ML19332D742

Intervenors Answer in Opposition to Applicant Petition for Review of ALAB-924.* Petition Procedurally Defective & Contravenes Governing Law & Should Be Denied.W/Certificate of Svc

ML19332D742
Person / Time
Site:	Seabrook
Issue date:	11/22/1989
From:	Brock M, Traficonte J HAMPTON, NH, MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE
To:	NRC COMMISSION (OCM)
References
CON-#489-9505 ALAB-924, CLI-89-19, OL, NUDOCS 8912050184
Download: ML19332D742 (13)

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'* UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION n

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Before the Commission: 1 1

Kenneth M. Carr, Chairman- *F9 1s 24 A'il :15 i Thomas M. Roberts, Commissioner ,

Kenneth C. Rogers, Commissioner l James R. Curtiss, Commissioner .'. 'J j i

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In the Matter of ) Docxet Nos. 50-443-OL l

) 50-444-OL PUBLIC SERVICE COMPANY ) (Emerger.cy Planning Issues)

OF NEW HAMPSHIRE, ET AL. )

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(Snabrook Station, Units 1 and 2) .) November 22, 1989

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INTERVENORS' ANSWER IN OPPOSITION TO APPLICANTS' PETITION FOR REVIEW OF ALAB-924 ,

The Masscchusetts Attorney General, the Seacoast Anti

. Pollution League, the New England Coalition on Nu:1 ear Pollution, and the Town of Hampton ("Intervenors") hereby oppose Commission review of those issues presented in Applicants' ,

Petition For Review of ALAB-924.

The Petition is Procedurally Defective In ALAB-924, the Appeal Board rejected Applicants' efforts to defend an indefensible P!D issued by the Seabrook Licensing Board, and reversed and remanded that decision for further ,

proceedings. To obtain additional appellate review from the Commitsion, Applicants must demonstrate, inter alia, that their petition presents important questions of law or policy, or that

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. the Appeal Board " resolved a factual issue necessary for  ;

decision in a clearly erroneous manner." 10 C.F.R. 5 2. 786 (b) (1) f and - (4) (11) . . The petition does not even attempt this showing. '

Instead, Applicants state:

Why Commision Review Should Be Exercised None of the matters as to which reversal has been ordered is even close to being a

" fundamental flaw" in the NHRERP. The plan '

clearly satisfies any reasonableness stand.ard for '

emergency plans. The Appeal Board has directed the holding of further proceedings which could i; result in the closure of the two-year " graded exercise window" for Seabrook, which opened in t June of 1988. Only Commission review can avoid the " endless loop of litigation". Petition at 10. .

Only 2 months ago the Commission denied Applicants' Petition For Exemption from tho prelicensing onsite exercise a

requirement, and rejected, as speculative, Applicants' complaint of an " endless loop of litigation". Public Service Co. of New Hamps3 ire (Seabrook Station, Units 1 and 2) i CLI-89-19 (Sept. 15, 1989) sl. op. 3. Similarly, CLI-69-19 properly rejected Applicants' claim of licensing delay as a '

basis for bypassing emergency planning requirements or ,

Intervenor hearing rights on these issues of public safety.

• CLI-89-19 ht 3-4.

Applicants' present Petition offers no justification for j the Commission to depart from its prior ruling. The Petition L _does not even attempt the requisite showing that important legal or policy issues are presented for review, or that the

[l Appeal Board's factual findings are " clearly erroneous". 10 C.F.R. 92.786(b)(1) and (4) (11) . Therefore the Petition should be DENIED.

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The Petition Contravenes Governina Law )

Alternatively, even considered on its merits, the Petition )

I provides no basis to reverse ALAB-924. j

1. LOAS for Teachers In an irrational opinion, the Licensing Board ruled that letters.of agreement are required for " service providers", that L

L teachers indeed are " service providers" to the extent school personnel must accompany evacuating students off school premises, man gig,, NHRERP Vol. 18A, App. F at F.3-6, yet, illogically, that no LOAs will be required, individually or-collectively, from New Hampshire EPZ teachers. Finding no evidence on the record to sustain this irrationality, the

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Appeal Board appropriately remanded to resolve the existing inconsistency in its (Licensing Board's) interpretations of the role aof school personnel in an evacuation and determine.whether any LOAs should be obtained from school personnel.

ALAB-924 at 11. ,

Although the record is devoid of evidence establishing whether teachers are expected to accompany evacuating students in emergency evccuation situations, a necessary predicate under ALAB-924 to determine whether LOAs are required, ALAB-924 at 10, Applicants ask this Commission to rule as a matter of law P

that no letters of agreement are required from EPZ teachers.

That ruling would be irrational on its face.

The purpose of LOAs is to demonstrate "the allocation of -

operational responsibilities and the availability of assistance

o from various sources". ALAB-924 at 3 citing NUREG-0654/

FEMA-REP 1. The NHRERP plainly contemplates that teachers will accompany students to reception centers in an evacuation.

Nevertheless, Applicants claim that no LOAs are required since teachers are " service recipients." Aside from the factual gaps on the present record, warranting remand, Applicants ignore the  ;

uncontroverted testimony of-the teacher panel, representing more than 500 teachers in the EPZ, who testified they had been assigned responsibilities under the NHRERP without their consent, that teachers did not accept those responsibilities, and that thene teachers intend to leave their students to care for the safety of their own families in a radiological-emergency.1/

Egg Tr. 4031; Post Tr. 3945 at 6-9; Appendix H.

Presently, to characterize teachers as " service recipients" as a matter of law, from whom no LOAs are required, is utterly without record support.

1/ To the extent these issues involve questions of human behavior, these issues remain pending for determination before the Appeal Board. Applicants argument that teachers will act "in loco carentig" to students is premature, Egg Petition at 4, and contested by Intervenors. Commission review of these contested factual issues should first await decision by the Appeal Board. In addition, although the Licensing Board again, L in.its November 20 Memorandum Supplement at 9, confuses the issues, the behavioral response of teachers does not excuse the l 1ecal requirement to obtain LOAs to verify the " availability of L assistance" frcn all service providers. ALAB 924-citing l NUREG-0654. Indeed, the Licensing Board's illogic would effcctively eliminate LOA requirements for service providers (e.g. LOAs for bus or ambulance companies) whenever the Licensing Board subjectively " believed" these entities would i respond to a radiological emergency. That is not the law.

l NUREG 0654 II.A.3., See 10 CFR S 50. 4 7 (b) (1) .

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' Alternatively, Applicants claim no LOAs from teachers are l required since " individual members of labor groups need not I sign letters of agreement". Petition at 4. (Emphasis

• supplied). Applicants and the State of New Hampshire, however, have not even attempted to obtain LOAs from schools, teacher  ;

unions, or similar organizations that collectively may  ;

represent teachers in an effort to provide the requisite '

nhowing of "the availability.of assistance from various '

sources." ALAB-924 at 3 citing NUREG-0654. Presently, there are no LOAs, individually 2r collectively, for school personnel. E/

Finally, Applicants allege that state officials "believe" teachers "would perform the duties (including riding the buses) in other emergencies. Tr. 3387-89." Petition at 4. The cited record indicates only one state official expressed this view, who acknowledged he had " reached that opinion without discussing this issue with any teachers in the emergency planning zone." Tr. 3388.

Special Needs Survey Since there remained genuine issues of material fact in dispute, the Licensing Board was barred by regulation from j summarily disposing of Intervenor contentions, without hearing, l'

l 2/ By contrast, Applicants have obtained LOAs from organizations such as the teamsters union to provide bus drivers, and an LOA from each bus company, committing vehicles I'

and drivers, to respond to a radiological emergency. Een App.

Ex. 5 Vol. 5. For purposes of expediency, however, Applicants have taken an inconsistent position concerning teachers.

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that ch311cng;d tho ad quccy.of th3 proc durco for id:ntifying l

persons with special needs. 10 C.F.R. 52.749(d). This is in accord with parallel federal procedure, F.R. Civ. P. 56, which bris long been identified as the " judicial counterpart" of the Commission's summary disposition rule.2/ It is hornbook law I that:

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When applying the Rule 56(c) standard, the judge cannot 1 summarily try the facts, his role is limited to applying the law to the facts that have been established by the I litigants' papers. Therefore, a party moving for summary judgment is not entitled to a judgment merely because the l

facts he offers appear more plausible than those tendered in oppositien, or because it appears that the adversary is J unlikely to prevail at trial. Wright and Miller, LedgIn1 ,

Practice and Procedures, Volume 10a 5 2725 pp 99-109 (1983).

This is in accord with established practice in this agency.S/

Independently, pursuant to the Atomic Energy Act, Intervenors' have a right to a meaninaful hearing on material licensing-issues. UCS v. NRC, 735 F.2d 1437 (D.C. Cir.

1984).E/

2/ Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1

• and 2) ALAB-182, 7 AEC 210, 217 (1974).

1/ See e.a. General Electric Co. (GE Morris Operation Spent Fuel Storage Facility) (BP-82-14, 15 NRC 530, S32 (1982) (If there is.any possibility that a litigable issue of fact exists or any doubt whether parties should be permitted to proceed further, the motion must be denied). See also Houston Power &

Liahtina Co. 14 NRC 637, 640-41 (1981).

E/ Applicants' claim that further hearing on these issues

, would represent " extraordinary measures" therefore is not

! dispositive of Intervenor hearing rights afforded by the Atomic H

l Energy Act. The Licensing Board also ignores these hearing rights, finding that the survey does not present "significant safety and regulatory considerations". Memorandum Supplement

• at 17. In substance, and p.rier to licensing, the Board has again imposed the reopen the record standard to bar Intervenor hearing rights en material licensing issues. This again gives rise to a judicial presumjn'on of agency bad faith. Mothers For Peace v. NRC, 751 F2d A287 (D.C. Cir. 1984).

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Those material issues, supported by affidavit from Intervenors' expert, " included issues relating to the methodology utilized to identify the special needs population, survey design, accuracy verification, response motivation, and  ;

update procedures." ALAB-924 at 16. Presently, there is no 5 record support for the Commission to rule, as a matter of law,

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that Applicants' survey is adequate or reliable.5/ Plainly, ,

the adequacy of the survey is a matter of mixed fact and law.

Summary disposition on the factual issues would violate Intervenor hearing rights under the Atomic Energy Act.

SDecial Facility ETEs  !

Contrary to the Appeal Board, Applicants claim that no further consideration of special facility ETEs is required on the preparation time of advanced life support (ALS) patients for evacuation. According to Applicants, the NHRERP already includes this time factor since the plan "did assume a .40  ;

minute loadina time for persons (such as those on advanced life support) who are evacuated in ambulances, App. Ex. 5, Vol. 6,

p. 11-26." Petition at 9. (Emphasis supplied).

Applicants misread the cited plan provision. As testified to by Applicants' own panel, " loading time" is only the time necessary to move passengers from the loading dock into the evacuation vehicle.2/

f/ For reasons stated by the Appeal Board, Applicants' preliminary and background discussion of the survey, in later testimony, did not cure the legal error of summary disposition or afford Intervenors a reasonable opportunity to challenge the survey on the merits. Egg ALAB-924 at 18-19.

2/ "Concerning evacuation of those elderly able to travel by bus, loading time is the time it takes 40 elderly or disabled passengers to move from the ground into the bus and into a seat." T4301.

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l Under the NHRERP, therefore, " loading time" does D21 l include the time necessary to medically prepare and assemble at the loading dock, the ALS patients, the very points of Appeal Board concern that warranted remand.

In. addition, as the Appeal Board suggested, even the 40 i minute loading time used as a planning basis has no credible support in the record. The State-of New Hampshire could not even offer an estimate of the time it takes to load an ALS i patient into an ambulance. ALAB-924 at 26 N.70, citing Tr. ,

4302. Given the undisputed testimony by the Intervenor witness that "it would take from "28 minutes to an hour" to move a l sinale ALS Datient from a bed to a stretcher adiacent to the bed", ALAB-924 at 25, the 40 minute load time apparently relied on for an entire facility, 123 NHRERP Vol. 6 p. 11-26, is '

plainly inadequate.E/ ,

Further record development on individual special facility ETEs is essential if the ETE is to serve as a reasonable decisional tool for those charged with the care of the critically ill.

4. Shelter Imolementina Details While recognizing the need for " implementing detail" for sheltering beach transients without transportation,E/

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R/ Intervenors provided undisputed expert medical testimony that preparation of ALS patients for evacuation (aside from I paperwork) could n21 Proceed prior to ambulance arrival. Tr.

7676. The Appeal Board relied, in part, on this testimony in ,

its order of remand. ALAB-924 at 25. Ignoring this evidence aaain, the Licensing Board asserts, without foundation, that there is "an Extra margin of time" between warning of a pending evacuation and ambulance arrival "within which ALS patients can be readied for evacuation." Memorandum Supplement at 27.

2/ This is estimated as approximately 2% of the summertime -

beach population. 'LBP-88-32 , 9 8.43.

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Petition at 8, Applicants argue that the remaining 98% of the I summertime beach population requires no personnel or procedures '

to implement a shelter option. These tens of thousands of beachgoers, say Applicants, should simply " shelter in place",

Petition at 8, without assistance or direction in leaving the i

beach areas to promptly locate appropriate and available l shelters. The proposition is absurd and would require this

• Commission to approve a bare sheltering " concept" in the NHRERP ,

although stats officials have utterly failed for years to support that concept with any plan.

Preliminary to providing this plan or " detail", the State- ,

has not even undertaktn any efforts to identify the structures which would be used us public shelters in a radiological emergency.

In terms we haven't done our own assessment, we certainly haven't done our own assessment. As to whether or not there is adequate shelter, that's what the empirical process, the empirical study, whether its Stone and Webster style study, or somebody else's study of our own, that has been done yet.

T-10694.

The State has never spoken to the owners of any of the buildings on Hampton Beach (or other beach areas) on the availablity or adequacy of these structures as public shelters. T-10701.

The State-has never identified what criteria it will use to select potential shelters in the beach areas. T-10705.

"The State has not conducted its own study as to whether or not there is space in relationship to where the crowds are

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, Finally, tho St0to would cxprata "no opinion" on the 1

-validity of Applicants' " shelter' study," T-010699, which FEMA j itself recognized as a mere inventory of existing structures, )

not a shelter plan. T-13024.1E/

The Licensing Board's rejection of the need for

" implementing detail" .is, in substance, a rejection of any shelter plan at all for tens of thousands of beachgoers. To endorse this view in the face of emergency planning regulations 3 1

that supposedly require maximizing dose savings would render those regulations meaningless.ll/12/ ,

The Petition should be Denied.

RESPECTFULLY SUBMITTED

\ A%7T' wt i

dhe John Traficonte~

1 i Chief, Nuclear Safoty Unit Assistant Attorney General Matthew T. Brock

• Assistant' Attorney General Department of the Attorney General One Ashburton Place Boston, MA 02108 '

(617) 727-2200 1R/. Applicants therefor err in claiming there is " detail in ,

the form of a shelter study." Petition at 9. In addition, state officials did not dispute that Applicants' shelter

" survey" included restrooms and buildings previously condemned by local officials. T.10699. ,

11/ Applicants fail to distinguish this case from Limerick.

That case held that likelihood of need is not the test for judging whether emergency plan omissions are deficiencies (otherwise Licensing Boards would be free to eliminate all emergency. planning requirements piecemeal.) Thus, there is no difference between the likelihood of an accident and the likelihood of a particular set of accidents in the planning basis as a grounds on which to ignore planning omissions.

12/ Contrary to Applicants' suggestion, see Petition at 9 and N.12, - even tha Licensing Board recognized that "(it) is unlikely that the FEMA / State Agreement (over implementing detail for sheltering) will satisfy the Appeal Board's requirements on that issue." Memorandum Supplement at 33.

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UNITED STATES OF ?.MERICA -l(' ,y',E D

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NUCLEAR REGULATORY COMMISSION -

-Before the Commission: 'P9 NW 24 M1:16 i Kenneth'M. Carr, Chairman l Thomas M. Roberts, Commissioner U n O. > .. . a. e l Xenneth C. Rogers, Commissioner MEN i W M I James R. Curtisa, Commissioner " l" o , )

In the Matter of ) Docket Nos. ou*e4 -OL

) 50<-444-OL PUBLIC SERVICE-COMPANY ) (Emergency. Planning Issues)

OF NEW HAMPSHIRE, ET AL. )

)

(Seabrook Station, Units 1 and 2) ) November 22, 1969

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CERTIFICATE OF SERVICE

'I, Matthew T.' Brock, hereby certify that on November 22, 1989, I made service of the within INTERVENORS' ANSWER IN L . OPPOSITION TO APPLICANTS' PETITION FOR REVIEW OF ALAB-924 by l-l? Federal Express as indicated by.[*] and by first class mail to L

!. the following parties:

l-Ivan W.-Smith, Chairman Kenneth A. McCollom Atomic F,afety & Licensing Board 1107 W. Knapp St.

U.S. Nuclear Regulatory Commission Stillwater, OK 74075 East West Towers Building ,

t 4350 East West Highway Bethesda, MD 20814 ,

Dr.1 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 Building East West Towers Building 4350 East West Highway 4350 East West HigtPay Bethesda, MD 20814 Bethesda, MD '20814

• Docketing and Service

• Thomas G. Digncn Jr.

EU.S. Nuclear Regulatory Commission Ropes & Gray Washington, DC 20555 One International Place l Bouton, MA 02110  ;

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• Marjorie Nordlinger, Esq. Paul McEachern, Esq.

U.S Nuclear Regulatory Commission Shaines & McEachern Office of the General Counsel 25 Maplewood Avenue 11555 Rockville Pike, 15th Floor P.O. Box 360 Rockville, MD 20852 Portsmouth, NH 03801 H. Joseph Flynn, Esq. Atomic Safety & Licensing Assistant General Counsel Appeal Board

- Office of General Counsel U.S. Nuclear Regulatory Commission Federal Emergency Management Washington, DC 20555 Agency 500 C Street, S.W.

• Washington, DC 20472 Robert'A..Backus, Esq. Atomic Safety & Licensing Board 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 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 Strect 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. Fumphrey 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. Nilliam S. Lord Assistant Attorney General Board of Selectmen Department of the Attorney Caneral Town Hall - Friend Street Augusta, ME 04333 Amesbury, MA 01913

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' H i G. Paul Bollwerk, III,. Chairman Alan S. Rosenthal Atomic Safety & Licensing Atomic Safety & Licensing Appeal Board Appeal Board l U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission ]

LEast West Towers Building East West Towers Building i 4350 East West Highway 4350 East West Highway ,

Bethesda, MD 20814 Bethesda, MD 20814 l

'Howard A. Wilber *Kenneth M. Carr Atomic Safety & Licensing Chairman Appeal _ Board- U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 11555 Rockville Pike East West Tcwers Building- Rockville, MD 20852 4350 East West Highway Bethesda, MD- 20814

• Thomas M. Roberts, Commissioner' *Kenneth-C. Rogers, Commiss4"ner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852 Rockville, MD 20852

• James R. Cu;tiss, Commissioner U.S. Nuclear Regulatory Commission 11555 Rockville Pike .

Rockville, MD 20852 Respectfully submitted, JAMES M. SHANNON ATTORNEY GENERAL L {q w x g %

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Matthew T. Brock.

l Assistant Attorney General Nuclear Safety Unit Department of the Attorney General L One Ashburton Place Boston, MA 02108 (617) 727-2200 Dated: November 22, 1989 1

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