ML19354D517

Request of Intervenors for Prehearing Conference in Response to ALAB-924.* Conference Requested Since Further Hearings Appear to Be Required in Response to Changes in State of Nh Radiological Emergency Plan.W/Certificate of Svc

ML19354D517
Person / Time
Site:	Seabrook
Issue date:	11/09/1989
From:	Traficonte J MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE
To:	Atomic Safety and Licensing Board Panel
References
CON-#489-9429 ALAB-924, OL, NUDOCS 8911160030
Download: ML19354D517 (10)

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g(fl .g s - I NUCLEAR REGULATORY COMMISSION 7pcO7pgS@ l y1S$QSW ATOMIC SAFETY AND LICENSING BOARD "

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Before the Administrative Judges:

Ivan W. Smith, Chairman i Dr. Richard F. Cole Kenneth A. McCollum

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In the Matter of ) Docket Nos. 50-443-OL

) 50-444-OL PUBLIC SERVICE COMPANY )

OF NEW HAMPSHIRE, ET AL. )

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(Seabrook Station, Units 1 and 2) ) November 9, 1989

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REQUEST OF INTERVENORS FOR PRE-HEARING CQHEERENCE ItLEESEQHSE TO ALAQ-SM The Massachusetts Attorney General (" Mass AG"), the Seacoast Anti-Pollution League ("SAPL") and the New England Coalition on Nuclear Pollution ("NECNP") (collectively the "Intervenors") request that this Board schedule a pre-hearing conference in the Seabrook full-power licensing proceeding as soon as is practical and convenient for the Board and parties.

In support of this request, Intervenors state as follows:

1. On November 7, 1989, the Appeal Board in ALAB-924 reversed and remanded "for further action consistent with this l'

opinion" certain portions of this Board's decision on the

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[ adequacy of the NHRERp. ALAB-924, slip opinion at 70. Review t

of the decision makes clear that the requisite "further action" i by this Board. includes, for example, the holding of an evidentiary hearing on the adequacy of the 1986 Special Needs Survey. Moreover, after a determination of the adequacy of that survey's methodology it would be appropriate for this Board to revisit its determination regarding the adequacy of the vehicles-and drivers relied on in the NHRERP. The Appeal Board stated in this regard at 19-20:

Further, in light of our remand of this issue for additiona.L_planeedings, it is premature for us to render any judgment regarding intervenor SApL's-challenges to the Licensing Board's findings >

concerning availability of adequate numbers of vehicles and drivers. Once the propriety of this special needs survey's methodology has been Aired, it then will be appropriate for the Licensing Board to consider whether the number of vehicles and drivers identified as available to assist in transportation of the "special needs" population is sufficient.

(emphasis supplied)

Similarly, further hearings certainly appear to be required in response to the now necessary changes in the NHRERP regarding: 1) the need for the " correction of the preparation time omission" in the estimate of the ETE for each special facility and, indeed, the more fundamental need to revise the NHRERP to set forth ETEs for each special facility as required by NUREG-0654, App. 4 at 4-9 to 4-10 (ALAB-922 at 27, n.71);

and 2) the need for implementing procedures for sheltering. l (ALAB-922 at 68-69). In addition, some further evidentiary l

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"s hearings will be necessary to support any determination by this

• p l! Board regarding "whether school personnel (in New Hampshire) 1 usually would (or.would not) be expected to accompany their students-in emergency evacuation situations"-(id, at 10), and, as a corollary to this determination, the need for LOAs with all teachers relied upon in the NHRERP.

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2. As a preliminary matter, these further proceedings in the NHRERP case present several issues that the parties _should  ;

be permitted to address at'a pre-hearing conference and, if necessary,-in briefs. In addition to the obvious concerns about the need for discovery and any schedule for these hearings, there may well be issues concerning which Intervenors ,

P will be permitted to participate in which portion of the [

,' remand.1#- Moreover, to the extent that changes to the NHRERP  ;

by the State of New Hampshire are necessary, the views and j intentions of that State should be made known.

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3. ALAB-924 also has a direct impact on certain issues presently before this Board for decision arising out of the

' litigation concerning the adequacy of the utility plan for  ;

c Massachusetts. In this regard, particularly in light of this Board's present intent to issue an opinion on the SPMC perhaps within days, Intervenors request a pre-hearing conference to 1'

l' discuss the following concerns:

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1/ The Mass AG hereby asserts his right as an interested state L to participate fully in all remanded issues.

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a. ALAB-924 clearly establishes the law of this case i- regarding the need for LOAs with teachers if they are relied upon to provide services under an emergency plan. This issue is squarely presented for d9 cision on the SPMC. See Mass AG's August 14, 1989 Proposed Findings at 1 8.1.66B (350), 8.1.70 (353-354), 8.1.85.A (360) and 9.1.136 (481). Similarly, the absence of ETEs for each special facility in the Massachusetts EPZ is now clearly an inadequacy in the SPMC as charged in Mass AG's Proposed Findings, 11 0.1.63D-F (348-349). Intervenors >

request that they be permitted to amend their proposed findings to expressly reference ALAB-924 in all relevant regards, b, ALAB-924 also dealt at length with the issue of this Board's treatment of the 20% planning basis used in the NHRERP to calculate the necessary monitoring and reception centers in New Hampshire. ALAB-924 at 27-46. In its ,

discussion affirming this Board's reliance on the FEMA presumption for the NHRERP, it is clear that the Appeal Board did not view SAPL's efforts through testimony and cross-examination as sufficient to directly challenge the 20%

planning basis in the New Hampshire proceeding: [

the Licensing Board was entitled to treat as presumptively correct the FEMA conclusion that, for planning purposes, it may be assumed that at least twenty percent of the total __ Re1LJiampEhite EEZ oopulation would require or seek radiological monitoring in the event of an accident at Seabrook.

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'ALAB-924 at 42 (emphasis supplied). It is clear that the Appeal Board's affirmance of this Board's decision on the 20%

issue in the NHRERp case undermines ~this Board's treatment of 1

contentions presented by the Intervenors on the SpMC which did attempt to put at issue the adequacy of the 20% planning basis for Massachusetts. As this Board will recall, in April 1988 the Mass AG in Contention 65 attempted to put at issue the adequacy of the monitoring facilities in light of the "potentially large number of injured" among the beach  !

population. After ALAB-905 issued, the Mass AG sought reconsideration of this Board's July 1988 refusal to admit Contention 65. See Mass AG's December 16, 1988 Motion For Reconsideration at 6-10. On January 4, 1989, this Board denied that motion. Again, in an exercise contention filed on September 21, 1988, the Mass AG sought to litigate the adequacy of the 20% planning basis fur Massachusetts. In MAG Ex-18, the Mass AG asserted that the June 1988 exercise had revealed inadequate monitoring facilities because many more persons would have been reporting to i the reception centers for monitoring than ORO and t the State _nt _How Hampshir.c had the staf f and equipment to monitor within a 12-hour period.

MAG Ex-18, Dasis B. (emphasis supplied).A' After further 2/ This exercise contention alleged a fundamental flaw in hath plans as revealed by the June 1988 exercise. Thus, although ALAB-924 affirmed this Board's determination that the adequacy of the 20% planning basis was not presented during the NHRERp p_lAn li.tig ati.Qn , i t wa s s q u a r e l y p r e s e n t e d a s a f u nd a me n t a l flaw in the NHRERp disclosed by the June exercise of that plan.

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briefing and argument on this contention, this Board ruled that i.

the issue of the appropriate clannina basis for Massachulicits_.

'was tes judicata in light of LBp-88-32. (Tr. at 15288-15295,.

15332-15340). This ruling simply will not square with ALAB-924.

In these circumstances, the Intervenors believe that judicial economy is served if this Board were to reconsider its j treatment of Intervenors' challenges to the 20% planning basis in Massachusetts and admit that issue for litigation. In this regard, at a pre-hearing conference Intervenors would seek to press these points before the Board and to seek permission to file such a motion for reconsideration.A#

4. In light of these considerations and the present interest of the Commission in an early decision by this Board i on the SpMC, Intervenors respectfully suggest that the Board issue a partial initial decision on all matters not affected by the issuance of ALAB-924, i

3/ Obviously, Intervenors may well be procedurally free to i simply file such a motion regarding the 20% basis in Massachusetts without first seeking approval for'such a step.  !

In light of the present posture of the case, however, such a l

" preemptive strike" might be misinterpreted as an effort to i further delay the issuance of this Board's SpMC decision. For the reasons set forth above, Intervenors believe there are ELEnificant substantive reasons for delavino that decision at least until a pre-hearing conference at which these matters can  ;

be discussed is held and these reasons aired and considered.  !

Intervenors have no interest in filing a Motion For i Reconsideration on the 20% issue simply to cause a short g_rocedural delay until the parties can respond to that motion.

Sen also this Board's September 26, 1989 " Unauthorized pleadings" Order. For this same reason, Intervenors characterize this present pleading as a request and not a motion.

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I For the reasons set forth above, the:Intervenors request a ,

' pre-hearing conference to discuss and consider the impact of

[l 'ALAB-924'on the'further course of'this proceeding.

COMMONWEALTH OF MASSACHUSETTS c.

JAMES M. SHANNON ATTORNEY GENERAL

- _ 1 n Traficon ief, Nuclear' Safety Unit L uclear Safety Unit Department of the Attorney General One Ashburton Place Boston, MA 02108-1698 (617) 727-2200 DATED: November 9, 1989 i

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/ N i La-L UNITED STATES OF AMERICA (h.;}lJ. i . D '/]N), l NUCLEAR REGULATORY COMMISSION '

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p::.J2 n ATOMIC SAFETY AND LICENSING BOARD

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3 Before the Administrative Judges: f'. tt0V poctr.

,yw g;gFIQ Ivan W. Smith, Chairman gg 6' Dr. Richard F. Cole Kenneth A. McCollom 77~$TTT e  ;

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In the Matter of ) Docket Nos. 50-443-OL j

) 50-444-OL '

PUBLIC SERVICE COMPANY )

OF NEW HAMPSHIRE, ET AL. )

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(Seabrook Station, Units 1 and 2) ) November 9, 1989

)

CERTIFICATE OF SERVICE I, John Traficonte, hereby certify that on November 9, 1989,.I i made service of the within REQUEST OF INTERVENORS FOR PRE-HEARING CONFERENCE IN RESPONSE TO ALAB-924 by telefax as indicated with (*)

and by first class mail to:

• Ivan W. Smith, Chairman *Kenneth A. McCollom Atomic Safety & Licensing Board Atomic Safety & Licensing 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. Richard F. Cole Paul McEachern, Esq.

Atomic Safety & Licensing Board Shaines & McEachern U.S. Nuclear Regulatory Commission 25 Maplewood Avenue East West Towers Building P. O. Box 360 4350 East West Highway Portsmouth, NH 03801 Bethesda, MD 20814 Kenneth A. McCollum

• Docketing and Service 1107 W. Knapp St. U.S. Nuclear Regulatory Stillwater, OK 74075 Commission Washington, DC 20555

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• Robert R. Pierce, Esq.

• Thomas G. Dignan, Jr., Esq.

Atomic Safety & Licensing Board Katherine Selleck, Esq.

U.S. Nuclear Regulatory Commission Ropes & Gray l East West Towers Building One International Place 1 4350 East West Highway Boston, MA 02110  !

Bethesda, MD 20814 l

• H. Joseph Flynn, Esq. *Mitzi A. Young, Esq.

Assistant General Counsel Edwin J. Reis, Esq.

Office of General Counsel U.S. Nuclear Regulatory Federal Emergency Management Commission Agency Office of the General Counsel 500 C Street, S.W. 15th Floor Washington, DC 20472 11555 Rockville Pike Rockville, MD 20852 Atomic Safety & Licensing Robert A. Backus, Esq.

Appeal Board Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516 '

Washington, DC 20555 Manchester, NH 03106 Atomic Safety & Licensing Board Jane Doughty U.S. Nuclear Regulatory Commission Seacoast Anti-Pollution League Washington, DC 20555 5 Market Street Portsmouth, NH 03801 Charles P. Graham, Esq. Barbara St. Andre, Esq.

Murphy & Graham Kopelman & Paige, P.C. .#

33 Low Street 77 Franklin Street Newburyport, MA 01950 Boston, MA 02110 Judith H. Mizner, Esq. R. Scott Hill-Whilton, Esq.

79 State Street Lagoulis, Hill-Whilton 2nd Floor & Rotondi '

Newburyport, MA 01950 79 State Street Newburyport, MA 01950 Dianne Curran, Esq. Ashod N. Amirian, Esq.

t Harmon, Curran, & Towsley 145 South Main Street l Suite 430 P.O. Box 38 l 2001 S Street, N.W. Bradford, MA 01835 Washington, DC 20008 Senator Gordon J. Humphrey Senator Gordon J. Humphrey U.S. Senate One Eagle Square, Suite 507 p Washington, DC 20510 Concord, NH 03301 l (Attn: Tom Burack) (Attn: Herb Boynton) l 1

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• John P. Arnold, Attorney General Phillip Ahrens, Esq.  !

Office of the Attorney General Assistant Attorney Gerseral 25 Capitol Street Department of the Attorney Concord, NH 03301 General Augusta, ME 04333 William S. Lord Board of Selectmen f

Town Hall - Friend Street Amesbury, MA 01913 COMMONWEALTH OF MASSACHUSETTS JAMES M. SHANNON ATTORNEY GENERAL

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JoMn Traficonte'

. f' Chief, Nuclear Safety Unit

/ Department of the-Attorney General One Ashburton Place Boston, MA 02108-1698 (617) 727-2200 DATED: November 9, 1989 l

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