ML20246J411

Commonwealth of Ma Atty General Opposition to Applicant Motion to Dismiss Joint Intervenor Contentions.* Commonwealth Has No Objection to Dismissal of Contentions.W/ Supporting Info & Certificate of Svc

ML20246J411
Person / Time
Site:	Seabrook
Issue date:	05/11/1989
From:	Fierce A MASSACHUSETTS, COMMONWEALTH OF
To:	Atomic Safety and Licensing Board Panel
References
CON-#289-8600 OL, NUDOCS 8905170070
Download: ML20246J411 (14)

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& LOCKETED Uwc UNITED STATES OF AMERICA-NUCLEAR REGULATORY COMMISSION 89 W,Y 15 P3 :45 ATOMICSAFETYANDLICENSINGBOARg Before the Administrative JudgesYgi?C l- Ivan W. Smith, Chairman

-Dr. Richard F. Cole

.Kenneth'A. McCollom-e

)

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

.) 50-444-OL PUBLIC SERVICE COMPANY ) (Off-Site EP)

OF NEW IIAMPSHIRE, EI AL. )

)

'(Seabrook Station, Units 1 and 2) ) May 11, 1989.

)

. MASSACHUSETTS ATTORNEY GENERAL'S OPPOSITION TO APPLICANTS MOTION TO DISMISS JOINT

'INTERVENOR CONTENTIONS On May.1, 1989, the Applicants filed'a motion1 ' to dismiss JI Contentions 22, 27, Bases B.2 and E, 38, 45 Basis B, MAG Ex-17, and Bases C, D, F, G, H, and part of A (as to road blockages) of JI-2. The ground stated for the motion was "that the Interveners have abandoned these contentions."

In response to the motion, the Mass AG states as follows:

1. The Mass AG admits that it has not filed trstimony on the two contentions which pertain to the rumor control -- JI-38 and MAG Ex-17. 'While we are not withdrawing the contention,1we have no objection to the contentions being dismissed.

1/ Applicants' Motion to Dismiss Joint Intervenor Contentions and Bases That Have Been Abandoned, May 11, 1989.

8905170070 890511 PDR ADOCK 05000443 PDR, t$gd3 T /

2. The Mass AG also concedes that as to JI-27 Basis B.2, it has no intention of litigating the first three sentences.

Pethaps other interveners (the EPZ communities in particular) wish to litigate these issues through cross examination of FEMA and Applicant witnesses; the Mass AG does not speak for other interveners here. As to the last sentenceA# of Basis B.2, however, the Mass AG is actively litigating this issue and most definitely has npi abandoned it. The assertion contained in this last sentence overlaps with those raised in JI-27 Basis A, JI-61, and JI-62, which the Mass AG will prove through the testimony of Charles D. Jones and the cross examination of FEMA's and Applicants' witnesses.

3. As to'JI-27 Basis E, which pertains to the lack of a verification procedure, due to the Board's ruling on MAG Ex-8.C.1 at the prehearing conference held in Boston on January 18, 1989, see Tr. 15206-15241, and the application of the doctrine of issue preclusion, the Mass AG has been precluded I from litigating this basis. Thus, the Mass Ag has not abandoned this basis and does not withdraw it, but prior Board rulings have resolved it and preclude its further litigation.

I We request that the Board acknowledge this in its order on this motion.

4. The Mass AG concedes that it has not filed testimony on JI-45 Basis B. While we are not withdrawing the contention /

basis, we have no objection to the contention being dismissed.

2/ The last sentence states: "Moreover, the SpMC would be of absolutely no assistance to local emergency workers or officials at the time of an emergency if they desire to participate in an ad hoc fashion."

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5. JI Contentions 2 and 22 are both ETE contentions which the Mass AG is actively litigating. In its haste to file the ETE testimony on April 10, 1989, in between the "Round 1"'and "Round 2" filings, the Mass AG inadvertently failed to prepare-and file an ETE trial brief section. That section of the Mass

'AG's trial brief has now been prepared and is attached hereto.

We hereby request leave to file it now. As can be seen by referring to this trial brief section, the Mass'AG has not abandoned JI-22 nor JI-2 Bases C, D, F, G, or H. While some of the issues that are reasonably within the scope of those bases-have now been resolved by the Board's PID on the NHRERP, each of these bases still has Massachusetts /SPMC specific issues which are not res judicata. Only these issues are' sought to be litigated here.

COMMONWEALTH OF MASSACHUSETTS-JAMES M. SHANNON ATTORNEY GENERAL h

Allan R. Fierce Assistant Attorney General Nuclear Safety Unit Department of the Attorney General One Ashburton Place Boston, MA 02108-1698 (617) 727-2200 DATED: May 11, 1989 i

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MAY 5, 1989 i

MASSACHUSETTS ATTORNEY GENERAL'S SUPPLEMENT TO TRIAL BRIEF XV. EVACUATION TIME ESTIMATES A. Contentions and Issues Presented Joint Intervenor contentions JI-1, JI-2, JI-3, and JI-22.

B. The FEMA Findings The. contention statement for JI-l asserts in part:

No evacuation time estimate study has been done to assess what the realistic evacuation times would be in the Massachusetts portion of the EPZ in light of the special difficulties, circumstances, and delays in conducting an evacuation in Massachusetts under the SPMC. The Final Report of the KLD Evacuation Time Estimate Study and Traffic Management Plan Update, completed in August 1986, did not take into account these special circumstances, difficulties, and delays.

In its Review and Evaluation, FEMA noted only that "[a]n ETE study was performed for the entire plume exposure EPZ, including the six Massachusetts communities." FEMA Review and Evaluation at 68. As to Evaluation Criterion J.10.1 of NUREG-0654, FEMA makes a one word finding of "adequare."

Contention JI-2 challenges the accuracy of the SPMC's ETEs. Contention JI-3 asserts that the SPMC's ETEs are deficient absent a real-time system to monitor the size of the beach population. Contention JI-22, as it has been construed by the Board in

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ruling on its admissibility, stands as a challenge to j

1; SPMC's ETEs under the regulations and planning '

standards. See Board's ruling on Contention MAG 43 in its Memorandum and Order of July 22, 1988. While i

FEMA has found the SPMC " adequate" as to Evaluation Criterion J.10.1, FEMA states in its Prefiled I

L Testimony of Richard Donovan, page 2, 1 fol. Tr. 17943, 1 i

1 that on issues related to ETEs, " FEMA defers to Dr.

1 Urbanik [an NRC staff witness) on those issues encompassed by his testimony and does not offer testimony of its own in those areas." We take this to mean that on ETE issues addressed by Dr. Urbanik, there is no FEMA presumption which applies. Since Dr. Urbanik addresses essentially all the ETE issues raised in JI-1, JI-2, JI-3, and JI-22, no FEMA presumption exists as to these contentions.

C. Identity of Witnesses / Summary of Testimony JI-l (ETE Study)

As to JI-1, the Mass AG will offer the testimony of Dr. Adler, who will testify that there is no published ETE study explaining how the SPMC's ETEs were calculated. He also explains why Volume 6 of the NHRERP cannot serve as that study for the SPMC's ETEs.

JI-2 (ETE Accuracy)

Basis A asserts that orderly and efficient traffic flow will not be maintained due to the inadequacies in slanning for the use of traffic

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6 control personnel and for the removal of road blockages. In his ETE testimony Dr. Adler will address the issues concerning traffic control personnel. The Mass AG will prove the " road blockages" aspect of this contention through the cross examination of Applicant Witnesses, especially Applicants Panel No. 9 (Traffic Managenent).

Basis B asserts that the SPMC's ETEs are based on incorrect assumptions about the number of cars that will flow across Massachusetts roads.

Similarly, Basis E asserts that the number of vehicles evacuating from and through the Massachusetts portion of the EPZ has been l

underestimated. Dr. Adler will address five j sub-issues raised by these bases, and Dr. Albert Luloff will offer testimony regarding the size of the permanent resident population in Massachusetts in 1989. We note that while the Board has determined that the total number of beach area vehicles to use for summer ETE calculation is 31,000, the issue of how many of these vehicles should be allocated to Massachusetts beaches in calculating the SPMC's ETEs is very much alive. As to the number of vehicles which the permanent resident population will use to evacuate, the Mass AG asserts that this number should be achieved by dividing the permanent resident

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L population by 2.3 persons per vehicle, a number supported in Dr. Adler's NHRERP Testimony, fol. Tr.

7181 at 42, and the Cole' survey. Dr. Stephen Cole's testimony, fol. Tr. 7849, at 29-31, points out the i serious methodological flaws in the survey Applicants

.are relying on for their claim that permanent residents will evacuate using 2.6 people per vehicle.

Basis C asserts that the ETEs fail to account for delays that will result from the confusion among the public caused by hearing different emergency messages from different sources. To prove this basis, the Mass AG will rely on the testimony of Dr.

T. Michael Carter, whose analysis of the SPMC's plans for emergency warnings indicates that an orderly, efficient public response to an evacuation PAR cannot be reasonably assumed. The Mass Ag will also cross examine the Applicants' witnesses to prove this basis.

Basis D asserts that-the SPMC's ETEs are based on a traffic management plan that overestimates the j

traffic flow rate through the intersection at Route '

110/I-95/ Elm Street in Amesbury. Applicants have q l

re-configured the traffic control diagram for this  !

l intersection since the " grassy median" litigation >

occurred during the NHRERP hearings. Using the new

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configuration, which includes a U-turn movement, the '

Applicants are still substantially overestimating the traffic flow rate through this intersection during an  ;

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evacuation. D r .. Adler has testified about this, to

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some extent, in his testimony regarding the Traffic Management Plan, and the Mass AG will cross examine the Applicants' ETE witnesses further on this point.

[ Basis E was noted above with Basis B)

Basis E asserts that the ETEs are based on the implicit assumption that the placement of cones and barricades will not actually block vehicles with legitimate reasons to travel against or across the flow of evacuation traffic. In their Testimony No. 9 (Traffic Management), the Applicants stated that they will no longer be relying on barricades and will substitute three traffic cones for each barricade.

During cross examination, the Panel also stated that all cones are to be placed to permit at least 10 feet of space between them, thereby allowing cars to pass.

Even so, larger vehicles will be blocked, especially buses and vans. This will affect the special I

population evacuation times. (See Basis I, supra.) ~

The Mass AG has cross examined the Applicants' Panel No. 9 on this issue and is also considering filing rebuttal testimony. Basis E has not been withdrawn.

Basis G asserts that the ETEs were calculated using a planning basis (simultaneous beach closings in New Hampshire and Massachusetts) which has no relationship to the SPMC. The Mass AG will prove this basis through the ETE testimony of Dr. Adler (90 11-

12) and cross examination of the Applicants' witnesses.

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Basis I asserts that there are no special population ETEs in the SPMC and that it is unrealistic to assume that special population ETEs L -1 will always be shorter than the general population ETEs. The Mass AG will prove this basis through the ETE testimony of Dr. Adler, the Mass AG's testimony about manned vehicles and bed buses, the testimony of Guy Daines, the testimony of Sharon Morlearty, the testimony of Geary Sikich, and the cross examination of Applicants' witnesses.

JI-3 (Monitoring Size of Beach Population)

The Mass AG will prove this contention through the ETE testimony of Dr. Adler and the cross examination of Applicants' witnesses.

JI-22 (ETEs Are Unrealistic and Unreliable)

To the extent that the Mass AG proves J1-1, JI-2, and JI-3, this contention will be proved as l well. No additional evidence will be offered on this contention beyond that which is obtained through direct and cross examination of the witnesses described above.

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• UNITED STATES OF AMERICA kkh.f NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARo T9 MRf 15 P3 :45 Before the Administrative Judges:

_ . I L, Ivan W. Smith, Chairman -

Dr. Richard F. Cole Kenneth A. McCollom

)

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

) 50-444-OL PUBLIC SERVICE COMPANY ) (Off-Site EP)

OF NEW HAMPSHIRE, ET AL. )

)

(Seabrook Station, Units 1 and 2) ) May 11, 1989

)

CERTIFICATE OF SERVICE I, Allan R. Fierce, hereby certify that on May ll, 1989, I made service of the within MASSACHUSETTS ATTORNEY GENERAL'S OPPOSITION TO APPLICANTS' MOTION TO DISMISS JOINT INTERVENOR CONTENTIONS by first class mail to:

Ivan W. Smith, Chairman Kenneth A. McCollom Atomic Safety & Licensing Board 1107 N. Knapp St.

U.S. Nuclear Regulatory Stillwater, OK 74075 Commission East West Towers Building Docketing and Service 4350 East West Highway U.S. Nuclear Regulatory Bethesda, MD 20814 Commission Washington, DC 20555 Dr. Richard F. Cole Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814 l

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! t Rooert R. Pierce, Esq.

• Thomas G. Dignan, Jr., Esq.

Atomic Safety L Licensing Board Katherine Selleck, Esq.

U.S. Nuclear Regulatory Commission Ropes & Gray i East West Towers Building One International Dlace

, 4350 East West Highway 3oston, MA 02110 l Bethesda, MD 20814 l H. Josepn Flynn, Esq. Sherwin E. Turk, Esq.

Assistant General Counsel U.S. Nuclear Regulatory Office of General Counsel Con 1mi s sion Federal Emergency Management Office of the General Counsel Agency 15th Floor 500 C Street, S.W.

Washington, DC 20472 11555 Rockville Pike Rockville, MD 20852 Atomic Safety & Licensing Robert A. Backus, Esq.

Appeal Board Backus, Meyer & Solomon II . 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.

Harmon, Curran, & Towsley 145 South Main Street Suite 430 P.O. Box 38 2001 S Street, N.W. Bradford, MA 01935 Washington, DC 20008 Senator Gordon J. Humphrey Senator Gordon J. Humphrey I U.S. Senate One Eagle Square, Suite 507 Washington, DC 20510 Concord, NH 03301 (Attn: Tom Burack) (Attn: Herb Boynton)

• By hand

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John P. Arnold, Attorney General Office of the Attorney General Phillip Ahrens, Esq.

25 Capitol Street Assistant Attorney General Concord, NH 03301 Department of the Attornay General Augusta, ME 04333 William S. Lord Board of Selectmen Richard Donovan Town Hall - Friend Street FEMA Region 10 Amesbury, MA 01913 130 228th Street, S.W.

Federal Regional Center Bothell, WA 98023-9746 COMMONWEALTH OF MASSACHUSETTS JAMES M. SHANNON ATTORNEY GENERAL 9

e W i Allan R. Fierce

• Assistant Attorney General fluclear Safety Unit Department of the Attorney General One Ashburton Place Boston, MA 02103-1698 (617) 727-2200 DATED: May 11, 1989

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b THE COMMONWEALTH OF MASSACHUSETTS m

• DEPARTMENT OF THE ATTORNEY GENERAL 5

! JOHN W. McCORMACK STATE OFFICE BUILDING

ONE ASHBURTON PLACE, BOSTON 02108-1698 k*

J AMES M. SHANNON ATTORNEY OENERAL May 11, 1989 Thomas Dignan, Esq.

Ropes & Gray One International Place Boston, MA 02110

Dear Mr. Dignan:

1. Since you insist on reading withdrawals of testimony into what is nothing more than a list of dates, this is to clarify the situation for you. Dr. Adler has three (3) pieces that he will address during the time scheduled for ETE witnesses. They are:

1. " Interaction of Commuter Flow and Evacuation Traffic Flow Within the Seabrook EPZ" (if necessary).

2. " Testimony of Dr. Thomas J. Adler on Behalf of James M. Shannon, Attorney General for the Commonwealth of Massachusetts, Concerning Contentions JI-13 (Traffic Guide Training)"

3. " Testimony of Dr. Thomas J. Adler on Behalf of James M. Shannon, Attorney General For the Commonwealth of Massachusetts, Concerning Contentions JI-1, JI-2 (ETEs) and JI-3 (Data Collection)"

Under the proposed schedule, Mass AG's ETE witnesses will be followed by the Applicants' and then the NRC Staff's.

Rest assured that if the Mass AG should at some point in the future. elect to withdraw a piece of testimony, announcement of the withdrawal will not be buried in a list of scheduling dates. You will be informed of any withdrawal of testimony in a direct and explicit manner.

On the topic of ETE witnesses, please be informed that Mr. Turk has requested that the testimony of ETE witnesses commence on June 19 rather than June 20. The Filderman piece and Applicants' rebuttal will follow the ETE witnesses.

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,i Mr. Dignan May 11, 1989 Page Two

2. Your letter dated May 10, 1989 expresses a concern that the revised proposed schedule did not take into account your comments on " delay" built into the proposed schedule. Your letter overlooks the fact that you have yet to identify any piece of testimony that you believe will take less time than is suggested in the proposed schedule.

Since we are not blessed with "the second sight,"

we are unable to prophesy as to which pieces of testimony will take less time than is blocked out in the revised proposed schedule. If you have some insight that we lack or can otherwise I identify any other piece of testimony that you believe will take less time than has been suggested in the revised proposed schedule, we would be happy to take your comments into account.

As was requested in my letter dated.May 9, 1989, please direct scheduling comments to Kelly Doherty at (617) 727-2200, Ext. 2938.

Very truly yours, Leslie Greer Assistant Attorney General Nuclear Safety Unit Public Protection Bureau one Ashburton Place Boston, MA 02108 (617) 727-2200 LG/tm cc: Service List

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