunity l
earlier in this proceeding to argue against the issues raised by these sheltering contentions on which FEMA has taken a position by means of summary disposition, see 10 C.F.R. 52.749, and by answer to those contentions at the time they were filed, see 10 C.F.R. S2.714(c).
What they may not do is to move to l
l 5/
Indeed, virtually all of the " facts" cited in Applicants'
" Description of the Testimony" are not only argumentative,'but l
irrelevant.
The "voir dire" of FEMA's witness plainly demonstrates that_ FEMA arrived at its view on sheltering by l
following its regular (RAC) procedures.
The only questionable i
action appears to be that of the NRC staff which just advanced.
and then withdrew a position about the containment which it apparently recognized was legally, if not factually, untenable.
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exclude the testimony of the agency upon whose findings this Board must rely for its own decision of adequacy, 10 C.F.R.
S50.47(2).
CONCLUSION For all the reasons set forth above, Attorney General Shannon opposes the Applicants' objection to the admission of FEMA's testimony on sheltering contentions.
The motion should be denied and the testimony admitted in its entirety.
Respectfully submitted, 1
JAMES M.
SHANNON l
ATTORNEY GENERAL l
ay:
bd $
ch Carol S.
Sneider Assistant Attorneys General Nuclear Safety Unit Stephen H. Oleskey Deputy Attorney General j
Department of the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2265 Dated:
October 26, 1987 0375n l
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e DOCKETED USNRC 1
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 17 OCT 30 N0 23 j
OFFICE 0F SECROA6 (
00CKEiiNG A SERVICf.
BRANCH
)
In the Matter of
)
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PUBLIC SERVICE COMPANY OF NEW
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Docket No.(s) 50-443/444-OL HAMPSHIRE, ET AL.
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(Seabrook Station, Units 1 and 2)
)
1
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CERTIFICATE OF SERVICE l
I, Carol S.
Sneider, hereby certify that on October 26, 1987, I l
made service of the within document, by mailing copies thereof, I
postage prepaid, by first class mail, to:
1 j
l Ivan Smith, Chairman Gustave A.
Linenberge r, J r.
Atomic Safety & Licensing Board Atomic Safety & Licensing Board l
U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 Dr. Jerry Harbour Sherwin E. Turk, Esq.
Atomic Safety & Licensing Board Office of the Executive Legal U.S.
Nuclear Regulatory Director Commission U.S. Nuclear Regulatory Commission East West Towers Building Tenth Floor 4350 East West Highway 7735 Old Georgetown Road Bethesda, MD 20814 Bethesda, MD 20814 H.
Joseph Flynn, Ecq.
Stephen E. Merrill Assistant General Counsel Attorney General Office of General Counsel George Dana Bisbee 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 1
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______m-
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Docketing and Service Paul A.
Fritzsche, Esq.
U.S.
Nuclear Regulatory Office of the Public Advocate Commission State House Station 112 Washington, DC.
20555 Augusta, ME 04333 Roberta C.
Pevear Diana P.
Randall State Representative 70 Collins Street Town of Hampton Falls Seabrook, NH 03874 Drinkwater Road Hampton Falls, NH 03844 Atomic Safety & Licensing Robert A.
Backus, Esq.
Appeal Board Panel Backus, Meyer & Solomon U.S.
Nuclear Regulatory 116 Lowell Street i
Commission 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 Commission Portsmouth, NH 03801 Washington, DC 20555 Paul McEachern, Esq.
J.
P.
Nadeau Matthew T.
Brock, Esq.
Board of Selectmen Shaines & McEachern 10 Central Road 25 Maplewood Avenue Rye, NH 03870 j
P.O.
Box 360 1
Portsmouth, NH 03801 Sandra Gavutis, Chairperson Calvin A.
Canney Board of Selectmen City Manager j
RFD 1, Box 1154 City Hall Rte. 107 126 Daniel Street E.
Kingston, NH 03827 Portsmouth, NH 03801 Senator Gordon J. Humphrey Angelo Machiros, Chairman U.S.
Senate Board of Selectmen Washington, DC 20510 25 High Road j
(Attn: Tom Burack)
Newbury, MA 10950 l
Senator Gordon J.
Humphrey Peter J. Matthews 1 Eagle Square, Suite 507 Mayor concord, NH 03301 City Hall (Attn: Herb Boynton)
Newburyport, MA 01950 Donald E. Chick William Lord Town Manager Board of Selectmen Town of Exeter Town Hall 10 Front Street Friend Street Exeter, NH 03833 Amesbury, MA 01913 l
I 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 i
l 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 Beverly Hollingworth Edward 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 Civil Defense Director Board of Selectmen Town of Exeter Jewell Street, RFD 2 l
10 Front Street South Hampton, NH 03827 Exeter, NH 03833 Robert Carrigg, Chairman Anne E.
Goodman, Chairperson Board of Selectmen Board of Selectmen i
Town Office 13-15 Newmarket Road I
Atlantic Avenue Durham, NH 03824 North Hampton, NH 03862
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Allen Lampert Sheldon J. Wolfe, Chairperson Civil Defense Director Atomic Safety and Licensing 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.
Atomic Safety & Licensing Board McKay, Murphy & Graham U.S. Nuclear Regulatory Old Post Office Square Commission 100 Main Street East West Towers Building Amesbury, MA 01913 4350 East West Highway i
Third Floor Mailroom Bethesda, MD 20814 Judith H.
Mizner, Esq.
Silvergate, Gertner, Baker, Fine, Good & Mizner 88 Broad Street l
Boston, MA 02110 i,
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Rep. Edward J.
Markey, Chairman
{
U.S.
House of Representatives Subcommittee on Energy Conservation and Power Room H2-316 1
House Office Building Annex No. 2 Washington, DC 20515 Attn:
Linda Correia he s. Su chd Carol S.
Sneider Assistant Attorney General Nuclear Safety Unit Department of the Attorney General One Ashburton Place i
Boston, MA 02108-1698 i
l (617) 727-2265 l
l Dated:
October 26, 1987 l
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