ML19332F896

Intervenors Supplemental Motion & Memorandum in Support of 891113 Motion to Revoke & Vacate 891109 License Authorization.* Exhibits & Certificate of Svc Encl

ML19332F896
Person / Time
Site:	Seabrook
Issue date:	12/01/1989
From:	Traficonte J MASSACHUSETTS, COMMONWEALTH OF
To:	NRC COMMISSION (OCM)
References
CON-#489-9569 OL, NUDOCS 8912190271
Download: ML19332F896 (150)

Text

UNITED STATES OF AMERICA NUCLEAR RECULATORY COMMISSION PC'JEli?

- tv Before the Commission:

• ['o pr -f '" " )

Kenneth M. Carr, Che.irman

Thomas M. Roberts, Commissioner Kenneth C. Rogers, Commissioner -

James R. Curtiss, Commissioner ,

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) ,

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

) 50-444-OL  !

PUBLIC SERVICE COMPANY ) (Emergency Planning Issues)

-0F NEW HAMPSHIRE, ET AL. )

)

(Seabrook Station, Units 1 and 2) ) December 1, 1989

)

r INTERVENORS' SUPPLEMENTAL MOTION AND MEMORANDUM IN SUPPORT OF NOVEMBER 13 MOTION TO REVOKE AND VACATE THE NOVEMBER 9 LICENSE AUTHORIZATION l

COMMONWEALTH OF MASSACHUSETTS l JAMES M. SHANNON l ATTORNEY GENERAL i John Traficonte Assistant Attorney General Chief, Nuclear Safety Unit Department of the Attorney General One Ashburton Place Boston, MA 02108 Dated: December 1, 1989 8912190271 091201 PDR ADOCK 05000443

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J G PDR l/

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UNITED STATES OF AMERICA NUCLEAR REGUIATORY COMMISSION Before the Commissiont ,

Kenneth M. Carr, Chairman Thomas M. Roberts,' Commissioner

, , Kenneth C. Rogers, Commissioner

, James R. Curtiss, Commissioner ,

)

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

50-444-OL i

)

PUBLIC SERVICE COMPANY ) (Emergency Planning Issues) .!

OF NEW HAMPSHIRE, ET AL. ) ,

)

(Seabrook Station, Units 1 and 2) ) December 1, 1989

)

INTERVENORS SUPPLEMENTAL MOTION AND MEMORANDUM IN SUPPORT OF NOVEMBER 13 MOTION TO REVOKE OR VACATE THE NOVEMBER 9 LICENSE AUTHORIZATION INTRODUCTION On November 9, 1989, within 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> of having had its i

earlier decision on emergency planning for New Hampshire L

reversed, the Seabrook Licensing Board authorized the Director of-Nuclear Reactor Regulation (the " Director") to issue a full power operating license for the Seabrook nuclear power plant.

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This action is in open violation of law and must be declared ,

, null and void. The November 9 licensing action demonstrates

., once again the folly of the Commission's decision to defer until the operating license stage of this hoary proceeding, any judgment of the adequacy of emergency planning at Seabrook.

Indeed, the Orwellian (if not Kafkaesque) nature of the November 9 licensing action is, in part, based on the fact that

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l the Licensing Board acted before the Commission was even able to reach any decision on the legal standards for this adequacy  ;

judgment -- the " pivotal" issue in the Seabrook case identified by the Appeal Board and certified to this ccamission for

+ decision. Therefore, astoundingly, the critical substantive  :

issue of law so hotly contested, so publicly debated, so long deferred wac never READ decided before this agency's final licensing action. There can be no clearer evidence that the agency has broken its promise to the Court of Appeals given in 1982 when SAPL challenged as arbitrary and capricious the deferral of any judgment about emergency planning until after ,

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billions of dollars had been spent at Seabrook. As the Court noted:

The Commission's decision not to order a hearing

, immediately was based upon a consideration of the ,

relevant factors. These factors include . . . the availability of a full review qi thap.g factors at ihn ,

ooeratino license ptaae.

SAPL v. NRC, 690 F.2d 1025, 1032 (D.C. Cir. 1982) (emphasis supplied). There can be only one explanation for this remarkable licensing action: deferral of judgment has made any real " judgment" impossible. The result is a substantive and procedural administrative debacle that indicates that another

• • agency promise to the Court of Appeals has also been broken:

(I]n his decision the Director noted that "[t]he permittee's investment in constructing the facility is not . . . a proper factor for consideration in determining at the operating license stage whether a nuclear power plant is safe to operate" . . .

Additionally, in its brief before this court, the Commission stated, "The Commission does not and cannot consider the utility's investment in a particular facility.in determining whether ' reasonable assurance' exists which justifies the grant of an operating

l license." . . . In light of these assureness that the i Commission vill not allow its judgment to be skewed by  ;

continued construction of the plant, we cannot hold that SLPL's fears alone make the Commission's refusal to institute a revocation proceeding arbitrary or '

capricious. If at the operating license stage SAPL believes that the Commission has been derelict in its

-, duty-to protect the public health and safety, it can -

. then challenge the Commission's action.

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. Id. at 1033. .

In light of these public promises and its statutory and ,

constitutional obligations, the Commission must revoke and vacate the November 9 licensing action and ensure that the Seabrook licensing proceeding continue in accordance with the basic norms of reason artd law.  !

I. THE PRESENT POSTURE OF INTERVENORS' MOTION TO REVOKE THE NOVEMBER 9 LICENSE AUTHORIZATION As the Commission is aware, the Intervenors on November 17, 1989 cought reconsideration of the Commission's November 16 [

Order which asserted jurisdiction over Intervenors' November 13 Motion to Revoke. As set forth in the November 17 Motion, the assertion of jurisdiction by the Commission over Intervenors' l

November 13 Motion is itself legal error. Intervenors here reassert these claims and renew their motion for

. reconsideration. In order that there be no doubt or confusion concerning the nature of the relief sought by Intervenors in their November 13 Motion (agg Applicants' November 22 Answer to Intervenors' November 17 Motion at 6-8), Intervenors add these brief comments.

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A. Nature of the November 13 Motion As is clear from a review of the Motion to Revoke, in

-Intervenors' view, the Licensing Board's action on November 9 authorizing issuance of a Seabrook license is null and void gh

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1 in111g because it was in direct contravention of the Appeal Board's decision, reversina and remanding for appropriate further proceedings certain findings and judgments made by the same Licensing Board regarding the adequacy of the NHRERP in

.* LBP-88-32. Inferior boards must obey Appeal Board directives.

South Carolina Electric and Gas Co. (Virgil C. Sumner Nuclear q Station) ALAB-710, 17 NRC 25, 28 (1983). Because the license l authorization required a finding that the NHRERP was in accordance with regulatory requirements and this finding was

beyond the power, authority or jurisdiction of the smith Board  ;

on November 9 in light of the Appeal Board's November 7 4

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" mandate", that licensing action must be declared null and void. To that end, Intervenors sought immediate mandatory relief from the appellate body which had (and has) jurisdiction over Intervenors' appeal of LBP-88-32. Intervenors sought to  ;

have that appellate tribunal immediately vacate and revoke the license authorization as a form of mandatory relief.1/ If that licensing action is not in accordance with the spirit and

• letter of ALAB-924's " mandate" then Intervenors are 1/ Although not expressly provided by the Rules of Practice, Intervenors sought essentially a writ of mandamus from the i

% Appeal Board to enforce its " mandate" in ALAB-924. Egg,

aenerally, United States v. United States District Court, 334 U.S. 258 (1948). Nothing hangs on the technical distinction between moving the Appeal Board to order the Licensing Board to revoke its license authorization and moving for that relief ,

directly from the Appeal Board. It is also obvious, as noted i in the November 17 Motion For Reconsideration at 10 n.11, that this mandatory relief was sought pursuant to the Appeal Board's jurisdiction over LBP-88-32 and not LBP-89-32. For this

reason, the Intervenors sought a " stay" of LBP-89-32 only "[t)o a the extent necessary to support such action, or in the alternative." November 13 Motion at 6.

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i entitled to immediate mandatory relief as a matter of law.

Egg, aenerally, Citibank. N.A. v. Pullan, 580 F.2d 82 (3rd Cir.

1978) (noting that when erroneous order on remand is j "immediately appealable", mandamus is appropriate

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notwithstanding right of appeal) ; International Ladies' carment  ;

l Workers' Union v. Donovan 733 F.2d 920 (D.C. Cir. 1984) {

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("ILGWU"). I Moreover, other indicia of irregularity and, indeed, i l judicial disrespect for law were also cited as grounds for this mandatory relief: 1) the Board had acted without providing l- reasons; 2) it had again made a judgment as to the proper legal

standard for evaluating emergency plans when that very issue on l appeal in the same case had been held to be " uncertain" and l certified for decision; 3) it had not even bothered to conform LBP-89-32 with ALAB-924 in 2 particulars as to which 4

Intervanors had made identical claims of deficiencies in both the NHRERP and the utility's plan (the "SPMC") and had been l l cuccessful on appeal in ALAB-924;A/ and 4) it had da facto denied Intervenors' hearing rights with regard to their challenge to the scope of the September 1989 onsite exercise l* and the recent loss of an EBS capacity in support of the 2/ The issues are, of course, the need for agreements with teachers and the need for individual ETEs for the special facilities. Applicants feign ignorance concerning what these issues are. Applicant's November 22 Answer to Intervenors' November 17 Motion For Reconsideration at 4. They are of course identified clearly in the Motion to Revoke at 5, citina specifics and also citing Intervenors' Request for Prehearing Conference in Response to ALAB-924 at 3-6 which was faxed to the Licensing Board on November 9. This Request pointed out for the Board the impact ALAB-924 should have had on specific issues presented for decision on the SPMC.

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J utility plan, which denial supported a judicial presumption of ,

l bad faith.

B. Commission Jurisdiction on November 16, the commission took jurisdiction over this

. November 13 Motion. It intimated in its November 16 Order that it may treat the November 13 Motion as a " stay" either pursuant to $2.788 or as part of the Commission's now-initiated 52.764 immediate effectiveness review. Of course, to treat the motion which seeks an immediate leaal remedy to a null and void action as a " stay" not only implicitly presumes the Licensing Board's action was in accordance with law (which it most definitely was not) but actually decisively alters the litigative position of Intervenors -- from winners they have been transformed into losers who must show " irreparable harm" in order to prevent a license from issuing even though they have just prevailed on their legal claims that the NHRERP is not now in accordance with applicable regulations.2/

The law, of course, is "not such an ass as this." Indeed, mandatory relief to compel inferior tribunals to obey appellate '

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" mandates" exists precisely so that winners stay winners unless 1e and until they actually lose again on the merits. ILGWU,

• . supra, is very instructive on this point. The Secretary of Labor rescinded " homework" restrictions in the knitted af " Stays" are a form of equitable relief applied to an otherwise legal pronouncement or judgment. Because the Smith Board acted without jurisdiction or authority in light of ALAB-924, the license authorization is entitled to D2 presumption of legality.

I outerwear industry. After this rescission was reversed and the Secretary's stay request denied, the Secretary published another notice of proposed rulemaking again rescinding l

" homework" restrictions. Ancillary to his renewed rulemaking

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+ efforts, the Secretary issued an " emergency" rule suspending 1 the effect of the court's decision for 120 days. Appellants (winners but now losers) returned to the District Court and  :

filed a " motion to compel compliance" with the mandate of the ,

Court of Appeals' earlier reversal.

Prior to a hearing on this motion, the District Court issued an order indicating that the motion would be treated as a motion for preliminary injunction, in order to facilitate appellate consideration of the matter . . . .

The District Judge proceeded'to treat the motion as one for preliminary injunction, and ultimately denied the motion on the ground that the appellants had failed to show that the  !

injunctive relief requested was necessary to avoid  :'

irreparable injury . . . . The District Court was mistaken '

in recharacterizing the appellants' notion as a request for preliminary injunctive relief. This mischaracterization of the appellants' action shifted the focus of the court's inquiry to whether the appellants could establish irreparable injury to their interests. While such an inquiry could certainly be inferred from this court's >

original decision, the appellants' request for enforcement

• of the court's mandate also implicates an interest of a very different sort. This, of course, is the interest of the judicial branch in seeing that an unambiguous mandate is not blatantly disregarded by parties to a court proceeding.

ILGWU at 921-922. Egg also, General Atomic Co. v. Felter, 426 U.S. 493 at 497 (1978) ("(a) litigant who . . e has obtained judgment in this Court after a lengthy process of litigation

. . . should not be required to go through that entire process again to obtain execution of the judgment . . . . ").

Thus, to the extent that the Commission persists in "recharacterizing" the November 13 Motion as a " stay" it is 4

denying Intervenors their legal remedies and violating due

process of law. Intervonors seek to have ALAB-924 and its l

>. reversal and romand of LBP-88-32 enforced. Jurisdiction of I

',- these matters lies with the Appeal Board and Det the Commission, and the November 13 Motion as well as this l l

supplement should be returned to the Appeal Board for decision.

C. " Final Agency Action" and Exhaustion j i The Licensing Board's November 9 PID issuing a license is

" final" for purposes of judicial review. For that reason, Intervenors will file a Petition for Review with the Court of Appeals for the District of Columbia on December 4, 1989. As a result, jurisdiction over this " final agency action" will be transferred to the Court of Appeals and the Commission will no longer be able to take any actions that would interfere with the jurisdiction of that Court, without prior Court approval.

Egg United States v. Benmar Transoortation & Leasina Coro., 444 U.S. 4 (1979); Public Service Co. of Indiana (Marble Hill

= Generating Station) 8 NRC 253, 258-259 (1978) (noting Court's -

accession to further commission action). In the present

• . posture of this proceeding, however, Intervenors in their November 13 Motion and again in this Supplemental Motion are seeking further commission action that indeed would interfere with the jurisdiction of the Court of Appeals; y11., mandatory

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relief in the form of an order revoking the license authorization.A/ In these circumstances, the Commission may I

believe it necessary to seek Court permission to proceed. On ,

the following terms and conditions, Intervenors have no objection to the Commission acting on their Motion to Revoke

• notwithstanding their Petition for Review:

1) On or by December 15, 1969, the commission shall  ;

either a) remand the Motion to Revoke to the Appeal Board for decisions or b) in an order indicate that the Motion to Revoke will Dnt be ruled upon as a " stay"; or c) grant the Motion to Revoke; and

2) On or by December 15, 1989 the Commission shall issue an Order indicating that:

a) in the event that the Motion to Revoke is remanded to the Appeal Board, no immediate effectiveness review decision shall issue until 30 days after any denial of the Motion by the Appeal Board; or

'. A/ Intervenor stay requests pursuant to $2.788 (and obviously any " comments" filed pursuant to 52.764) do not impact on the jurisdiction of the Court of Appeals. It should also be noted that if the commission were to grant the mandatory relief Intervenors seek, the revocation would eliminate the " final agency action" that is the predicate for the court of Appeals jurisdiction and that appeal would be moot (or at least premature). For these reasons, Intervenors seek to exhaust their administrative remedies by expressly seeking a ruling by the commission as to the procedural posture in which the Motion to Revoke is going to be decided and a schedule for that decision.

b) in the event that the Commission indicates that the Motion.will not be ruled upon as a " stay" no immediate effectiveness review decision shall .

issue until 30 days after any denial of the ,

Motion to Revoke.  ;

In the event that by December 15, 1989, the conditions as .

r set forth above are not met or that the commission has otherwise indicated that the Motion to Revoke will be (or has been) ruled upon as a " stay", the Intervenors will than proceed to seek mandatory relief and a revocation of the license authorization from the court of Appeals.

Intervenors impose these conditions on their concurrence in ,

further commission action in this proceeding, not out of any desire to interfere with Commission discretion, but based on the following considerations and their interest in protecting their procedural rights:

1) The November 9, 1989 license authorization is " final" and appealable as a matter of right at this time. Under law, a license as a practical matter, could issue at any time pursuant to the Commission's immediate effectiveness review decision which is a "non-merits" procedure.

• . 2) Intervenors recognize an obligation to exhaust available administrative remedies. However, Intervenors will not permit their good faith efforts to exhaust their remedies to be used by the Commission to " insulate itself from appellate review." County of Rockland v. NRC, 709 F.2d 766, 755 n.12 (2d

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l Cir. 1983). In this regard, Intervenors seek a specific 1 l

commission ruling by a date certain so that they indeed can  ;

know whether the administrative remedy they seek -- mandatory

. relief revoking the license as set out above -- is available at all. obviously, if it is not available as a result of the Commission's November 16 Order, Intervenors have no obligation to seek further remedies from this agency.

3) Intervenors note that they have sought additional intra-agency review in this proceeding. Esa Intervenors' i November 21, 1989 Petition for Review of ALAB-924; and Mass AG's November 22 Notice of Appeal of LBP-89-32. However, as expressly stated in those pleadings, Intervenors did not elect further intra-agency review in derogation of their present '

right to have " final agency action" reviewed by the court of ,

Appeals. Instead, Intervenors sought only to protect their rights to such further intra-agency appellate process in the event: 1) that the commission were to grant the Motion to l Revoke and thereby eliminate for now any " final agency action"

or 2) that the court of Appeals were to grant mandatery relief, and order the commission to revoke the Ntvember 9 license authorization and grant Intervenors' such further proceedings j'. as they are entitled under ALAB-924 and under existing commission regulations governing appellate procedures.

II. PROCEDURAL IRREGULARITIES IN THE SMITH BOARD'S LICENSING ACTION As set forth above, the relief sought by Intervenors on 4

November 13 and renewed and further supported in this Supplemental Motion is immediate revocation of the license I -

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authorization and an order to the Licensing Board to obey the directives of ALAB-924. Intervenors are entitled to this mandatory relief on the grounds that the November 9 licensing action was clearly erroneous and beyond the jurisdiction of the Smith Board. Before turning to the substantive merits of the

• Board's disposition of the remanded issues, Intervenors note several procedural irregularities which must be considered in deciding this motion. Eag, aenerally, ILGWU, supra at 923 (attempts to circumvent lawful orders do not satisfy requirement of " reasoned decisionmaking")r Citibank. N.A. v.

Fullam, 58 F.2d supra at 38 (noting that failure to provide a hearing when that is only " reasonable interpretation" of mandate is a " consideration" in issuing writ of mandamus).

A. The Smith Board's Statements Concerning the Posture of This Proceeding On or About November 9 Are Misleading The Board notes at 2-3 of the Supplement:

The fact that our November 9, 1989 decision, LBP-89-32, was about to be issued was well established on the public record of this proceeding because this Board had complied with the Commission's directive to report the target date for its issuance.1/ The Commission noted on September 15, 1989 that, "[1)acking the a

admission of any new contention, the order

[ partial initial decision) expected on November 30, 1989 would have the potential to authorize

• . issuance of the full-power license and conclude this proceeding . . . . Despite the i 5/ Intervanors note their contemporaneous objections to the extraordinary intervention into this proceeding by the Commission in its February, 1989 Order approving the Licensing Board's then-current scheduling order from which Intervenors l

had sought interlocutory relief. As predicted, this intervention inexorably led the Licensing Board to deny l Intervenors due process of law.

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Appeal Board's certain knowledge that LBP-89-32 .

was about to issue, ALAR-924 is silent as to any '

effect the Appeal Board action would have on the i potential in our decision for authorizing issuance of the Seabrook operating license. .

First, it is obvious that the Appeal Board would have i

. presumed that ALAB-924 would have all the effects normally i

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. caused by a reversal of a judgment on appeal. Second, during an October 19, 1989 recorded prehearing conference the Board stated at 28320:

But I want to inform the parties that it is possible that this initial decision may issue as much as two to three weeks before November 30th and that is about as accurate as we can come on this. Therefore, you will understand that the )

last issue before this Board, absent any remand or anythina else, will be the contgntions on the onsite exercise.

l (emphasis supplied). Thus from the public record the Appeal Board should have presumed that two decisions would be 5 forthcoming before any licensing action might be taken.

Indeed, there is some evidence that this PID was transformed into a licensing decision only after ALAB-924 l issued. The legal assistant to the Licensing Board, Attorney  ;

l Robert Pierce, was himself apparently unaware as late as

. November 8, 1989 that the PID included a licensing action. In a telephone conversation with Attorney Traficonte on the b.

morning of November 8, Pierce expressed surprise when told that

! it had been rumored that the NRC Staff would formally request Seabrook licensing notwithstanding ALAB-924. Moreover, when 1

Attorney Traficonte on behalf of all Intervenors expressly stated that they would want to be heard prior to any such l

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i action, Pierce stated that that seemed obvious and that he would pass on these Intervenor comments to the Board.

Traficonte Affidavit (Exhibit 1) at 1 5.5/ Further, LBP-89-32 at 289 states that the PID will be a final decision

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. in 30 days which is the case for all initial decisions that do Det authorize a license. 10 C.F.R. 52.760.

B. The Licensing Action Has No Indicia of Regularity The Board heard no argument, received no briefs and indeed as a matter of sheer logistics acted without adequate time for ,

any analysis, research, record review or reflection between the time ALAB-924 was rendered and LBP-89-32 issued.1/ As noted above, Intervanors orally requested a hearing on November 8 and by a fax transmission on November 9 formally filed a " Request for Prehearing Conference in Response to ALAB-924". As a direct consequence of the Board's haste, the PID provided no response to the Intervenors' request and, indeed, no explanation at all for its licensing action in the face of ALAB-924. Obviously, the Board could have issued the PID, and L then on November 20 issued its explanations with the f/ The Board had instructed the parties to communicate with the Board on ministerial matters through Mr. Pierce.

. Traficonte Aff't, 1 2.

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l 2/ The PID apparently issued on November 9, 1989 and circulated to the office of the General Council soon l

thereafter. Intervenors infer this from the fact that on 1 November 13, 1989, the Commission hand-delivered to the Court I of Appeals a pleading referencing the November 9 PID which was not docketed until 8:30 a.m. on November 13, 1989.

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license authorization, of course, had the Board deferred  !

action it no doubt would have provided Intervenors an -

opportunity to be heard. In that event, the Intervanors would have established beyond peradventure that ALAB-924 made

• - licensing at this time impossible. No doubt, fearing what they  ;

, might hear from the parties, the Board acted before it was even  ;

possible to listen. Then, in its " explanation" for its action, l the Board stated that it "will, of course, promptly seek the ,

advice of the parties on the appropriate resolution of the remanded issues [l)" Supp. at 5.  ;

4 Moreover, as detailed in the substantiva discussion that  ;

follows, the Board applied the wrong legal standards, or simply

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invented its own equitable standards for licensing, misstated ,

f and confused the remanded issues, openly disobeyed the Appeal Board's mandate and repeatedly ignored the " law of the case",

i l and completely ignored the serious safety issues presented by l

the remanded issues and by other contentions it did not even address. Indeed, the Smith Board authorized a license without

! attaching.AnX Pre- or post-licensing conditions stemming from the remanded issues.

C. The Board openly Acknowledged Its Bias In Favor of Applicants and Against Intervenors Finally, the actual motivation (as distinct from any legal i basis) for the Board's November 9 action is made very clear in its Supplement: the Board acted not pursuant to law but based on its own subjective feelings about the equities of this case and the litigative position taken by the Intervenors. The i

Board stated:

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After many_ years of a full and fair adjudication  ;

1 on all matters in controversy Applicants had j L prevailed on all issues. - We believed that they were entitled to an immediate judgment to that 1 affect . . . .

Supp. : at 35. In light'of the fact'that on November 7 l

, Intervenors had orevailed on their appeal of LBp-88-32, this is L. obviously tho' heart and not the head speaking. Further, in discussing the pending onsite exercise contentions the Board stated:

To have delayed an otherwise ready initial I decision pending the resolution of the onsite exercise motions would, as noted,'be~ unfair to Applicants.

Supp at 36 (emphasis added). Why it would be " unfair" to Applicants to accord Intervenors their hearing rights under the AEA'is not set forth in the Board's " explanation". Further on,

' the Board asserts that if the Intervenors continue to attempt to obtain the hearings on material issues to which the law entitles them there is no hope for the Seabrook Station despite Applicants' fairiv won victory, ,

Supp. at 37. (emphasis supplied). From these frank admissions of bias, it is clear that there is no. hope that Iptervenors l* will enjoy their-" fairly won victory" before this Board. t

., Indeed, it appears that the Board has identified as en " issue" l

worthy of " prompt commissir,n policy guidance", the efforts l-(uniformly unsuccessful befora this Board) by Intervenors to 1

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have their statutory rights to a hearing on all issues material >

to licensing acknowledged and respected.E/

III. REMANDED ISSUES- f The' discussion that follows is made more accessible by an r

- initial review of NRC procedural law with regard to when and under what circumstances an issue can be resolved nitgr or l}

outside of the hearing process (" post-hearing" resolution),

usually_by delegation from a licensing or Appeal Board to the

-Staff. After an issue has been determined to be resolvable post-hearing, the next issue a Board confronts is whether such resolution is to be. completed pre- or post-licensing.

Graphically, the law looks as follows:

Issue

, 7 Hearing Post-Hearing I , i Pre-Licensing is Post-Licensing Pre-Licensing necessary if it is condition condition l possible  :

l Issues are presented for further resolution, at least for purposes of this discussion, at the conclusion of a hearing upon licensing board review and decision, or on remand from R/ Recall that-Intervenors have sought unsuccessfully to 1 i'. litigate: 1) the low power testing events which led to a j constructive suspension of the low power license, E $50,000 l fine and the extraordinary requirement of additional operator l proficiency. tests to be administered by the Staff; 2) the l truncated scope of the September onsite exercise which this l Commission considered material and from which it denied Applicants an exemption; and 3) the October 20, 1989 loss of an EBS-capacity to support the utility's plan, which is crima IAgig of safety significance. Since the Board has uniformly denied Intervenors' hearing rights on all these matters (either expressly or dg facto) it is unclear what additional aid the Board seeks from the Commission other than an expression of approval.

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appeal of such a decision.- Issues on remand often, but not  !

c' always,:are presented after license authorization and after license. issuance. Here, of course, the remanded issues were presented before licensing authorization.

- The standards for determining whether an issue requires a p hearing are shaped by both substantive and procedural factors.  !

l As the Appeal Board stated in Southern California Ed182D Company (San - onofre Nuclear Generating St:stion, ' Units 2 and 3), J ALAB-717, 17 NRC 346, 380 n. 57 (1983): ,

There are, to be sure, both substantive and procedural limits as to how much of the emergency evaluation, or how many.open items, may be deferred until after the close of the hearing. Substantively, the evidence must be sufficient for the Board to conclude that the state of emergency preparedness "provides reasonable assurance The Board co tinued, quoting the Licensing Board at 15 NRC at 1216:

Certain matters may be "left for the Staff to resolve following the hearings." . . . These matters typically are of a minor nature and/or are such that on-the-record procedures, including cross-examination e would be unlikely to affect the result. Procedurally, the limits are established by Section 189_of the-(AEA]-. . . which entitles interested persons to an adjudicatory hearing on the issusance of a[n).. . . operating licenses. This meang that an intervenor must have the occortunity to litiaate l

the substantive cuestion whether there is " reasonable.

i.E assurance . . . - . "

Id. (emphasis supplied). Accord Consolidate Edison Comoany of i'. New York. Inc., (Indian Point Station, Unit No. 2) , CLI-74-23, 7 AEC 947, 951-952 (1974) (general proposition is that -

-post-hearing resolution disfavored except for " minor procedural deficiencies").

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Thus, if an issue is presented on romand before licensing and: 1) it is 'not a " minor" matter, 2) its resolution is in some fashion entwined with the " reasonable assurance" t

findingE/ and 3) a hearing acy well affect the I decision-makingfprocess then NRC law requires that it be

- resolved by a hearing. Needless to say, that hearing is to

-take place before licensing under the AEA. Cincinnati Gas &

Electric comoany (Wm. H. Zimmer Nuclear Power Station, Unit No.

1 1), ALAB-727, 17 NRC 760, 773-774 (1983) (affirming Licensing ,

Board's withholding of license pending turther hearings on ,

emergency planning because "intervenors must be afforded'an opportunity to test the revised plans in an adjudicatory hearing") ; Louisiana Power and Liaht Company, (Waterford Steam Electric Station, Unit 3) , ALAB-732, 17 NRC 1076, 1103-1108 (1983) (affirming post-hearing verification on the grounds that the evidentiary record. supported the predictAve findings needed);1E/ Commonwealth Edison Comoany, (Byron Nuclear Power L

E 2/ For example, if that finding could not be made on th6 present record with regard to that issue, as the Appeal Board expressly found regarding sheltering. ALAB-924 at 68.n.194.

. See also Supplement at 4 n.3.

1S/ For example, the record established the number of each li. type of vehicle needed and the verification of the submission of LoAs was appropriate for " post-hearing ministerial resolution." 151. at 1105. Cf. ALAB-924 at 19 n. 47 (noting that present record provides no basis for assessing adequacy of number of vehicles) and 68 n. 194 (ncting absense of any sheltering details in the plan and distinguishing Waterford).

Indeed, Waterford at 1105 n. 46 distinguished Zimmer on l- precisely the same grounds -- the Zimmer Applicants' proposed I communication system was not " incorporated in the emergency plan" and, the record would not support the " reasonable assurance"_ finding and therefore under Indian Point and its progeny a hearing was required.

l- - _ _ _ _ . _ _ _ . .- _ _ . _ . . . _ _ _ .__ _ _ _ _. _-

^

l t:  ?

'1 M<

Station, Units 1 and 2), ALAB-770, 19 NRC.1163, 1175 (1984)

(noting link between hearing rights and the relationship

j. between the unresolved issue'and a " reasonable assurance" finding); Philadelnhia Electric ComDany (Limerick Generating .

Station,. Units 1 and 2), ALAB-836, 23 NRC 479, 494-496 (1986) a' (discussing above cited cases and noting that " designation of y- i several more traffic control points" in light of intervanor's dual failure to explain what purpose further hearing would serve and how it had been prejudiced is appropriately resolved ,

post-hearing); E Pacific Gas and Elgetric ComDany, (Diablo Canyon Nuclear Power Plant, Units 1 and 2) , ALAB-781, 20 NRC 819, 832-035 (1984) (noting that emergency planning findings are " predictive" and that " post-hearing" resolution appropriate "as long as the evidence permits the Licensing Board to find

" reasonable assurance"). E A. General Infirmities in the Analy. sis

1. The Board's own analysAs of its jurisdiction, powers and scope of discretion on remand ,

As' discussed above, the Smith Board drew certain inferences r

l 'from the Appeal Board's purported " silence" as to the effect of l- .

, ALAD-924 on "the potential in our (SPMC] decision for 11/ The Smith Board's hasty action and its refusal to provide

-an opportunity to Intervenors to be heard on this issue made it impossible for Intervenors to articulate the grounds for their hearing rights on_the remanded issues and their injury if no hearings prior to licensing were held.

L

12/ The post-hearing licensing condition at issue involved the l- final publication of an information booklet, the draft of which l' was in the evidentiary record. -

p

! ~20-1 -

p '- -

l i p

H authorizing issuance of the Seabrook operating license." As p

noted, there is no basis for these inferences in light of the circumstances extant in the time frame from November

• to l-November 7, when ALAB-J24 issued. But not only does the ,

L- Board's reasoning have no factual support, the legal l- conclusions'it reaches concerning its powers and discretion l-L after ALAB-924 issued is comoletely incoherent. The Board asserted:

Our reading of-ALAB-924 leads us to infer that the remand .

order included traditional broad discretion in resolving

'the issues based upon our familiarity with the very large evidentiary record of the proceeding.

Supp. at 3.

Moving forward from this proposition, the Board <

framed the issue as follows: t Here, of course, the question is whether post-licensing consideration of open matters by an adjudicating board is ,

appropriate.

Supp. at 4. In the Board's view, the answer to this question in turn. depends on whether the. requisite findings of reasonable assurance of public safety can'be made despite pending open matters ....

Supp. at 4. Because the Board viewed none of the four remanded

. issues as a significant or " major" (Supp. at 5) safety issue, E' it did not view ALAB-924 as.an impediment to these " requisite

. -findings." Thus, the Board asserts that all remanded issues can be and are resolved after its November 9 licensing action, either in the body of the analysis set forth in the Supplement or at some point in the future "under the close scrutiny of the litigating parties." (Supp. at 5).

I

- ... .-. . ... - - ~ . - - - .-

A review of the logical and legal-support for the Smith Board analysis is instructive.' First, Smith notes that:

There is no regulation or, as far as we can determine, any reported decisior, which would foreclose the issuance of an operating license once the basic findings under 10 CFR

.- 50.47 (a) (1) . and 50.57 (a) (3) have been made despite the pendency of open matters..

A supp. at 3. -of course, the Board ignores the obvious. fact that ALAB-924 reversed And remanded certain NHRERP findings. One necessary inference from this reversal is that to the extent the Board's basic NHRERP finding under 10 CFR 50.47(a) (1) was

. based on- the compliance of that plan with the 50.47 (b) standards, then that finding was reversed pending resolution of the remanded issues. Thus, in truth, the proper statement of law should be:

There is no regulation cr, as far as we can determine, any reported decision which would nermit the issuance of an i operating license once the basic findings under 10 CFR 50.47 (a) (1) and 50.57 (a) (3) have been reversed And remanded Drior 12 licensina.

Second, the Board discusses the general issue of l

" post-hearing" resolution of issues, noting that although_the

- adjudicative context-is preferred it-is not obligatory. The Board states that this principle is "particularly valid" in matters of emergency planning where boards " traditionally rely-

,0 ... upon post-hearing verification of the resolution of open matters." Supp. at 4. . Having identified a category of open issues subject to post-hearing resolution by a board or the Staff, the Board then states:

Here, of course, the question is whether Dost-licensino consideration of cpen matters by an adjudicatory board is appropriate. Putting aside questions of passing

.~.,

decision is reversed and remanded by the Appeal. Board (or the Commission).- The question for the superior (or if it is silent 4 then the inferior) board is: Does the reversal and remand J require ~a license suspension or revocation pending the remand? Even assuming that the remanded issues require a hearing to be resolved properly, a license suspension or revocation is not required as a matter of law. 'Instead, an eauitable standard is

applied and the absence of any safety significance in the

remanded issues is weighed and considered in deciding whether !., to suspend the license pending the decision on the merits of the remand. 1 iJ 12/ Indeed, on one reading of ALAB-922, the Appeal Board has interpreted all of emergency planning as something less than a j maior safety issue, in contradiction to the intent of Congress 1 j and the Commission in 1980. Egg Mass AG's October 27 Brief on certified Question at 5-10 discussing emergency planning as l "second tier." a L Reversal'and remand before judgment , 2. The situation the Smith Board found itself in on November 9 > 'is.YRIg different. At least two decisions were necessary . preconditions to any licensing action. The first decision was reversed before the second decision was rendered. ~ [. Thus, the

.1 legal requirements for a license were not met, as a matter.of law, once the reversal occurred.2EI The Board improperly and l without ADY analysis of the differences between pre-licensing

.. and. post-licensing reversal and remand, simply applied an eauitable standard to the licensing issue in its Supplement.

But although some limited equity may be appropriate in the g post-licensing remand context because the legal requirements had at one time been met, it plays D2 IQlg whatever in the -pre-licensing situation, because the-Board has D2 iurisdiction 12 alter the leoal recuirements ISI A license. Egg Seabrook, ALAB-349, 4 NRC 235, 270 (1976) (noting difference between " presumptively valid authorization" and one based on now I 29/ Again, the correct analysis has nothing to do with the . safety significance of the reversed and remanded issues. These issues obviously involve material matters concerning legal

. requirements of licensing. (If they did not, they would not f* .ever have been litigated!) Thus, the Board's entire analysis i in the Supplement is a non-seouitur: even if it is. assumed,

., incorrectly, that there is D2 major safety significance to any of the remanded issues, the Appeal Board must have reversed LBP-88-32 on issuer at least material to licensing. Therefore, certain legal. requzc ments for a license are not presently met and were not met at the time of the licensing action on November 9. 1 4 , , . - , . . . . - . - . , , . . - . . . . , , ,, , - , - - - ....-,.,w,, , invalid law or regulation). The Board's equitable analysis, l based on the purported lack of safety significance to any of .the remanded issues, simply changes the legal requirements for-a license and indeed is indistinguishable from an " exemption" c.- - . 'the standards for which the Board did not even address. Indeed, analytically, the Board's actions on November 9, 1989 are just as absurd as the actions of a Board that in 1986 or - 1987 or at any time. simply determined that a license could-issue immediately notwithstanding open issues that are material , to licensing so long as these issues are not of major safety ' significance . 21/ Thus, the first tier of error deeply obscured by the Board's analysis in the Supplement is that the Board did D21 have iurisdiction on November 9 to alter the legal requirements for a license and issue one. The Board ignores comoletely the undisputed fact that ALAB-924 reversed LBP-88-32 on issues

material to licensing. Impermissibly, sliding from law to equity, the Board frames the issue as one involving the safety significance of the remanded issues. Prior to license authorization this procedure is indistinguishable from a

.-. 21/ -Such a procedure, of course, is familiar to the j Commission. It applies to license amendments and involves a H "no significant hazards" determination. ERA 10 CFR 50.91. Of course, it does not apply to initial licensing actions and indeed it-required amendment by Congress of the Atomic Energy l

Act to-be permissible for the Commission to act in such fashion .

,- at all. 6 4 i I 4 w- - - ,, V Yi straight forward modification of the legal requirements of a license.AA/ -b. The remanded issues and the need for a hearina. The second level of error on which the supplement rests is 1

1. , its complete failure to focus on the rather simple question )

..= whether.any of the remanded-issues require a hearing. As noted, the irrelevant question that the Board posed and incorrectly answered was: Are the remanded issues safety significant? Finding that they are not, the Board believed it was free to issue a license without any concern whether the issues require a hearing prior to resolution.22/ However, eve 4 11 none 21 tha remanded issues arg safety sianificant if thev recuire a hearina orior to resolution. Intervenors were entitled to that hearina under the AEA orlor to the licensina action. Thus, ALAB-924 works at two levels: 1) it reversed findinas on material issues and these issues had to be 22/ It goes without saying that the Board had no jurisdiction to simply reutter its NHRERP judgment on the remanded issues. Thus, because these issues are obviously material to licensing , under 50.47 (a) (1) and (b), and the Board had no jurisdiction to L , alter the legal requirements for licensing (i.e., somehow

1. eliminate the materiality of these issues), the Board had no l* jurisdiction at all to issue the license on November 9, 1989

( and it is void as a matter of law.

h. ,

22/ As noted, the Board based its decision to consider all ~ remanded issues cost-licensina on the case-law that permits nost-hearina resolution of certain issues. The illogic here L has two separate layers: 1) even if something can be resolved . post-hearing it may still have to be a orelicensino condition and 2) something is resolvable cost-hearina only if a hearing is not necessary. Remarkably, the Board moved from post-hearing law to post-licensing treatment without ever asking whether any of the remanded issues reouired a hearina. Obviously, if the remanded issues could not be resolved post-hearing, the case law dealing with such issues is of absolutely no support for the even more dramatic step of resolving them post-licensing! , . . -- ~. - . . ~ . . . - .- ._. . . - . i -addressed by the Board on remand prior to licensing (by hearing only'if necessary)7.'and 2) it remanded issues at least some-of which by' necessity recruired a hearing, and such L hearings must be provided under the AEA prior to licensing. l ,'.- Idtakeslittleanalysistoseethatatleasttwoofthe I 1 '.f l ~four remanded issues require a " hearing", at least in the l (. g sense that Intervanors be'given an opportunity to be heard. N Not only is this the result, under the very case law cited by the Smith Board concerning the limits of ,- " post-hearing" resolution, but the Appeal Board's remand L expressly directed the Board to conduct-such further proceedings. Egg AIAB-924 at 68-69 (sheltering provisions). Again, as an example, the Appeal Board' reversed an earlier summary disposition decision of the lower Board holding that ( genuine issues of material fact were presented that merited a hearing. The Supplement literally tortures this issue beyond L . recognition because the Board is determined to reutter its l judgment right now (retroactive, of course, to November 9 which we are supposed to believe was the point at which the Board had actually carefully read AIAB-924 and realized that it was not an impediment to licensing) that transportation L."; resources are adequate.2E/ Indeed, although at some level it-seems beyond belief, it appears that the Board has again 2Af The Smith Board's remarkable discussion of each of these issues is analyzed in detail below. It is clear from this analysis that hearings must be held on all four remanded issues, contrary to the Board's crabbed and unsupportable reading of the record and AIAB-924. l 1-25/ Egg infra'where it is made clear that the Board directly and openly disobeys the decision of the Appeal Board on this matter. granted' summary disposition on this issue without so much as one scrap of additional information. Certainly, one can read i and reread the Supplement at 12-22 (particularly at 20-22) without finding an answer to the simple question whether the b hearing that the Appeal Board found (W~essary is_ indeed going . to take place.III Of course, if Intervenors are entitled to a hearing, that entitlement includes a right to have that hearing pre-licensing if no license has issued. As discussed in detail below,_the Board openly and knowingly acted in bad faith in denying any possibility of a pre-licensing hearing on the remand issues (as well as other pending issues-the Board simply ignored.) Even the Smith Board may have acknowledged that the sheltering remand requires a hearing. At 31 of the Supplement, the Board stated: It is likely that this issue cannot be resolved on the existing record. Further, the Board noted that: "We read the direction to permit a challenge ...." Certainly, these words at least intimate that a " hearing" is indeed required prior to . resolution. Of course, in keeping with the general intellectual level of the Supplement, the word " hearing" is not mentioned at 31-33. Thus, the obvious contradiction between a 4 2ff. At 20, the Board states that the only special needs issue remanded by the Appeal Board that has the reasonable possibility of requiring a pre-licensing hearing'and adjudication is that involving the dissemination methodology employed by L the NHCDA in conducting the 1986 Special Needs Survey. l _ . - . . . . . _ . . ~ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ 1 L p.' remand before licensing that requires a hearing before the issue can be resolved and an immediate licensing action in open > violation of.Intervenors' hearing rights under the AEA is , masked in the " explanation." In f'ct, a as discussed below, at 1., -< yet another level the discussion of the resolution of the sheltering issue is remarkable. Not only does its resolution require a hearing but the Appeal Board expressly held that plan . approval requires this resolution. Thus, even without the .Intervenors' AEA ri ghts to a heari ng before li censi na on material issues, the Appeal Board obviously understood that resolution of this issue would-take place before the plan would be approved and any license issued, if that issuance was based on that approval. ALAB-924 at 68 n. 194. Thus, instead of the irrelevant discussion concerning -safety significance, the Board should have analyzed whether any of1 the remanded issues reauired a hearing. Because they obviously"do, the Board's November 9 licensing action, even -(footnote continued) It is unclear from a reading of 20-22 whether the Board !** intended to grant summary disposition anew in direct violation i of ALAB-924 or simply. rule as to the absence of safety

l. significance. If the latter, then Intervenors may get their

*. . hearing but obviously not pre-licensing. No doubt inadvertently, the Board in the quoted portion above correctly noted that the Appeal Board's remand may have required a

" ore-31 cense hearing". (emphasis supplied). Obviously, on November 9 the Smith Board made sure that even if ALAB-924 did require that, it could no longer comply. Indeed, we are supposed to believe that within 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> of November 7 the Smith Board had already determined that nothing in ALAB-924 was an impediment to licensing, even though on November 20, the Board-still has not answered the question clearly. Obviously, if the Board obeys ALAB-924 and permits a hearing, that hearing certainly'should have been pre-licensing. Again, the non-legal, non-judicial character of the November 9 action is clear. I e assuming it had the jurisdiction to either reutter its NHRERP - or alter the legal requirements for a license, was in direct and knowing violation of the AEA. ,

c. The relationship between the remanded issues and

, any licensina action Finally, the Board completely inverts the relationship '. between. post-hearing resolution of issues and licensing y action. To grasp this third layer of illogic and error in the supplement it is necessary to map out the possible actions , available to a Board at the time of licensing. At che time of. a licensing action, a Board can identify issues that:

1) can be closed after decision (under its oversight or by the Staff) but before licensing; i.e. , prelicensing conditions; and

2) can be closed after decision and after licensina by the Staff; i.e., post licensing conditions. -

Both of these patterns are available for matters that are appropriate for post-hearing resolution. At the time of a licensing action, however, a Board is D2t free to identify issues that: .- 1) are not now resolvable without hearing and simply ie: postpone that hearing until after a license issues; or

2) require real world changes yet attach D2 conditions (pre- or-post-licensing) on the license requiring those changes; or l

l. l ~ 3)- require real world changes-that~in turn will give rise to a hearing yet neither attach any conditions at all on the licensefconcerning these changes nor provide for that hearing  ; i prior to licensing. .- Y$t,sinceALAB-924issuedbeforetheSmith'Boardrendered .., a license authorization and the disposition of the four remanded issues is, therefore, controlled by ALAB-924, it is appropriate to analyze the November 9 action as if the Board l itself-had just issued LBP-88-32 modified by ALAB-924. Seen in this light, it is obvious that the-failure by the Board to attach ADX conditions pre- or-post licensing on its licensing action is simply a refusal to obey ALAB-924 and a further 4 indication that the November 9 action was not a judicial act at ! all. B. Board's Analysis of Specific Issues 3 In turning to the Board's detailed analysis of the remanded issues, Intervenors, then, will focus on the two relevant considerations in weighing the validity (and-the motives) of 1 the November 9 licensing action: did resolution of the l' remanded issues require a hearing? If not, what type of i'.. L' Licensing Board action was required at the very minimum if the ., Smith Board was obedient to ALAB-924's directives and concerned l' about-public safety? I t- l 1

1. Letters of Agreement for New Hampshire Teachers 1 1

The Appeal Board noted a contradiction in LPB-88-32 between j school teachers as " providers" and " recipients" of emergency services.- It instructed the Licensing Board to provide further . explanations if it is the case that school teachers would

. ordinarily be expected to accompany their students in off-site evacuation.situa* ions, then although in some sense " providers",

the teachers could still be appropriately characterized as " recipients" of services for-whom no agreements were necessary. As the Appeal Board noted: LOAs need not be sought from everyone involved in the emergency response. process. ALAB-924 at 8. The Appeal Board further noted, however, that it appears the empirical question of what New Hampshire - teachers are ordinarily expected to do (which controls the legal requirement for LOAs under Criterion II.C.4. of NUREG-0654) can not be answered on the present record: "the present record fails to disclose any definitive evidence addressing whether school personnel usually would (or would g not) be expected to accompany their students in emergency .' evacuation situations." ALAB-924 at 10. If teachers are not expected'to do this,:then LOAs should be obtained. This-issue is purportedly completely resolved by the " analysis" set forth in the Supplement. Thus, the Board has , taken the view that: 1) no further evidentiary record needs to l-be developed, and 2) no LOAs with any teachers are necessary. l i Thus, no hearing was required and no pre- or post-licensing conditions were necessary or called for. Indeed, the , Supplement in the Board's resolution of this remanded . issue. D [. Unfortunately, the Board's analysis of this issue is v woefully inadequate. The Board states at 7: We begin with an answer to the Appeal Board's factual inquiry, i.e., whether the teachers are ordinarily expected to accompany their students in an evacuation, o But, one can read'and reread pages 7-12 and not find an answer to this simple question, the very question the Appeal Board believes had'to be answered but could not be answered on the ~ existing record. First, immediately after stating the question-the Board states what its " assumption" had been in LBP-88-32. Then, the Board offers some scatter-shot: 1) it' repeats Applicants' witnesses ings dixit that school personnel "will do what must be done" (8); 2) it notes that these personnel are i not " key"; and 3) it repeats its behavioral " analysis" f regarding role abandonment (already noted by the-Appeal Board as irrelevant to the remanded issue in ALAB-924 at 10). The (- Board also noted: L.. l L h., 1Ds/ In keeping with the format of the Supplement, the Board L* ' addresses the irrelevant question as to the " safety or L regulatory [ sic] significance" of this issue at 11. However, careful reading of 7-12 indicates that the issue has indeed 4 'been resolved no matter what its safety significance is. , Intervenors are totally baffled by the unexplained although repeated reference to " regulatory significance" (supp. at 11, 19 (" regulatory issue")). Obviously, the Board can not decide t' which regulations count and which do not. l-(: , i, _ _ _ _ _ _ _ _ _ _ _ _ _ _ , _ _ _ _ _ _ . _ _ _ _ _ , . - _ _,_.----.-_---e - 'Mr. Strome, then New Hampshire's Director of Emergency Management, explained that whether or not teachers accompany school" children in an evacuation depends upon , whether they volunteer to do so . . . . l Finally, the Board stated: , j Be that as-it may, if in fact, teachers are " service  ;

providers" contrary to our earlier rulings that they are ,

not, the regulatory implications must, in obedience to.

. ALAB-924, be addressed.

It in addressed in remarkably incoherent fashion. I first,-noting that LOAs are not required for individuals who j , collectively supply a labor force or activity, the Board i asserts that if viewed as " providers" (because they accompany 1 l students offsite) the teachers gra such providers " collectively j as school system employees." (10) But if, as the Board notes, such services depend on certain teachers volunteerina then not only is it obvious that they are not " ordinarily expected" to j do this,2A/ but such volunteering is an individual matter having nothing to do with their membership in a collective i labor force. Indeed, it is outright irrational to assert'that: I whatever services teachers may provide when they volunteer . . .,is done collectively . . . ..

Id. '(emphasis supplied).

21/ Although obvious, it no doubt needs to be stated that in the sense used by the Appeal Board " ordinarily expecting" someone to do something is the opposite of hoping they volunteer to do it. (Supp. at 8 noting that "New Hampshire would' hope that the teachers would be willing to participate" I (emphasis supplied)). 4 l l _ l l 1 4 1 l Second, the Board simply reverses its determination in .LBP-88-32 that the teachers are " providers" of services. Because the " volunteers" would be relying on school buses they , -would be'"in'every sense" recipients and D91 Providers. (11)  !

I.L Not"only is the Board no longer free to simply change its rulings on remand under the doctrine of law of the case, but this.is pure legerdemain: they have to first " volunteer" to do something not ordinarily expected of them and only then do-they become " recipients." But these " volunteers" are first

" providers" and 2DlE thAD " recipients" in the limited sense used by the Board. Indeed, as further support for reversing its earlier determination, the Board now simply defines the " school system" as the unit that is the recipient. Teachers are just a part of that unit and "should not be separated from the. school system as-a part especially requiring LOAs." Id. Well, of-course, they are required to be if what they are 1 called upon to do is not ordinarily expected of them and they could avoid doing it (by simply evacuating on their own or seeing to their own families). Again,-the simple question  ! posed by the Appeal Board just can not find an answer. 1 Finally, the Board simply reasserts its irrelevant H .. , behavioral assumptions (in this iteration, dressed up as j " profound [] belie [f]s")-and in a remarkable linguistic 1 amalgamation states: 1' I' L l l l l l l r l l To the extent that school buses permit the teachers to see I their children safely to reception centers, they are the recinients of services, albeit on behalf of their charaes. (11) '(emphasis supplied) . Had the Smith Board acted in a-judicial capacity on November 9 or November 20 it would have obeyed ALAB-924, _,_ . determined that teachers are not ordinarily expected to perform these~ services (or sought further evidentiary submissions on - this point), and then deferred any licensing action pending the submission of LOAs. Obviously, such submissions in light of the well-known, well-organized and vocal opposition to emergency planning among EPZ teachers would likely have led to challenge a~nd further hearings. Knowing this and knowing that this would engender delay, the Smith Board simply acted and later. defended its actions with illogic, irrationality and cant.

2. The 1986 Special Needs Survey

[ The Rppeal Board reviewed SAPL's claim of error regarding a L L November 4, 1986 summary disposition decision resolving the challenge to the adequacy of the procedures used to identify the "special needs" population in New Hampshire. ALAB-924 at

15. Based on review of the materials presented to the

. Licensing Board on the motion, the Appeal Board found genuine ,; issues of material fact which nrevented summary disposition. It remanded the issue "for further consideration" by the Licensing Board. The Appeal Board then stated: ^ i Further, in light of our remand of this issue for 1 ' additional proceedings, it is premature for us to ] render any judgment regarding intervanor SAPL's  ; challenges to the Licensing Board's findings j 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 j ~ consider whether the number of vehicles and drivers I identified as available to assist in transportation of g the "special needs" population is sufficient. ALAB-924 at 19-20. Thus, this remanded issue prevented any- i [ immediate licensing action for two different reasons: 1) the ' p- hearing that was denied would now have to be provided and under the AEA this has to be a pre-licensing hearing; and 2) the reversal of the basis for the demand estimate for transportation resources effectively reversed the lower Board's i finding as to the adequacy of transportation resources and this issue (regardless of AEA hearing rights) at the very least 1 g would require pre-licensing resolution,-because of its significance. In reaching its judgment on this issue, the Appeal Board p expressly rejected a harmless error analysis based on  ! Intervenors' purported opportunity to contest the 1986 Survey's adequacy-or on the Board's-findings that an excess of ( . transportation resources were available. The Appeal Board i , stated: We also are unable in this instance to rely upon the Licensing Board's determination that there is an excess of available evacuation vehicles and drivers, I 333 LBP-88-32, 28 NRC at 695, as the foundation for a finding of harmless error. In many instances, intervenor assertions establish an upper limit against which the. adequacy of planning can be judged . . . . 4 on the present record, however, we have no basis for SettiDg a limit on the uncertainty about the size of the "soecial needs" noculation that accrues from the Licensina Board's erroneous summary disDosition rulina. I 4 m _ - . _ _ ._ _ _ _ _ _ _ L l I ALAB-924 at 19 n.47 (emphasis supplied). h The Licensing Board's " explanation" of this issue is astonishing even viewed against the standard set by the ' Supplement. As discussed above, th's need to provide the . hearing that was denied is never directly. acknowledged by'the , Board. (certainly, the Intervenors',right to that hearing . before licensing was denied da facto on November 9;) Moreover, the issue of the adequacy.of transportation resources for the , "special needs" population in light of. ALAB-924, is simply finessed.by the Board by again orantina sur. mary disoosition 12 the Aeolicants and relyino on the transoortation excess reiected by the Aeneal Board. There is no clearer example of f an inferior board directly and openly contradicting the law of  ! the. case as announced by a superior tribunal.2EI The reason, of_ course, for the Board's actions is that if it acknowledged the reversal of.its finding concerning transportation resources-y then it could not claim, as it does in the Supplement at 2-6, that-ALAB-924 has-no impact on the " requisite findings of , treasonable assurance of public safety." (4) .The Board begins its " explanation" by expressly reuttering 'its judgment concerning transportation resources-(17). It then H, ; asserts.that the survey deficiencies identified by SAPL "even if ultimately found to be meritorious, are either of no moment 1 122/ A lower board does not have iurisdiction to reutter its judgment in direct contradiction and derogation of its superior board. Such an act is ultra vires and void gh initio. or are amenable to relatively~ simple and timely ' correction.".2E/ Id. If the deficiencies are of "no moment" then apparently they are not material even though the Appeal Board has so held. But, if the survey can be fixed quickly and '.. simply, then this should be done, the results tested in the . adversary process "under the close scrutiny of the litigating L parties" (5) and then the adequacy of transportation resources ' assessed anew by the Board just as the Appeal Board ordered it to do. The' Board, however, reasons that since the deficiencies EAD be corrected, neither those corrections nor a hearing on a l reassessment of the results is necessary prior to licensing. I For'this proposition, the Board cites a statement from a December 15, 1981 Commission rulemaking and claims that -reasonable assurance findings can be made at that point at t' L which "there are no barriers to emergency planning , r L ' implementation or to a satisfactory state of emergency h

UL/ Throughout its discussion of this issue, the Board acts as

~if there~is an evidentiary record on the adequacy of the . survey. . Of course, there is none because of the earlier . -erroneous summary disposition. Indeed, the Board appears to _believeLit is free 12 limit'Intervenors' attack on the survey (which Intervenors never had an opportunity to mount)'to the .: points' raised:in SAPL's pleadings in opposition to summary g disposition. Of course, a party is obligated in opposing u summary disposition only to establish a genuine issue of material fact. 10 CFR 2.749(d). It-is under no obligation to _present its full evidentiary case. Even cursory review of the Board's discussion of this remanded issue at 16-22 indicates that its entire " analysis" is based on this rather basic and -fundamental error. 1 L i t preparedness that cannot feasibly be removed." supp, at 17  ! citina 46 Fed. Reg. 61134, 61135 (December 15, 1981).21/ In  ! fact, this statement is indistinguishable from the standard that applies to the review of emergency plans at the .. constructi1n permit phana of a proceeding. 333 5 50.34 (a) (10) ,  ; I. App. E.II. E33 Alag 14 NRC 279, 285 (1981) Director's Decision Denying Petition for Revocation of Feabrook Construction Permit (noting that current "information does not indicate that it is infeasible to develop an emergency plan, includhig an i evacuation plan, for the area surrounding the Seabrook site.") Indeed, if this were the legal standard for licensing then the  ; I 1981 decision by the Director stated sufficient grounds to i grant a full operating license for Seabrook! 21/ Needless to say, the Commission's statement is taken out of context. First, it is clear that the Board simply lifted this citation from the Noterford decision where it appears at 17 NRC 1076, 1104. Second, as the Waterford context makes clear this statement references the " predictive" nature of the , " reasonable assurance" finding. It does not, standing alone, l indicate what type of issues are amenable to post-hearing or,  ! as here, post-licensing resolution. Ema cases cited at outset  ! of this section. Third, the statement is taken from a proposed rulem'aking which excluded hearings on emergency exercises. The rule (47 Fed. Reg. 30232 (July 13, 1982)) was reversed by the

.. Court of Appeals. UCS v. MEG, 735 F.2d 1437 (D.C. Cir. 1984). I Indeed, the Waterford citation predated the Court's reversal of l this rulemaking. As is clesr when the portion cited by the l Smith Board is put in context, this commission statement was connected to its efforts at removing emergency exercises from 1 litigation, an impermissible goal. 46 Fed. Reg. 61134, 61135.

See pla2 50 Fed. Reg. 19323 (May 8, 1985) (Commission obeys HgE,' maintains " predictive" nature of finding but repeats no { 1anguage even remotely similar to quoted citation).  ; l l 1 l l k Turning its attention to the specific issues raised in l SAPL's opposition to summary disposition, the Board advances a ' series of illogical and indeed false propositions that support its view that ALAB-924's reversal is not of any significance: .! a) The Board asserts at 18 that SAPL advanced no " factual bases tending to establish that significant numbers... ware, in f fact, understated or unreported." Again, as noted, the Smith Board ignores the obvious fact that SAPL was danlad a hearing and had no obligation to present its evidentiary case in l 1 opposition to summary disposition. Moreover, this assertion I cannot be squared with the undisputed fact that SAPL indeed challenged the survey. Even the Board acknowledged that SAPL's " principal thesis" is that the "resulta obtained through that survey cannet he relied up.2n to adeauntely identifv tha number and particulecited transportation needs" of the special-needs i population. (17) (emphasis added). b) Next the Board asserts at 18 that SAPL did not clain 1 that the survey was " inadequate because of design flaws" ) (emphasis in original). Apparently, the Board now reads SAPL's ] challenge as merely a claim that the survey could be improved. l I l. '- Thus, although the Appeal Board reversed the Board's November , 1986 summary disposition holding that "there were issues of

material fact relating to the survey" in dispute (ALAB-924 at 16), the Smith Board in November 1989 (indeed within 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> of that reversal) again grants da facto summary disposition on these issues

i Even if we accept SAPL's proposition as true...it  ! would not materially weaken the Applicants' position - that the design of the survey instrument was 6 adequate... . Supp. at 18. , c), Next, the Board asserts at 19 that any defects in the survey need not be resolved prior to licensing (or even as '. post-licensing conditions). This is so because part of the , SAPL opposition to summary disposition concerned the summer special needs population which will not be present until summer t 1990 and because there is a resources excess of 150% in the NMRERP. Again, obviously, Intervenors never prewented an > evidentiary case in which they might have challenged in detail the non-summer special needs count. However, the SAPL materials did challenge the methodology of the survey for all EPZ.special needs populations, not just the summer population. Moreover, the Board simply adopts the harmless error analysis expressly rejected by the Appeal Board as noted above when it asserts that excess resources are now sufficient: We believe that the number, whatever it might be, is not so large as to render the existing excess transportation resources under the NHRERP inadequate. !, Supp, at 21. This finding directly contradicts ALAB-924 at 19 n.47 set out above. d) Finally, the Board asserts that no survey can guarantee identification of every special needs person. In support of this irrelevant truism, the Board states: 4 Indeed, during the Massachusetts portion of this proceeding, the oniv witness offered by any intervanor , on the issug_pf identifyina and calgglgt1Dg the transportation needs of the homebound disabled , testified that not all pre-identified homebound  ! disabled would in fact use the transportation resources allocated to them. b Supp.'at 21 n.12. (emphasis supplicd). This reference to the litigation of similar irsues on the SPMC is nothing short of astonishing when put into context. First, the Mass AG's ! contention on the SPMC directly challenged the adequacy of the mail survey used by the utility.AAI Second, the Board (at Tr  ! . 19987-88), excluded Mass AG's testimony of one of the foremost s survey experts in the country (that February 21 testimony is , ! attached hereto as Exhibit 2), holding that the contention did D21 adequately put the parties on notice as to this issue and that the Mass AG's December 1988 answers to interrogatories did not adequately identify survey " methodology" as part of the issues presented by the contention.A2/ Third, the 'ssrd i-i 22/ The 1986 New Hampshire survey and the 1988 SPMC survey are  ; similar in design and methodology. Obviously, SAPL Contentions 18 and 25 were sufficient to put at issue the adequacy of the survey's methodology in the New Hampshire proceeding. The 4 language of the Mass AG's contention was.even more direct in l, expressly challenging this methodology. Egg July 5, 1989 .. " Contentions Memo." at 59, JI 48 "The plan proposes to conduct

periodic special needs surveys by mail. Plan 3.7. This method

.. is unreliable for a number of reasons." r* 22/ It made this ruling notwithstanding its earlier holding that the filing of testimony prior to hearing is a form of discovery putting parties on notice as to the issues i presented. Egg Tr 16444. The Mass AG's December 19, 1988 Answers to Applicants' Interrogatories Concerning JI Contentions 6 and 27-63 stated at 86: " Experts in the area of surveys and data gathering have uniformly proclaimed surveys by mail as being among the most unreliable methods of gathering information." The Mass AG's expert, Dr. Dillman, was not retained until February, 1989. l , . , , . , , v w---,. - .,,,,--,.-.,,,.,.,y--,4 -..-.._.....,<.,,w-.. . _ -. - . . - .- - . - _ = . . _ - . _ . - - . . . . .. _ . _ _ _ . . . acknowledged in its decision on the SPMC, LBP-89-32 at 1 8.21. (287), that the SPMC survey was indeed flawed and had left out entire portions of the special needs population. Yet, it was sure that timely correction would be forthcoming. In light of , . its handling of this issue in the SPMC litigation, it is o misleading for the Board to characterize the Mass AG's witness  ; as "the only witness offered by any intervenor" during the Massachusetts portion of the proceeding on the issue of identifyina And calculating the transportation needs of the special-needs population. Indeed, this is an outright falsehood. In sum, then, the Board's disposition of this remanded issue is comoletelv add totally in error. The Board denied Intervenors their pre-licensing hearing again, routtered its judgment on transportation resource adeguacy in derogation of ALAB-924, granted summary disposition within forty-eight hours of the Appeal Board's reversal of its earlier identical action, sincharacterized in form and substance the nature of SAPL's challenge.to the 1986 Survey, and adopted a harmless error analysis based on purported planning excess exeressiv reiected 1 hy the Anneal Board. There is virtually not a single accurate i ., statement of fact or law at 16 to 22 of the Supplement. The only conclusion possible upon review of these matters is that the Board is not acting in good faith.

3. ALS and ETEs for soecial cooulations Upon review of the arrangements in the NHRERP for the evacuation of special facilities, the Appeal Board noted that the ETEs for special facilities may have been underestimated

r because of a failure to include in the ETE the time it takes to  ; move an advanced life support ("ALS") patient from a bed to a stretcher adjacent to the bed (" preparation time"). This f process cannot be begun before the arrival of the evacuation . Vehicle and it may add an additional 28 to 60 minutes per patient to the total ETE for the facility.AA/ ALAB-924 at

25. Not only did Intervenors' witness Pilot testify that this preparation could not be begun before the evacuation vehicle arrived, but contrary to the statement of the Licensing Board in LBP-88-32 at 28 NRC at 699, the NMRERP also states that patients are assembled an and not before the evacuation vehicles arrive. ALAB-924 at 26 n.69. The Appeal Board, noting that increased evacuation times for special facilities close-in to the reactor effect the relative efficacy of sheltering as compared to evacuation, remanded the matter to the Board for resolution. The Board also stated:

Correction of the preparation time omission suggested by the Licensing Board's statement also will ensure 'that special facility planning conforms to the guidance of NUREG-0654 that evacuation time "(e)stimates for special facilities shall be made with consideration for the means of mobilization of equipment and manpower to aid in evacuation" and that- ,, "(e]ach special facility shall be treated on an individual basis." NUREG-0654, App. 4, at 4-9 to 4-10. I ', 11/ Assuming staffing was sufficient to permit each ALS L. patient to be shifted from bed to stretcher simultaneously and that all ambulances for these patients arrived at a special facility at the same time, the total additional time would be between 28 and 60 minutes for any one facility. If either of these assumptions could not be made (as seems obvious) the increase in the ETE for a particular facility would be a function of the staffing available, the number of patients and the arrival times of the' ambulances. Obviously, these increases could be substantial. [' AIAB-924 at 27 n.71. First, it is clear that this issue is of sufficient importance to have required resolution prior to licensing, P perhaps in a E211-hearing but still DIR-licensing posture. As

• discussed below, however, the Licensing Board's total confusion F

o on this issue and the Applicants' repeated efforts to e < underestimate Seabrook evacuation times requires that these issues get resolved (pre-licensing and) by means of the  ; adversary process. Thus, again, the Board's November 9 action denied Intervenors' hearing rights on material issues and failed to close or resolve open issues prior to licensing in  ; any fashion. As should now be anticipated, the Board's  ! November 20 explanation confuses, misstates and obfuscates these issues. The Board begins its " analysis" by setting forth the total generic ETE used in the NHRERP for special facilities: 3.30 hours3.472222e-4 days <br />0.00833 hours <br />4.960317e-5 weeks <br />1.1415e-5 months <br /> composed of Mobilization time: .33 hours3.819444e-4 days <br />0.00917 hours <br />5.456349e-5 weeks <br />1.25565e-5 months <br /> Inbound Travel: 90/50 + .50 2.30 Loading Passengers _x12 3.30 hours3.472222e-4 days <br />0.00833 hours <br />4.960317e-5 weeks <br />1.1415e-5 months <br /> 21/ The NHRERP provides no particularized ETEs for the special facilities on the grounds that no special facility ETE is . longer than the overall ETE for the EPZ. Obviously, if the NHRERP has underestimated the special facility ETEs by a  ; substantial amount that varies from facility to facility for the reasons set forth in the preceding footnote, then the NHRERP has not complied with governing regulations. Indeed, in reality, the plan may call for an evacuation of a facility whose dose minimizing action would be sheltering. t i Supp. at 25 citina NRRERP, vol. 6 at 11-26. Next, the Board  ; compares this estimate of loading time (.67 hours7.75463e-4 days <br />0.0186 hours <br />1.107804e-4 weeks <br />2.54935e-5 months <br /> = 40.2 minutes) with the average preparation time estimated by Ms. Pilot (28 + 60 minutes /2 = 44 minutes), and finds that the . Pilot estimate and the assumptions in the NMRERP do not o " deviate in any significant way" and that an " increase of four - minutes in the ETE would not affect the choice" of a PAR for l the ALS patient population as a whole. (25) In this fashion, the Smith Board puts the Appeal Board's concern "in context". (25) It is difficult to be certain how to interpret what the Smith Board does in this passage. It is so obviously wrongheaded to compare the orenaration time which Pilot estimated at 44 minutes on average car natient with the loadina time ner facility that the Board must have realized it was . comparing apples and oranges. The whole point of Pilot's testimony and the Appeal Board's remand in this regard was that before an ALS patient could be loaded at a facility preparation time was necessary and this preparation could D2t baain until the evacuation vehicle arrived. Thus, Pilot's'44 minutes par 9 Datient would have to be added to the NHRERP's estimate of 40.2

• minutes of loading time par facility as long as the preparation could not begin until the evacuation vehicles arrived. The Intervenors in light of the circumstances here (a Board j retroactively defending its own careless and hasty action) l infer that the Smith Board is purposefully and intentionally ,

l confusing the issue in the hope that the press of time, and the level of detail will prevent comprehension and review of its action.25/  ! The next maneuver made by the Board to avoid the issue has I, two parts: 1) the Board outlines notification and mobilization + procedures for EMS vehicles and the special facilities and finds a margin of extra time there in which to perform Pilot's preparatory taskst and 2) the Board asserts that the NHRERP can be amended post-licensing under the oversight of the Staff tot provide instructions to the staff of special , facilities to prepare ALS patients for > transportation at the order to evacuate.  ; (29).11/ -Turning first to the mobilization procedures for the EMS r vehicles, the Board accurately states that these vehicles would be notified and possibly mobilized at an Alert (26). If mobilized at Alert (obviously before an order to evacuate would l issue) they travel from their point of origin to the State Transportation Staging Areas (TSAs). (26) Later when the order af/ The alternative is similarly bleak: after years of litigating ETE issues and a " careful" reading of ALAB-924 the Board simply fails to grasp even the rough edges of the . remanded issue. 12/ It is unclear why any amendment would be necessary if upon !., the Board's present review of the issue "any inconsistency (as noted at ALAB-924 at 2b) between our former ruling and the current issue evaporates." (28). This statement appears to be based on a belief that the whole issue turns on a miscitation in LBP-88-32. Of course, the miscitation is irrelevant to the issue and as noted by the Smith Board was corrected by the Appeal Board. (28). The relevant citations are to the Pilot testimony and to those portions of the NHRERP which clearly state that special facility patients will be assembled na and not before the evacuation vehicles arrive. ALAB-924 at 26 n.69. h 1 to evacuate is given these vehicles travel from the State TSAs to the Local TSAs in the communities and from there to the i individual facilities. As set out above, this 2-staged transit process for these vehicles is reflected in the NMRERP at vol. 6 , , at 11-26 in two separate estimates of " inbound travel time": f c 1) 90 miles at 50 mph = 1.8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br /> (travel time from point of origin to State TSA) and 2) .50 hours5.787037e-4 days <br />0.0139 hours <br />8.267196e-5 weeks <br />1.9025e-5 months <br /> whien equals the time on . average for traveling from the State TSA to the local TSA to the special facility. (Egg Vol 6, 11-19 to 11-20). Thus, , because the staffs of the facilities are told when the order to , evacuate is given and because, assumina the vehicles hayg already arrived at tha State ISA, it is estimated that the . vehicles will travel from there to the individual facilities in , about 30 minutes, the Board believes that this 30 minutes provides an extra margin of time within which ALS i patients can be readied for evacuation -- a margin of time beyond that assumed as loading time for those patients. (27). Thus, because the Board believes this extra time exists, the remanded issue is resolved by simply requiring an amendment , instructing the staff of the special facilities to begin I L i g preparation upon the order to evacuate. l l On closer review, such a solution would be an egregious error and reflects again the Board's incomprehension of the remanded issue. First, assumina the planners knew that all necessary vehicles would arrive at each facility 30 minutes after the staffs were told to begin the preparation of their l patients, the point made by Ms. Pilot and noted by the Appeal 1 l 1 _ . - . . ~ _ .. ___ ._... ___ _ _ . _ . _ . _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ t Board was that gash natient would require 29 to 60 minutes to -complete the preparation prior to loading. Since there are no individual ETEs for each special facility reflecting "the means  ; of mobilization of equipment and manpower to aid in evacuation" ~ (ALAB-924 at 27 n. 71 citina NUREG 0654) there is no basis for o assuming that within that 30 minutes even 1 patient will be ready to begin the loading process when the EMS vehicles arrive. Ms. Pilot estimated the process to take 28-60 minutes per patient and without knowing "on an individual basis" how many patients can be prepared simultaneous 1v the impact of this additional process on the ETE for any one facility could be very great.2E/ But more fundamentally, the Board misconceives the ETE scheme it cites, and indeed Dc extra 12 minutes 13 available at all! If the emergency is slower-paced and permits a two-staged i mobilization of the EMS vehicles, then it is clear that at the point at which a decision comparing evacuation to sheltering -for the special facilities is made, the appropriate ETE has nothing to do with the one cited by the Board and set out above, i.e. 3.30 hours3.472222e-4 days <br />0.00833 hours <br />4.960317e-5 weeks <br />1.1415e-5 months <br />. That estimate includes a 2.5 hour5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br /> mobilization and travel time which would already have taken l., place before the prctective action decision would have to be 314 For example, assume five ALS patients at a facility each of which takes 45 minutes to prepare and available staffing permits preparation of only 1 patient at a time. The total preparation time for this facility would be 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br /> 45 minutes and even if this process began 30 minutes early (the purported extra time the Board believes it has found) the total additional evacuation time would be over 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br />, a significant amount and one-having an impact on any determination whether L this facility should evacuate or shelter. l l J made. In this situation, the much lower transit time for the EMS vehicles (.50 hours5.787037e-4 days <br />0.0139 hours <br />8.267196e-5 weeks <br />1.9025e-5 months <br /> to travel from State TSA to Local TSA l I to facilities) would greatly reduce the special facility ETEs I and indeed counterbalance (in whole or in part) the omission of , ~ $ any preparation time in the ETE calculation.EE/ Thus, the extra margin of time is available only when it is net needed. Assuming instead the very type of emergency for which the ETE calculation set out at Vol. 6, 11-26 was designed (in which the EMS vehicle upon the order to evacuate must first mobilize and  ! then travel to the State TSA, the Local TSA and finally the facility) it is quite obvious that it would be an unmitigated disaster to amend the NHRERP and instruct the staff to begin the preparation time upon the order to evacuate when the evacuation vehicles will arrive over a very long and uncertain period of time up to 2.63 hours7.291667e-4 days <br />0.0175 hours <br />1.041667e-4 weeks <br />2.39715e-5 months <br /> after that sama order. It is i obviously this simple point that led the planners to quite reasonably instruct the staff to begin preparations an and ant before the evacuation vehicles arrive. . Thus, in prscisely those emergency situations in which the omic Jon of any preparation time will most affect the special facility ETEs (because the mobilization time for the vehicles will be l*. longest) there is absolutely no extra time before vehicle arrival to begin preparation, and indeed the uncertain and . 22/ The NHRERP is contradictory on this point. At Vol. 6, 11-21 " loading time" for special facilities is defined to include the travel time from the local TSA to the facility. But at 11-26 the inbound travel time calculation includes .50 hours5.787037e-4 days <br />0.0139 hours <br />8.267196e-5 weeks <br />1.9025e-5 months <br /> which as is clear from 11-20 includes trips both from State TSA to Local TSA add from Local TSA to facility. The analysis above assumes the " loading itme" estimate reflects only activiities at the facility and no travel time from Local TSA to the facility. ,- ,___,-.-.,_._w. y _ . . .,. -- ,%. - - _ , . , . - y . ,, m_.. , . , , . , , ,,. i varied arrival times of the evacuation vehicles demand that preparations be begun only upon arrival and D21 at the order to i evacuate. Thus, this remanded issue requires additional planning to b determine the total preparation time per facility and then to , e calculate for each facility an appropriate ETE to determine if and when certain facilities should be sheltered when others r should be evacuated. These plan changes are sufficiently complex and involve no small amount of judgment and, therefore, resolution of this remanded issue, too, requires further adversary proceedings. Again, the Board's actions on November 9 and November 20 neither resolve the issues in ADX l rational fashion nor permit Intervenors' the hearing to which they are statutorily entitled. l

4. A Sheltering Plan for the Beach Population The Appeal Board reversed the Licensing Board's judgment regarding the present adequacy of the planning done to assure the implementability of the protective measures described in tha NMRERP. Specifically, the Appeal Board found that so long as sheltering for the beach population is identified as the appropriate protective action in certain circumstances, the J l

+ , commission's emergency planning regulations require preplanning i and not Ad h22 response. ALAB-924 at 63. The Appeal Board noted that a sheltering plan for the beach population would l I include a designation of what shelters are " suitable and q available for use" (14. at 68) and a means of effectively 1 l ) . - - - . . ~ , , . . - . _ - . _ - _ _ _ _ _ _ - . . _ _ - _ _ _ _ _ - _ _ _ _ . - _ _ _ _ _ _ _ _ _ communicating the need for and the location of these abelters to the beach populations. Id. at 67. The issue was recanded for appropriate corrective action by the Licensing Board. When x the potential shelters have been identified pursuant to our . remand, it then will be appropriate for the Licensing Board (and for us) to address any intervenor concerns relative to the adequacy of that shelter. Id. at 68-69. An discussed at length above, the Appeal Board also found that the absence of a sheltering plan prevented the NHRTRP from being approved in its present posture.SEI Id. at 68 n. 194. The Licensing Board's " analysis" of this remanded issue is brief.d1/ Supp. at 31-33. The Board acknowledges the 12/ .Of course, the Appeal Board reversed the Licensing Board's approval of the NHRERP in each of the particulars surrounding the remanded issues. In each case, had the existing level of i t planning and implementing detail been sufficient L l notwithstanding the issues remanded, the Appeal Board would not have reversed but simply directed the lower Board to establish certain (post-hearing) praw and/or post-licensing conditions to  ; ensure that the details presently lacking are put in place in a timely fashion. (The Appeal Board, for example, itself directed a revision of the NHRERP regarding nonhost community  ! fire department personnel. ALAB-924 at 70.) Thus, what the l Appeal Board said expressly about sheltering detail (that the NHRERP is not approvable without it) it indicated by necessary inference about the need to determine whether LOAs for teachers are required, the need to litigate the 1986 Survey and establish a record basis for approving the level of transportation resource planning, and the need to determine 4 whether the NHRERP recommends the correct protective actions for the special facilities in the EPZ. Alf Half of its discussion is based on the Board's misinterpretion of the Appeel Board's references to the sheltering impleuenting-procedures for transiente without transportation that are in the NKRERP. The Smith Board asserts, that it is " directed to assure that the same implementation action" (32) is taken for the general beach population as for the transit-depsndent transients. It then proceeds to an irrelevant discussion of the differences between these groups. Of course, the Appeal Board never said " treat transit-dependent transients the same as transients with (footnote continued) likelihood "that this issue cannot be resolved on the existing i i record." (31) Thus, the Board expressly acknowledges that the l 1 remanded issue is D21 of the type amenable to nost-hearina resolution under NRC law. Nonetheless, is totally ignores the . relationship between an issue requiring a hearing that is ,

b. identified and presented before licensing and that licensing action. As a result, it denied Intervenors' AEA rights to a hearing prior to licensing on all issues material to that licensing.S2/ Equally remarkable was the Board's complete failure (on November 9 and November 20) to attach any 7

post-licensing conditions on the license related to this  : l unresolved issue. Instead the Board's " analysis" was as l follows: l (footnote continued) transportation." (32). Instead, the Appeal Board simply found that the same level (D2t kind) of Planning and implementing detail is required for both groups. ALAB-924 at 67. The Appeal Board obviously understood that " sheltering" for beach transients without transportation which.13 in the plan is part of the evacuation procedure and that D2 present planning has been done for shelterina (as opposed to evacuating) the beaches. Thus, nothing the Smith Board says in this regard even begins to " question the-reasoning" (33) of ALAB-924 since g that reasoning remains elusive for it. l 12/ It is beyond argument that the remanded issue is 4 .- material. The Smith Board noted that the " Appeal Board ruled I that implementing detail for the sheltering option is a

deficiency that must be remedied before the plan can be l approved." Supp. at 4 n. 3. Also, it hardly seems credible that the NRC could interpret the AEA to mean that Intervenors get a hearing on emergency planning before licensing but then if they successfully challence the plan in a material way at this hearing, a license may then issue and further hearings be i held After licensina. A successful ch311enge on a material issue requiring a hearing before resolution na a matter 211RF_

prevents the NRC from lawfully issuing a license. 1 l l As a safety matter, that same low probability would permit _ post-licensing consideration. The New Hampshire beach population does not peak until July.12/ Implementing i measures may not be difficult to effect. (31) . . . The Board concludes that the very low probability of selecting the sheltering option for the beach population and the fact that the beach population does not reach large numbers ( ancil July, provides adequate safety pending the resolution f, of the remanded sheltering issue. (33) It is obvious, as discussed at length above, that the l !' Licensing Board is simply applying a "no significant hazards"  ; l analysis to this remanded issue and postponing the required . l hearing until after the licensing action. This it simply can ! not do. Moreover, even its stated rationale for its irrelevant safety judgment is bbviously flawed. First, as noted above, the Beard confuses evacuation with sheltering concerns when it refers to peak beach populations in July, obviously, any transients on the beach at all at any time need a sheltering plan if sheltering is the appropriate response. r ! Second, the Board's assertion that because the L circumstances under which sheltering would be the appropriate I L l 12/ .Apparently, the significant although not peak populations L that visit the beaches year round can simply be disregarded in E toto for the purposes of the Board's " analysis." - obviously, the Board here is confusing beach ETE issues whose focus ME * % " peak" beach population for purposes of establishing an upper limit on an ETE with beach shelterina issues whose focus is on ,. ADY transient beach population requiring shelter. Indeed, L* there is D2 record support even for the assertion that in the l middle of January there are Dn transients on the beaches who l would need to shelter in the appropriate circumstances. As a l Hampton police detective testified without contradiction "on a l 40-degree day in January, that (Hampton) beach is jammed with

j. people." Tr. 3708-09. In fact, in light of the number of

summer time use only structures that would be closed up or L

boarded up in the winter, an Ad h2s sheltering response for the no doubt comparatively small wintertime transient beach population might be just as unworkable. ) l protective action are' limited there is no safety significance i to this deficiency is also confused.SS/ The Board r. imply asserts that there is a " low probability of selecting the l sheltering option for the beach population." (33) But the  ; . basis for this statement has to do with the Board's  ! r understanding that at the time of an emergency uncertainties as to key decision criteria will tend to favor evacuation as the , protective action of choice.SE/ LBP-88-32, 28 NRC 775. Assuming the Board is correct and further that DS assumptions i AIR BAAA about what kind 21 accident will occur, then there is - in ceneral a low probability of selecting sheltering as compared to evacuation. However>, this is not the same as asserting that the particular kind of accidents for which sheltering is acorneriate are gi low orobability compared in all other accidents 1D tha olannina bhsis.SII This is an ! empirical question which the Board does not even address. 11/ Intervenors have already pointed out that the Appeal Board expressly held that this deficiency precludes plan approval and the " reasonable assurance" finding prior to resolution. ' Obviously, the Smith Board does not see any safety significance in the fact that existing planning does not permit that e finding. In this regard, as discussed below, the Smith Board's licensing action directly raises the issue of the nature of l emergency planning as a first or second tier regulation. P._ ff/ This discussion assumes tha Board's analysis is correct. Intervenors challenged it vociferously in Mass AG's Appeal 1 Brief at 56-71 and again in Intervenors Petition for Review of - l ALAB-924 filed November 22, 1989. 11/ All accidents are low probability events. This truism l would n21 support a judgment that a planning deficiency is not safety significant. The Smith Board is obviously asserting (without any basis) that the accidents for which sheltering is appropriate are more improbable than all other accidents when it made its safety judgment. It is possible that the very accidents for which sheltering would be appropriate are more probable than all other accidents in the planning spectrum. Esa ALAB-924 at 50-51, 52 (quoting - Intervenors' witness Goble that puff releases are "less  : . severe"). Although this may appear paradoxical, upon i reflection it is clear that there is a difference between the lower Board's approval of the NKRERP's use of sheltering in . very limited circumstances based on the need to plan for a range nf accidents only a small percentage of which would require sheltering, and any determination that this small percentage of accidents are less probable than all the other , accidents for which evacuation would be appropriate. The Board , is simply wrong in basing its safety assessment on the purported low probability of these kind of accidents. Indeed, to the entent they are less serious design-basis accidents they are'anrr, probable than the others in the planning basis. The Board has confused the probability of a specific accident occurring with the probability that evacuation would be preferred over sheltering assuming planning is necessary for an L entire rance of accidents. Indeed, if sheltering was , l. l* appropriate at this site for only one accident sequence and , evacuation appropriate for all other accidents it would 4 l obviously be correct to limit sheltering to that one accident, j Yet, if that accident were more probable than all other accidents (as is likely if it "less serious" and within the j ) i i t -- r - , , - - , - - - - - , - - - - - , , - - - , - -------.r ,-en.~ , - . ..- - . , . -.- - - , - 'l l design basis) having a sheltering plan would be more not less l safety significant than adequate provisions for an evacuation. Thus, there is absolutely no basis for the Board's judgment that the absence of beach sheltering provisions are of no '.. safety significance either because beach populations do not I peak until July (which is irrelevant) or because accidents , requiring sheltering are " low probability" accidents (which is unsupported in the record and probably false). O C. The Relevance of 50. 47 (c) (1) In its November 14 Order in response to Intervenors' November 13 Motion to Revoke, the Appeal Board intimated that the Smith Board's licensing action on November 9 may have had some undisclosed relationship to 10 CFR 50.47 (c) (1) . The Smith Board obviously saw no relationship. E Instead, it chose to , & Intervenors are at a loss to grasp the relevance to any rational judgment of safety significance that the "[i)mplementing measures may not be difficult to effect." (31) . An emergency core cooling system, or a containment structure "may not be difficult to effect" either but this fact has no bearing in assessing the safety significance of these measures. No doubt, the Smith Board intended this statement i only as further support for its irrelevant point that beach ! populations will not peak until July. Providing a sheltering plan by July does little good for beach transients in need of such a plan before July. l l*, W In its November 9 decision, the Board made no reference to l 50. 47 (c) (1) in its brief comments on the impact of AIAB-924 on the vitality of its NHRERP findings. Even though the Appeal Board pointed it in that direction on November 14, the Smith Board's November 20 " explanation" makes no reference at all to

50. 47 (c) (1) . That should be the end of it since no findings have been made pursuant to 50.47(c) (1) on the record.

Intervenors, however, at this juncture take no chances, and in the text above indicate in detail why 50.47(c) (1) provides no solace for those who would license Seabrook in the present l state of these proceedings. I I base its action, as analyzed above, on the clear denial of  ; Intervenors' hearing rights, the illegitimate reutterance of its findings and judgments reversed in ALAB-924 and the illicit , substitution of its own personal view of the equities for law. ~ ( In what follows, Intervenors explain why in the circumstances c of this case, 50.47 (c) (1) would also not support the Board's i actions. ' i

1. Possible Relevance of 50.47(c) (1)  ;

The Appeal Board's reference to 50.47(c) (1) may have been based on its understanding that if the Smith Board were obedient to ALAB-924, it would acknowledge that its determination that the HERERP was in compliance with the i planning standards of 50.47(b), in part, had been reversed. ' Thus, the Appeal Board may have reasoned that the only conceivable way the Smith Board could nonetheless have authorized license issuance was pursuant to 50.47(c) (1) which establishes a different legal basis on which licensing could occur. Without relying on (c) (1), in other words, the Smith l 1 Board by necessity must simply be contravening ALAB-924 and the  : l l law of the case. 1 (** 2. Proper Interpretation of 50.47(c)(1) ., In the present circumstances of this case, however, (c) (1) j l provides no alternative basis for licensing. That section has a fairly obvious application: if " deficiencies" (defined as failures to meet the (b) standards) exist in an emergency plan then licensing is nonetheless appropriate if the deficiencies are not significant for the plant in question, or there are 1 l l adequate interim compensatory actions that have been or will be  ! I taken promptly or there are other compelling reasons to permit  ! plant operation. Nonetheless, it is quite obvious that before i licensing under (c) (1) is possible the present state of . 1 . planning must permit the (a) (1) " reasonable assurance" finding to be made. First, (a) (1) states clearly that "no operating license . . . will be issued unless a (" reasonable assurance") ' finding is made." Nothing in (c) (1) removes this overarching i prelicensing requirement. Instead, (c) (1) only relaxes the - stringency of 50.47(b) which states that offsite plans "must meet the following standards." Second, when the Commission amended (c) (1) to establish criteria for evaluating utility plans it expressly incorporated the (a) (1) standard into (c) (1) . See (c)(1)(iii) (identifying public endangerment standard with (a) (1) 's " reasonable assurance" standard) . l ! Obviously, there is no basis for the position that utility I olans evaluated pursuant to (c) (1) have to meet the (a)(1) standards but aovernmental clans do not. This persistence of the need for the (a) (1) finding in the (c)(1) posture is confirmed by express commission statements in j this regard. The Commission has noted that some " deficiencies" . call [] into question whether reasonable assurance may be l found that public health and safety will be adequately protected in a radiological emergency. However, some l deficiencies may be found that only reflect the actual l state of preparedness which may be easily remedied; these l types of deficiencies should not delay licensing action. See 10 CFR 50.47(c). I i 47 Fed. Reg. 30,232, 30,234 (July 13, 1982). The Appeal Board { ' has also stated that on appeal of a Licensing Board's f

50. 47 (c) (1) finding, it reviewed "whether there was support in j the record for.the Licensing Board's reasonable assurance l

• finding . " Philadelnhia Electric Connany (Limerick  !

) Generating Station, Units 1 and 2), ALAB-809, 21 NRC 1605, 1612 n.9 (1985). Thus, certain deficiencies in the (b) standards would not prevent the " reasonable assurance" finding. But, it should be noted that the standard articulated is identical to , the standard developed to distinguish between issues amenable f to post-hearing resolution and those requiring hearing. See h cases cited supra. In view of these considerations the issue presented by ALAB-924's holding as to the four remanded issues is straightforward: Is the reasonable assurance finding still possible notwithstanding the specific deficiencies in the NHRERP? Are the deficiencies in this case not significant for the plant in question (assuming, as one must in evaluating ! emergency planning, that an accident occurs) or are there

adequate interim compensatory measures?AEI N.

12/ Intervenors ignore "other compelling reasons." Administrat ive history indicates that this provision was adopted to cover na tional energy emergencies. Egg NUREG/CP-0011 at 7. (Proceedings of Workshops on Proposed Rulemaking). But gas, 50 Fed. Reg. 208 92, 20894 (May 21, 1985) (good faith compliance with invalidated regulation establishes such " equity" that it might constitute a " ' compelling reason"). i 1 l l

3. " Reasonable Assurance" in Light of ALAB-924 At the outset, the Smith Board's "significant safety" standard (imported perhaps from 10 CFR $ 2.734) must be rejected in addressing this issue. As noted, the Smith Board

\ did not mention (c) (1) . Moreover, ADy " deficiency"EE/ in_g (b) standard is " safety sianificant" by definition. Purther, to the extent an (a) (1) finding requires at least that a plan be in compliance with the (b) standards, a " deficiency" with regard to those standards precludes the " reasonable assurance" finding.E1/ The " safety significance" of each of the (b) standards is obvious from the fact that the commission required compliance with each of these standards before a " reasonable assurance" finding could be made, and, in turn, made the " reasonable assurance" finding a precondition to licensing. Thus, as a necessary consequence of the regulations themselves, , a Licensing Board facing " deficiencies" in an emergency plan (such " deficiencies" being at present the law of the case on remand) is not free to assess the " safety significance" of 52/ Of course, there has to be a " deficiency" in the plan as . measured against the (b) standards for (c) (1) to be relevant. A minor omission or detail that is amenable to post-hearing resolution (either as a pre- or post licensing condition) is D21 a " deficiency" under 50.47 (c) (1) . As discussed at length above, ALAB-924 expressly characterized the remanded issues 1D liaht of the existino record as requiring further proceedings, and either by implication or expressly (in the case of sheltering) characterized these issues as significant enough to prevent plan approval at this time. 11/ Intervenors have asserted in their briefs on the certified question that the (a) (1) finding requires a rule of reason judgment, which begins with compliance with the (b) standards ' but does not end there. i those deficiencies to e.ny " reasonable assurance" finding pursuant to (a) (1) . 'such a course is tantamount to a challenge I to the regulations. Nonetheless, (c) (1) obviously p,ermits the (a) (1) finding f,- notwithstanding these deficiencies. Thus, what is permitted , under (c) (1) is an assessment Ehathgr at this narticular nlant the deficiencies (which are generically at least safety significant and prevent the (a) (1) finding) are ncnetheless not  ! sianificant. The Board's " explanation" offers nothing to indicate that it has found that the " deficiencies" in the  ; NHRERP are Det significant for the Seabrook plant. It appears simply to have ruled in general that the " deficiencies" are not I safety significant. l 4. Issues are "significant" and there are net , compensatory measures The Board's failure in this regard is rooted in the facts themselves. The remanded issues Arm significant for this plant. First, it is unclear why the Appeal Board would have reversed and remanded inslanificant issues. Indeed, to the extent the Appeal Board rejected arguments that the o " deficiencies" in question were not important at this site and, therefore, did not prevent a " reasonable assurance" finding, any ruling on this issue pursuant to (c) (1) is controlled by > the law of the case. ALAB-924 at 19 n. 47 (e>pressly rejecting , ( transportation resource excess as basis for " harmless error" l or lack of significance of issue because no record basis supports finding of " excess"); 68 n. 194 (expressly noting that i.._. .._ _. _ . _ . _ , _ - . _ . _ . _ . . , . ~ . . - , _ _ . , _ , _ . . - - . _ . _ _ _ . . _ _ _ _ . . . _ _ . . _ _ E  ! l l 1 I i in " absence of any concerted attempt to incorporate implementing details" " deficiency must be ren.edied" for plan approval).E2/ l Second, nothing about this plant makes these deficiencies . in the (b) standards insignificant and there are no compensatory measures at all in place. As detailed above, the issues involve: 1) availability and agreement of teachers to accompany students in an evacuation; 2) absence of any finding  ! that transportation resources for special needs population are , j adequater 3) accuracy of the ETEs for the special-facilities, I including those close-in to the reactor; and 4) the absence of an implementable protective measure for the beach population. I' In an evacuation at Seabrook, as at any other plant, l deficiencies 1) - 3) are significant to public safety, and there are no compensatory measures in existence.E2/ In an , l l 22/ In fact, it is quite obvious that to issue a Seabrook license in the present posture of this proceeding is nothing ' l Jess-than to grant an exemption pursuant to 10 CFR 50.12(a))

from the " reasonable assurance" finding required h112ER i licensing by 50.47. SAR Limerick, 21 NRC supra at 1510-1613.

l There simply is no way on the present record in light of , existing law that the " reasonable assurance" finding can be o made. Of course, SAPL v. NRC, supra, makes any exemption for Seabrook from the emergency planning regulations legally impossible. 12/ This is hardly surprising since ALAB-924 identified the deficiencies on November 7 and a license was authorized on

November 9 without conditions.

l l ? i 'l emergency at Seabrook in which sheltering was appropriate for  ; the beach population, it would obviously be significant if a sheltering plan did not exist.ES/ Again, there is no l compensatory measure in existence in this regard, h.. Third, it is not a little ironic to find the Licensing ^ [ , Board proceeding as if that " reasonable assurance" is a , judgment-call it is able to make independently of compliance l with the (b) standards based on some assessment of the present level of public safety afforded by the plan, of course, just such a risk-based assessment was rejected by the Smith Board when it rejected the Shelly /Beyea testimony.EE/ Fourth, any -finding that the deficiencies in the (b) standards are not significant for the plant in question or are otherwise ' adequately compensated for effectively puts an and to any further proceedings on the remanded issues because resolution i 51/ Intervenors, above, disposed of the Smith Board's confused L notions involving " peak" beach periods of the year and the

asserted-low probability of the accidents requiring j sheltering. As to this last point, the Appeal Board already

! rejected the notion that the unlikelihood of using sheltering L at the site eliminates any " deficiency." ALAB-924 at 65. How something would be a " deficiency" in a plan for a site even a -though it is unlikely to be utilized, and yet not be "significant for that plant" based on this unlikelihood, Intervenors leave to others to explain. 55/ Of course, the Smith Board has turned the issue on its head Intervenors asserted that the (a)(1) reasonable assurance finding required a judgment of risk and public safety pver and above, compliance with the (b) standards. The Smith Board made a judgment "under and below" such compliance. l 1 , _ y,- . , _ _ _ , _ - . - - , , . . , - , . ,-_-.. . - . . - . ~- . - _ . .. . - _- .. _ . of these issues would no longer be " material" to licensing. l The remanded issues ara " material" (and indeed were remanded) because the Appeal Board held they were significant to the issue of emergency planning adequacy at Seabrook, could not be I resolv'ed on the present record and prevented " plan approval", [ i.e. the reasonable assurance finding. There is no record support for simply closing out these issues at this point and yet that is what a 50.47 (c) (1) finding would entail.

5. 50. 47 (c) (1) and Intervenors' haaring rights.

50. 47 (c) (1) can not be used to circumvent Intervenors' hearing rights under the AEA. Therefore, if the remanded issues require further hearing, that hearing must be held prior to licensing. Moreover, Intervenors have never been heard on the issue of whether the " deficiencies" in the NHRERP are significant for the plant in question or whether there are adequate interim compensatory measures. Certainly, the Applicants have never so demonstrated as required by

50. 47 (c) (1) . Egg Intervenors' November 15, 1989 Request for Hearing Regarding Any Determination 'Ihat a Seabrook Full Power License May be Authorized Based on 50.47 (c) (1) . Finally, 50.47 (a) (2) requires that an NRC finding of " reasonable

., assurance" be based on FEMA's findings and determination. FEMA has never opined on whether the deficiencies identified in ALAB-924 are significant for the plant in question or whether there exist adequate interim compensatory measures. I IV. OTHER OUTSTANDING ISSUES PREVENTING LICENSING .Not only was the November 9 licensing action in direct J contravention of the directives of ALAB-924 with regard to the l remanded issues, but LBP-89-32 also repeated some of the same 1 Io rulings which had been reversed on appeal of LBP-88-32. Moreover, other issues including the certification of a question arising out of appeal from LBP-88-32 prevented the Smith Board from acting when it did. A. The Board Ignored Stare Decisis In two particulars the Board in LBP-89-32 simply reaffirmed as to Massachusetts its New Hampshire findings with respect to issues on which the Appeal Board had reversed it. Obviously, there was little time between November 7 and November 9 to 1 assess the impact of ALAB-924 in this regard. Indeed, 'Intervenors filed by fax on November 9 a Recuest for Prehearina I Conference in ResDonse to ALAB-924 which at 3-6 sets out in some detail the legal effects of ALAB-924 on any reasoned i r decision on the SPMC issues in light of the record. The Board l L disregarded these issues completely in its November 20 l-L " explanation." 1 First, as discussed above, ALAB-924 noted the need for ETEs + , for special facilities on an individualized basis, as clearly set forth in the regulatory guidance. The SPMC does not have ' such ETEs and the Mass AG directly challenged its adequacy in this regard. The Board two davs after ALAB-924 issued ruled that . . . .- - . - - . ~. .-- - -- -- . . _ - - Ng e The. Attorney General's arguments to-the contrary are i zamantical, and have no regulatory basis. Egg MAG PF 2.1.26.A. ' LBP-89-32 at 89 (1 2.104)'._ See also 1 8.94(327).(noting that SPMC assumes patients are ready to' board when vehicles arrive , and t6at loading takes 15 minutes). Attached' hereto as Exhibit 3/is the finding the Board is referring-to. Cursory review of h' it compared to ALAB-924 at 27 n. 71 speaks volumes about the L ! quality of . justice rendered by this Licensing Board. Second, also.as detailed above, the Appeal Board reversed ,. 1 -LPP-88-32 with regard to its determination that agreements are not needed with school teachers who are called'upon to provide

services by ~ accompanying their students to reception centers.

L .The utility plan, like the NHRERP, relies on Massachusetts teachers to the same extentE5/ and no agreements have been L. l reached or even sought. The Mass AG's findings raised this issue, noting at 18.1.70'(353) that the Board has already ruled that teachers become " providers" during an emergency, and at 119.1.136 (481) arguing that " Applicants have no letters of . agreement with teachers to provide-this service." Again, notwithstanding the identity of these issues and the binding S' - restraints of the doctrines of stare decisis and law of the -Ef/ Indeed, to a creater extent. The SPMC assumes teachers will' care for students at the reception centers until parents arrive-and no estimates have been made about how long that will , take. LBP-89-32, 1 8.130(342). There is no staffing provided for-this purpose at these centers. Id. at 1 8.129. i case, the Smith-Board took no action between November 7 and -November 9 to conform its decision to law. Instead, it simply referenced its New Hampshire discussion in LBP-89-32 at 1 8.76 '(316). c In regard'to either of these issues, had the Board simply applied the law set out in ALAB-924 to-the facts in this case, Intervenors and not the Aeolic4DIA would have had a " fairly won victory." Supp. at 37. Again, having been put on notice of these issues by fax on November 9, 1989 the Board responded rashly and in haste by simply ignoring the law. Resolution of either of these issues for Massachusetts will require further planning. B. The> Certified Question. The Smith Board simply went forward and applied the same "best efforts"~ standard of adequacy for the utility plan as it had for the NHRERP. LBP-89-32 at 11 6.10 (218-219) and 6.68-6.70 (235-237). As the Mass AG pointed out in his October 27 Brief on the Certified Question at 2 n. 2, such a procedure is in derogation of the agency's appellate structure. Indeed, to the extent that the Appeal Board in this very case has . determined that the law is uncertain (ALAB-922 at 24) and ., certified a question to the commission, it is jurisdictionally paradoxical that the Licensing Board proceeded to issue another decision and a licensg. Obviously, the question certified arises out of the same croceedina, and although the Appeal Board on appeal of LBP-88-32 certified the question and not the Licensing Board, analytically they should be viewed as one I e Board in these circumstances. How a single board could both - certify a question in a proceeding and before the answer is provided proceed to rule on the issues involved and issue a license is no doubt a mystery even under NRC procedural law. 5 . Certainly, although there appears to be no case on point-(no doubt for obvious reasons), it is at least arguable that the i H Appeal Board's certification decision operated to oust the Licensing Board of the power to reutter its same legal judgment i and then to proceed to final agency action by authorizing a. license.E2/ Since a reversal by the Appeal Board prevents the Licensing Board from simply reuttering its judgment (at least in a normal case), a certification by that Board should t-prevent a Licensing Board from rendwring judgment on issues related to the certified question until the Commission responds to the certification. C. Pending Contentions The Licensing Board authorized a license notwithstanding 'the pendency of several Intervenor motions seeking admission of contentions and a hearing. In its November 9 PID, there is no 52/ 'Although issuing a decision otherwise ready on other matters before a certified question is answered seems sensible, 1 .- issuing a decision credicated on the answer to such a question l~ is quite a different matter. Further, even if that were permitted on the grounds of efficiency or expediency, to issue a license before the certified question is answered is inexolicable because the licensing action is final agency action and immediately effective but for a non-merits Commission review process. l' _ . __ l I 1 -discussion at all concerning these pending motions. In its j November 20 " explanation, the Board makes various statements concerning these matters and promises yet another decision in the near: future. Supp. at 33-41. Before turning in detail to 1 . the Board's." analysis", it must be stressed at the outset that J > the procedurs utilized'here is irregular. Indeed, Intervenors- [g.- -have found no case in.which motions to admit late-filed contentions (with or without accompanying motions to reopen) submitted before a licensina decision has issued have siimolv been deferred for decision until after that licensing action.EEI i 51/ The Board cites no cases in support of this procedure. It does, however, note: there is no NRC regulation requiring that an initial decision be delayed because of speculation-that future issues might require further hearings. Supp. at 35. Assuming the Board means by an " initial decision" one that includes licensing action like LBP-89-32, this statement is trivially true. Of course, timely motions to reopen' accompanied by affidavits and timely challenges to the-scope of an exercise in the form of detailed contentions are l not " speculation." 0 i L ~ In any event, it is quite obvious that as a result of its licensing action the Board has effectively denied all pending motions for further hearings prior to licensing. Not deciding, in these circumstances, is a form of decision. Therefore, the U- only possible justification for this procedure is that all pending motions were subject as a matter of-law to the motion I ,. to reopen standard of 5 2.734 and that DQDa of these motions met that standard.EE/ As discussed below, the EBS contention did meet that standard and nothing the Board says in its " explanation" contradicts this. Further, the contentions challenging the scope of the 1989 onsite exercise as a matter of law could not be subiect to that additional standard and by l applying that standard, the Board's actions further support a-judicial presumption of bad faith. I

1. The EBS Contention The Applicants lost the capacity for utility-initiated operation of the Emergency Broadcast System ("EBS") in the relevant operational area of Massachusetts on October 20, 1989 j

E2/ Intervenors believe that by not providing its reasons and findings in this regard on either November 9 or November 20 the a* I Board has violated the Administrative Procedure Act. The point in the text, however, is that, analytically, whenever the Board 4, .says whatever its going to say, as a matter of law on November 9 it denied all pending motions on the grounds that the motion to reopen standard had not been met. (There is no ( serious challenge on the facts to " timeliness.") Intervenors' 4 rights to a prelicensing hearing under the AEA entitle them at I the very least to some decision (in this instance one without ? findings or reasons) on all pending timely requests for such a prelicensing hearing. ) L 1 l 1 when the EBS " gateway" station with whom Applicants had had a 1 contract declared that contract void because of Applicants failure to provide necessary equipment. At or near that time, the non-public entity called " Massachusetts EBS" notified ~ 1, Applicants that EBS no longer recognizes the utility response organization as a " recognized responsible" organization under ] EBS regulations. .These events were made known to the Smith 1 Board directly upon their occurrence by the NRC Staff. On October 30 the Intervenors submitted a late-filed contention and' sought to reopen the record in this regard. However, because'Intervenors' affiant (Sawyer) informed the Mass AG on the morning of November 8 that he did not wish to testify in this proceeding, the Intervenors withdrew the October 30 motion by fax at approximately 11:30 A.M. on November 8. At that same time, Attorney Traficonte telephoned Robert Pierce, Esq. and explained why and under what circumstances the October 30 motion was being withdrawn. -Attorney Traficonic stated that the Mass AG had verbal agreement from Robert Boulay, Director of the Massachusetts , civil Defense Agency and Sawyer's superior, that he, Boulay, 1 lC

• l .w ould testify to matters set forth in the Sawyer

, Affidavit.NEI Traficonte further stated to Pierce that L because it was unclear whether Boulay would be able to sign the 52/ The Affidavit sets out the working of the EBS in Massachusetts. Boulay is conversant with these matters and had reviewed earlier the Sawyer Affidavit before it was filed on October 30. l affidavit that day-(November 8) or the next day (November 9), the Intervenors felt it necessary to withdraw the October 30 filing and refile-it either that day or the next. Traficonte stated that there was no question that it would be immediately . refiled. Pierce stated that he would communicate these facts and circumstances to the Licensing Board. Traficonte Aff't at 1 4. On November 9 it was refiled by Express Mail. Attached as Exhibit 4 is a copy of the Certificate of Service. Notwithstanding these facts, the Smith Board stated: This (EBS) motion dated November 9, 1989 and served by first class mail that date was received by the Board after LBP-89-32 was rendered (November 9) and served (November 13). An apparently identical earlier motion with , thc same title was dated October 30, 1989. The October 30 motion was withdrawn by a faxed " Withdrawal of Motion" dated November 8, 1989. Thus, it is not literally true that the EBS motion was pending before this Board when -LBP-89-32 issued. However, since no appeal had been taken from LBP-89-32 when-the second EBS motion finally arrived, this Board continued to have jurisdiction over it. The fact remains that the Board did not know'about the ' November 9 EBS Motion when it-rendered the partial initial decision, LBP-89-32. These statements are simply false. The Board's assistant had been told precisely what was occurring. The November 9 Motion was filed by Federal Exprecs and pursuant to 1 2.701 filing is complete upon mailing. Moreover, the important issue presented by the November 9 Motion was already described in detail in the

• virtually identical October 30 Motion, and the underlying facts were known to the Board even before that.

When the PID issued, obviously, there had been no response filed to the November 9 filing and no response had been filed by November 8 when the October 30 motion had been withdrawn. I p

3. -

Even by November 20, when it issued its " explanation," the ' Board had not received-the Staff responso.51/ Nonetheless, the Board states: 1 L 'the fact that it (the EBS notion) was submitted, withdrawn, and resubmitted, and that the matter is not yet fully L.: briefed indicates that itu potential effect of (sic) the ' outcome of the proceeding is too speculative to have warranted deferring or recalling our decision authorizing a r L.- full power operating-license. We have nevertheless j examined those papers and find nothing-sufficiently grave to justify any delay. , Supp. at 40-41. Obviously, if the November 9 motion filed even l' L before the PID was_ docketed meets the applicable standards then l' Intervenors have a richt to litiaate this issue orier to I licensina. Of course, that right has now been denied. The l L 2D12 basis for this denial set forth in anything the Board has ? L written is the'last sentence in the portion of the Supplement quoted above, which indeed is the last sentence of the Supplement. This is hardly "reasonod decisionmaking" (5 U.S.C. j S 557(c)), particularly when the Board'o significant safety " judgment" is made before the responses are even filed and in direct contradiction of governing law as cited to the Board in 1 ! both the October 30 and November 9 motions: gj Extended discussion should not be necessary with regard to the obvious safety significance that attends upon compliance with the commission's regulation designed to 1 provide the members of the public located inside the EPZ with "early notification and clear instructions" in the event of a radiological emergency. f1/ The Staff response was filed on November 20. 1 . . , . - . _ , _ . . . . - . _ _ ._. . . _ _ . _ . . . _ _ _ , . _ . _ . . _ . _ ~ . . . l i l Seabrook, ALAB-883, 27 NRC 43, 50 (1988) (footnote l 1 omitted).5A/

2. The Scope Contentions i

No extended analysis of the disposition of Intervanors' .; scopec'ontentions is necessary.IA/ The September 1989 . exercise was material to any Seabrook licensing action. App. L . :. E.IV.F.1. CLI-89-19. Intervenors had a right to litigate it. NRC_ law is clear that contentions that challenge the scope of an exercise are admissible. Finally, it is not permissible for the agency to apply the motion to reopen standard to such exercise contentions. To do so supports a judicial presumption l of bad faith. San Luis Obisoo Mothers for Peace v. NRO, 751 , i F.2d 1287, 1312, 1316-1317 (D.C. Cir. 1984); UCS v. NRC, 735 F.2d 1437. Egg L also Seabrook, ALAB-918, slip opinion at 13 n. I L 21.. l j., 12/ It is obvious that the Smith Board-can not now reach any reasoned judgment on any of these pending matters because, inter glig, to admit any contention at this point would be an acknowledgement by the Board that it denied Intervenors' - hearing rights on November 9. For this reason, the Intervenors sought initheir November 15 Motion to the Appeal Board to have , that Board take jurisdiction over these still pending matters. ,* In its November 16 Order transferring jurisdiction back to the Licensing Board thereby denying Intervenors the relief sought, .the Appeal Board noted, no doubt ironically, that ., we think it appropriate for that Board to consider the I contentions in the first instance. L November 16' Order at 1. (emphasis supplied). 1 L 12/ The Supplement at 34 n.19 identifies the pleadings. In l any event, Intervenors are simply unable to comprehend the L Board's " analysis" set forth at 37-40. Little hinges on this, since the Board clearly applied the motion to reopen standard to these contentions and found them of no safety significance. Supp. at 39. l' 1 -_ 5 Although not much of the discussion at 35-40 of the supplement is clear to Intervenors,IA/ it is indisputable that tho' Board applied the motion to reopen' standard,-found no safety significance.to the contentions, and proceeded to a . licensing action on this basis. Supp. at 39. Thus, the Board 11/ For example, at 35 the Board states that it understands the safety and regulatory implications of the scope challenge but-that the-arguments are complex and it can not provide a " reviewable decision" yet. At 36 n. 22 the. Board appears to be arguing that the Commission in CLI-89-19 was sanctioning a. Seabrook licensing action notwithstanding the pendency and L without the need for Any disposition of timely filed onsite exercise' contentions. Such a course of action, which clearly violates the AEA, was supposed to be intended by the Commission when it stated in CLI-89-19~that "[1]acking the admission of L any new contention (etc.] . . . " In an amazing innt da force, L the Board' understands this as possibly an instruction to it

l. simply'to take no steps (i.e. by ruling on contentions and thereby, perhaps by accident, admitting one) to change this situation. In other words, the Board thinks the Commission may l

have meant " ignore all new submissions and there will be no new contentions to hold up licensing." Supp. at 36 n. 22. But, acknowledging some. doubt on this score, the Board in an epiphantic flourish states that:- there is no reason to believe that the Commission was focusing upon the between-the-cracks L situation at bar where motions for renewed l adjudication came in faster than they can be L decided. Yet, CLI-89-19 was issued in response to Applicants' request 6* for an exemption from the September onsite exercise based on , fears of further litication. Obviously, the Commission had the L possibility of such litigation in mind. Again, the Smith Board ). has trangressed that normally clear line between sense and nonsense, and in effect by simply not addressing Intervenors' ! exercise contentions grLnted the Applicants the exemption denied them by the Commission. i has acted in bad faith and its licensing action must be '

reversed. E Indeed'the-Smith Board, hinting about~the

+ possible need to vacate its license authorization at 38 of the Supplement stated: ~ ).-'~ Nevertheless we-believe the Commission may find it efficient to proceed with its-Section 2.764 review. . . . Why " efficiency" is a relevant consideration is left undiscussed. - CONCLUSION  ? For the reasons set forth above, the Commission should revoke and vacate the November 9 license authorization and  ; provide.-for further proceedings as required by law and regulations, i Respectfully submitted, COMMONWEALTH OF MASSACHUSETTS JAMES M. SHANNON ATT EY GENERAL 0 ( ~ 47ohn Traficonte / 7' Chief, Nuclear Safety Unit g*  ; , Department of the Attorney General V One Ashburton Place Boston, MA 02108-1698 ., (617) 727-2200 DATED:. December 1, 1989 fjf At.38 of the Supplement, the Board cryptically hints that admission of these contentions (an event as unlikely before , this Board as a nuclear accident itself) would require it to " revisit [ ] and perhaps vacate [ ]" its authorization. This i appears to be some form of acknowledgement of Intervenors' claims about the denial of their hearing rights and agency bad faith but who knows. m UNITED STATES OF AMERICA 00ME li.? NUCLEAR REGULATORY COMMISSION NC .Before the Commiscion: 69 DEC -4 All :51 Kenneth M. Carr, Chairman Thomas M. Roberts, Commissioner cr; Kenneth C. Rogers, Commissioner OD James R. Curtiss, Commissioner t ) In the Matter of- )' Docket Nos. 50-443-OL ) 50-444-OL PUBLIC SERVICE COMPANY ) (Emergency Planning Issues) OF NEW HAMPSHIRE, ET AL. ) ) (Seabrook Station, Units.1 and 2) -) December 1, 1989 ) CERTIFICATE OF SERVICE I, John Traficonte, hereby certify that on December'1, 1989, I made.. service ofLthe within INTERVENORS SUPPLEMENTAL MOTION AND MEMORANDUM IN SUPPORT OF NOVEMBER 13 MOTION TO REVOKE OR' VACATE THE NOVEMBER 9 LICENSE AUTHORIZATION by Federal Express as indicated by [*] and by first' class mail to the'following parties: L Ivan W. Smith, Chairman Kenneth A. McCollom l Atomic Safety & Licensing Board 1107 W. Knapp St. l l U.S.-Nuclear Regulatory Commission Stillwater, OK 74075

l. East West Towers Building y*' 4350 East West Highway i Bethesda, MD 20814 1

lo .Dr. Richard F. Cole Robert R. Pierce, Esq. L' Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission Atomic Safety & Licensing Board L U.S. Nuclear Regulatory Commission L 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 l l ? P!  :  : ? , {bs .

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• Marjorie Nordlinger, Esq. Paul McEachern,-Esq.

U.S.1 Nuclear Regulatory Commission. Shaines & McEachern , . Office'of the General Counsel- 25 Maplewood. Avenue i "11555.Rockville Pike,-15th Floor P.O. Box 1360 Rockville, MD 20852- Portsmouth, NH 03801 , H.. Joseph Flynn, Esq. . Atomic Safety'& Licensing-Assistant General. Counsel- . Appeal Board p Office of. General ~ Counsel U.S. Nuclear Regulatory Commission- . Federal Emergency Management Washington, DC 20555 , . Agency . b 2500 C Street,.S.W. le ', Washington, DC ~20472 - LRobert'A. Backus,- Esq. Atomic Safety & Licensing Board .Backus~, Meyer-& Solomon U.S. Nuclear Regulatory Commission -116 Lowell Street' Washington, DC 20555 LP.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,HDC 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 I 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 lP.O.~ Box 38 Washington, DC 20510 Bradford, MA' 01835 (Attn: Tom Burack) o l Senator'Gordon J..Humphrey John P. Arnold, Attorney General ~ . One Eagle Square, Suite 507 Office of the Attorney General-N. i concord, : NH . 03301 25 Capitol' Street (Attn: Herb-Boynton) Concord, NH 03301 . .Phillip Ahrens, Esq: William lS. Lord  ; l Assistant Attorney General _ Board of Selectmen i Department of the Attorney' General Town Hall - Friend Street Amesbury, MA 01913 ~ . Augusta, ME 04333 h b q f . .. n.

m 5 ' G. Paul Bollwerk, III,-Chairman Alan S. Rosenthal

%' Atomic'Safecy;& Licensing- Atomic Safety & Licensing Appeal' Board Appeal Board U.S.l Nuclear-Regulatory Commission U.S. Nuclear. Regulatory Commission = East West Towers Building East West Towers Building 7 !4350 East. West Highway. 4350. East West Highway- - Bethesda,: MD 20814 Bethesda, MD 20814 .a i Noward A..LWilber *Kenneth M. Carr r-  ? Atomic Safety.& Licensing Chairman Appeal Board- U.S. Nuclear Regulatory Commission ~U.S. Nuclear: Regulatory Commission 11555 Rockville Pike {i - e . East West Towers Building Rockville, MD 20852 -4350 East West Highway Bethesda, MD 2081.4 1 d'  :* Thomas M.' Roberts, Commissioner *Kenneth C. Rogers, Commissioner s U.S. Nuclear Regulatory Commission U.Sc Nuclear Regulatory Commission 11555 Rockvillo Pike ~ 11555 Rockville Pike {' ' Rockville, MD 20852 Rockville, MD 20852 -* James R. Curtiss, Commissioner U.S. Nuclear Regulatory Commission , 11555 Rockville Pike Rockville, MD 20852 Respectfully submitted, ' JAMES M. SHANNON ATTORNEY GZNERAL er ~ N ' ' M .if'Traficontd ~'

n. ssistant Attorney General y Chief, Nuclear Safety Unit Department of the Attorney General

= One Ashburton Place E , Boston, MA 02108 , (617) 727-2200 . Dated: December 1, 1989 = a - - . - - - - - - . - . . . , , , . , , , , _ ,~ + - UNITED STATES OF AMERICA 4 NUCLEAR REGULATORY COMMISSION %jfD Before the Commission: ^ Kenneth M. Carr, Chairman. Thomas M. Roberts, Commissioner Kenneth C. Rogers, Commissioner James R. Curtiss, Commissioner )' In the Matter of ) Docket Nos. 50-443-OL. 1 l ) .50-444-OL PUBLIC SERVICE. COMPANY ) (Emergency Planning' Issues) OF- NEW HAMPSHIRE, EI AL. ) . ) (Seabrook Station, Units 1 and 2) ) December 1, 1989 ) J . EXHIBITS TO INTERVENORS' SUPPLEMENTAL MOTION AND MEMORANDUM l IN SUPPORT 1?F l!OVEMBER 13 MOTION TO REVOKE AND VACATE THE NDVEMBER 9 LICENSE AUTHORIZATION COMMONWEALTH OF MASSACHUSETTS JAMES M. SHANNON ATTORNEY GENERAL John.Traficonte l Asssitant Attorney General Chief, Nuclear Safety Unit i Department of the Attorney General- , l One Ashburton Place l Boston, MA 02108 ! Dated: December 1, 1989 L, I I ' , my,7 - r -: .. 3., . -. t ., e ,.-b , -'1 , , ,  ? 4 ( T. -- $. \ , V

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n. 4.e - + h-t , b. 9, ; 9 3 /s ., m. h:?-.. o. 1 y k! k: . {. t a (}i: e' u- - 'N h..' e u. e. b. t b ) l' s.. - e p. }r t j 'a' , h1 %>inikkhig,mmQ^y .n ,, ,.n,,,,. _ . _ . , , _ , , , , , , . _ _ _ _ _ . . . , , , _ . F  : E UNITED STATES OF AMERICA ' NUCLEAR REGULATORY COMMISSION Before the Commission: Kenneth M.'Carr, Chairman 4' Thomas M. Roberts, Commissioner Kenneth C. Rogers, Commissioner LJamas R. Curtiss, Commissioner  ; ) In.the' Matter of ) Docket Nos. 50-443-OL ) 50-444-OL PUBLIC SERVICE COMPANY ) (Emergency Planning Issues)  ; OF.NEW HAMPSHIRE, ET AL. ) .)  ! (Seabrook Station, Units"1 and 2) ) December 1, 1989' ) AFFIDAVIT OF JOHN TRAFICONTE I, John Traficonte, do make oath and state: 7 L 1. I am an-Assistant Attorney General in the Commonwealth L of Massachusetts and Chief of the Nuclear Safety Unit in the L Department of the-Attorney General.

2. On occasion counsel in the Seabrook proceeding have communicated with the Licensing Board on various matters

., through Robert Pierce, Esq., a legal assistant to that Board.

This. process has the approval of the Board.

3. On November 8 at or around 11:30 a.m., I-telephoned l

Mr. Pierce in Washington from my office in Boston to discuss -two distinct matters: 1) I wanted to explain the circumstances L of a " Notice of Withdrawal" of an earlier filed October 30 I l g. l I Intervenor Motion to Reopen the Record ("EBS Motion") which I .was having-faxed to the Licensing Board at the time of my call; and 2) I wanted to state Intervenors' desire and need for the J scheduling of a pro-hearing conference with the Board and parties to address the impact of ALAB-924 which I had received c the previous' day.

4. With regard to the first matter, I explained the circumstances surrounding Intervenors' witness Royce Sawyer's decision (finally confirmed'by me by telephone at around 10:00 a.m. that day): not to participate further in the Seabrook proceeding by testifying.at any subsequent hearing. During 1

this discussion, Pierce used the accurate expression that Sawyer had simply "gotten cold feet" about getting involved in. ~the Seabrook case. After explaining that Sawyer's superior, Robert.Boulay, had agreed to sign a virtually identical affidavit, I: stated to Pierce that I was unsure whether Boulay would be in my office'later that day or early the next to sign l it. ~In these circumstances, I stated that Intervenors believed , it technically appropriate to withdraw their October 30 EBS , l i Motion, since their earlier affiant was no longer available, and simply file another EBS Motion immediately upon obtaining the Boulay signature. I told Pierce that Intervenors proceeded in this way because they anticipated that if Intervenors l offered a substitute, although virtually identical, affidavit l l on November 8 or November 9 without the accompanying legal L ~ - .. i l q 1 1 -paraphernalia now required -- full discussion of the motion to reopen'and late-filed contention standards has been required of every document or cleadina amendment filed, pursuant to the j Licensing Board's September 26 " Unauthorized Pleadings" Order

• -- they anticipated that the Staff, Applicants and the Board would characterize it as an " Unauthorized Pleading" and-i*: l summarily disregard it. I stated that the simplest solution appeared to be a withdrawal and a new filing of the identical motion, although I indicated that I was aware that the

timeliness of this new filing could then be-challenged. I told Pierce that I would file'the new pleading that day or at the latest the next day. Pierce told me he would communicate the substance of our conversation to the Licensing Board.

5. With regard to the second matter, I stated that Intervenors believed it was appropriate as soon as practicable to have a pre-hearing conference to discuss the impact of I ALAB-924 on the course of the proceeding. In this regard, I l

[ told Pierce that I had heard-a rumor that morning from a third l party that the NRC Staff intended to request that the Board issue a Seabrook license authorization notwithstanding ALAB-924. I asked Pierce directly whether the Staff had made such a request. He laughed, indicated surprise concerning such a request and stated that no such request had been made to the Board. I then told Pierce that Intervenors obviously would wish to be heard prior to any licensing action regarding i l - y se - y+na-- ew---- --%,,--, -- i-+----y--t o 'ALAB-924's impact on-the Board's capacity to issue a license. -Pierce again' laughed and stated that that seemed obvious to him.- Then, Pierce told me again that he would communicate my requests to the Board..

• 6. The following day, November 9, I prepared and faxed to

~ s the Board a formal request for hearing in light of ALAB-924. In this document, I repeated some of the statements I had made to Pierce the day before. I indicated that Intervenors believed that ALAB-924 required further hearings on the adequacy of the'NHRERP and also affected any decision that might issue on the adequacy of the SPMC. I did not make any_ express reference or otherwise repeat my oral request to Pierce g concerning Intervenors' desire to be heard on the issue of the Board's capacity to_ issue a license notwithstanding ALAB-924, because I-inferred'from the responses Pierce made to my questions concerning the Staff's purported request, that the L Board did not have any intent at that time to issue a license. ( Signed under the pains and penalties of perjury this 1st day of December, 1989. l [ L J Traficontie -4 - t _ x ____ __ _ _ _ - _ _ ___ ___ - -- - - - - - - - , ,i e, ; _ ' )#OT < .[4 .':9 t ? !!, l t .-j l 9 .) y I Y ,'$,+ a  ? l c 4 f k .a ) .g i .) k i EXHIBIT 2 - 8 f .h a 1 ) i k I, i I y s 1 i s ..i d k ( l f 3 l e N l t 4 ) i ? . . . . - . . ,.,,.} 1 UNITED STATES OF AMERICA  : NUCLEAR REGULATORY COMMISSION , ATOMIC SAFETY AND LICENSING BOARD i Before the Administrative Judges: (.. . 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, EI AL. ) ) (Seabrook Station,-Units 1 and 2) ) February 21, 1989 ) TESTIMONY OF DR. DON-A. DILLMAN AND SHARON MORIEARTY ON BEHALF OF THE ATTORNEY GENERAL OF THE COMMONWEALTH. OF MASSACHUSETTS REGARDING JI CONTENTION 48 n 9 ,e

• h

SUMMARY

OF TESTIMONY The-following testimony concerns the inadequacy of the survey which.was conducted to identify the special needs residents. Dr.

l

, Dillman, an expert.on mail and telephone surveys, like the one-at I issue, analyses and critiques the content, form and manner in which

, the survey was cenducted. In short,.the survey components he finds

• lacking are the sources from which the initial mailing list was drawn;

~

the terminology and language held in.the cover letter and questionnaires; the method for " verifying" the survey results; and the-resulting tally of targetd individuals.

Dr. Dillman's testimony also sets out the extent to which the common errors of non-coverage, measurement and response rate, all of which must be considered when conducting surveys of this type, are evidenced in the subject survey. Both Dr. Dillman and Ms. Moriearty '

believe that the open-ended nature of the survey questions will not be conducive to accuracy.

.Ms. Moriearty approaches the survey from the perspective of a demographer with practical experience in assessing needs for the disability community. Her testimony includes a brief description of' the kind of information this type of survey should have focused on.

She: discusses the importance of addressing functional needs in order to determine appropriate assistance. She also gives a comprehensive discourse on the 1985 United States Census Bureau Survey which focused y on function limitations. It is from this document that Ms. Moriearty ,

extrapolates her estimation of what a representative number of disabled individuals needing assistance would be in the EpZ.

r ,

Both experts believe that the results of the survey are not representative of the number of special needs people who might need assistance during an emergency. Dr. Dillman shows this by using the survey results as a sample representation.

TESTIMONY Q. Please, each state your name and briefly describe your professional qualifications.

A. (Ms. Moriearty) My name is Sharon Moriearty. -I am the Deputy Director of the Massachusetts Office of Handicapped Affairs (MOHA). I have acted in this capacity since April, 1986. As' deputy director of MOHA, I am responsible for compiling relevant research and demographic information regarding people with. disabilities. In this capacity, I am familiar with a variety of survey methodeligies and classification schemes used to characterize disability in the general population. These include surveys sponsored by the: federal-government, such as census, health interview and' housing surveys, as well as self-identification instruments used by private polling concerns, and classification methods used by the medical profession and state and federal regulatory agencies. In addition, through my supervision of the Consumer Services program, MOHA provides services and assistance anually to approximately five thousand individuals with varying levels and types of disability. A copy of my resume is attached.

Additional information on my professional qualifications and my fourteen years experience in the disability field is contained in the testimony I filed regarding JI 49.

, t L

-A: (Dr. Dildman) My name- is Don A. Dillman and I have a ph.D.

in: Sociology from Iowa State University. .I am prosently c

' Director of the Social and Economic Fm ences Research Center (SESRC) and professor in the Departments of Sociology and Rural Sociology at Washington State University. I am an authority on the design and implementation of mail and telephone surveys. My book Mail and Telenhone Survevst The' Total Damian Method (1978) was the first book ever l~

published which provided-detailed procedures for obtaining high quality:and quantity of response to mail and telephone surveys,-and it still regarded as a leading text in the field. The research center I direct conducts approximately 40 survey-related projects each year utilizing mail, I- -

telephone, and/or face-to-face interviews. I am also the author _of more than 90 publications, most of which concern i-the implementation or interpretation of survey information, T including-the following which are of the most relevance to the evaluation of the proponent's surveys: ,

l " Increasing Mail Questionnaire Response for Large Samples l'. of the General Public" (1972). "Towards the Assessment of-E

,public Values" (1974). "The Contribution of Personalization to Mail Questionnaire Response as an Element of a Previously Tested Method" (1974). " Increasing i l

Mail Questionnaire Response: A Four State Comparison" l (1974).- " Decreasing Refusal Rates for Telephone l

l Interviews" (1976). "Our New Tools Need Not Be Used in the Same Old Way" (1977). "Research Ethics: Emerging Concerns for the Increased Use of Mail and Telephone Survey Methods"

._. .. . , _ _ , . _ _ _~.

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m (1977). " Mail and Self-Administered Surveys"-(1983). "The

. importance of Adhering: to Details of the Total Design y

Method for Mail Surveys" (1984). "You have Been Randomly Selected , . . Survey Methods for the Information Age" 1U '

(1985). " Elements of Success (in Needs Assessment .

Surveys)" (1987). " Administrative Issues in Mixed Mode Surveys" (1988).

L I-have twice served as a guest professor at the German Center for Survey Methods and Analysis in Mannheim, West Germany - I-have lectured there on survey issues as well as in'the Netherlands'and Great Britain, and at numerous universities in the United States. In 1988, I served as instructor for a course on mail and telephone survey L techniques ~in the University of Michigan's Survey Research l

Center's Summer Institute. I-have conducted numerous  ;

l -technical. seminars on the conduct of surveys for such groups as the U.S. General Accounting Office, and Inspector l

E General's Office of the U.S. Department of Health and Human i

. Services, the staff-of the Washington State Legis)ature, the Ohio State Department of Mental Heslth, the_1890 Land Grant Colleges and Universities, thc Marshall University College of Education, and the American Statistical Association. - My curriculum vita is attached.

i Q: Dr. Dillman, what experience have you had in conducting surveys and gathering statistics?

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,A:

(Dr.-Dillman) -The social and Economic Sciences Research Center (SESRC), which I direct, is one of the few univers_ity survey research centers in the United States with'an established capability'for designing and t 'i mplementing mail, telephone, and face-to-face interview i i

.,. surveys._ The Center conducts approximately'40_ survey l projects per year. I have designed, implemented, or {

i otherwise worked on surveys utilizing each of-these ' survey '

methods since-1964. During_these 25 years I have designed,  ;

implemented, or provided consultation on well over 1,000-  ;

surveys for myself and/or.other people. The Center I a- direct-has a research program in which we conduct several

' experiments each year on means of improving mail and i telephone surveys with respect to both the quality and I quantity of response..

Q: You each have expertise on a different aspect of the  !

subject survey. Accordingly, I may address certain questions to one, certain. question to the other. Alright? '!

j A: (Both) That is fine.

L '

- Q:.. Are-you. familiar with the manner in which the Applicants I'

have gathered the information regarding the special needs  !

residents?

, A (Dr. Dillman) Yes, I have reviewed some of the materials i provided by the proponent. In addition, I have read the ei Applicants' answers to Interrogatories which bear on this

! issue.- Copies of these items are attached to the Appendix l l'

. to this testimony. Briefly, it is my understanding that the mail survey primarily consisted of a form letter and one-page questionnaire card which was folded and sealed and

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t was'then-sent to residents of the selected communities  ;

whose names'and addresses were taken from utility listings or voter registrations.

Respondents filled out this r

L questionnaire and returned-it.- A second questionnaire was

~ apparently sent to households which had not responded. I have reviewed the questionnaire and the cover letter. It is my= understanding that an attempt was made to survey by '

l telephone those respondents who indicated that an  :

" impaired"' individual resided in their household. I have reviewed'the " verification" questionnaire which was '

apparently used for'this follow-up, but it does-not include a,very detailed description of the methods for contacting '

individuals, nor does it include information about how many people were actually interviewed. Apparently, the-main

~

purpose of'these surveys was not to garner a sample of the L

resident special needs population but to identify those 1;

individuals living in'the EPZ, by name and address, who

!, were " impaired" such that they would need special assistance,in the event of evacuation.

l A: = (Ms. Moriearty) I am familiar with the contents of the L questionnaires which were sent to households in the survey n

L h

' area.in_an attempt to identify and verify special needs residents in the 2pZ. I am also familiar with section i; 3.6(c) of the SpMC which states that additional sources of information used "to identify handicapped individuals" are mailings of special needs posters to a variety of organizations in and around-the EpZ. There was also a P

" response card," geared to residents having a disability or 1.

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.special needs, which .as t be filled out and r.. turned:

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l The method for eliciting the desired information is a series of close-ended questions which do not provide adequate information about individual needs. The questions seem to assume that transportation-related needs are the

. only needs a person might have and the questions isolate very extreme medical conditions which are less likely to be found in a community setting. In my opinion, this will translate into an incomplete and inaccurate set of answers. In my opinion, the questionnaire seems designed i

to be very exclusive.

Q. Before we go any further regarding this survey, can you both provide any comments you had with respect to the special needs poster?

A. (Dr. Dillman) The most this poster does, indeed what it is intended to do, is encourage people to call in order to be surveyed. presumably, the same type of survey would ensue for those who called in as for those who responded by mail'. As such, the same types of problems with respect to the subject survey would apply. I would like to add that

, it was not indicated in the documents I reviewed how many targeted individuals, if any, were able to be surveyed as a result of the poster. As such, its' worth in terms of augmenting the identification process, can't be ascertained.

1

(Ms. Moriearty) In terms of the poster being a means of augmenting the information already derived from the mail-in survey, it should be noted that people with disabilities are often very reluctant to self-identify for reasons related to confidentiality. In addition, without the appropriate prompting and questioning geared towards eliciting information on financial needs and limitations, some disabled individuals do not even recognise themselves as such. I discuss t.his again at a later point. people with certain kinds of visual impairment would have to have posters read to them.

Q. Thank you, Ms. Moriearty, how would you determine whether a special needs assessment survey was in fact representative of the resident special needs population? '

A: A complete survey should document both intrinsic and extrinsic factors which affect an individual's ability to function. In addition to information on the nature of the disability and its functional manifestations, such a survey l

would include information on environmental factors, such as .

social and economic resources and physical accessibility of

., the environment, the level of technological support l available to the person with a disability, such as professional assistance or adaptive equipment, is also critical. The individual significance of these factors, as well as their interrelationships, varies with each individual. When discussing conditions that entail l

emergency response, a fourth factor must be added -- that

l I

of unusual environmental risk. Situations inducing high stress, such as a nuclear disaster might produce, can exacerbate the conditions of disability in people with l vulnerable physiologies, rendering a person lese functional  !

than an in situ survey might represent.

Q: Dr. Dillman, how do you view the accuracy of surveys I

conducted to identify the special needs residents? 1 A: (Dr. Dillman) Very inadequate. In my judgment a survey conducted in the manner described in the materials provided .

I to me cannot possibly be relied upon to identify the names  ;

l and addresses of all or even a majority of the individuals  ;

l who live in the specified geographic area and are '

" impaired" to the degree that they would require assistance i

during an evacuation. The inadequacy of this survey stems I from a number of specific deficiencies which when i

considered together compound the overall inadequacy of the survey for the purpose of identifying all " impaired" 1>  ;

individuals livinn in the study area.

In order to produce accurate results in a survey of this l, type, three of potential survey errors must be addressed in ,

order to be assured that results as accurate as possible I are obtained. They include: noncoveraae error (making sure every household in the population has the opportunity to be surveyed); measurement error (being sure that the L desired information is accurately obtained); and response rates (obtaining responses from all or nearly all of the

i l

households in the population). A fourth category of survey a

error - samnlino error -- does not apply to this particular i

survey inasmuch as the objective was to survey all households rather than a sample of them.

Q: Dr. Dillman, can you describe how the aforementioned errors are evidenced in the SPMC survey? t A (Dr. Dillman) Certainly. I'll go through the potential survey errors one at a time.

NONCOVERAGE ERROR:

The list of households was obtained from utility billing records or voter registration lists. I do not have specific knowledge of these lists for these communities.

However, in most communities some utility bills are sent to -

owners, or a third party, rather than to the occupant.

This is especially true for rental units. Oftentimes the utility bills are included in the rent. The reasons for this situation varies, but sometimes it happens that landlords want to be absolutely sure that utility bills get paid and that such things as heat do not get turned off in the winter when damage might result to property. In addition, an effect or correspondent circumstance i

accompanying the existence of an impairment is a lower income potential. Thus, it seems likely that " impaired" people would more likely than the average person to live in '

rental housing and would therefore be more likely to remain "

unidentified through use of utility billing records.

i

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A: (Ms. Moriearty) Mr. Dillman is correct in his supposition that people with disabilities are much more likely to be in

. 1 lower income brackets.

Indeed, people with disabilities  !

1 are twice as likely to livu on poverty incomes as other I Americans. As individuals who are twice as likely to be  ;

homeless, many do not have a permanent address, persons ,

with lower incomes also move more frequently. I A: (Dr. Dillman) Similar problems attach with reliance on >

voter registration lists. Only a portion of the households s

in any community contain registered voters. Typically, registered voters are more likely to have higher incomes and greater education. It is possible that certain types of " impaired" people are less likely to be registered voters and therefore not be included on or identified by the voter registration list.

l t

In both the above cases I believe a bias would exist

, against households in which " impaired" people live.

=

A: (Ms. MorieFrty) Again, Mr. Dillman's conclusions are correct. Indeed, many polling places and voter '

registration facilities are not even accessible to people with certain disabilities.

4

m A (Dr. Dillman) Another noncoverage problem concerns addresses. It is apparent from the results of the special needs s_urvey that a substantial number of the households in each of the communities had " bad" addresses. The percentage of mail-outs classified as having bad addresses n, range from 7.1 percent to 24 percent. This suggests that something is wrong with the mailing list. In the case of the voter registration list, it is possible that frequent updatings are not made. In the case of the utility list it is less clear where the problem of " bad" addresses might lie. In any event, it is clear that a problem exists.

Q: What is the overall effect of the noncoverage problem?

A: (Dr. Dillman) The overall effect, I believe, is that an unknown but significant number of households did not have a chance to be surveyed and there is reason to believe that l these households are more likely than others to contain

" impaired" residents.

Q: Can you expound a bit on the " Measurement Error" portion of your analysis?

A (Dr. Dillman) In many respects the measurement error problem restates the problem which Ms. Moriearty flagged in her earlier comment on open-ended questions. By addressing the measurement error problem, you are ensuring that the information which you are seeking to obtain is, in fact, l

the information which you elicit. Contrary to this

s l

purpose,.the questions asked in the questionnaire are vague I

and use terms that are not defined. Moreover, the reliance j on open-ended questions (as opposed to close-ended j

questions which give answer categories to choose from) presents additional and special problems. I Ot What are those problems?

A: (Dr. Dillman) The first problem is with the use of the word RYAcuation. This word can refer to being evacuated out of a building or evacuated out of a geographic region. By mentioning several disasters such as a tornado, hurricane, or earthquake, the likelihood is increased that the respondents will think of the word evacuaticn as meaning help in getting outside of the building in which they i

live. Certain " impairments" such as not havino upper body strength or not having use of a limb could prevent getting oneself out of the debris of a building in the wake of a natural disaster, yet that person might still be able to l drive his car. Conversely, a person might be able to get in or out of any building but might have a type of

, impairment which would prevent her from driving a car, i Nowhere in the cover letter or questionnaire is it clarified as to what kind of evacuation is being asked l about.

I

l, i

i The second problem is with the word " impaired". The letter  :

refers to physically impaired. The first questions asks ,

"is anyone in your household impaired to the degree they would require assistance during an evacuation?" Certain

, f.'inds-of " mental" impairments might not be a problem for i

evacuating a building, but could be a serious problem for leaving a geographic area. This question needs to have included some specification as to what kind of impairment is at issue. Also, " impaired" is a word not familiar to or understood by many people. No definition or context is provided. The combination of vagueness with respect to the word impairment in conjunction with similar vagueness on evacuation are fatal flaws in the questionnaire. For these reasons alone the results of the survey cannot be trusted.

A: (Ms. Moriearty) This is a crucial point Mr. Dillman is making. In my experience, traditional surveys of disability show enormous error for the reasons Mr. Dilbran has mentioned. Fur planners like myself, who are involved with the day-to-day practical realities of delivering services to this population, traditional methods of counting and classifying disability, in particular the use of medical taxonomies, can be misleading and incomplete.

First, diagnostic classifications, which are based on medical etiologies and therapies, tend to yield significant underestimations of the target population, because their

~

l application depends on cultural parameters as.well as treatment taxonomies. For instance, in a 1978 U.S. )

i government health interview survey, a diagnostically based tool which yields an estimate of disability which is higher than the 1980 census but lower than the 1986 census report on disability, 273 Massachusetts citizens in wheelchairs identified themselves as "without a limitation" and 4640 identified themselves as "without a major limitation."

Errors of both over and under self-identification on diagnostically-based surveys can be magnified to the extent that a dicability is mediated by compensatory environments or technology, to the extent the disability has not been diagnosed, has not been successfully treated, or to the extent that the diagnosis is not understood by the layperson. Second, these classifications tell us little about the actual functional limitations a person might i

i have. For instance, a neurological disorder can have greatly varying functional manifestations which cannot be generalized across a common diagnostic category. A per&2u 1

l. with cerebral palsy may use a wheelchair or be fully 1

ambulatory, or may be severely speech-impaired or fully articulate. A person with diabetes may be severely mobility-impaired or experience minimal disruption of major l life activities. The primary functional disability of a l'

person with a respiratory disorder or a heart condition could-be mobility impairment or less disruptive dependence

~

i 1

I l

on a phnemaceutical regimen. Third, diagnostic f classification schemes omit critical information regarding the individual's environment while the severity of r, I

disabilit;' is also a function of environmental and  ;

technological support. A person who is deaf and fully ,

equipped with appropriate communication technology may not consider herself " disabled." If, however, this support were suddenly removed, she would be vulnerable. ,

Environmental needs also include social and economic dimensions. A poor person who is disabled is less able to compensate for that disability and navigate in a community ,

setting than a wealthy person with a disability.

P The advantages of the most recent U.S. Census su.:vey (1985) over methods which are not geared specifically to practical i needs are that the census survey is a more intent ive, open-ended inquiry and uses functional criteria which illuminate the practical ramifications of disability in day-to-day life. I have attached a copy of this survey in

.the Appendix. The questions inquire as to practical areas of daily activity using terminology and concepts which are more universally understood within a lay community, such as "can you climb a flight of stairs without assistance?" In addition-to its focus on a practical issue, this kind of question has the ability to weed out, or at least minimize, environmental and technological compensations which the

- . - -. . . ~ _ _ -- . -

interviewee may take for granted. The survey explores several different dimensions of daily activity in this way, including activities of seeing, hearing, speaking, walking, carrying, lifting, climbing, personal care, and general interior and community mobility. It distinguishes the severity of limitation in each of these categories and includes a more detailed examination of those who need actual personal assistance as well as important social and l economic information on the total population identified as disabled.

I believe its application to a situation like emergency planning for a generet population is unusually apt, both because of its practical focus and because it also enables a planner to estimate the nature and extent of needs within '

9 this population in the event that social, environmental, or technological supports are suddenly disrupted or disabled, b

A: (Dr. Dillman) A more general problem with the

, questionnaire which goes back to Ms. Moriearty's points on open-ended questions and diagnostic classification is the.t it places the burden upon the respondent to figure out what kind of impairments, disabilities, or handicaps should be reported. Apparently, it's also up to the respondent to figure out and report what king of " assistance" he would need. The " verification" process seems to have been only

~ ' ~

i 7;

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l used'to disqualify people from the category of " disabled I l

requiring assistance". It does not appear that effort was devoted to verifying the "not requiring assistance" status of the remaining respondents. In other words, the

+ verification process was only used to pare down the number ,

1 of those who were already identified as impaired _rather t

.than endeavoring to identify those in the impaired )

population who. claimed they didn't need assistance, a claim which seems to have been made in the context of a lack of informedness as to what type of assistance would be required relative to the particular impairment and the particular protective action.

l A substantial proportion of respondents mentioned "other".

The telephone verification form goes into more detail than i

the original questionnaire and in that respect addresses "other" issues that are not likely to have been raised at j the initial survey level. Of course, the obvious point to l make at this juncture is that this verification procedure only " verifies", in an imcomplete manner, an elready incomplete survey result.

Still another problem with the survey questionnaire is that the request for telephone number does not indicate whether the desired telephone number is for the " impaired" person (who may hold down a job) or for the person who filled out

. - .. . _. _ _ ~ __ _ . . . _ _ _ .

i the questionnaire. Simply put, the answers to this questionnaire cannot be relied upon for the intended purpose of the questionnaire.

i Q: Dr. Dillman, can you discuss the " response rate" factor?

A: (Dr. Dillman) Certainly. The reported response rate of 29 percent is less than half of what one would expect from'a well-done mail survey. There are several factors which probably contributed to the lower response rate.

First, the vagueness of the questions is very likely to .

have confused a number of people. As a result, people who might have been otherwise willing to fill out the questionnaire perhaps felt that the results would not be useful and therefore that it was a waste of time to complete the questionnaire.  !

Second, the cover letter was in itself very confusing. It came from New Hampshire according to the letterhead, but concerned evacuations in Massachusetts. The letter informs the reader that the survey seeks to identify "both physically impaired and non-impaired residents." What is a

, " physically non-impaired resident"? Is that person the r target of the survey? The choice of words here is l

l extremely pocr. The letter tells the reader that the t

information will be used by " local and state emergency management agencies and Public Service of New Hampshire in i l l ..

l

I th event.of an emergency to provide assistance to our physically impaired neighbors." Again, the language is poorly. chosen and the sentence poorly constructed.

Why is  ;

the reader asked for information to help "our" neighbors?

If'the primary point of the survey is to get accurate

, information as to the various disabilities and impairments of members of the household, the letter which focuses on '

"ohysically impaired" and " neighbor", undermines the purpose of the survey itself, i

A third problem with the letter is that it was a form rather than " personalized" letter. In my experience, this '

fact alone can be expected to lower the overall response rate.

Fourth, the respondents were asked to disclose information which many would consider quite personal and confidential.

There was nothing included in the letter about how this information would be handled and who would have access to

, .t. In fact, the letter tells people right away that the -

information is to be disclosed to governmental authorities.

For some or all of these reasons, potential respondents needing assistance may have decided not to return the information. This problem may have been increased by the fold-over card not being sealed on the ends (if I l

)

understand the structure correctly) so that net even a l

sealed envelope was available to protect the confidentiality of the personal information. '

A: (Ms. Moriearty) Due to the experience of social 1

discrimination which remains their number one barrier to ,

assimilation, disabled people are very reluctant to reveal j personal information regarding a disability.

A: (Dr. Dillman) It should also be noted that the question on the survey which reads, "should we have to verify any of this information, when would be the best time to call?"

l could have a chilling effect on response insofar as some readers could construe it as a check on their honesty.

i i Q: Dr. Dillman, can you sum up your discussion on these three points?

A: (Dr.--Dillman)

In sum, the implementation of this survey demonstrates inadequacy on all three of the major sources -

of survey error applicable to this study: noncoverage, '

l-

. measurement error, and response rate. Methods of overcoming, to some degree, each of these problems should have been used in order to compile a survey with the stated objective of identifying those resident $ of the area with l

certain " impairments" who would need assistance in an emergency. -

-. - - - - - ._~ . .

I 1  !

Q: Dr. Dillpan, What is your opinion on the follow up verification that was conducted?  !

A: (Dr. Dillman) The "special needs survey verification form" was apparently used for the purpose of additionally

, determining whether the 653 respondents initially identified would actually need assistance in the event of l l

41 an evacuation.

l I have reviewed the form used in May, 1988, to conduct the survey. I am also aware of the fact that the result of the

" verification" was the elimination of 301 people who had I initially identified themselves as needing assistance. I have earlier made comment regarding other aspects of what I 1 perceive to have been the effect of this " verification".

Now, I will discuss the implementation of the verification process as is indicated by the " verification" form. In short, the contents of the form suggest that the '

verification process could appear to be questioning the I respondent's honesty in responding to the earlier questionnaire. Thus, the respondent may have become .

=

anxious when " verifying" his or her original information.

1 Second, a fundamental element in conducting telephone l surveys is to make sure that each interviewer asks each l

[ question in the same way. The questions presented on this verification form do not appear as questions but rather as l

I I

short phrases. Thus, it is necessarily left to each interviewer to actually phrase the questions. Interviewers  !

are very likely to do this in a variety of ways and as a

, l result get different results. For example, on question 4

)<

of the verification forra there is a " description of j impairments". One interviewer might simply ask the ,

respondent to describe his " impairments". Another might read through the entire list and ask which ones, if any, apply. Reading through the entire list is likely to result '

in a more accurate record. The same analysis is true .

concerning life-suscaining equipment in question 5. ,

A small, but perhaps significant difference between the -

verification form and the initial survey questionnaire,.is r

that eye impairments in question 4 are described in parentheses as " blind". How limiting. It appears that such things as an inability to drive at night would~not be discussed or accounted for. -

, The pattern of vagueness contained in the original mail questionnaire repeats itself here. For example, "Does the impaired have any other problem we need to know about?" It -

is not clear what kind of problem "we" need to know about.

{

Q: In sum, what is your opinion on the " verification process"?

j i-

+

9

- - - - - - - - - - - - . - - - - , - . - , - -s,. .

A: (Mr. Dillman) I do not feel that the information obtained '

f on the special needs survey verification form meets the  !

standards of professional and accurate surveys, and I t

further believe that these data should not be trusted on '

f

. making decisions about respondent impairments. The only value I can see as having possibly been gained through this effort would be if the original goal and purpose of the survey had been to compile a samole survey. However, if the goal is not merely to ascertain the number of individuals within the study area who fall within a certain category, but rather, to identify specific personal information like names, addresses, and the types and degree ,

t of impairments necessitating assistance during an emergency, then a sample survey application doesn't really help. 1 Discussion of this principle at this point however, is ,

useful in illustrating the incompleteness of the existing data.

Q. Mr. Dillman, I want to pick up on that point', regarding the identification of a " sample" of the target population. I recognize that you have made a number of comments describing the inadequacy of the original mail survey and ,

telephone follow-up. However, suppose that the results were to be accepted as valid for those who responded. What is the most that could be claimed with respect to how co'mpletely the compared population living in the study area has been identified?

t A. Well, first, I will return to my conclusion that the i surveys were so poorly done that I do not think the results can be used to reach any conclusions about the number of households with impaired individuals living in the study

. area. However, if we were to accept the introductory survey material as unbiased, the response rates as acceptable, and the survey itself as valid, then the most  !

that could be said is that the survey has only identified a fraction of the impaired individuals who live there. If it is accepted that the number of impaired individuals is 653

• or 502 (depending upon which figure supplied by the ,

proponent of the survey you choose), and we divide that by the total number of positive and negative responses received (5,546), we would then multiply the resulting percentage (11.77 or 9.05) times the total number of households in the area to establish the total population of impaired individuals who live there. This results in an .

estimate of the total population of impaired individuals in the EpZ area to be more than 1,900 (1,901 to 2,472) ,

individuals. Under this formula, you would come out with the higher figure, 2,472, if you used the lower reported result - 502.

Q: Ms. Moriearty, in your opinion, out of a population of approximately 52,500, how many of that number would be considered within the population targeted by the subject survey?

^

A: (Ms. Moriearty) Well, my analysis entails first an estimate of how many individuals would be considered disabled, and then, of those, how many would be within the population to be targeted, in other words, residents with disabilities such that they could not act independently in Gn emergency. To begin with, out of a population of 52,500, I would estimate that approximately 9,545 would be disabled. I have attached population reports you gave me to look at in the corresponding appendix.

Q: Thank you. How did you reach the number referred to above?

A: (Ms. Moriearty) The estimate is extrapolated from the 1985 U.S. Census survey I discussed earlier, which is entitled

" Disability, Functional Limitation, and Health Insurance Coverage." It surveys disability in the general population. As the first major government survey employing functional criteria to define disability, the report is considered by MOHA to be more accurate than previous Census or medical surveys which rely more-heavily on diagnostic classifications or diagnostic prompts. The estimate is

,. broken down as follows:

8768 individuals would be residents who, according to the survey trends regarding prevalence in the general population, could be identified as "having a functional limitation" at the present time. Disorders of the skin, l

l - 26-l

--p w-y-- -- - - - - - -r ---e - m--,w v

1 i

i l

which con affect general physiology as well as tactile l

i sensation might also fall in this categoty as would, conceivably, certain kinds of organic brain dysfunction.

{

l However, individuals with sensory impairment could have  !

functional manifestations which also' place them into l

,, categories of mental and mobility impairment as well. j However, althouth this survey is designed to elicit more practical information about disability than others, it 3

still relies heavily on self-perception and self-identification. As I mentioned earlier, a small percentage of individuals who are apparently disabled to a surveyor do not identify themselves as disabled. This phenomenon is corroborated by other government surveys.

Therefore, the estimate is conservative.

Q: Can you describe how that number would include resident special needs individuals apart from those living in institutions or facilities.

A: (Ms. Moriearty) The survey cited above is a survey of the non-institutional population. A very small percentage of' persons with disability (less than 5%) are institutionalized on a long term basis. The 5% estimate includes elderly-disabled individuals. The rate of long term institutionalization among non-elderly disabled persons is much lower, perhaps approaching 1%. As a point of interest, in Massachusetts, about 1-2% of non-elderly

l l

disabled. persons live in government-sponsored community  !

housing programs. In many respects, some of these 1

individuals are already connected to trained and j

knowledgable staff that could offer assistance in an j

. emergency.

4 Q: In your opinion, does a figure of 352, 502, or 653 (all of I which are "results" which have been reached by this survey) j out of a. total 52,500 represent an accurate estimate of I special needs residents who could not act independently in l an emergency? l A: No. Based on the aforementioned U.S. Government survey 1

estimates, which present a profile of actual functional  :

capabilities, any of'those figures present a substantial underestimation of the special needs population. Of the 9,545 individuals projected above to have special needs, approximately 2.235 can be identified, based on this survey, as needing personal assistance with a major life activity under " normal" conditions. The remainder of the estimated special needs population would need varying ,

intensities of personal assistance in an emergency to the extent that key environmental and technological supports are not available or are disrupted.

Q. It is interesting that you both arrive at figures that are relatively close in range, especially given the fact that you are each coming from a different perspective. Indeed, the higher of Dr. Dillman's estimates which uses the reported 502 survey result, and Ms. Moriearty's extrapolation from the Census Bureau come quite close, 2,472 and 2235, respectively.

t l _ _ _ . _ _ - ,

A. (Ms. Mortearty) Yes, i t is interesting isn't it? In sum it seems that whether you look at the results from Dr.

Dillman's perspective or mine, it is clear the Applicants' survey results are inaccurate.

Q. Dr. Dillman, what are your final thoughts?

4 A. The overall survey effort was poorly done and under no circumstances should the results be used to claim that all or even a majority of the " impaired" residents of the study area have been identified. This conclusion results from several problems, such as: 1) some households did not have a chance to participate because of the bias in the mailing list; 2) the use of the vague and undefined words (e.g.,

evacuation and impairment) resulted in responses that could not be clearly interpreted; 3) an inexcusably low response rate was obtained because of the lack of personalized procedures, the creation of respondent confusion, uncertainty and mistrust by the content of the cover letter l and questionnaire; and 4) the use of a-follow-up telephone L

survey that was vague and not written so that interviewers could consistently administer it. In sum, these results

. cannot be taken seriously as having produced a list of all L residents in the study area who have " impairments" that i s would require them to need help to evacuate the area.

Q. Thank you both. I think we have exhausted this subject.

Shall we sign off now?

A. (Both) Yes.

ey- t er- _ - - -_ - - - ,g--- m _ - ________-m _------------

I i

Biographical Sketch '

DON A. DILLMAN Director, Social and Economic Sciences Research Center (SESRC) i Professor,' Departments of Sociology and Rural Sociology '

Washin Pullman,gton Washington State University 99164 4014

, (509) 335 1511  !

'. . (1966),

Iowa.

and his Ph.D. in Sociology (1969), all from lowa S I September He1969. then joined Washington State University as an Assistant Professor in ,

l In 1970. Dillman became the founding director of the Washington State University '

Social Research Center's Public Opinion Laboratory, the first university based telephone social research laboratory in the western United States, a position -

he held until 1973. '

\

He served as Chair of the Department of Rural Sociology from 1973 to 1981.

i During 1978, he was Acting Community Resource Development Pro Washington State University Cooperative Extension Service, gram Leader for the Acting Chair of the Department of Child and Family Studies, and in 1984 65 was i

from 1980 83, Dillman was a Fellow in the Kellogg Foundation's National '

. Fellowship Program. He was elected 1983 84 Presidnt of the Rural Sociological Society, a national professional organization with members from throughout the United States and 40 other countries. Dillman received the Rural Sociological .

Society's 1983 Certificate for Outstanding Service for co editing the book, Egral  !

Society and Telechene in theSurvavs: United States: Issues for the 1980's. Dillman is author of !!all American Housina Dream:

The Tota) Desian Method and co-author of j),gvond the Accer-adation to the 1980's. In addition, he has authored more than 90 other publications. ,

t Dillman has an active research program which blends efforts to improve survey

~

research methods with the study of issues affecting runi America. Current t

I projects concern impacts of information technologies on people and institutions and the adoption of no till agriculture by fariners. Other projects focus on the

! improvement of data collected by mail, telephone, and face to fa:e interviews.

He has served as an investigator on more than 20 grants and contracts worth 53.5 million. l l'

In 1985, and again in 1987, Dillman was Guest Professor at the German Center for u, Survey Motheds and Analysis in Manheim, West Germany, and has also lectured in England, Irdand, and The Netherlands.

Faculty Addsges at Washington State University.He presented the 1985 Distinguis In 1987 he was elected a Fellow of ths American Association for the Advancement of Science.

A member of the USDA Rural Development Advisory Council, Dillman belongs to six professional associations, including the American Sociological Association, the American Association for Public Opinion Research, the American Association of Housing Educators, End the World Future Society.

Dillman was appointed Director of the Social and Economic Sciences Research '

Centar in February 1986.

His administrative responsibilities include Washington State surveys University's each year. survey research facility which conducts approximately 20 blune 1988) '

j

Tm g t*Uu r e*  % .e.

- - . . . ~ . - - , . - - _ . , . . . . . _ _ . . . . _ _ _ . ~ _ . , , . . . _ _ _ . ~ . _ _ . _ - - . - _ . ~ . . - . ~ . _ - - .-

I

, January 1989 l VITA Ocn A. Dillman I

A. ADDRESSES f

+

Office: i 39 3

• Social and Economic Sciences SW 705 Mies Street Research Center Pullman, Washington 133 Wilson Hall Teltphone: (509) 334 1141 ,

Washington State University Pullman, Washington 99164 4014 Telephone: ($09) 335 1511 B. PERSONAL DATA I Birth: October 24, 1941 Marital Status: Married November 25, 1964 to Joye Jolly Son: Andrew Scott, born July 8, 1968 Daughter: Melody Lynne, born July 25, 1970 Soc. Sec. No.: 485 50 1354 C. [DUCATIDS B.S.: 1964, Iowa State University M.S.: 1966, Iowa State University Ph.D.: 1969, Iowa State University Major: Sociology Minor: Political Science D. PROFESSIONAL POSITIONS 1986 Present Director, Social and Economic Sciences Research Center; o

Professor, Departments of Sociology and Rural Sociology, Washington State University 1984-1985 Acting Chair, Department of Child and Family Studies, Washington State University 1978 1986 Professor, Department of Sociology; Research and Extension Sociologist, Department of Rural Sociology, Washington State University 1978 Acting Community Resource Development Program Leader, Cooperative Extension Service, Washington State University 1

-PROFES$10NAL POSITIONS: ,

(continued):

1973 1981 Chair, Department of Rural Sociology, Washington State University  !

1973 1978 ,

Associate Professor, Department of Sociology; Associate j Rural Sociologist, Department of Rural Sociology, '

Washington State University 1970 Present Graduate Faculty, Washington State University l

< 1970 1973 Coordinator, Social Research Center's Public Opinion  !

l.aboratory, Washington State University 1969 1973 Assistant Professor, Department of Sociology; Assistant Rural Sociclogist, Department of Rural Sociology, Washington State University .

i 1967 1969 Research Associate, Iowa State University; Associate Director for evaluation study of the Iowa Comprehensive Alcoholism Project 1964 1967 Research Assistant, Iowa State University 1961 1962 Trainee, Cooperative Extension Service, Mt. Pleasant and Atlantic, Iowa S

E. AWARDS. HONORS. AND SPECIAL APPOINTMENTS 1980 1983 Fellow, Kellogg National Fellownhip Program 1983 Co Winner, certificate for Outstanding Service to the Rural. -

Socio' logical Society (of America) 1983 1984 President, Rural Sociological Society (of America) i 1985 Washington State University Distinguished Faculty Address

. 1985, 1987 Guest Professor, ZUMA /Zentrum Fur Umfragen Methoden Und I Analysen (Center for Survey Methods and Analysis),

Mannheim, West Germany 1987 Elected Fellow, American Association for the Advancement of Science 1987 1989 USDA Nationni Rural Development Advisory Council -

1958 Instructor, 41st Summer Institute, Survey Research Techniques, Institute for Social Research, University of Michigan, Ann Arbor 2

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I F. RESEARCH AND POLICY INTERESTS

_ i A three-pronged research program is maintained which focuses on 1) the ip3rovement of survey research methods; 2) the diffusion of new '

te'c hnologies; and 3) the impacts of information technologies on rural people and. organizations. These research thrusts are frequently linked '

and each is complimented by policy interests in the application of

, research results. Publication efforts are oriented towards appropriate

.* policy as well as research audiences, and are frequently multidisciplinary in nature,

' k G. PUBLICATIONS '

122E1:

{

l. Dillman, Don A. 1978. Mail and Telechone surveys: The Total Desian Method. New York: Wiley-interscience. 375 pp. '

2. Dillman, Don A. and Daryl J. Hobbs, eds. 1982. Rural Society in the U.S.- Issues for the 1980s. Boulder, 00: Westview Press. 422 pp.

Hard and soft cover editions published simultaneously.) '

3. Tremblay, Kenneth R., Jr. and Don A. Dillman. 1983. Beyond the American Housina Dream: Actagmoda_ tion to the 1980s. Washington, D.C.: University Press of America, 157 pp.

(Hard and soft cover editions published simultaneously.)

Other Publications: '

l. Beal, George M., Gerald E. Klonglan, Paul Yarbrough, Joe M. Bohlen, and Con A. Dillman, 1967. System Linkaaes Amona Women's i

Oraanizations. Iowa State University, Ames, IA: Rural Sociology Report No. 42. 155 pp.

2. Klonglan, Gerald E., Don A. Dillman, Joel S. Wright, and George M. .

Beal. 1969. Aaency Interaction Patterns and Community Alcoholism inevices.. Iowa State University, Ames, IA: Sociology Report No.

73. 302 pp.

3. Klonglan, Gerald E., Joel S. Wright, and Don A. Dillman. 1969.

Alcoholism Services: Client Characteristics and Treatment Outcome, lowa State University, Ames, IA: Sociology Report No. 74. 271 pp.

4. Klonglan, Gerald E., Marjory M. Mortvedt, Don A. Dillman, and Joe M. -

Bohlen. 1969. Poverty and Alcoholism in Familiest lowa State University, Ames, IA: Sociology Report No. 72. 461 pp.

5. Klonglan, Gerald E. and Don A. Dillman. 1969. Iowa Comprehensive l Alcoholism Proiect Research Summaries. Iowa State University, Ames, IA: Soefology Report No. 76. 104 pp.

3 4

i n

Other Pub 1 h  :-(continued)

6. Dillman,' Don A. 1971. "Raview of Woodruff: A Study in Community 7 Decision Making." Rural Socioloav 35(2):237 238.

7. 'Dillaan, Don A. 1971. Public Values and Concerns of Washingts Je s i~ dent s . Washington Agricultura) Experiment Station Bulletin No. ,

748_(Decemoer).

8. Dillman, Don A. 1972. " Increasing Mail Questionnaire Response for large Samplu of the General Public." Public Ooinion Ouarteriv 35(3):254 W

9. Dillman, Don A, and James A. Christenson. 1972.

The Public.Value for Pollution Control." Pp. 237 256 in William R. Burch, Jr., et al., jocial Behavior. Natural Resources and the Environment. New York: Harper and law. '

10. Dillman, Don A. and Russell P. Dobash. 1972. Pre #erences for Community livina and Their Imolications for Pooulation b Redistribution. Washington Agricultural Experiment Station Bulletin No. 764 (November).

11. Dillman, Don A. 1973. Pooulation Distribution Policy and People's Attitudes: Current Knowledae and Needed Research. P epared for

. Urban Land and Institute under grant from United States Department of Housing and Urban Development. 77 pp.

12. Klonglan,. Gerald E., Benjamin Yep, Charles L. Mulford, and Don A.

~ Dillman.- 1973. "A Survey of the Theory and Practice of Interorganizational Relations." Pp. 331-362 in Voluntarv Action r

Research, edited by David Horton Smith. Lexington,.MA: D. C.

Heath and Company (Lexington Books).

L

13. Gillman, Don A. and James A. Christenson. 1974. "Towards the Assessment of Public Values." Publit Ooinion Quarterly 38(2):206-  ;

221.

. 14. Dillman, Don A.'ind James H. Frey, 1974. "The Contribution of

, Persontlitation to-Mail Questiortire Response as an Element of a

Previously Tested Method." agnp1 of Acolied psycholooy 59(3)

297-301.

15. Dillman, Don A., James A. Christenson, E. H. Carpenter, and Ralph

, brooks. 1974. " Increasing Mail Questionnaire Response: A Four-State Comparison." imerican Sociolooical Review 39:744-756.

16. Christenson, James A. and Don A. Dillman. 1974. " Predictors of Concern for Law and Order: A Path Analysis." Socisl Indicalgn Research 1:217-283.

~

4 4 l 1 . - _ _ _ .. _ _ .

_ . _._ _ . . _ . .. ._ _ .J

E 1

Other' Publications: (continued)

17. Dillman, Don A. 1975. "Research Japlications of Western Migration."

Western Wire 1(2):2. 3 i

18. Dillman, Don A. and James A. Christenson. 1975. "The Public Value )

for Air95.

10:73 Pollution Control." Cornell Journal of Social Relations

. 19. Wardwell, John M. and Don A. Dillman. 1975. Alternatives for-

-Washinoton. Volume VI. Public Comunication and Survey Phase Results. 285 pp.

20. Dillman, Don A., Jean Gorton Gallegos, and James H. Frey.

1976.

" Decreasing Refusal Rates for Telephone Interviews." Public Qpinion Ouarteriv 50(1):66-78.

21. Carlson, John E., Maurice E. McLeod, and Don A. Dillman, 1976. 4 Farmers' Attitudes Toward Soil Erosion and Related Farm Problems in the Palouse Area of Northern Idaho and Eastern Washinoton.

Progress Report No. 196 (September). 10 pp.

22; Dunlap, Riley E. and Don A. Dillman. 1976. " Decline in Public Support for Environmental Protection: Evidence from a 1970 1974 Panel' Study." Rural Socioloov 41(3):383-390.- Reprinted in Armand  !

L. Mauss and Julie Camile Wolfe,-This Land of Promises: The Rise and Fall of-Social Problems in America. Philadelphia, PA:

Lippincott, 1977.

23. Dillman,' Don A. and Kenneth R. Tremblay, Jr. 1977. "The Quality of 1  !

Life in Rural America." The Annals of the American Academy of Political and Social Science 429:115-129,

24. Dillman, Don A. 1977.

"Dur New Tools Need Not Be Used in '.:e Same Old Way." Journal of Comunity Develooment Society 8(1):32-43.

'(An expanded version is published in National Conference on Non-1 Metronolitan Comunity Services Research. Comittee Print of E

Comittee on Agriculture, Nutrition and Forestry, United States l Senate. W uhington, 0.C., 1977, pp. 259-275.)

L 25. Dillman, Joye J., Kenneth R. Tremblay, Jr., and *n A. Dillman.

L 1977. " Energy Policles Directed at the H.w. Which Ones Will E, People Accept 7" Housino Educators' Journal 4:2-13.

26. Tremblay, Kenneth R., Jr., and Don A. Dillman. 1977. "Research

, Ethics: Emerging Concerns from the Increased Use of Mail and-l Telephone Survey Methods." Humboldt Journal of Social Relations p 5(1):64-89.

)

l>

5 l n , -- --< . - - - -

I J

I Other Publications: (continued)

27. Tremblay, Kenneth R. Jr... Don A. Dillman, and Joye J. Dillman, 1977.

Housina Satisfactions and Preferences of Washinoton Residents: A 1977 Statewide Survey. Colle

-Research Center, Circular No. 605. 16 pp. ge of Agriculture 28b 'Tremblay, Kenneth R. Jr., Joye J. Dillman, and Don A. Dillman.-

1978.

Toward Monticello, IL: a Socioloav of Housina: A Workina Biblicaraohv.

Council of Planning Librarians, Exchange Bibliography 1485.

29. ~Dillman, Don A., John E. Carlson, and William R. Lassey.

1978.

The Influence of Absentee Landowners on Use of Erosion Control Practices by Palouse rurmers. College of Agriculture Research Center, Circular No. 607, 13 pp.

I E30. Dillman, Don A. 1978. "A Chairperson's Response to Ad Hoc Committee on Unemployed Rural Sociology Doctorates." Newsline

(. publication of Rural Sociological Society) 6:9 11.

31. Dillman Don A. 1979. "Down a One Way Road: The Disappearance of t

?

Rural Values in America." Pp. 1-8 in The American Heritaae and the Rural' Community, edited by Donald H. Bishop. Washington State University Publications.

32. Dunlap, Riley E., Kent.D. Van Liere, and Don A. Dillman. 1979.

" Decline in Public Concern with Environmental Quality: A Defense of the Evidence." Rural Soci31oav 44:204-212. '

33. Fernandez; Richard and Don A. Dillman. 1979. "The Influence of '

Community Attachment on Geographic Mobility." Rural Socioloov 44:345-360.

34. Dillman, Don A., Kenneth, R. Tremblay, Jr., and Joye J. Dillman.

1979. " Influence of Housin Stated Housing Preferences.g " Norms Housinoand andPersonal Characteristics on Society 6(1):2-19. 3

35. Dillman, Don A. 1979. " Residential Preferences, Quality -#

' i fe and the Population Turnaround." American Journal of Aariculturai Economics 61(5):960-966.

36. 1remblay, Kenneth R. Jr., Don A. Dillman, and Kent Van Liere. 1980.

" Relationship Between Community Size Preferences and Housing Preferences." Rural Sociolooy 44:509-519.

37. Marans, Robert and Don A. Dillman. 1980. The Ouality of Life in Rural America: An Analysis of Survey Data from Four Studies.

Survey Research Center, institute for Social Research, University of Michigan, Ann Arbor, MI: Research Report Series. 110 pp.

6

I:

Other Publications: (continued)

L 38.. Dillman, Don A. 1980. i

! " Citizens' Preferences-and Concera About '

Growth and Its Management." Pp. 34 40 in Ranid Communicy Growth; i g Is it Manaaeable?, edited by Ronald C. Faas. Cooperative Extenston Service, Washington State-University, Pulleen, WA.

L 39. Howell, Robert E. and Don A. Dillman. 1980. "Needs Assessment Surveys; Potentials, Pragmatics, and Pitfalls." In Dorothy Z.

= Price and Joye J. Dillman, Proceedinos of the 19th Annual Western

-Reaional Home Manaaement Family Economics Educators' Conference, Department of Child and Family Studies, Washington State '

University, Pullman, WA.

.. -40. -Dillman, Don A. 1980. "Af ter Mount St. Helens: Seven Gray Days in May." Lewiston Mornino Tribune, May 17, Section D:3-4.

(Complete version available as Department of Rural Sociology mimeo.

Washington State University. 37 pp.)

41. Tremblay, Kenneth R. Jr., Charles L. Schwartz, and Don A. Dillman, 1981. " Understanding'the Boom Town Problem:

Value Conflict ,

Between Oldtimers and Newcomers." Human Services in the Rural Environment 6(1):11-15.

42. Dillman, Don A. 1981. " Rural Sociological Research: r The Next Ten

~ Years." The Rural Sociolocist 1(4):209-210. .

t

43. Dillman, Don A. 1981. " Whores, Sex Education, Clawing Sycophantism, 1

and Rural Sociology: A Reply to Nyberg." The Rural Sociolocist 1(6):400-402.

44. Dillman, Don A., Patricia A. Tripple, Carole J. Makela, Joye J.

Dillman, and LaRae B. Chatelain. 1981. "A Western States

' Perspective on Public Policy for Energy Conservation." Heusino and a Societv 8(2):80 92. l

45. Tremblay, Kenneth R. dr. , Don A. Dillman, and Joye J. Dillman. 1981.

" Acceptable Housing Alternatives." HUD Challence 12(5):25 27.

46. Carlson, John E., Don A. Dillman, and William R. Lassey, 1981. The Farmer and Erosion: Factors influencina the Use of Control Practices. University of Idaho College of Agriculture Bulletin No.

. 601, April. 11 pp.

47. Dillman, Don A., Mark Frederickson 8. Ray Horn, Nicholas Lovrich, Geraldine Plater, and Bruce Throckmorton. 1981. Priorities for Rural 1morovement. Report of the Needs Assessment Study Group,

-Partnership for Rural Improvement, Washington State University, Pullman, WA. 23 pp.

7

l

0ther Publications: (continued)  !

48. . Hobbs,-Daryl J.,and Don A. Dillman. 1982. "Research for Rural America." Pp. 1 9 in Rural Socioloav in the U.S.: Issues for the lith, edited by Don A. Dillman and Daryl J. Hobbs. Boulder, CO:

Westview Press.

49. Dillman, Don A. and Daryl J. Hobbs. 1982.. " Issues for the 1980s."

. Pp. 414-420 in Rural Society in the U.S.: Issues for the 1980s,

• , =

edited by Don A. Dillman and Daryl J. Hobbs. Boulder, C0:

, Westview Press.-

. 50. Dillman, Don A., Joye J .Dillman, and Michael L. Schwalbe._ 1982.

" Strength of Housing Norms and Willingness to Accept Housing Alternatives." Housino and Society (Special Issue: Proceedings of the 1980 Annual Conference):123-132,

51. Dillman, Don A. and John E. Carlson. 1982. " Influence of Absentee Landlords on Erosion Control Practices." Journal of Soil and Water Conservation 37(1):37 41,

52. Dillman, Don A., Kenneth R Tremblay, Jr., and Joye J. Dillman.

1982. - " Mobile Homes: Shoulci Small Town Policies Change?" SmAl.1 Igno.1 12(4):18-22.

53. Oldenstadt, Dennis L., Robert E. Allan, George W. Bruehl, Don A.

Dillman, Edgar L. Michalson, Robert.L. Papendick, and Donald J. ,

Rydrych. 1982. " Solutions to Environmental-and Economic Problems (STEEP): A New Model for Applied Research." k tag.it 217(3):904-1 909,

54. Makela, Carole J., LaRae B. Chatelain, Don A. Dillman, Joye J.

l Dillman, and Patricia A. Tripple. 1982. .Enerov Directions for the United States: A Western Pe'soective. Western Rural Development i Center, Publication No. 13. Oregon State Unive'sity, Corvallis,

-OR.

55. .Carlson, John E. and Don A. Dillman. 1983. " Influence of Kinship Arrangements on Farmer Innovativeness." Rural Socioloav 48(2):183-200.

~56. Tremblay, Kenneth R. Jr., Florence S. Walker, and Don A. Dillman.

1983. - Chapter 2, "The Quality of Life. Experienced by Rural L Families." Pp. 26-40 in Family Services: Issues and Oooortunities l in Contemocrary Rural America, edited by Raymond T. Coward and l, William M. Smith. Lincoln, NE: University of Nebraska Press.

57. Dillman, Don A. 1983. " Rural North America in the Information Society." The Rural Socioloaist 3(5):345-357.

p 8

-q.

, i

?'

Other Publications: (continued)

58. Dillman, Don A.- 1983. " Mail and Self Administered Surveys."

Chapter-lo, pp. 359-377, in Handbook of Survey Research, edited by Peter H. Rossi, James D.-Wright and Andy B. Anderson. New York:

-Academic Press,

59. Dillman, Don A., Michael L. Schwalbe, and James F. Short, Jr.

1983. -

" Communication Behavior and Social Impacts Following the May 18, 1980, Eruption of Mount St. Helens." Pp. 191-198 in Mount St. f Helens. One Year Later, edited by S. A. C. Keller. Cheney, WA:

Eastern Washington University Press.

60. Dillman, Den A., Eugene A. Rosa, and Joye J. Dillm n. '

.i style and Home Energy Conservation in the Unitte <'

d Pr Accept Lifestyle Cutbacks While the Rich Inves' -

or Journal of Economic Psycholoav 3:299 315.

61. Dillman, Don A. 1983. "How A National

• t 0- > c,olv e 4 in Rural Problems." The Rural Sociologi- u8A . '

62. 'Dillman, Don A., Joye J. Dillman, and Cai rie" ~ 19C4.

Pp. 49-64. ."The Importance of Adhering ,*r a 4f .he Tutal Design Method (TDM) for Mail Surveys." .. source ET h?, titw .

Directions' for Proaram Evaluation, edited by Daniel e. J. art.

San Francisco: Jossey-Bass.

63. . Rosa, Eugene, A., Marvin Olsen, and Don A. Dillman. 1984. " Nuclear Power and the Public." Pp. 69 93 in Public Reactions to Nuclear Power: Are There Critical' Masses?, edited by William R.

L Freudenburg and Eugene-A. Rosa. Boulder, C0: Westview Press.

L

64. Dillman, Don A. .1985. "The Social Impacts of Information '

Technologies in Rural North America." Rural Socioloav'50(1):1-26. '

65. Olsen, Marvin E., Eugene A. Rosa,-Riley E. Dunlap, Robert E. Howell, and Don A. Dillman. 1985. "Public Opinion Versus Government Policy on Nationt.1 Energy issues." Pp. 189-210 in Research in l

y political Socioloav. Volume 1, edited by Richard' G. Braungart.

L. Greenwich, CT: JAI Press.

66. Jones, Joann C., Don A. Dillman, LaRae B. Chatelain, Don A. Anderson, '

Donna lams, and Mary Ann Anderson. 1985. " Energy Directions Two o Years Later: A Visual Presentation." A slide tape report of L research results from Regional Research Project W-159. University -

of Idaho,. School of Home Economics, Moscow, ID.

67. Dillman, Don A. 1985. " Factors influencing the Adoption of n .<

Agriculture." Pp.96-107 in Dave Higgins, Proceedings, !! J Till Farming Crop Prodt:ction Seminar. Vielder Drill Compay Spokane, Washington. (Also in 8th Annual Proceedims of ;

Tillage Workshop, Manitoba-North Dakota Zero-Tillage Farm 4-Association, pp. 7-30,1986).

9

+ v- # e-' ~+. p 1 . , - - -- .. .- . . . . .,..c -.--..=.,,---y.- -._ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ . _ _ _ . _ _ _ _

b Q ,

. 0ther Publications: .(continued)

68. Carlson'$JohnE., Dona.Dillman,DonaldM. Beck,andC. Ellen Lamiman. 1985. Early Adonters and Non Users of No-Till in the Pacific Nort 1 west. Final Report to USDA-SCS, Cooperative Agreement 58 0211-177 Department of Agricultural Economics. University of ,

Idaho, Moscow, 10. '

L ... 69. Dillman, Don A.- 1985. "

W You Have Been Randomly Selected . . . Survey Methods for the Information Age." 52nd Distin Address, Washington State University, Pullman,guished WA. Faculty. of Department Rural Sociology mimeo and slide set; also on video tape from KWSU- .

La TV, Pullman,.-WA.

70. Dillman, Don A. 1986.

Social Issues Impacting Agriculture and Rural-Areas as We Approacn the 21st Century." Pp. 19 31 in ,Ngw Qigpnsions in Rural Poliev: Buildina Uoon Our Heritace, edited by o

c unald C. Wimberly, Dale Jahr, and Jerry Johnson. U.S. Government "rinting Office, Washington. D.C. An earlier version is published n issues Facina Aariculture and imolications for Land Grant iciieces of Acriculture, edited by Larry Whiting. Farm Foundation.

Oakbrook, Illinois.

71. Hirschburg, Peter L., Don A. Dillman, and Sandra Ball Rokeach. 1986.

" Media System Dependency Theory: Responses to the Eruption of Mount St. Helens." Pp. 117-126 in Sandra J. Ball-Rokeach and Muriel G. Cantor, Media. Audience. and Social Structure. Beverly Hills, CA: Sage Publications.

72. Carlson, John E. and Don A. Dillman. 1986. "Early Adopters and Non Users of No-Till in the Pacific Northwest: A Comparison." In Conservina Soil, edited by Stephen B. and Ted L. Napier, ' Soil Conservation Society-of America, Ankeny, Iowa. ,

73, Dillman, Don A. 1986. "

Cooperative Extension in the Twenty-First Century." Tho Rural Socioloaist 6(2):102-119. Condensed version reprinted in nternaks Interchanae, University of Illinois, Champagne-Urbana.

74 . Dillman, Don A. and Donald M. Beck. 1986. "The Past is nct the Future: Urban Quality of Life as We Approach the 21st Century "

Urban Resources 3(3):43-47.

75. Dillman, Don A. and Jurg Gerber. 1986. "

Sociological Implications '

of Information Technology: A Bibliography of Recent Publications."

Council of Planning Librarians, Chicago, IL. 32 pp.

76. Dillman, Joye J. and Don A. Dillman. 1987. " Private Outside Space as a Factor in Housing Acceptability." Housino and Society 14(1):20-29.

10

,g , rv.- . , . , ,, -4,,- ...,ee-...-,-,...,.,m

y. 1 o

Other Publications: (continued)

77. Dillman, Don A., Donald M. Beck, and John E. Carlson.

$ 1987. ,

/.

" Factors Influencing the Diffusion of No Till Agriculture in the E Pacific Northwest." Pp. 343-364 in Lloyd Elliot, STEEP - Soil Conservatitutfancents and Accomolishments. Pullman, WA: Washington State University Press.

. . , f j

78. Carlson,' John E., Don A. Dillman, and Dale Boresma. 1987, i

" Ten .,

Year Change in Attitudes Toward Soil Erosion." Pp. 333-341 in >

Lloyd Elliot, STEEP - Soil Conservation Concents and

[. . Accomolishments.. Pullman, WA: Washington State University Press. ,

79. Dillman, Don A., Les11 Peterson Scott, and John Allen.

1987.

Telecommunications in Washinoton: A Statewide Survev. Technical Report, Social and Economic Sciences Research Center. Washington State University, Pullman, WA. 43 pp.

80. Dillman,' Don A. 1987. " Farm Research Needs Public Investment."

(Editorial in) The Seattle Times. January 31, p. A 13.

81. Carlson, John E., Don A. Dillman, and C. Ellen Lamiman.

1987.

The Present and Future Use of No-Till, Research Bulletin No. 140. '

University of Idaho Agricultural Experiment Station. 15 pp.

82. Dillman, Don A. 1987. Chapter 11:

" Elements of Success."

Pp. 188-209 in Donald Johnson, et al., Needs Assessment: Theory and Methods. Ames, Iowa: lowa State University Press.

83. Anderson, MaryAnn, Donna lams,-Joann C. Jones, LaRae B. Chatelain, Don A. Dillman, and Donald A. Anderson, 1987. Enerav Directions for the United States: A Western Persoective. 1991-1983. Western Regional Research Publications No. 014. University of Wyoming, Agricultural Experiment Station. Laramie, Wyoming. 71 pp.

84. Dillman, Don A., Joye J. Dillman, Kenneth R. Tremblay, Jr., and Michael A. Schwalbe. In press. " Housing Norms, Personal' Characteristics and Stated Housing Preferences." In Social Asnects of Housina: Research Issues 'and Oooortunities, edited by Kenneth R. Tremblay,.Jr. and Suzanne Lindamood. Hayworth Press.

(Composite and updated version of two previously publ h ned 2 articles: Housino and Society 6(1):2-29, and 6(4):123-132.)

85. Dillman, Don A. 1988. "The Social Environment of Agriculture and Rural Areas." In Acriculture and Rural Areas Anoroachino the 21st Century Challences for Acricultural Economists, edited by James Hildreth, et al. Ames, Iowa: Iowa State University Press, pp. 61-81.

11

5 s>  ;

I'

~Other Publicatfons: (continued).

86. .Dillman, Don A. and Donald M. Beck, 1988. Information Technologies and Rural Development in the 1990s.

61(1) January / February: 29 38. Journal of State Government. '

(Earlier Plains of the Future. Great Plains Agricultural version in. The Rural Great Council Publication 125, pp. 185-210. Lincoln, Nebraska).

87. - Dillman, Don A. and John Tarnai. 1988.

" Administrative issues -

• ;in Mixed Mode Surveys." In Robert Groves, et al., Telechone survey

~Methodoloov. New York: John Wiley Co., pp. 509-528.  !

o .

88. Dillman,' Don'A., Carl R. Engle, James S. Long, and C. Ellen Lamiman.

L . In press. "Others influencing Others." Journal of Extension.

89. Carlson, John E. and Don A. Dillman, 1988. "The Influence of -

Farmers' Mechanical Skill on the Development ar.d Adoption of a New Agricultural Practice." Rural Socioloov 53(2):235-245. '

90. Dillman, Don A. Forthcoming.. Information Technology in Agriculture:

the United States Experience in Proceedinos of International

. Conference on Information Technoloov in Acriculture Food and Rural Develooment. Commission of the European Communities. Brussells, Belgium.

91. Dillman, Don A., Angela Mertig, and Todd Rockwood. 1988. Results of

.tflg_jprino 1988 Washinoton State Poll. Technical Report 88-10, Social and Economic Sciences Research Center, Pullman, Washington.

92. .Dillman, Don A., Donald M. Beck, and John Allen. In press. " Rural l Barriers to Job Creation Remain,.Even in Information Age." Ege,al r Develooment Persoectives. (Earlier version published in Proceedinos of the 1988 Washinaten Utilities and Transoortation Commission Roundtable on Telecommenications Reculatory Policy, Olympia, Washington, 1988).

H. GRANTS AND CONTRAC.Il 4 1972 The State Committee for a New Tax Policy; $3,000. Statewide Survey: Attitudes Toward a Proposed State Income Tax.

1974 Washington Statt Office of Planning and Fiscal Management; '

$48,000 (with John M. Wardwell). Alternatives for Washington: Goals for the State of Washington.

1976-1980 W. K. Kellogg Foundation: 5947,000 (with others).

Collaboration and Integration in Rural Planning and Development; the Partnership for Rural Improvement.

Chairperson of Site Visit and (later) Advisory Committee for securing and implementing grant. Washington State University Representative to Inter-Institutional Regional Coordinating Committee which administered the grant.

Chairperson, 1979-1980.

12

t i

GRANTS AND' CONTRACTS: (continued) 1976-Present

• United States Department of Agriculture; $190,100.

Solutions to Environmental and Economic Problems (STEEP);

Factors influencing acceptance of soil erosion control practices in the Pacific Northwest. (Annual awards for 13

- years.)

, 1979.1980 Western Rural Development Center; $44,500 (with Robert 4

Mason, Oregon State University). "The Use of Face-to-Face, Telephone, and Mail Surveys in Nteds Assessment Efforts." ,

t 1980 Washington State University Graduate School, Office of International Development; $2,000. Travel to Fifth World Congress of Rural Sociology under Title XII AlD Institutional Strengthening Grant.

1980 1981 United States Department of Agriculture Cooperative Agreement; $5,000-(with Daryl J. Hobbs, University of Missouri). Preparation of monograph, Rural Society in the-U.S.: Issues for the 1980s.

1980-1982 National Science Foundation; $14,416 (with James F. Short, Jr.). Social Impacts of Mount St. Helens' Eruption.

1980 1983 W. K. Kellogg Foundation; $30,000. Kellogg National i Fellowship Program.

1980-1983 -W. .

K. Kellogg Foundation; $958,000 (with others). Renewal,  ;

Partnership for Rural Improvement; Chairperson of Regional j Coordinating Committee which administered grant, 1980-1981. i i

1981 1982 Wnhington State University Graduate School, Office International Development; 5)0,000.(with Don Messerschmidt, Linda Stone, and Take Tsuratani). Development of-interdisciplinary ~ course on Human Issues in International 3 Development.

1983-1985 United States Soil Conservation Service; $60,000 (with John E. Carlson, University of Idaho). Innovation of No Till ,

Agriculture in the Pacific Northwest.

1985 Farm Foundation; $4,000 (to assemble and chair Task Force).

Travel for preparation of white paper on impact of Current Agricultural Crisis on Future of the American Family F.:rm. '

1986 Washington State Local Government Study Commission; $15,000.

Statewide Survey of Citizen Opinions on Local Government.

1986 Washington State Legislature Joint Select Committee on Telecommunications; $29,792. Statewtoe survey of telecommunication needs of Washington residents. ,

13 l

i

, ~ - . - .. .- - - --

5 t

(

GRANTS'AND CONTRACTS: (continued)L i

.1987' ~ Washington Institute for Public Policy Research; 32,250.

Seminar on survey methods-for committee staffs of Washington.

e State Legislature, r

1987 -

Washington State Department of Agriculture, Employment Security and Washington State University Cooperative-

, Extension; $7,000. Farm Crisis survey of Washington wheat .

. growers.

• l 1987 Yakima Valley. College. Agricultural Employee Education Needs Assessment; $8,180. Yakima County assessment of farmers and agricultural businesses.

.1987 Impact Assessment, Inc.; $54,882 (with Riley Dunlap).

Socioeconomic Impacts of a Potential High level Nuclear Waste Repository at the Hanford Site,. Washington. "

1987 '

Washington Institute for Public Policy, Phases I and II; 591,000 (with John Tarnai, Irving Tallman, and Ernst Stromsdorfer). Washington Longitudinal Study on Welfare-

>1. .

Dependency.

c 1987 89 ' Washington State University Graduate School; 55,000 (with

? John Pierce, Scott Long, Duane Leigh, and Alex Tan). '

i R

Interdisciplinary Research Unit, Establishment of State'-of-the-State Survey.

1988 Washington State Traffic Safety Commission; $22,413 (with John Tarnai). Seatbelt Use Surveys.

1988 Washington Department of Social and Health Services; $15,000

?

(with John Tarnai). State-wide survey of licensed daycare L providers.

1988-1989' Washington Institute-for Ptolic Policy; $1,000,209 (with John Tarnai and Ernst Stromsdorfer). Washington State Family Independence Study.

" 1988 1989 United States Department of Agriculture Cooperative Agreement; $12,500. Research Opportunities for Faculty of 1890 Land-Grant Colleges and Universities.

1988-1990 . Northwest Area Foundation; $159,312 (with Douglas Young, David Bezdicek, John Carlson, Baird Miller, and David Mulla) . Barriars to Low-Input Agriculture: Implications for "

Policy. Extension, and Research.

L l

14

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INTERNATIONAL EXPERIENCE '

1963

International > Farm Youth Exchange Delegate to Poland (six months).

1978 AID team to' Eastern Islands of Indonesia to write long term agreement between Washington State University and

^

Association of Eight Eastern Islands Universities (one

. month).

)? '

1978 Fifth World Congress for Rural Sociology, Mexico City, Mexico. .

~ 1983 Consumer Behavior and-Energy Policy Conference, Noordwijkerhout, The Netherlands.

.1583 'Kellogg Foundation Study Seminar,' Colombia,-South America (two weeks).

1985, 1987 ,

Guest Professor, German Center for Survey Research and Analysis,- Mannheim, West German) (summer).

1987 International Conference on Telephone Survey Methodology, Charlotte, North Carolina.

1988 Information Techr. ology in Agriculture, Food and Rural Development Conference, Dublin, Ireland.

m J. CONSULTING ASSIGNMENTS 1972 b S. Dspartment of Housing and Urban Development, Office of Policy Planning and the Urban Land Institute. Washington, '

O.C.

1974 1975 Office of Program Planning and Fiscal Management. Olympia, WA.

1975 Washington State Office of the Governor. Olympia, WA.1 1975 1976 Northwest Regional Educational Laboratory. Portland, OR.

1976-1977 Department of Rural Socioiogy, Cornell' University, Ithaca, NY.

., 1977- Farm Home Administration, U.S. Department of Agriculture.

Washington, D.C.

1978-1979 U.S. Senate, Washington, D.C. "

1979 Department of Rural Sociology, Pennsylvania State University, State College, PA.

1979 Savings Institution Marketing Society of America, Chicago, IL.

1979 1981 A.C. Nielson Company, Northbrook, IL.

1979-1983 Western Region USDA Cooperative State Research Service Regional Droject, W-159.

1982 The Burke Company, Cincinnati, OH.

15

-/6-

e 1 Wh  ;

e CONSULTING ASSIGNMENTS: (continued)

.1982 ' U.S. Department of Energy, Bonneville Power Administration, Portland, OR. j 1983-1984 U.S. Department of A I 1984 AT&T Communications,griculture, Sasking Ridge, Economic NJ. Research Service. I

l. 1984- -

1984 1985 Institute for Policy Research, University of Wyoming.

U.S. General Accounting Office, Washington, D.C.

, 1985 Policy Research Corporation, Chicage. IL.

1985 Oregon Health Sciences University, Portland, OR. ';

'*1 1985  :

- National Science Foundation, Washington, D.C. t 1985 Texas Department of riuman Resourets, Austin, TX.

.. 1985 1986 Alaska Public Employees Association, Juneau, AK.

1985-1987 Energy Resource Consultants and State of Colorado, Denver, i

CO.

1. 1986 USDA 1890 Regional Research Project-4.

3 85 . Cornell Institute for Social and Economic Research, Cornell University, Ithaca, NY. .

1986 The Burke Company, Cincinnati, OH. ,

1987 University of Guam Cooperative Extension, UOG Statien, Guam.

1987 Orlan% Regional Madical Center, Orlando, F1..

19P.7 National Centers for Disease Control, Atlanta, GA.

1988 University of Texas, LBJ School of Public Affairs, Austin, '

TX.

1988 _RCG/Hagler, Bailly, Inc., hulder, CO.  !

1988 1989 U.S. Department of Health and Human Services, Regional Office of Inspector General, Atlanta, Georgia.

K. -0THER PROFESSIONAL ACTIVITIES

1. Professional Meetino Presentations: Fifty scientific papers; organized and/or chaired twenty-eight sessicns.

2. Comittees and Boards of Professional Arsociations: Publications Comittee, Resciutions Comittee, Membership Comittee, Program Comittee, Constitution Comittee (Chair), Publications Comittee (Chair), and Nominations Comittee of Rural Sociological Society; Program-Committee and Publications Comittee of Pacific Sociological Association; Membership Comittee and Program Comittee of American Association for Public Opinion Research; Community Section Liaison Comittee; Environmental Sociology Section Council, American

, Sociological Association. Editorial Board, Public Ooinion Ouarterly.

3. Referee and Editorial Resoonsibilities: Editt rial Board, Public Ooinion Quarterty, 1983-1987; referee for manuscripts submitted to American Socioloaical Review, Rural Socioloov, Socioloaical Quarterly, Social Science Restarch, Housino and Society, j,g,g,iA],

~ Forces, Canadian Journal of Socioloov, Evaluation and Prooram Plannino, Socioloov and Social Research, Public Ooinion Ouarteriv, Democraohv, Pacific Sociolooical Review, Urban Affairs Quarteriv, Social Science Ouarteriv, Journal of Leisure _Research, Journal of 16 19 -

~ . . . . , . .- . - - - -- - - - , - .. . .,--.

i x 'OTHER PROFESSIONAL ACTIVITIES::(continued) 3 Soil anf Water Conservation, Land Economics, Social Science Journal, human Oraanization, Socioloaical Inauiry, Growth and Chance, gy,t.n,,g], n 1 i

$]7 of the American Statistic 1],,,, big.q,1gj.QD, Socio' ooical Methods and Research, Housina and Society, Annual Reyiew of Sccioloov, Journal of, Qfficial Statistics;'research proposals submitted to Competitive f Grants < Program of the National Science Foundation, United States Department of Agriculture, National Institute for Mental Health,

• Western Rural Development Center, and Canadian M al Research Council.

c 4. Soecial Review Panels: USDA Cooperative State Research Service t Reviews of Departments of Rural Sociology at University of Wisconsin, "

Cornell University, Iowa State University, North Carolina State '

University, University of Kentucky, and Montana State University; National Institute'for Mental Health research proposal review.

5. University addresses and Invited Seminars: Eastern Washington University (1972); Brigham Young University (1974); Utah State  !

University (1974); lowa State University (1975); Western Washington J University (197.6); Pt.rtla-d State University (1976); University of Idaho (1979); Univers.ty of Arizona (1980); University of Nevada (1980); University of Wyoming (1980); University of Kentucky (1980);

University of Wisconsin (1980); University of Georgia-(1981); The Pennsylvania-State University (1981, 1984); Universities of Mannheim and $leidelberg (joint, 1985); Texas A&M University (1983); Cornell University (1984, 1986); University of Leyden (The Netherlands)

(1985);-Free University and University of Amsterdam (joint, 1985). t Oregon Health Sciences University (1985); University of Missouri <

(1986,1988); University of Guam (1987); University of Washington-

' (1987); City University of London (1987); University of Louisville ,

(1987j; University of North Carolina-Chapel Hill (1988); and Marshall University (1988).

6. Keynote and Othen.jigj.pr Invited Addresses: M..E. John Invited Lecture, The Pennsylvania State University (1984); National Conservation Tillage Conference (1984); North Central Re91on Agricultural Deans end Directors Conference on Issues Facing 4 Agriculture (1985); American Association of Housing Educators (1985); ,

National Community Resource Development Program Leaders Work:: hop (1985); Washington Planning Association (1985); American Agricultural

' Economics Association Conference on the 21st Century (1985); Cornell University 8iennial Extension Conference (1986);-University of Guam Annual Extension Conference (1987); Expert Seminar on Survey Methods, Amsterdam, The Netherlands (1987); European Conference on Mail and Telephone Survey Methods, Mannheim, West Germany (1987); Economic and Social Research Council Postal Survey Seminar, London, England (1987); Washington State University All-Faculty Extension Conference (1987); State Co'.:ncils nf Government Jobs, Education and Technology Conference (1987); Great Plains Agricultural Conference (1987); North Dakota Rural Health Conference (1988); Small Community Revitalization 17 h

.) k

• m..~. . ._ - . - . _ . . . ~ . __ .- .. _

I OTHER pA0FESSIONAL ACTIVITIES: (continued)

Forum (1988);- The Ireland Agricultural Institute Information Technology Conference (1988); USDA Rural Intercity Transportation .

-Seminar (1988); Kellogg National-Fellowship Program Seminar (1988);

Utah Rural Economic Summit (1988); and National-Agriculture and Natural Resources-Program Leaders Workshop (1988).

l.

Survey Seminars. Courses and Workshoos: Distinguished Trainer, two-

' day seminar, Ohio Department of Mental Health (1984). Seminar leader for. intensive USDA-CSRS sponsored one week workshop on improvement of survey.-research skills for 30 faculty. from the "1890"-Land grant o* Colleges and Universities _(1984). Application of the Total Design Method to the Dutch and German situations sponsored by the German Center for. Survey Methods and Analysis (1985). Washington State Legislative Comittee Staffs (1987); American Statistical Association a Tutorial (1987); American Hospital Association (1987); Council for  :

Advancement and Support of Higher Education (19"): Center for Health Research (1987);-U.S. General Accounting Office (1988); College of Education Distinguished Scholar Fund, Marshall University _(1988); i Department of_ Comunity Development, University of Missouri (1988); J

-Inspector General's Office, U.S. Department of Social and Health j Services (1988). l L

8.: teoislative Testimuly: Washington Joint Select Comittee on Telecomunications (1985,1987); Washington Houre Committee on i Agriculture and Rural Affairs (1987); Washington House Comittee on. i Economic Development (1987); U.S. Senate Coraittee.on Small Business j (l988). '

1 L 9. ' Faculty Associate for Visitina Fulbricht' Scholars: Anton Nederhof,

p. _ from the University of Leyden, The Netherlands (1982); Edith Deleeuw g from the Free University, The Netherlands (1987).

L L 10. Board ReJoonsibilities: Western Region Social Research Advisory Comittee (1973-1976, Chair 1975); Western Rural Development Centar Advist.ry Committee (1973-Present, Chair 1982); Partnership for Rural Improvement Regional Coordinating Comittee (1976-1981, Chair 1976-1977); State Board of Directors Family-Community-Leadership (1980-I

'- 1983, Secretary 1982); USDA National Rural Development Advisory J I. Council-(1986-1988); Northwest Policy Center (1986); and Seattle Health Group Cooperative (1988).

1

, 11. Graduate Student Comittees c', aired: Six (6) Masters of Arts and sixteen (16) Doctors of Philosophy.

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lude in the SPMC any ETEs for the transit dependent- >

H , lation ("TDP") or any of the special f acilities.

claim that this violates NUREG-0654, Appendix 4, ervenors they contend _ requires that ETEs for the transit dependent f' Alder Dir., ff.

" f puistion and the special f acilities be made.

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at 21-22. 'We agree. NUREG 0654,-Appen. 4, contains p E fr. 26482, .

,,parate requirements for calculating the TDP ETEs and the As to the "non-car-owning population i i sPecial f acility ETEs.

(Appen. 4 at 4-9',, i.e., ,

dependent upon public transport" requires an " estimate" ,

transit dependent population, Appendix 4 "of the time required to evacuate that seament of the- -

(singular) '

As to the special l popula ti s n . "

M. (emphasis supplied) .

f acilities, however, evacuation time "[elstimates" (plural) ,

'shall be made," and "[elach special f acility shall be treated at 4-9, 4-10 (emphasis-on an individual basis.* M.,

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supplied) . Thus, while a single ETE needs to be calculated for the transit dependent population (for each Senario and Region),

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the ETE for each special f acility needs~ to be calculated.

Applicants have f ailed to establish that ETEs for the '

't Massachusetts TDP or the special f acilities have been  ;

l a calculated. On cross examination Mr. Callendrello admitted 1

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that, by working with each hospital, ETEs could have been l calculated for them. Tr. 27094. He further admitted that the ]

same could have been done for the nursing homes. Tr. 27094-95.

But, he conceded, there are no individual f acility ETEs in the SPMC now. M. On this record we have no choice but to find that JI-2 Basis I has been established. I 2.1.26.B. The estimates of TDP evacuation times

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' UNITED STATES OF AMERICA

, NUCLEAR REGULATORY COMMISSION -

.g ggg _4 g) 3)

ATOMIC SAFETY AND LICENSING BOARD Op q Before the Administrative Judges: DE >

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Ivan W. Smith, Chairman 4 Dr. Richard F. Cole Kenneth A. McCollum

)

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

) 50-444-OL PUBLIC SERVICE COMPANY )

OF NEW HAMPSHIRE, IT AL. )

)

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

) 1 1

CERTIFICATE OF SERVICE I, Leslie B..Greer, hereby certify that on November 9, 1989, I  ;

made service of the within INTERVENORS' MOTION TO ADMIT A LATE FILED CONTENTION AND-REOPEN THE RECORD ON THE SPMC BASED UPON THE l 1

WITHDRAWAL OF'THE MASSACHUSETTS E.B.S. NETWORK AND WCGY by Federal

. Express as indicated with (*) and by first class mail to: I

• Ivan-W.. Smith, Chairman *Kenneth A. McCollum Atomic Safety & Licensing Board 1107 W. Knapp St.

U.S. Nuclear Regulatory Stillwater, OK 74075 l

o ,, Commission East West Towers Building

• Docks.ir.g and Service 4350 East West Highway U.S. Nuclear Regulatory Bethesda, MD 20814 Commission Washington, DC 20555

• 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 360 450 tast West Highway Portsmouth, NH 03801 Bethesda, MD 20814

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• Robert R. Pierce, Esq.4

• Thomas G. Dignan, Jr., Esq.

Atomic Safoty & Licensing Board Katherine Selleck, Esq.

U.S. Nuclear Regulatory Commission Ropes & Gray East West Towers Building One International Place 4350 East West Highway Boston, MA 02110 Bethesda, MD 20814

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

Assistant General Counsel Edwin J. Reis, Esq.

Office of General Counsel U.S. Nuclear Regulatory r*

Federal Energency 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 c 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.

145 South Main Street

~

Harmon, Curran, & Towsley Suite 430 P.O. Box 38 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 Washington, DC 20510 Concord, NH 03301 (Attn: Tom Burack) (Attn: Herb Boynton)

,; . . . -~ . ..-. _ _. _ _ _ . _ _ _ _ _ _ _

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

+ '

Office of the Attorney' General Assistant Attorney General 25 Capitol 1 Street Department of the Attorney l Concord,-NH 03301 General Augusta, ME 04333 William S. Lord Board of Selectmen

, Town Hall - Friend Street

." Amesbury,.MA 01913 2

COMMONWEALTH OF MASSACHUSETTS JAMES M. SHANNON ,

ATTORNEY GENERAL m'

Leslie B. Greer.

Assistant Attorney General Nuclear Safety Unit Department of the Attorney General One Ashburton Place Boston, MA 02108-1698 (617) 727-2200 DATED: Now mber 9, 1989 l

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