ML20006G089

Commonwealth of Ma Atty General Reply to Petition & Response of FEMA to Emergency Motion of Intervenors to Reopen Record as to Need for Sheltering in Certain Circumstances.* FEMA Misstates Record.W/Certificate of Svc

ML20006G089
Person / Time
Site:	Seabrook
Issue date:	02/27/1990
From:	Brock M MASSACHUSETTS, COMMONWEALTH OF
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#190-9984 LBP-89-33, OL, NUDOCS 9003050016
Download: ML20006G089 (10)

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ATONIC SAFETY AND LICENSING APPEAL BohMtil)NG % DVH:k.

uRANCH-Before Administrative Judges:- J q

G. Paul B011werk, III,-Chairman .

Alan S. Rosenthal ~;

Howard A. Nilber l u

1

)

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

) 50-444-OL PUBLIC~ SERVICE COMPANY )

OF.NEli HAMPSHIRE, EI AL. )

)

(Seabrook Station, Units 1 and-2) ) February 27, 1990

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E MASSACHUSETT3 ATTORNEY LENERAL'S REPLY TO THE PETITION '

H AND RESPONSE OF THE FEDERAL EMERGENCY MANAGEMENT AGENCY y 70 EMERGENCY! MOTION OF.THE INTERVENORS TO REOPEN THE 1 L

i RECORD AS TO 'MER ' NEED FOR SHELTERING ' TN CERTAIN CIRCUMETANCEE  :.i It

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$ On February 6, 1990, the. Massachusetts. Attorney General.

(MASS AG), with'Intervenors.SAPL and NECNP," filed.an EMERGENCY p

MOTION.OF THE INTERVENORS: (1) TO CIARIFY THE STATUS OF THE APPEAL OF LBP-89-33' AND (2) To REOPEN'THE RECORD ON THE NHRERP l L AS1TO THE NEED FOR: SHELTERING IN CERTAIN CIRCUMSTANCES ("First i:

E Motion"). The First Motion addressed, intag 311g, Applicants' February 1 filingM which~for the first time advised

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1/ APPLICANTS' RESPONSE TO LICENW.:WG BOARD ORDER OF ,

JANUARYL11, 1990 L e' 9003050016 900227 l" '

PDR ADOCK 05000443

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v 7 .Intervonors and apparently this agency that cheitering as'a protective action for the entire beach population had been .!

eliminated 1.n the NHRERP under circumstances where that PAR would achieve maximum dose reduction (" Condition 1") . 's.a.e q First Motion 8-15.

On February 16, 1990, the State of New Hampshire filed a 1 comment with the Licensing Board on Applicants' proffered view of the current state of the NHRERP for sheltering the beach population under Ccndition 1. M While the State's comment ,

did-not formally respond to Intervenors' First Motion, the

State advised-the Board that Applicants had " erred" in their '

conclusion that "the State of New Hampshire's. October 13, 1988 Almendments to Revision 2 of the NERERP '(eliminated)'  ;

sheltering as an option under the first of the two circumstances contemplated by the Appeal Board" (i,e. Condition i

1). State Response at 2. Based upon the State Response, first j Applicants,M then the Staff,M filed responses in f

2/ STATE OF NEW HAMPSHIRE'S COMMENTS REGARDING APPLICANTS' RESPONSE TO LICENSING BOARD ORDER OF JANUARY 11, 1990. / " 4 *. 3 te Response").

-2/ APPLICANTS' RESPONSE'TO EMERGENCY. MOTION OF INTERVEFO G (13 M CIARIFY THE STATUS OF THE APPEAL OF LBP-89-33 AND (3) TO 1

- REOPEN THE RECORD ~ON THE'NHRERP AS TO THE NEED FOR SHELTERING IN CERTAIN'CIRCUNSTANCES (FEB. 16, 1990) (" Applicants  ;

Response").

F NRC STAFF's RESPONSE TO "ENERGENCY MOTION OF THE INTERVENORS: (1):TO CLARITY THE STATUS'OF THE APPEAL OF LBP-89-33 AND (2) TO REOPEN THE RECORD ON THE NHRERP AS TO THE ,

NEED FOR SHELTERING IN CERTAIN CIRCUMSTANCES (FEB. 23, 1990) '

(" Staff Response").

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Ve opposition to the~First Motion. '

FFMA also responded-to the

-.First Motion,Eclaiming_that Intervanors had "inaccurately.-

k, ' characterized'the NMRERP." Id. at.2.

P Based upon these! responses, including the Staff Response

' which was received in this office only yesterday (February 26),-

the: NASS AG hereby advises the Appeal Board of its intent to -

.t file, as soon as pr5cticable, an Emergency Motion For-License Revocation Or In The Alternative To Roopen The Record And For Summary Disposition As To The Need For Sheltering In Certain ,

Circumstances. The motion will address, inter alia, the failure of the State of New Hampshire in the current NHRERP 1) to mari.mize dose savings since sheltering for the entire beach population under Condition 1 has been eliminated, and 2) the I State's failure to conform the sheltering provisions for the beach population to -the sworn testimony of State and FEMA

• officials before the Licensing Board.  !

In accordance with.the Appeai Board's Order dated February 23, 1990, however, the MASS AG files this limited Reply to " comment ( ) on the FEMA petition for leave to file and

- the accompanying response." Order at 1.U 3/ RESPONSE OF THE-FEDERAL EMERGENCY MANAGEMENT AGENCY TO EMERGENCY MOTION OF THE INTERVENORS TO REOPEN THE RECORD AS.TO THE NEED FOR SHELTERING IN CERTAIN CIRCUMSTANCES (FEB. 16,

, 1990) (_" FEMA Response").

5/ The MASS AG does not object to the admission of the FEMA Response into the record in this proceeding.

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In its Response, FEMA states:

, the?Intervenor's_ notion inaccurately j characterizes the NHRERP, the history of'the l 2itigation regarding the NHRERP, and FEMA's l review and evaluation of the NHRERP. 1 t: .

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other than the " shelter-in-place" concept -l described above, there has never been provision '

for shelter in the NRRERP under.any circumstances i for any segment of the population.- When  ;

" shelter-in-place" is the recommended protective '

action, transients without accors to an indoor.

location.(E.G., a private residerice, beach cottage, or hotel room) would be directed to evacuate in their own vehicles. Those' transients l: without transportation would be directed to.

pre-designated temporary shelter locations-while i wait -for. buses to evacuate them. There is no t E arevis on or~ instruction-in the-NMRERP for the '

} transient __ beach nopulation to attemet to find a '

nearhvd uildina_and--enter it,.nor is there any reliance in the.NHRERP on the Stone and Webster survey to identify potentially available shelters.

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The above-analysis of the record demonstrates that the Intervenors are incorrect in stating that on. February 1, 1990, for the first time,-the .

Applicants stated that plan changes'in october 1988 eliminated sheltering as an. option for the' .,

general beach population. In fact, the  !

, " shelter-in-place" concept was. presented by/the  :

L Applicants'and the state;of New Hampshire to-the t L Licensing Board in pre-filed testimony on p April 15,.1988,- and was a part of the NHRERP at least.since February 11, 1988.. As noted above, "

, the'" shelter-in-clace" concent nrovides for the E

transieJ1t_.h3Ach nonulation to> evacuate and the- l ggonle-indoors to rammin indoors 3 FEMA RESPONSE l.

at 2, 5-6.

{ FEMA therefore claims that, at least since February, 1988,

, the State of New Hampshire has not provided for sheltering the H . beach population, except for those transi ents w i thout transportation.

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i FDth thereby misstates the record in the New Hampshire

- proceeding and' contradicts the sworTi testimony of 3 ts own

. senior, staff before the Licensing. Board.

1 In testimony filed with the Licensing B M d on May 2, . 1988, '

concerning the " shelter-in-place" concept in the NMRERP, both l the' State of New Hampshiro and the Applicants identified the three-circumstances, including Condition 1, where sheltering j the beach population would be ordered. ]'

Beach closure or evacuation of the beach areas are the preferred courses of action for the beach population. Sheltering as a protectiva action option for this segment of the pcpulation would -l be considered in only a very limited number of -

circumstances characterized by one or more of the '

following conditions as described on pp. 7-8 of Appendix 1: ..

-1. Dose Savings Sheltering could be recommended when it ,

would be the most effective option in I achieving maximum dose reduction.

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.l For implementation of this protective action l option-(sheltering) under any of the three conditions, New Hampshire decision-makers will relv en the mechanisms new in nlace, or to be put -

in nlace. in the NHRERP for recommandina shelter i to the nublic whether on the beach or anywhere :I 3183 APPLICANTS' DIRECT TESTIMOPrY No. 6 post l Tr. 10022 at 20. (Emphasis added).

Both the Applicants, see Tr. 10069, and the State of New I e Hampshire, see Tr. 10061, 10421, testified that sheltering i h' l under condition 1-would be recommended for the entire beach population. This would include the general beach population (the transients xith transportation, i . e. the so-called "98%" -

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population,.see Tr. 13184) as well as the remaining 2% of the '

beach population lof transients without transportation. See  ;

t.

APPLICANTS DIRECT TESTIMONY NO. 6, post Tr.-10022 at 20' - .

Even prior to this testimony, however, the State of New Hampshire advised FEMA, by letter dated February 11, 1988, that the shelter-in-place concept adoes not nreclude the state from

-conside.rina and'selectina shelterina as a erotective action for the beach neeulation." APPLICANTS' DIRECT TESTIMONY NO. 6, post Tr. 10022 at Appendix 1, p. 3. The State also informed FEMA that Condition 1 was one of the circumstances in which sheltering would be-recommended. Id. at 5. Subsequently, in testimony by Senior. FEMA staff before the Licensing Board, FEMA

'confi M its own understanding of the shelter strategy for the g entire, beach population.

4 THE. WITNESS: (McLoughlin) Your Honor, when Ms. Weiss was conferring with you in there I

, thought I heard her say that we did not' require --

that we would'not use shelter for the 98 percent. ,

If that was'a misinterpretation on my part,_I apologize for that, but'that's_what's concerning us right.now. Because we believe that New Bampshire, and this does not preclude'in any.way 1

New Hampshire from'using sheltering in some instances in which it is. appropriate --

1 JUDGE SMITH: For the 98 percent. I eee THE WITNSSS: (McLoughlin) ~~ to use it for the 98-percent.

Q. -I thoucht you had told me that it was your

. understanding that New' Hampshire would not use l sheltering for the'98 percent, but only for the q two percat; didn't you tell me that about 15 l minutes ago? i l

m w -. .~, ewarnsm, i s'.

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i A '. - (McImughlin)- Okay. If I~did, and I'm not '

P arguing that I didn't, I was in. error in.doing L that. .And that's.'what was beginring to concern'

,me, in particular as I listen to your comment. I i

-eit.her misunderstood the question or answered it I

. wrongly. Tr.-13184-85.

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-At least-as of May, 1988, therefore, FEMA knew that the _

NRREKY- as interpreted by its proponent and final arbiter, the State of New Hampshire, intended to shelter the entire beach population'under circumstances where sheltering would be the most effective option in achieving maximum. dose reduction.

Finally, the current FEMA Response now offers a new interpretation of the NMRERP and suggests that FEMA approval of that plan was bar,ed upon a shelter option on'.y-for the i transients without transportation _(24 population). S.AR FEMA RESPONSE at 5. This contradicts the. understanding of the NHRERP as testified to by Senior FEMA staff. FEMA also has approved a version of the NMRERP which was never reviewed or.

approved.-by.either.the Licensing Board or the Appeal Board -

involving sheltering the beach population. See-First Motion at

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8-15. ,

RESPECTFULLY. SUBMITTED, 1

CO!MONWEALTH OF MASSACHUSETTS '

JAMES M. SHANNON ATTORNEY GENERAL i

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, Matthew T. Brock' I Assistant Attorney General Nuclear Safety Unit one Ashburton' Place Boston, Massachusetts 02108 (617) 727-2200 Dated: February 27, 1990

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. . .y, U$NhC UNITED STATES OF AMERICA NUCLEAR REGUIAMRY COMMISSION '90. FEB 28.' All ;55 ATOMIC SAFETY AND LICENSING' APPEAL BOAg7 y aggjuv

' [iOCKC1'NG A 'diWICI  ?

L '- 'Before Administrative Judges: BRANCH g

G. Paul Bollverk III, Chairman Alan S. Rosenthal Howard A. Wilber ,

)

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

) 50-444-OL PUBLIC SERVICE COMPANY )  !

0F NEW HAMPSHIRE, ET Mt. )  ;

)

(Seabrook Station, Units 1 and 2) ) February 27, 1990 [

)

1 CERTIFICATE OF SERVICE I, Matthew.T. Brock,-hereby certify that on February 27, 1990,.

I Mde service of the enclosed MASSACHUSETTS ATTORNEY GENERAL'S REPLY M THE PETITION AND RESPONSE OF THE FEDERAL EMERGENCY MANAGEMEIPI AGENCY 'ID EMERGENCY MOTION- OF THE INTERVENORS TO REOPEN THE RECORD AS TO THE NEED FOR SHELTERING IN CERTAIN CIRCUMSTANCES by ' telefax as indicated by (*), and by. first class.  ;

mail to:-

Ivan W.' Smith,. Chairman Kenneth A. McCollom

' Atomic-Safety & Licensing Board 1107 W. Knapp St. *

'U.S. Nuclear Regulatory Commission Stillwater, OK 74075 ,

East West Towers Building 4350 East West Highway

'Bethesda, MD--20814 y

Dr. Richard F. Cole Robert R. Pierce, Esq.

Atomic Safety-& Licensing Board Atomic safety & Licensing Board U.S. Nuclear Regulatory. Commission U.S. Nuclear Regulatory Commission East West Towers Euilding East West Towers Building ,

4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 t e

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I

• Docketing-and service

• Thomas G. Dignan, Jr.

U.S. Nuclear Regulatory commission Ropes & Gray Washington,-DC- 20555 One International Place Boston, MA 02110 i

• Mitzi A. Young, Esq. Phillip Ahrens, Esq.

Edwin-J. Reis, Esq. Assistant Attorney General l -U.S. Nuclear Regulatory Commission Department of the Attorney General office _of the General counsel Augusta,- ME 04333-  ;

11555 Rockville-Pike, 15th Floor Rockville, MD 20852 ,

~i

• R. Joseph Flynn, Esq. Atomic Safety & Licensing {

Assistant General counsel Appeal Board 1 Office of General Counsel U.S. Nuclear Regulatory commission j Federal Emergency Management- Washington, DC 20555  !

A9eDCy ,

500 C Street, S.W.-  !

Washington, DC 20472 Robert A. Backus, Esq. Atomic. Safety & Licensing Board i Backus, Meyer & Solomon U.S. Nuclear Regulatory Commission 116 Lowell Street Washington, DC 20555 P.O. Box-516 Manchester, NH 03106  :

Jane Doughty Dianne Curran,.Esq.  ;

Seacoast Anti-Pollution League Harmon, Curran & Towsley Five Market Street Suite 430 1 Portsmouth, NH 03801 2001 S Street, N.W.

Washington, DC 20008 i

Barbara St. Andre, Esq.

Judith Mizner, Esq.

Kopelman & Paige, P.C. 79 State. Street- l 77 Franklin Street Second Floor Boston, MA 02110 Newburyport, MA 01950 Charles P. Graham, Esq. R. Scott Hill-Whilton, Esq.

Murphy E-Graham- Lagoulis, Hill-Whilton & Rotondi 33 Low Street 79 State Street Newburyport, MA 01950 Newburyport, MA 01950 Ashod N. Amirian, Esq. Senator Gordon J. Humphrey 145 South Main Street U.S. Senate P.O. Box 38 Washington, DC 20510 t Bradford,.MA 01835 (Attn Tom Burack) f  ?

-Senator Gordon J. Humphrey John P. Arnold, Attorney General one Eagle square, Suite 507 office of the Attorney General Concord, NH 03301 25 capitol Street (Attn: Herb Boynton) Concord, NH 03301 .

[_.

9 ':0 '

yy 8 Paul McEachern,:Esq.

4 Shaines &-McEachern 25 Maplewood Avenue P.O. . Box-360 2

-Portsmouth, NH 03801 e

l; *G. Faul Bollwerk

• Thomas S. Moore, Chairman f Atomic Safety fr Licensing Appeal Board Atomic Safety & Licensing L Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 10555 . Washington, D.C. 10555 ,

• Roward A. Wilber Jack Dolan Atomic Safety & Licensing Federal Emergency Management Agency Appeal Board Region i U.S. F'aclear Regulatory Commission J.W. McCormack Post Office I, r Washington, D.C. 10555 Courthouse Building, Room 442 Boston, MA 02109 George Iverson, Director Alan S. Rosenthal N.H. Office of Emergency Management- Atomic Safety & Licensing S': ate House Of fice Park South Appeal Board 107 Pleasant Street U.S. Nuclear Regulatory Commission-Concord, NH .03301 Washington, DC 10555 Respectfully submitted, JAMES M. SHANNON ATTORNEY GENERAL.

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Matthew T.. Brock Assistant Attorney General Department of the Attorney. General One Ashburton Place Boston, MA- 02108 (617) 727-2200 Dated:. February 27, 1990 u TOTAL PAGE.011 **

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