ML20247B561

Commonwealth of Ma Atty General Statement Re Prematureness of Accompanying Notice of Appeal.* Precautionary Notice of Appeal Being Filed to Protect Appellate Rights Re ASLB 881230 Decision.W/Certificate of Svc

ML20247B561
Person / Time
Site:	Seabrook
Issue date:	05/16/1989
From:	Fierce A MASSACHUSETTS, COMMONWEALTH OF
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML20247B515	List: ML20247B510 ML20247B561
References
LBP-88-32, OL, NUDOCS 8905240164
Download: ML20247B561 (10)

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.O 00LKETED UNITED STATES OF AMERICA L'M* C NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOAR 9 i Y 19 P3 :50 h .

l~ Before Administrative Judges: OTRC: s' DUClE liv '

Alan-S. Rosenthal, Chairman E i Thomas S. Moore I. Howard A. Wilber

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In the Malter of .. )

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PUBLIC SERVICE COMPANY OF ) Docket No.(s)-

r NEW HAMPSHIRE, ET AL. ) 50-443/444-OL

-(Seabrook Station, Units 1 and 2) ) Offsite EP

) .May 16, 1989

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MASSACHUSETTS ATTORNEY GENERAL'S STATEMENT REGARDING PREMATURENESS OF ACCOMPANYING NOTICE OF APf_EAL The Massachusetts Attorney General (" Mass AG") is filing herewith a precautionary Notice of Appeal of those. aspects of the-Atomic Safety and Licensing Board's Partial Initial Decision:(New Hampshire Radiological Response Plan), dated December 30, 1988 (LBP-88-32) ("PID"), which pertain to the issue of the impact of returning-commuters on the evacuation time estimates and which the Board'made final on May 5, 1989, in.its Memorandum and Order'(Returning Commuters Issue) by announcing that it had not retained jurisdiction of these aspects of the entire " returning commuters issue." We are filing'this Notice of Appeal now as a precautionary measure to protect our appellate rights, but we believe that these issues 1 I

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are not sufficiently " final" to be appealable at this time.

Pursuant to the Appeal Board's previous suggestion in this case, Egg ALAB-894, 27 NRC 632,637 fn. 21 (1988), we are hereby filing a statement of our reasons why we believe this appea'l to be' premature. We are also asking the Appeal Board to solicit: d the views of the Applicants and the NRC Staff on this question l of appealability. In the absence a ruling' dismissing this l appeal as premature the Mass AG.will submit its brief on the merits of these issues within 30 days.

The reasons why we believe this appeal to be premature are as follows:

1. In its PID of December 30, 1989, the ASLB ruled on a series of. contentions which challenged the-accuracy of evacuation time estimates ("ETEs") contained in the New Hampshire Radiological Emergency Response Plan ("NHRERP"). Een genel_ ally PID, $9. Contention TOH III Basis D and SAPL.31 Basis 7 each raised the issue whether the study which had produced the NHRERP's ETEs had adequately' considered the effects on ETEs of the thousands of returning commuters whose vehicle trips home would occur simultaneously with the evacuation trips of others. PID, 19.35. The Board discussed this issue in its PID in paragraphs 9.35 through 9.60. In concluding this discussion, in 19.60, the Board stated:

9.60. The Board believes that the omission of the commuter trips to home will not have a large i effect on the ETEs. Perhaps the answer lies somewhere in the record and we simply ha,en't found it. It is i

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extremely unlikely that adding the commuter trips to i home will influence a protective action. Nevertheless the New Hampshire decisionmakers are entitled to the most accurate ETE reasonably achievable. Therefore the Board retains jurisdiction over this aspect of the j proceeding so that we may return to the parties for further advice.

Furthermore, at the conclusion of the Board's discussion of 'he ETE issues, at 9.130, the Board stated as follows:

9.130. The Board ccncludes that, in accordance with 10 C.F.R. Part 50, App. E. JV.7, Applicants will have provided an accurate analysis of the time required to evacuate the Scabrook EpZ within the scope .

of the contentions of the Interveners, and in f particular with respect to evacuating the population at the New Hampshire beaches during summer weekends, 1 providing:  !

(1) That the respective findings modifying the ETEs by this Board are incorporated in the ETEs provided by the Applicants to the State of New Hampshire, and (2) That trips by returning commuters within the EPZ to their homes in the EPZ are properly accounted for in the evacuation time analyses. The Board retains jurisdiction over this subissue pending further advice from the parties, which advice will be solicited in a forthcoming order.

2. The Mass AG submits that a fair reading of the Board's i

PID indicates that had retained jurisdiction over the issue of j I

the impact of the returning commuters on the ETEs. All of this )

I issue was retained, not simply parts or limited aspects of the j j

issue.

3. Subsequently the Board solicited and received further 1 1

input from the parties. The Applicants filed a memorandum1 '

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1/ Applicants' Memorandum Regarding Interaction of Commuter i Traffic Flow Within the Seabrook_ EPZ, January 25, 1989.

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l and an affidavit from their expert, Edward Lieberman, on January 25, 1989. The Mass AG responded with a memorandum2#

and an affidavit from its expert, Dr. Thomas Adler, on March  !

27. 1989.

4. On May 5, 1989, the Board issued its Memorandum and Order (Returning Commuters Issue) and announced for the first time that it had retained jurisdiction over only a " narrow area" and not the entire returning connuters issue.  ;

Specifically, the Board stated that "we retained jurisdiction I

over only the narrow problem of commuters starting within the EPZ for homes also within the EPZ." Memorandum and Order at 7.

5. Such a focus on the " narrow problem" described above ignores other important aspects of the returning commuters issue litigated by the parties and discussed in the Board's PID. These aspects include the impact on ETEs of the large number of commuters whose trips home start outside the EPZ and who will interact with evacuating traffic as they travel home in directions opposite to and across, as well as with, the I

evacuation traffic.

6. Although the.ASLB has now announced that it is not retaining jurisdiction over certain aspects of the returning commuters issue, the Board still is retaining jurisdiction over 2/ Massachusetts Attorney General's Response On The Issue of Returning Commuters and Their Impact on Evacuation Tiiitos, March _

27, 1989.

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l other aspects of it. For this reason, the Mass AG does.not believe that the test of " finality" for appeal purposes has been met. As the Appeal Board has explained:

, The test of " finality" for appeal purposes before this l agency (as in courts) is essentially a practical one.

l As a general matter, a licensing board's action is l final for appellate purposes where it either disposes of at least a major segment of the. case or terminates a party's right to participate; rulings which do neither are interlocut'ory.

EMDliC__ Service Company of New Hampshi_r_e (Seabrook Station, Units 1 and 2), ALAB-894, 27 NRC 632,636 (1988), citing Igle.dn Edison Cot (Davis-Besse Nuclear Power Station), ALAB-300, 2 NRC 752, 758 (footnotes omitted). Here, where the ruling at issue did not terminate the Mass AG's right to participate in the proceeding, the only question is whether the Board's May 5 ruling (interpreting its December 30, 1988 PID) disposed of a

" major segment of the case." While the PID itself certainly disposed of numerous contentions and bases which challenged the l

adequacy of the NHRERP and those rulings are now on appeal, this ruling does not even dispose of a single basis to a single contention. The " returning commuters" issue was itself a single basis to TOH III and SAPL 31 respectively; the Board still is retaining jurisdiction of a portion of this issue.

]1 However, one draws the precise line between'what is and what is not a " major segment" of a case, a ruling which disposes of part but not all of a single basis is not at all close to that line. Such a ruling cannot reasonably be described as having

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disposed of a major segment of a case. Furthermore, the Mass AG asserts that beyond the generic argument that a part of a f single basis does not constitute a " major segment," there is an issue-specific reason why the " returning commuters" issue i should not be appealed in piecemeal fashion. The " returning commuters" issue does not break down neatly into clear-cut i sub-issues. Returning commuterts whose trips home originate both within and without the EpZ can and do travel with, against, and across the flow of both New Hampshire and Massachusetts evacuees traveling outbound on the key evacuation  !

routes. The effects of returning commuter traffic on evacuation traffic, and vice versa, are interactive, and these l interactive affects cannot be assessed without running the computer model (that generated the ETEs) in a way that assesses these interactions on ETEs. The Board's decision to divide commuters into two groups -- those whose trips start within the EpZ and those whose trips start outside the EpZ -- and then to retain jurisdiction of only one of the two groups (inside starters) makes little practical sense for the purposes of assessing impact on ETEs. At the very least, the faint  !

distinction between these groups cannot be said to give rise to a " major segment" when the Board disposes of one but m.'. the l other.

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CONCLUSION f

The Mass AG has filed this precautionary Notice of Appeal l

because it has generally been the view that all aspects of the

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Board's-pID on the NHRERp are appealable save those which the 1 Board has retained jur~isdiction. Nevertheless, the Mass AG believes-that the aspect of the case appealed here -- part of the returning commuters issue -- does not meet the test of finality for-appeal purposest Should the-other parties and the Appeal Board agree with this view, the Mass AG has no objection to the dismissal of-this notice without prejudice to its renewal at the appropriate future time. Otherwise, the Mass AG will file'his brief within 30 days.

Respectfully submitted, COMMONWEALTH OF MASSACHUSETTS JAMES M. SHANNON ATTORNEY GENERAL By: Tt Allan R. Fierce Assistant Attorney General Nuclear Safety Unit Dept. of-the Attorney General One Ashburton place, 19th F1r.

. Boston, MA 02108 (617) 727-2200 Dated: May 16, 1989

UWErr UNITED STATES OF AMERICA UahFC NUCLEAR REGULATORY COMMISSION l

ATOMIC SAFETY AND LICENSING APPEAL BOAR 689 NAY 19 P3 :50 l 1

0F W. ?

In the Matter of

) DUC8E ! N .

Docket Nos. 5 0-4 4 3-OLO iE" J@

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) 50-444-OL PUBLIC SERVICE COMPANY ) ]

OF NEW HAMPSHIRE, EI AL. )

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(Seabrook Station, Units 1 and 2) ) May 16, 1989 l

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CERTIFICATE OF SERVICE i I, Allan R. Fierce, hereby certify that on May 16, 1989, I made service of the within NOTICE OF APPEAL OF COMMONWEALTH OF MASSACHUSETTS' ATTORNEY GENERAL JAMES M. SHANNON and  :

-MASSACHUSETTS ATTORNEY GENERAL'S STATEMENT REGARDING PREMATURENESS OF ACCOMPANYING NOTICE OF APPEAL 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 i Bethesda, MD 20814 Dr. Richard F. Col.e 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 Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 Docketing and Service Thomas G. Dignan, Jr.

U.S. Nuclear Regulatory Commission Ropes & Gray Washington, DC 20555 One International Place Boston, MA 02110 Sherwin E. Turk, Esq. Richard Donovan U.S. Nuclear Regulatory Commission- --FEMA Region 10 Office of the General Counsel 130 228th Street, S.W.

11555 Rockville Pike, 15th Floor Federal Regional Center Rockville, MD 20852 Bothell, WA 98021-9796

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[h H. Joseph Flynn, Esq. .

Atonic Safety & Licensing l: ' Assistant General Counsel. Appeal Board Office of General-Counsel U.S. Nuclear. Regulatory _ Commission LFederal Emergency Management Washington, DC 20555

. Agency

'500 C; Street, S.W.

l Washington, DC 20472' L

L Robert A..Backus, Esq. Atomic Safety & Licensing Board.

k Backus, Meyer & Solomon U.S. Nuclear Regulatory Commission 116 Lowell Street Washington, .DC' 20555 P.O.- Box 516 l Manchester, Nil 03106-Jane Doughty .

Dianne. Curran, Esq.

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

Washington, DC 20008 Barbara St. Andre, Esq. Judith Mizner, Esq.

Kopelman & Paige, P.C. 79 State. Street 77 Franklin Street. Second Floor Boston, MA 02110 Newburyport, MA 01950

. Charles P. Graham, Esq. R. Scott Hill-Whilton, Esq.

Murphy & 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 Bradford, MA 01835 (Attn: Tom Burack)

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 Phillip Ahrens, Esq. William S. Lord Assistant Attorney General Board of Selectmen Department of the' Attorney General Town Hall -' Friend Street Augusta, ME 04333 Amesbury, MA 01913 j i

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' Alan S.'Rosenthal~, Chairman Thomas S. Moore Atomic' Safety & Licensing Atomic Safety & Licensing

-Appeal Board .. Appeal Board U.S. Nuclear Regulatory-Commission U.S. Nuclear Regulatory Commission

' Washington, DC 10555 Washington,'_DC 10555 . .

Howard-A. Wilber'

~ Atomic. Safety'&' Licensing.

l Appeal Board' U.S. Nuclear Regulatory Commission Washington, DC 10555 Respectfully submitted, JAMES M.-SHANNON ATTORNEY GENERAL Allan R.' Fierce Assistant Attorney General

, Nuclear Safety Unit One Ashburton Place Boston,'MA 02108 (617) 727-2200 Dated: May 16, 1989 1

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