Text

NRC Staff Response to Intervenors Motion to Vacate LBP-89-32 License Authorization & Supplemental Motion & Memorandum.* Commission Should Deny Motion Due to Failure to Provide Basis to Grant Relief Sought.W/Certificate of Svc
	ML19351A716
Person / Time
Site:	Seabrook
Issue date:	12/12/1989
From:	Bachmann R, Reis E, Matt Young; NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	; NRC COMMISSION (OCM)
References
	CON-#489-9598 ALAB-922, ALAB-924, LBP-88-32, LBP-89-32, LBP-89-33, OL, NUDOCS 8912270159
	Download: ML19351A716 (79)
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NUCLEAR REGULATORY COMMISSION 9

BEFORE THE COMMISSION a

In the Matter of Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF 50-444 OL NEW HAMPSHIRE, ej d.

Off-site Emergency Planning (Seabrook Station, Units 1 and 2) t NRC STAFF RESPONSE TO INTERVENORS' MOTION TO VACATE LBP-89-32 LICENSE AUTHORIZATION L

AND SUPPLEMENTAL MOTION AND MEMORANDUM ll Edwin J. Reis Deputy Assistant General Counsel for Reactor Licensing Mitzi A. Young Counsel for NRC Staff l

Richard G. Bachmann Counsel for NRC Staff 4

December 12, 1989 8912270159 891212 PDR ADOCK 05000443 l

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O UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMIS$10N In the Matter of Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF 50-444 OL NEW HAMPSHIRE, et al.

Off-site Emergency Planning (Seabrook Station, Units 1 and 2) i NRC STAFF RESPONSE TO INTERVENORS' MOTION TO VACATE LBP-89-32 LICENSE AUTHORIZATION AND SUPPLEMENTAL MOTION AND MEMORANDUM Edwin J. Reis Deputy Assistant General Counsel i

for Reactor Licensing Mitzi A. Young Counsel for NRC Staff Richard G. Bachmann Counsel for NRC Staff December 12, 1989

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..g TABLE-0F CONTENTS PAGE I.

INTRODUCTION 1

II. BACKGROUND 3

III. DISCUSSION 11 A.

The Licensing Board Was Empowered To Authorize License Issuance.........................................

10 8.

Legal Standards Applicable to License Authorization.........................

13 C.

Application of the " Reasonable Assurance" ano " Fundamental Flaw" Stano6rds to the Remanded Matters 15 1.

. Letters of Agreement for Teachers anc the Evacuation of School Children 19 2.

The 1986 Special Needs Survey and Provision'for Evacuation of the Special'Need Population 23 3.

Evacuation Time Estimates for Advanced Life Support Patients 28 4.

Provisions for Sheltering the Beach Population

........................... 31 D.

The Relevance of 10 C.F.R. 950.47(c)(1) 34 E.

The Penaer.cy of the Question Certified in ALAB-922............................ A3 F.

1he Scope Contentions Do Not Justify Revocation............................... 44 G.

Other Motions to Reopen Do Not Justify Revocation cf License Issuance......................................... 46 IV. CONCLUSION............................................ a8

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TABLE OF AUTHORITIES g

PAGE COURT CASES GUARD v. NRC, 753 F.2d 1144-(D.C. Cir. 1984)....................

14.30,41 l.

San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287, reaffirmed upon reh'g en banc, 789 F. 2d 26 (1986); cert.

deni ed 4 7 9 J. S. 923 ( 1986 ).......................................

15. 3 5 San Luis Obispo Mothers for Peace v. NRC, 789.F.2d 26 (1986).......... 46 l'

Union of Concerned of Scientists v. NRC, 735 F.2d 1437 (D.C. Cir.

1984)........................................ 45 L

i ADMINISTRATIVE DECISIONS-Kansas Gas-& Electric Co. (Wolf Creek Generating Station, Unit 1), LBP-84-26, 20 NRC 53-(1984)..................................

22 l

Long Island Lighting Cc. (Shoreham Nuclear Power Station, Unit 1), CLI-87-12, 26 NRC 383 (1987).........................

17, 28, 34 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC 24 (1986)............................... passim l

Long Island Lighting Co. (Shoreham Nuclear Power Station, l

Unit 1), CLI-86-11, 23 NRC 577 (1986)................................

18 1

Long Island Lighting Co.-(Shoreham Nuclear Power Station, Unit 1), ALAB-911, 29 NRC 247 (1989)..................................

47 Long Island Lighting Co. (Shoreham Nuclear Power Station.

Unit 1), ALAB-905, 28 NRC' _, (1988)...................................

4 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-903, 28 NRC 499 (1988).............................

18,35 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-900, 28 NRC 275 (1988).............................

45,46 l

Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-E32, 23 NRC 135 (1986), aff'd in part, CLI-87-12, 26 NRC 383 (1987)..................................................

passim l

Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-88-24, 28 NRC 311 (1985).................................

17 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 NRC 644 (1985).................................

22 Louisiana Power & Light (Waterford Steam Electric Station.

l Unit 3), ALAB-732, 17 NRC 1076 (1983)...........................

19,33,34

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PAGE Pacific Gas A Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2) CLI-84-12, 20 NRC 249 (1984), aff'd, San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 175T'-

reaffirmeS upon reh'g en banc, 789 F. 2d 26 (1986),

cert. denied, 479 U.S. 923 (Jon6)...............................

15,31,42 Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479 (1986)...........................

19' Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681 (1985), review declined, CLI-86-5, 23.NRC 125 (1986)...........................................

17 Philadelphia Electric Co. (Limerick Generating Station.

L Units 1 and 2), ALAB-808, 21 NRC 1595 (1985)....................... 19,33 I

Philadelphia Electric Co. (Limerick Generatin Units 1 and 2), LBP-85-14, 21 NRC 1219 (1985)g Station.

......................... 22 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-89-19, 29 NRC (September 15, 1989)........... 3,34 Public Service Co. of New Ham 3 shire (Seabrook Station, Units 1 and 2), ALAB-924, 30 4RC (November 7, 1989)............ passim l

Public Service Co. of New Ham) shire (Seabrook Station, Units 1 and 2).-ALAB-922, 30 4RC (October 11, 1989)......... 4,7,10,43 Public-Service Co. of New Hampshire (Seabrook Station.

Units 1 and 2), LBP-89-33, 30 NRC (November 20,1989)........... passim Public Service Co. of New Hamoshire (Seabrook Station, L

Units 1 and 2), LBP-89-32, 30 NRC (November 7, 1989)............ passim t

Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-89-28, 30 NRC (October 12, 1989)...............

47 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-88-32, 28 NRC 667 (1988)....................... passim Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-83-10, 17 NRC 528 (1983), rev'd and remanded on other grounds, GUARD v. NRC, 753 F. 2d 1144 (D. C. Ci r. 1984)...................... pas sim l

Southern California Edison Co. (San Onofre Nuclear L

Generating Station, Units 2 and 3), CLI-81-33 14 NRC 1091 (1981)................................................

16,17 Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC 346 (1983).....................................................

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PAGE REGULATIONS i

10 C.F.R. 6 2.786 (b)(4)(ii).......................................

25,36 10 C. F. R. I 5 0. 4 7................................................ 13. 3 3,4 4 10 C. F. R. 5 50. 4 7 (a ).......................................... 13,18. 2 7,3 8 10 C. F. R. 9 5 0. 4 7 ( a ) ( 1 )............................................ 13,20 10 C. F. R. 6 5 0. 4 7 ( a ) ( 2 )............................................... 13 -

10 C. F. R. 0 5 0. 4 7 ( b )............................................. 3.13,18 10 C.F.R. 6 50.47(b)(10)........................................ 27,28,39 10 C. F. R. 6 5 0. 4 7 ( b ) ( 12 ).............................................. 14 10 C. F. R. 6 50. 4 7 ( c ) ( 1 )............................................ pa s s i m 10 4 C. F. R. Pa rt 50, Ap pendix E.................................... 3.18,28 s

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MISCELLANEOUS

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" Evaluation of the Adequacy of Off-Site Emergency Planning s

for Nuclear Plants at Operatina License Review Stage Where

' State or Local Governments Decline to Participate in Off-Site Emergency Planning," 52 Fed. Reg. 42078 (November 3, 1987)........... 16 NUREG-0654/ FEMA-Rep-1, Rev.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

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BEFORE THE COMMISSION In'the Matter of Docket Nos. 50-443 OL PUBLIC' SERVICE COMPANY OF-50-444 OL NEW HAMPSHIRE, ej g.

Offsite Emergency Planning (Seabrook Station, Units 1 and 2)

NRC STAFF RESPONSE TO INTERVENORS' MOTION TO VACATE LBP-89-32 LICENSE AUTHORIZATION AND SUPPLEMENTAL MOTION AND MEMORANDUM I

INTRODUCTION On November 13,

1989, the Massachusetts Attorney General, the Seacoast Anti-Pollution League, the New England Coalition on Nuclear Pollution and the Town of_ Hampton ("Intervenors") filed a motion asking the Appeal Board to vacate and revoke that portion of the Licensing Board's decision in LBP-89-32, 30 NRC _ (Nov. 9, 1989), which authorized the Director of Nuclear Reactor Regulation to issue a full power license for Seabrook.1/

In its Order of November 16,1989 (unpublished), the Comission ruled that it would decide the motion and established a j

schedule for (1) Intervenors to file a " supplement" to their November 13 Motion based on the Licensing Board's memorandum explaining the basis for the license authorization, (2)"any other applications for stay of LBP-89-32,"

and (3) brief coments pertaining to the immediate 1/

Intervenors Motion to Yacate Those Portions of LBP-89-32 Authorizing

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Issuance of a

Seabrook Operating

License, November 13, 1989

(" November 13 Motion").

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.., effectiveness issue. SI Intervenors have now filed their supplemental motion. M Pursuant to the Comission's Order of November 16, 1989, as amended, N the NRC Staff files its opposition to the motion.

As described below, the matters raised do not preclude a finding that there 2/

November 16 Order, slip op. at 2.

3)

Intervenors Supplemental Motion and Memorandum in Support of November 13 Motion to Revoke or Vacate the November 9 License Authorization, December 1, 1989

(" Supplement").

Intervenors also filed New England Coalition on Nuclear Pollution's Request for a Stay of Immediate Effectiveness of LBP-89-32 Pending Resolution of Outstanding Issues, December 1,1989 ("NECNP Stay"); Comments of the Town of Hampton Opposing. Immediate Effectiveness of Licensing

. Decisions LBP-88-32, 89-32, and 89-33, December 1, 1989; Massachusetts Attorney General's Coments on the Immediate Effective-ness Issue, December 1,1989 (" Mass AG Comments"); and Comments of the Seacoast Anti-Pollution League Opposing Immediate Effectiveness of Licensing Board Decisions LBP-88-32, 89-32, and 89-33, November 30,1989. ("SAPL Coments").

To the extent that the NECNP Stay is considered a sep)arate motion to stay (and not comments on the imediate effectiveness, those arguments are encompassed in this Staff filing and no separate pleading is filed.

The Comission's Rules of Practice do not explicitly (provide for responses to immediate effectiveness coments see 10 C.F.R. 62.764(2)(11)).

Nevertheless, should the Commission believe that such a response would be helpful, the Staff attaches, as an Appendix to this filing, its response to Mass AG comments.

The matters raised by the other j

comments are subsumed by this pleading.

Further, the SAPL Comments (see 30-31 see also 14, 16, 21) contain intemperate and scurrilous ~Tanguage. ; These pages should be l

l stricken.

The use of this language is not consistent with the Comission's requirement that " parties and their representatives in l

proceedings subject to [the Comission's Procedural Rules] are expected to conduct themselves with honor, dignity, and decorum as they should before a court of law."

10 C.F.R. 5 2.713(a. Moreover,

"[n]ame calling adds nothing to the stature of counse)l or to the merits of.his argument." Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-204, 7 ALC 635, 636 (1974);

See also Southern California Edison Q.

(San Onofre Nuclear Generating Station, Units 2 and 3), CLI-81-33, 14 NRC 1091 (1981).

InLongIslandLightingCo.(ShorehamNuclesrPowerStation, Unit 1),

CL1-86-13, 24 NRC 22, 29-30 (1986), the Comission again emphasized that emergency planning rules were " intended...

to be flexible" and it must be seen if any defect in compliance is significant.

The test is whether plans are reascnable and feasible in terms of meeting the planning standards in the regulation not only for a particular site and its environs, but also in terms of the total circumstances including the cooperation of local governments.

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24/ See also Evaluation of the Adequacy of Off-Site Emergency Planning

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tor Nuclear Plants at Operating L1 Cense Rev1ew Stage wnere 5 tate 6nd or Local Governments Decline to Participate in of f-site Emergency Planning, 52 Fed. Reg. 42078, 42064-55 (November 3, 1987)

(" Realism Rule").

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Undoubtedly, as the Appeal Board recognized in philadelphia Electric Q. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 713 (1985), _ review declined, CLI-86-5, 23 NRC 125 (1986), "The Comis-sion's emergency planning regulations are premised on the assumption that a serious accident might occur and that evacuation might be necessary."

i However, the fact that "a possible deficiency in an emergency plan cannot properly be disregarded because of the low probability that action 1

pursuant to the plan will ever be necessary." (3), does not indicate that f

the standard of " reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency" is of no affect. The Comission stated in the San Onofre case:

"The emphasis is on prudent risk reduction measures.

The regulation does not require the dedicetion of resources to handle every possible accident that can be imagined.

The concept of the regulation is that there should be core planning with sufficient planning flexibility to develop a reasonable ad hoc response to those very serious low probability accidenis siiich could affect the general public."

CLI-83-10, 17 NRC at 533. E l Thus, in order to make a finding under 50.47(a) in circumstances where plan deficiencies have been identified, the decisionmaker should I

25

~/ In Long Island Lighting Co. (Shoreham Nuclear Power Plant Unit 1),

ALAB-832, 23 NRC 135, 155-56 (1986), affirmed, CLI-87-12, 26 NRC 383, 398-99(1987), the Appeal Board determined diat an emergency plan did not meet the Comission's planning standards which required evacua-tion time estimates for hospitals in the EPZ.

See 10 C.F.R. Part 50 Appendix E, Criterion IV.

The Comission affirmed this opinion and indicated tnat under 10 C.F.R.

I 50.47(c)(1) the Licensing Board could determine on remand "that the deficiencies related to hospitals were not significant" for the plant in question.

CLI-87-12, 26 NRC at 399.

On' remand, ETEs for the hospitals were developed, and the issue of whether the need for ETEs for the hospitals was significant for the plant in question was not faced.

See LBP-88-24, 28 NRC 311, 349-56(1988).

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review the emergency plans to see whether there has been sufficient planning for prudent risk reduction measures to enable a finding to be j

made "that there is reasonable assurance that adequate protective measures can be taken."

Any deficiency in the emergency plans must also be examined to see if it is a " fundamental flaw" for "only fundamental flaws are material licensing issues."

Long Island Lighting Co.

(Shoreham Nuclear Power Plant, Unit 1), CL1-86-11, 23 NRC 577, 581 (1986).

Such a defect in the emergency plans is one which, "First, reflects a failure in an i

essential element of the plan, d, second, it can be remedied only through a significant revision of the plan." 3.,ALAB-903,28NRC499, 505 (1988).

Thus, it must be shown that the flaw involved a substantial failure to meet one of the planning standards in 10 C.F.R. I 50.47(b) or 10 C.F.R. Part 50, Appendix E g that a " portion of the plan must be l

reassessed or reconceived to a significant extent."

28 NRC at 505-06.

While this principle was developed in order to determine the significance of deficiencier revealed by an exercise, the basic underlying premise is applicable to an assessment of the adequacy of a plan to support a finding of reasonable assurance. Accordingly, there should be a determination of whether there is reasonable assurance of planning for prudent risk reduction measures, and whether the alleged plan deficiency relates to an essential element of a plan which can be remedied only by a significant change in a portion of the plan (i.e., a reassessment or reconception) before the plan can provide reasonable assurance.

San Onofre, CLI-83-10, 17 NRC at 533; Shoreham, CLI-86-13, 24 NRC at 29-30; Shoreham, ALAB-903, 28 NRC 505-06.

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If matters identified by proffered contentions -- or, as in the instant case, by the Appeal Board in ALAB-924 -- are not needed to provide reasonable assurance according i 50.47(a), or are not " fundamental flaws,"

a license authorization may issue and any other matters involving plan modifications or enhancements may be left to the Staff or FEMA to verify.

Q, Louisiana power & Light (Waterford Steam Electric Station, Unit 3),

4 ALAB-732,17NRC1076,1103-04(1983); philadelphia Electric Co. (Limerick i

Generating Station, Units 1 and 2), ALAB-808, 21 NRC 1595,1600 (1985);

r Limerick, ALAB-836, 23 NRC 479, 495 (1986).

C.

Application of the " Reasonable Assurance" and " Fundamental Flaw" Standards to the Remanded Matters.

An examination of each of the matters remanded in ALAB-924 shows that none of the matters remanded prevents a finding that " reasonable assurance that adequate protective measures can and will be taken in a radiological emergency" and that none rise to the level of showing that a " fundamental flaw" exists in the NHRERP.

As detailed below, the Appeal Board did not perform an analysis of whether there was " reasonable assurance" or whether I

there is a " fundamental flaw" in the plan.

The Appeal Board instead remanded these four matters to the Licensing Board, which performed this analysis in LBP-89-33 1.

Letters of Agreements for Teachers and the Evacuation of School Children in dealing with the question of the need for letters of agreeEnt with the teachers, the Appeal Board in ALAB-924 focused upon whether the teachers were " recipients" or " providers" of services and did not examine whether there was reasonable assurance that teachers would accompany

schoolchildren in the event of an emergency, or if the purportedly needed letters of agreement would in fact provide any more assurance than 1

testimony in the proceeding established had already existed.

Compare ALAB-924 at 7-11 with LBP-89-33 at 7-12.

As set out below, the Licensing Board performed these tasks and found that there was reasonable assurance that a sufficient number of teachers and school supervisory personnel would accompany the school children in the event of an accident, and that letters of agreement, even if needed, would provide no more assurance.

LBP-89-33 at 10-12.

In ALAB-924, the Appeal Board remanded to the Licensing Board a question as to whether letters of agreement (LOAs) should be required for teachers who are expected to accompany their students on buses evacuating them to relocation centers, without seeing if this was required by the emergency plan or necessary for " reasonable assurance." ALAB-924 at 7-11.

It stated that it believed the Licensing Board's decision on this matter confusing --

i.e., while the Board found no need for these LOAs, at one point in its NHRERP decision it nonetheless described teachers who will ridethebusesas"serviceproviders"(M.at9).

The Appeal Board found that "further explanation" was required (M. at 7) as to whether the Licensing Board viewed the teachers as being " providers" or " recipients" of services, with the instruction that the Board " resolve the existing inconsistoney in its interpretations of the role of school personnel in an evacuation and determine whether any LOAs should be obtained from school personnel" (M. at 11).

Further, the Appeal Board directed the Licensing Board to resolve this issue upon a consideration as te whether the teachers are ordinarily expected to accompany their students in an

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J evacuation.

The Appeal Board agreed with the Licensing Board's determination that LOAs are not required for teachers to remain with their q

students while on school grounds since this is a custodial role which teachers ordinarily perform.

M. at 9.

The Appeal Board acknowledged record support for "the proposition that school personnel generally do not abandon their role as student custodians in times of emergency," but it asserted that it could find no evidence as to whether the teachers are (or are not) ordinarily expected to accompany their students in an emergency evacuation. M.at10.

It should be noted that the Appeal Board did not hold that teachers are " providers" of services, nor did it require that LOAs for teachers be obtained; rather, it remanded the matter to obtain a clarification from the Licensing Board as to how the Licensing Board viewed the teachers, with the instruction that i_f, the Licensing Board views the teachers as being providers of services, LOAs should be obtained.

In LBP-89-33, the Licensing Board provided the explanation which the Appeal Board had requested in ALAB-924 The Licensing Board recounted several of its decisions in which it ruled that teachers are " recipients" and not " providers" of services (LBP-89-33 at 6) and recognized that some confusion had been occasioned by its use of the term " service providers" in LBP-88-32 (M. at 9).

However, the Board explained that when school employees elect to rely upon the buses for their evacuation, or when they forego the use of their own vehicles and volunteer to accompany their students on the buses in order to see them safely to reception centers, the teachers are indeed " recipients" of services -- and therefore LOAs for the teachers are not required.

M. at 11.

The Board further provided

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- 22 record support to clarify that the teachers' participation in this process is not essential, and while New Hampshire emergency planners " hope" the teachers will care for their students, their participation is not considered to be " key to the process" Ld. at 8.

The Board also provided record support for the proposition that teachers, as a group, will not abandon their. students (Id. at 9); and it concluded, as a matter of law, that the teachers constitute a collective labor force or activity for whom LOAs are not required (Ld. at 10). El The Licensing Board's exn'anation eliminates the need for any further proceedings with respect to this matter.

First, the Board has clarified that the teachers who accompany their students on the evacuation buses are indeed " recipients" of services, for whom (as the Appeal Board agreed)

LOAs are not required.

Second, since the teachers' participation in the emergency response process is not essential. LOAs to secure their participation are not required. 27' Finally, even if the teachers were to 26/ It should be noted that the Licensing Board's determination that LOAs for teachers are not required is consistent with the decisions rendered by every one of the Commission's adjudicatory boards that have considered the matter, in one context or another.

See e.o.,

Long Island Lighting Co.

(Shoreham Nuclear

Station, Wi,t ~~II.

AL AE -832, 23 NRC

135, 151-52 (1986),

affirmed in part on other grounds, reversed in part on other grounds. CLI-87-12, 26 NRC 383 (1987); Id.

LBP-85-12, 21 NRC 6t4, 677-79 (1985); Philadelphia Electric E,(Limerick Generating Station, Units 1 and 2), LBP-85-14, 21 NRC 1219, 1292-93 (1085); Kansas Gas & Electric Co. (Wolf Creek Generating Station. Unit 1), LBP-84-26, 20 NRC 53, 98-99 (1984).

-27/ Thus, in ALAB-924, in addition to affirming the Licensing Board's ruling that LOAs are required only for providers of services, the Appeal Board specifically agreed that LOAs "need not be sought for everyone involved in the emergency response process" (ALAB-924 at 7 8),

and that "such services must be of sin import to radiological emergency response planning" Qd. at 9) gular

i.

23 be considered to be service " providers" rather than " recipients " as a matter of law no LOAs are required because they make up a collective work force or activity.

In light of these fundamental determinations, it is clear that LOAs for teachers are not required, and there is simply no need for any furtaer consideration of this matter.

As may be expected, the Intervenors complain that the Licensing Board failed to conduct an inquiry as to the role ordinarily performed by teachers in an emergency evacuation, in derogation of the Appeal Board's explicit directive (e.g., Supplement at 36).

However, in light of the Board's clarification that it considers the teachers to be " recipients" of services, there was simply no need for it to conduct any such inquiry.

Nor is there any merit to Intervenors' charge that the Licensing Board has

" reversed" its prior determination that the teachers are " service providers".

To the contrary, the Board's decision is fully consistent with its previous decisions in which it found the teachers to be service

" recipients"; it explained its intent and the context in which it had used the phrase " service providers" in LBP-88-32; and it merely clarified the ambiguity caused by its use of that phrase.

No " reversal" has occurred, and no further consideration o' this matter is appropriate.

In sum, the Licensing Board properly determined on remand that there was " reasonable assurance" that the students would be properly evacuated, and that no " fundamental flaw" was shown.

2.

The 1986 Special Needs Survey and Provision for Evacuation of the Special Needs Population In dealing with the survey of special needs evacuees, the Appeal Board did not focus upon whether those with special needs would be

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provided transportation in a evacuation but instead looked to whether an issue had been created of whether a particular survey was flawed.

See l'

ALAB-924 at 16-17.

The Licensing Board focused on whether the regulatory l

requirements (including guidance) had been met, and found that the intervenor's affidavit did not raise any significant issue of fact in L

regard to the adequacy of transportation services for the mobility impaired.

LBP-89-33 at 18, 21-22.

Again " reasonable assurance of l

adequate protective measures" was present and no " fundamental flaw" was shown.

The Appeal Board in considering the 1986 survey of special populations held that the Licensing Board had improperly granted a motion 1

for summary disposition of contentions challenging the adequacy of this l

1 survey (and, in particular, the survey's methodology), and remanded the contentions for further proceedings before the Licensing Board.

ALAB-924 at 14-20.

In addition, the Appeal Board directed the Licensing Board to l

l reexamine whether a sufficient number of emergency vehicles and drivers are available to assist in an emergency, after the Board completes its examination of the adequacy of the 1986 survey, and the Appeal Board deferred its own review of Intervenors' appeals challenging the availability of adequate numbers of drivers and vehicles, pending completion of the Licensing Board's review of this metter. Id. at 19-20.

In LBP-89-33, the Licensing Board provided an extensive explanation as to why its subsequent consideration of the special needs survey does not preclude issuance of an operating license.

LBP-89-33 at 16-22.

The Board explained that the purported errors in the survey (a)did not present significant safety or regulatory considerations requiring

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1 pre-license adjudication; (b) did not undermine the Board's determination that adequate emergeny transportation services would be available; and (c) are of no moment or are amenable to relatively simple and timely correction id at 17.

The Licensing Board recited relevant portions of I

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the record on this matter, observing that the 1986 survey comprised only one part of the State's efforts to identify persons with special needs; that the State had also consulted with various private and public agencies in its -efforts to identify these persons; and that the survey's results are to be updated regularly.

M.

At the same time, the Board observed that SApL and its expert had not advanced any specific factual basis which would tend to establish that significant numbers of persons had been overlooked by the survey;.nd that, instead, they had merely quarreled with the survey's overall methodology, had loaded their affidavit with hedge words, and in essence, had argued that the survey could have been better.

Ld. at 18.

In addition, the Board observed that its prior finding of reasonable assurance that an adequate number of drivers and d

vehicles would be available was unlikely to be disturbed given the State's provision of resources equal tn 150% of the needs identified in 1986, even witii respect to the summer population (which it observed, in any event, is not due to arrive for another eight months).

M. at 19-20.

Upon consideration of these and other factors, the Licensing Board concluded that no significant safety or regulatory issue was presented by the 1986 survey, and that further proceedings on this matter could proceed subsequent to licensing.

These determinations by the Licensing Board demonstrate that the remanded issue of the 1986 survey lacks safety significance.

The

evidentiary record developed before the Board demonstrates that the State of New Hampshire has esteh14shed an acceptable, multi-faceted, and continually updated program for identifying those persons who may require assistance in an emergency, and has identified more than enough resources to provide emergency assistance to such persons.

While SAPL contests whether, as a matter of absolute certainty, all such persons have been identified, its litigation of this matter would essentially involve little more than fine-tuning the results, and is not likely to establish the i

existence of a fundamental flaw in the State's approach to this issue.

In light of these factors, and given the State's constant efforts to identify any other persons who may require assistance (see, eg., Tr. 4387-88),the Licensing Board correctly found that this remanded issue did not undermine its prior finding of reasonable assurance that adequate protective measures can and will be taken in the event of an emergency.

l l

Intervenors' challenge to this finding appears to be premised on the assertion that during the remanded proceedings, they would attempt to demonstrate a significant flaw in the survey's methodology, sufficient to 1

l raise doubt as to the sufficiency of the State's special needs planning basis.

In this regard, however, they fail to confront their failure to do 1

just that with respect to the SPMC's survey, which was fully available for litigation by them.

As Intervenors, themselves, acknowledge, "[t he 1986 l

New Hampshire survey and the 1988 SPMC survey are similar in design and methodology" (Supplement at 47 n.32) -- and while the Board admitted their contentions concerning the SPMC survey, they failed to establish any j

significant flaws in the SPMC's planning basis, see LBP-89-32, at 21 n.12, l

- 27 Intervenors' failure to litigate this issue in f,onnection with the SPMC (despite having had an opportunity to do soi parallels their failure to litigate New Hampshire's 1"6 survey in the NHRERP litigation when --

despite the Board's earlier ruling on summary disposition -- they were presented with the opportunity to do so.

Thus, the Applicants' and State's direct testimony on special needs issues included a lengthy discussion of the 1986 special needs survey and the numbers of persons identified by the State as having special needs (see Applicants' Dir.

No. 2 ff. Tr. 4228, at 8-11).

If the Intervenors had desired, they could have cross-examined these witnesses as to the survey's methodology and reliability, and could also have filed rebuttal testimony seeking to demonstrate the survey's unreliability.

They made no such effort -- and indeed, engaged in only perfunctory questioning about the 1986 survey.

See Tr. 4230, Tr. 4245-48 Tr. 4252-53, Tr. 4285; see also Tr. 4369-71 (Staff).

Thus, even assuming that the Board erred in its ruling on summary disposition, any error which may have resulted from that ruling was rendered harmless upon the Applicants' filing of testimony, which effectively reintroduced this issue into the proceeding. The Appeal Board erred in concluding that the Intervenors suffered hann from the ruling on summary disposition (ALAB-924 at 17-19) and in directing a remand of this matter; indeed, this matter should never have been remanded. E

-28/ Significantly, the State's efforts to identify persons with special needs that included mailing the survey to Hampton area hotels, which might be expected to have guests with special needs, resulted in few such people being identified (Tr. 4245, 4253).

Moreover, the State plans to pick up persons with special needs along pre-designated bus (Footnote continued on next page)

28 Upon remand, Licensing Board properly determined that there was

" reasonable assurance of adequate protective measures" for the special populations including identification of their needs in an emergency, and that no " fundamental flaw" is shown.

3.

Evacuation Time Estimates For Advanced Life Support Patients.

In dealing with the evacuation time estimates for hos91tal patients who might be on life support systems, the Appeal Board did not consider a purported failure in the plan against the standards in 10 C.F.R.

$50.47(a)(1).

The Appeal Board was concerned that the preparation time for these patients had not been factored into the evacuation time estimates. ALAB-924 at 25-27. The Licensing Board, on remand, determined I

that even should preparations for the evacuation of these patients not begin until the evacuation ambulances arrived at the hospitals, it would not affect the evacuation time estimates in any substantial degree.

LBP-89-33 at 24-28.

It further indicated that the evacuation plans should be amended so that preparation, to the extent possible, might start before the ambulances arrived, but that the lack of instructions was readily correctable without a significant revision to the plan and could be verified by the Staff during the post-licensing period.

I_d. at 29.

Again, there was " reasonable assurance of adequate protective measures" (Footnote continued from previous page) routes (Tr. 4230-31), and as the Licensing Board observed, extra buses and drivers have been identified, equal to 150% of the identified special needs persons.

There is simply no reason to believe that the Licensing Roard erred in continuing to find reasonable assurance that the resources identified by the State will be sufficient to provide assistance to the special needs population, regardless of any asserted flaws in the 1986 survey's methodology.

i and no " fundamental flaw "

This is in contrast to the situation in shoreham, CLI-87-12, 26 NRC at 398-99, where no evacuation time estimates existed for hospital patients.

Here, such estimates exist and are reasonably accurate.

In ALAB-924, the Appeal Board was concerned that the length of time required to prepare institutionalized advanced life support (ALS) patients for transit and to load them into evacuation vehicles had not been properly computed, and how those preparation times might affect the evacuation time estimates (ETEs) for the affected institutions.

In particular, the Appeal Board found insufficient support in the record for the Licensing Board's conclusion that these preparation times are already encompassed by ETEs for the general public.

In addition, the Appeal Board concluded that the NHRERP's planning basis for the required number of vehicles to evacuate persons from special facilities had not been fully satisfied, and it required further review of this matter.

ALAB-924 at 24-27. b In LBP-89-33, the licensinq Board noted that the NHRERP included ETE preparation times of about 40 minutes for persons, such as these, having special medical needs; the Board noted this is not substantially different than the 28 - 60 minutes which Intervenors' witness Joan Pilot asserted would be required.

Id. at 24-25.

Further, the Board found an ample 29/ The Appeal Board directed the Licensing Board to ensure that the

~

I NHRERP's commitment to provide sufficient transportation resources l

for the maximum populations of certain special facilities has been satisfied; and it required the NHRERP to be revised to document the availability of non-host community fire department personnel for decontamination and monitoring services.

See ALAB-924 at 27 n.72, 45 n.121, and 70-71, 1

l

)

.' margin of preparation time is afforded by the NHRERP's plan to contact both the affected institutions and emergency vehicle providers at the Alert classification level.

jf. at 26.

Finally, the Board corrected a miscitation in its earlier decision (which may have been responsible for the Appeal Board's concern), clarifying that the NHRERP does indeed provideanadequateanalysisofETEpreparationtimesforALSpatientsJd.

at 24-25 and 28, citing NHRERP Volume 6, pp. 11-22, 11-26 and 11-27. The Licensing Board concluded that when all these provisions which provide ETE analyses as well as the means to develop protective action recommendations for ALS patients are considered, any inconsistency in its prior treatment of this matter evaporates. J_d.at28.

Finally, the Board found that some improvement to the plans could be made by revisions which provide for instructions to special facilities to begin preparing ALS patients for transit upon the issuance of an order to evacuate -- but it reasonably concluded that such revisions were easily made and readily verifiable, and no significant safety issue existed which would warrant a delay in the issuance of an operating license. Jd. at 28-29. E Intervenors mount a confusing attack on the Licensing Board's decision, most of which is difficult to follow.

For instance, they claim that the time required to prepare a " facility" for transit (estimated by the NHRERP to be 40 minutes) is somehow different from the time required 30/ Intervt. ors appear to concede that resolution of this remanded matter may properly be left to the Staff for post-hearing verification, but argue that such verification must take place prior to licensing.

See Supplement at 50.

The Staff, of course, will follow whatever directives the Comission may decide to issue concerning this, and all other, remanded issues.

31 N

to load the patients of that facility onto the evacuation vehicles.

Supplement at 51.

In any event, however, they clearly concede that with adequate staffing at the special facilities, "the total additional time would be between 28 and 60 minutes for any one facility." M.at49n.34.

Significantly, at no time during the lengthy litigation of this issue have Intervenors contended that medical facility staffing would be inadequate; nor is there any basis for their current speculative assertion that staffing may be inadequate, or that facility's ALS patients either could not or would not be prepared for transit simultaneously. See Supplement at 51.

Thus, there was

" reasonable assurance of adequate protective measures" for these patients, no " fundamental flaw" is shown, and there is no basis upon which to vacate the Licensing Board's finding of reasonable assurance that adequate protective measures can and will be implemented.

4 Provisions for Sheltering the Beach Population.

In dealing with provision for sheltering of the beach population, the Appeal Board recognized that the sheltering option would seldom be chosen even in the rare case of an accident requiring off-site protective actions.

ALAB-924 at 63-64, see also LBP-88-32, 11 8.39, 8.60 to 8.69, 8.74 to 8.75; Tr. 10719, 11481-82, 13294, 14075, 14253-54; FEMA testimony, ff. Tr. 13968, at 3-11.

However, Appeal Board did not accept the Licensing Board's conclusion (at t 8.75) that sitting out specific procedures for sheltering was outweighed by the Licensing Board's concern "that the decisionmaker might implement the sheltering option using preset implementing detail without understanding that the potential benefits are not very great and can be readily outweighed by the uncertainties." Based

1 32 on that finding, the Licensing Board concluded, "We doubt that preset sheltering implementation is a practical or conservative approach."

LBP-88-32 at 769.

The Appeal Board rejected these conclusions without addressing whether the NHRERP better provided " reasonable assurance" of protective action with or-without the detail sought.

See ALAB-924 at 64-65.

It

^

instead merely repeated that emergency planning is necessary for beyond design basis accidents (at 65) without looking at the circumstances litigated and determining whether there was " reasonable assurance," and whether a " fundamental flaw" existed where the Licensing Board had factually determined that not having explicit plans for sheltering outweighed the advantage of having such plans. E In addition, the Appeal Board erred in inferring that there was no understanding of the shelter available and how it would be accomplished in case it was necessary.

See ALAB-924 at 66.

Such understanding is present here.

The evidence established that Applicants and the State had performed extensive studies as to the size of the summer beach population, the kind and quantity of shelters in the beach areas (although the shelter study was not incorporated in the plan), and the dose protection afforded by such structures.

The Board concluded, based on the record, that a sufficent number of shelters present in the beach areas.

See LBP-88-32 at it 8.45, 31/ The alleged flaw concerning a lack of maps is not substantial.

The

~

guidance provides for maps of areas providing shelter, not for maps showing each structure where shelter may be found.

NUREG-0654, Criterion !!.V.10.a.

Here maps exist in the emergency plan showing the beach area and the public is instructed to take shelter in structures in the beach area on those maps.

See, eg., NHRERP, Vol.

16 " Maps"; Vol. 18A " Maps."

. 8.82 - 8.83.

The Licensing Board further found that the NHRERP provides instructions concerning when a recommendation should be made to go to this nearby shelter. LBP-88 32 at it 8.38-8.41, 8.43-8.45.

It similarly found procedures had been developed by which to infonn area populations to go to shelters, and that the physical means (loudspeakers) exist to impart this information to the public. Seejd,att8.44.

Thus, with respect to each of the issues remanded, there is

" reasonable assurance of adequate protective measures" and no evidence of a " fundamental flaw" in the plans. E 3_2/ The matters identified on remand are appropriate for post-licensing resolution.

As the Appeal Board emphasized in Waterford, because

"' findings on emergency preparedness are predictive in nature,'"

emergency plans need not be final, but must only be sufficiently developed to permit a board to make a " reasonable-assurance" finding pursuant to i 50.47(a).

Waterford, ALAB-732, 17 NRC at 1103-04 Cf. Supplement at 18-20.

Thus, the Appeal Board affirmed permitting t'IIe staff to verify, inter alia, the installation and testing of sirens and preparation of implementing procedures for the applicant's emergency response plan.

Id. at 1104-07 As there stated, "[Tlhe Commission did not want heDings to be bogged down withlitigationabout[implementingprocedure) details."Id.at1107.

Accord, philadelphia Electric Co.

(Limerick Generati'ng Station, Units 1 and 2), ALAB-808, 21 NRC 1595,1600 (1985) (verification of preparations of local government emergency response plans left to the Staff); Id. ALAB-836, 23 NRC 479, 495 (1986) (verification of changes in traffTc control plans left to the Staff); San Onofre, ALAB-717, 17 NRC 346, 371-76 (1983) (state's failure to complete ingestion pathway planning not significant and 120-day period provided to remedy deficienc driver training)y in estimate of transport dependent and school bus Any need for additional planning or procedures

_may similarly here be left for Staff and FEMA verification.

The ITcensing Board found that:

(1)a sufficient number of school personnel will accompany students in an evacuation whether or not letters of agreement are required; (2) a further survey of the special needs population is not needed in view of the transportation resources available for an evacuation, and the additional means of identifying such persons if

needed, can be left for later verification, see San Onofre, supra; (3) changes in plan procedures (Footnote continued on next page)

r i

l 1

i 34

-s D.

The Relevance of 10 C.F.R. 6 50.47(c)(1)

Section 50.47(c)(1) of the Commission's emergency planning regulations, 10 C.F.R. 9 50.47(c)(1), provides in part:

Failure to meet the applicable standards set forth in paragraph (b) of this section may result in the Comission declining to i

issue an operating license; however, the applicant will have an opportunity to demonstrate to the satisfaction of the Commission that deficiencies in the plans are not significant for the plant in question, that adequate interim compensating actions have been or will be taken promptly, or that there are other compelling reasons to permit plant operations.

As we have discussed, it was unnecessary for the Licensing Board to havediscussed,inLBP-88-33,theprovisionsof10C.F.R.950.47(c)(1)in order to determine that the matters remanded in ALAB-924 did not prevent it from authorizing the issuance of a license for Seabrook.

However, had it weighed the matters rrmanded under the standards in that regulation, the Board similarly could have concluded that none of the remanded matters affected its conclusion. hat there was " reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency" and none were "significant for the plant in question." E/ As (Footnote continued from previous page) for early preparation of, or revisions to ETEs for advanced life support patients would be minor; end (4) planning has been performed for sheltering the beach population which is feasible (see LBP-88-32, 28 NRC at 750-775), and verification of implementing detail may be left for the staff and FEMA, see Waterford, supra.

33/ See Shoreham, CLI-87-12, 26 NRC at 398-99, where the Commission found

~

that the Licensing Board could approve a plan were it to find that deficiencies in the plan were not significant under 10 C.F.R.

I50.47(c)(1).

In that case, it was unclear whether the Licensing (Footnote continued on next page) l~

we have detailed, any judgment as to whether the standards have been met be looked at under a " rule of reason."

The emergency planning must regulations are meant by their terms to be flexible, and it is reasonable assurance, not absolute assurance, that is mandated.

The regulations provide for procedures to meet a range of accidents and do not require Further, minor that every conceivable accident must be provided for.

deficiencies in a plan which do not rise to the level of a fundamental flaw (i.e., violates a planning standard and requires a reconception of the plan) do not prevent licensing.

See Shoreham, CLI-86-13 24 NRC at 29-30; J_d., ALAB-903, 28 NRC at 505-06.

The first matter remanded in ALAB-924 involved whether letters of agreement were needed with teachers.

ALAB-924 at 7-11.

" Letters of agreement" are not explicitly required by the emergency planning regulations.

NUREG-0654, Criterion II.C.4, however, provides:

Each organization shall identify nuclear and other facilities, organizations or individuals which can be relied upon in an to provide assistance.

Such assistance shall be emergency identified and supported by appropriate letters of agreement.

The Licensing Board determined that these letters were not required from school teachers because they are generally not providers of assistance, LBP-89-33 at 9; LBP-88-32, but receive such assistance in an emergency.

28 NRC at 673.

(Footnote continued from previous page)

Board had considered matters under that section, and the Consnission stated that the significance of the deficiencies could be considered under that section on remand.

+

36 -

As the Appeal Board recognized. "the distinction between service

' providers' and ' recipients' is a reasonable one."

ALAB-924 at 8.

The Appeal Board further recognized that "at least as long as students remain on the grounds of the school, school personnel do not become ' providers' of services for which letters of agreement would be necessary." y,at9.

The question is only one of whether teachers become providers of service if they choose to accompany the children on evacuation buses. M. They, however, would accompany the students as volunteers and it is not supposed that each teacher would accompany students or would be relied upon in an emergency.

LBP-89-33 at 10-11.

Moreover, teachers who do volunteer to remain with the students in an emergency will do so as employees of the school system, which as a unit, is the recipient of evacuation services.

M. at 10-11.

Thus, teachers are not suppliers but recipients of evacuation services. M.

The Licensing Board concluded, based upon the evidence, that regardless of whether these letters of agreement are required, a sufficient number of teachers would accompany school children in an evacuation so as not to adversely affect their evacuation.

See LBP-88-32, it 7.1-7.22, 7.59, 28 NRC at 728-732, 740-44; LBP-89-33 at 7-12.

The Appeal Board also stated that " citations support the proposition that school personnel do not abandon their role as student custodian in the time of emergency."

ALAB-924 at 10. EI Thus, the issue of school teacher abandonment of school children in an emergency is not "significant 3C/ Where a licensing board and appeal board have decided factual matters

~~

similarly),6 2.786(b (4)(ii).

no Commissinn review may be sought.

10 C.F.R.

for the plant in question," and the lack of letters of agreement with school teachers is not an impediment to licensing, See 10 C.F.R.

i50.47(c)(1).

The second matter remanded in ALAB-924 was the need for a closer evaluation of the sufficiency of a special needs survey to see if it adequately identified those in need of special assistance in an emergency.

ALAB-924 at 14-19.

Neither NRC emergency planning regulations nor the guidance in NUREG-0654 explicitly require such a survey. The Appeal Board cited NUREG-0654, Criterion II.J.10.d. as a basis for this requirement.

ALAB-924 at 14.

That provision provides that as part of plans to implement protective measures for the plume exposure pathway there be 1

"[M]eans for protecting those persons whose mobility may be impaired due to such factors as institutional nr other confinement."

NUREG-0654, Criterion II.J.10.d.

Thus, no requirement for a survey or one conforming to any methodology is shown to exist, and no particular regulation or guidance is shown to have been violated.

The requirement is that there be "Means for protecting" the mobility impaired.

It has been determined that there is more than adequate transportation for the mobility impaired (LBP-89-33 at 19-20; LBP-88-32, 28 NRC at 609; App. Dir. No. 2, ff. Tr. 4428, at 10), that the survey l

involved here was only a part of a broader approach to preidentifying the mobility impaired (LBP-89-33 at 20-?1), and that means were provided for those with special needs who had not been preidentified, to make their needs known in the event of an emergency.

LBP-89-33 at 21; see, e.g.,

App.

Dir.,

ff.

Tr. 422P, at 9-10, 12-15, 25;

NHRERP, Vol. 1 Il 2.6.11a, 11b.

Further, as the Licensing Board determined, the issue

i sought to be raised was not whether the survey was adequate, but whether it might be improved.

LDP-89-33 at 21-22.

The Applicants had committed to doing further work to identify additional members of the special need population. LBP-89-33 at 19. Again, no issue of " reasonable assurance of adequate protective measures" was raised nor was a " fundamental flaw" shown that required reconception of the plan.

There is no showing that protective measures have not been developed for those in the plume exposure zone or that such measures do not include protection of "those whose mobility may be impaired."

As the Licensing Board concluded upon remand, whatever the errors in the survey, they are "not 50 large as to render the existing excess transportation resources

[for mobility impaired persons] inadequate."

LBP-89-33 at 21.

No basis exists for concluding that any problem in the survey presages a

" fundamental flaw" in the emergency plan, prevents a

finding of

" reasonable assurance" or is "significant for the plant in question." See CLI-86-13, supra; 10 C.F.R. I 50.47(a), (c)(1).

The third matter remanded involved the failure to factor in the time needed to prepare life support patients for evacuation in case that was necessary in a radiological emergency.

ALAB-924 at 24-27.

The emergency planning regulations require that a range of protective actions be developed for those in the plume exposure EPZ.

10 C.F.R. I 50.47(b)(10).

The guidance provides that time estimates for evacuation be developed and that they be done for special populations "on an institution-by-institution basis."

NUREG-0654, Criterion II.V.8; i.d_.

Appendix 4, S.C.

Upon remand, the Board properly concluded that the o

evacuation time estimates for these facilities included sufficient time

s for the preparation of patients for transportation, as well as travel times, and it further found that plans could easily be revised to make it plain that patients should, to the extent possible, be prepared for evacuation before evacuation ambulances arrive in order to shorten evacuation times.

LBP-88-33 at 24-29.

As the Board noted, this revision of NHRERP is not significant and could easily be accomplished and verified.

J_d. at 29.

Again, there is " reasonable assurance" of protective actions and there is no " fundamental flaw" requiring a reconception of the emergency plans.

Any deficiency in the plan was resolved.

There are no de#iciencies in the plan in regard to these patients. E The fourth matter involved the need for more explicit procedures for the shelterir;. of the beach population in the event that it would become necessary in a radiological emergency.

The regulations of the Commission require that emergency plans meet the following standard:

"A range of protective actions have been developed for the plume exposure pathway of the EPZ for emergency workers and the public."

10 C.F.R. 6 50.47(b)(10).

The NHRERP sets out this range of actions from closing beaches at an Alert stage of an emergency (far in advance of the general emergency level where protective actions for the public are usually recommended), through evacuation procedures, with a recognition that there is a small group of

-35/ Intervenors assume, without basis, that patients would not be simultaneously prepared 'or evacuation.

Supplement at 51.

No basis is shown for this conjecture.

Further, even if the ETEs were wrong i

by a half hour for these patients, the ETEs could be easily amended to provide such time subject to verification by the Staff, and no

" fundamental flaw" in the plan is shown requiring it to be reconceived. See Supplement at 54.

. sTT '

accidents where sheltering may be the primary protective action.

See LBP-88-32, it 8.15 to 8.32, 8.36 to 8.42, 28 NRC at 753-60. Appendix E to 10 C.F.R. Part 50 does not mention any need to consider sheltering -- only that the time to take various protective actions be analyzed.

It is stated, as the Appeal Board recognized in ALAB-924 (at 66), that there shall be 7.n analysis of the times for evacuation and other protective actions in the EPZ.

In fact, such analysis exists here as the time estimates for evacuation are known.

See LBP-88-32,119.130, 28 NRC at 803-04

Further, there is an understanding of the shelter available, particularly in the beach area, where the Licensing Board found about three times as much shelter available as is needed.

See LBP-88-32, it 8.44 to 8.45, 8.82 to 8.85, 28 NRC at 761-62, 771-72; cf. ALAB-924 at 66.

Further, there is a full understanding of when shelter might be utilized.

See ALAB-924 at 59; LBP-88-32, it 8.23, 8.36 to 8.38, 8.44 to 8.45, 8.67, 28 NRC at 755, 758-59, 761-62, 767.

Available shalter in the beach areas has been identified and designated.

ALAB-924 at 59-60; LBP-88-32, it 8.78-8.85, 28 NRC 770-72. E The record supports the 36/ To the extent ALAB-924, at 66-67, indicates that individual dwellings for shelter must be identified the Appeal Board points to no regulation or guidance in support of such statements.

The maps referred to in the guidance are maps of areas of sheltering not maps of individual structures.

NUREG-0654, t II.V.10.a.

Indeed, where the instructions are to seek shelter in structures along or near the beach (ALAB-924, at 59), no purpose would be served in identifying particular buildings.

Although the Appeal Board could not see any reasons why shelter should be identified for those without transportation, in contrast to those with transportation (Id. at 63, 67), it is obvious that the location of emergency bus stopslad to be j

identified.

See LBP-89-33 at 32.

[

}

- 41 Licensing Board's decision that (1) shelter was available, (2) shelter was identified, and (3) procedures were to be prepared which specified when r

and how the public was to be given notice to utilize those shelters. The Appeal Board wrongly reversed the Licensing Board on a matter where the record supported the conclusions of the Licensing Board that sheltering was correctly considered and handled in the NHRERP. E Moreover, the Licensing Board in LBP-88-32, 11 8.75-8.77, had particularly indicated why any " deficiencies in the plans [in regard to procedures for implementino of the sheltering option 1 are not significant."

10 C.F.R. 5 50.47(c)(1).

The Licensing Board stated:

8.75.

After reviewing the testimony on the reasons why sheltering is a very low-probability option, particularly Mr.

Keller's explanation of the many conditions that must line up before sheltering can be predicted to save doses, the Board is concerned that forcing implementation into the NHRERP would be a mistake.

The greatest risk is that the decisionmaker might implement the sheltering option using preset implementing detail without understanding that the potential benefits are not very great and can be readily outweighed by the uncertainties.

Certainly, without knowing what type of implementing detail might be included in the NHRERP, we cannot require implementa-tion as a condition of approval as NECNP recommends.

Nor would cluttering the NHRERP with unnecessary detail improve it.

37/ The analogy the Appeal Board draws to the treatment of " arrangements

. for contaminated injured individuals" of concern in GUARD, 753 F.2d at 1149, and the situation here is unfounded.

See ALIPfl4 at 66 n.188.

The sheltering ootion is considered in plans for Seabrook, advice will be given as to when the option might be utilized, means are identified as to when and how the public is to be informed to utilize this option, and no showing has been made of a direct violation of any mandatory requirement as existed in the GUARD case.

See LBP-88-32, R.23, 8.36-8.45, 8.67, 8.78-8.85, ?8 NRC at 755, 7 W-32, 767, 770-72.

In GUARD, the court emphazied that i

although regulatory requirements had to be followed, the NRC has great discretion in doing so.

753 F.2d at 1146.

The Appeal Board, although citing regulations and guidance, identified none that specifically imposed the requirements it here creates.

See ALAB-924 at 66-67.

l l

l

42

't 8.76.

We doubt that preset sheltering implementation is a practical or conservative approach.

There are-already provisions for flexible EBS messages to the beach visitors.

In any event, the absence of implementing detail for sheltering in the NHRERP is not so material as to foreclose a finding by the Board that the NHRERP provides reasonable assurance that adequate protective measures will be taken in the event of a radiological emergency at Seabrock. The Board is confident that i

FEMA and the State of New Hampshire will appropriately resolve any differences on the point upon reviewing the Board's concerns.

We are reinforced in this view by the observation-that New Hampshire energency planning officials and in particular, Mr. Richard H. Strome, the Director of the State's Office of Emergency Management, were in virtually constant attendance during the long hearing on these issues.

New Hampshire officials testified extensively on the NHRERP.

They demonstrated a thorough understanding of the plan, the NRC and FEMA 's emergency. planning regulations, and the relevant technical considerations.

We. believe that the State of New Hampshire will take advantage of any reasonably available opportunity to improve and to maintain the NHRERP and to ensure its implementability.

We need not tell them how to implement further the plan's sheltering provisions.

S.77.

Moreover, the Board is mindful of the guidance of NUREG-0654 that planning for particular accidents or accident sequences is not required in that "[n)o specific accident sequence should be isolated as the one for which to plan, because each accident could have different consequences, both in degree and nature." _d. at 6.

LBP-88-32, if 8.75 to 8.77, 28 NRC at 769-70.

'The Appeal Board never came to grips with the Licensing Board's findings that, considering the limited benefit of the sheltering option and the risk of greater radiological harm which could be created by inclusion of those procedures, it was better not to include those matters in the plan. 3_8/ The Appeal Board stated that the probability of need for such plans was irrelevant and that the Commission regulations " supported

-38/ See ALAB-924 at 64.

The Appeal Board states it is better to have these details in the plan so they can be considered by the emergency response officials, but never faces whether this creates a likelihood of more harm than good.

{-

p P

43 evacuation preplanning rather than an ad hoc response at the time of the emergency." EI ALAB-924, at 61-62.

Thus the Appeal Board did not even consider whether the failure of the plans to have the details it wished was significant, whether it affected " reasonable assurance that adequate protective measures" are in place, or whether the failure to have such planning was a " fundamental flaw." The Licensing Board found inclusion of general sheltering procedures would likely cause more harm than good, plainly any deficiencies that existed because of that omission "are not significant for the plant in question."

10 C.F.R. 6 50.47(c)(1). E E.

The Pendency of the Question Certified in ALAB-922 The Intervenors cite the question certified by the Appeal Board to the Commission in ALAB-922, as a

reason to stay the immediate effectiveness of LBP-89-32.

Supplement at 73-74.

That question concerned y/ But see San Onofre, CLI-83-10; Diablo Canyon, CLI-84-12; Shoreham, CLI-86-13.

These cases indicate that planning is for a spectrum of accidents and there need not be preplanning for every possible accident.

The Appeal Board relies on ALAB-832, affirmed in part, CLI-87-12, for its approach to this issue.

See ALAB-924 at 62-63.

However, to the extent ALAB-832 might be consistent with the cited Commission cases, it is distinguishable in that there was no finding there that the incorporation of the procedure would do more harm than good, as there is here.

40/ Intervenors also claim they are entitled to additional hearings in

'~

regard to the application of 10 C.F.R. 6 50.47(c)(1_) and whether the

" deficiencies" in the plan are significant for the plant in question.

Supplement at 70.

Litigation of whether plan " deficiencies" were significant lasted from October 1987 to June 1988 on the New Hampshire plan (LBP-88-32, 28 NRC at 670), and for 58 days on Massachusetts plan and the off-site exercise (LBP-89-32 at 7).

The claim that they did not know that the significance of deficiencies was being litigated or that 10 C.F.R. 6 50.47(c)(1) was pertinent, especially in view of litigation on the utility-authored Massachusetts plan, is specious.

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whether testimony on - radiation dose reductions and consequences in the event of certain accidents at a particular plant is admissible as relevant to a determination there is " reasonable assurance that adequate protective measures can and will be taken."

The Comission, in providing that it will consider all motions to vacate or for a stay of LBP-89-32, recognized i

that this issue was before it'.

See November 16 Order.

This issue has been fully briefed by the parties, and the Commission, if it believes the i

determination of this question is necessary for a decision on immediate l

effectivenes;, is in a position to decide this issue.

The NRC Staff, in its brief on the issue, set out its position that l

i the question certified should be answered in the negative.

It is the Staff's position that it is relatively clear, under the provisions of 10 C.F.R. 6 50.47, the regulation's administrative history and prior 3

interpretations of the provision by the Commission, that the testimony 1

concerning dose consequences may not be admitted.

For this reason, the Staff believes that the pendency of the certified question does not prevent the Commission from completing its immediate effectiveness review. S/

F.

The Scope Contentions Do Not Justify Revocation Intervenors state that, "No extended analysis of the disposition of Intervenors' scope contentions is necessary," and state that they had an

-41/ The certification of the question alone did not, as Intervenors recognize, at Supplement 74, oust the jurisdiction of the Board.

At the time LBP-89-32 issued, the Licensing Board's interpretation of Commission regulations continued and was controlling in this proceeding.

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absolute right' to have the record reopened to consider these matters, regardless of the Commission's regulations governing the reopening of the record.

Supplement at 80-83.

Intervenors there contend that the Licensing-Board determined their contentions did not meet the standards for reopening the record.

However, the Licensing Board-did not justify its actions on the basis of a failure to meet the reopening standard in 10 C.F.R.

i 2.734.

Id.

Rather, the Licensing Board found that tha proffered contentions could ont be admitted because they failed to allege that the scope of the 1989 on-site exercise was not comprehensive enough to show whether the on-site plan was "fondamentally flawed._" LBP-89-33 at 38-39, citing CLI-89-19, slip op. at n.5.

The Licensing Board stated:

E or the proposition The Intervenors accurately cite ALAB-900 f

that "the exercise must be comprehensive enough to permit a meaningful test and evaluation of the emergency plan to ascertain if that plan is fundamentally flawed"...

However, Intervenors do not deliver on the promise implicit in their citation to ALAB-900.

Nowhere do the motions or the respective contentions allege that the onsite exercise was insufficiently comprehensive to have revealed fundamental flaws, nor do they point to any non-exercised aspect of the onsite emergency plan which, in their view, had the capacity to reveal fundamental flaws if that aspect had been exercised.

Ld. at 38-39 (citations omitted). 43/

Thus, the Licensing Board has provided a completely separate and proper justification for rejecting the 42/ Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),

ALAB-900, 28 NRC 275, 285-87 (1988).

--43/ See also NRC Staff Response to Intervenors' Motion to Admit toiitention on September 27, 1989 Exercise, October 16, 1989, at 9-11, o

l 13-14; NRC Staff Response to Intervenors' Second Motion to Admit Contentions on September 27, 1989

Exercise, October 27,

1989, at 9-12, 1

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proffered contentions, a failure to allege any deficiencies in the scope of the exercise which could reveal a fundamental flaw. 44/

The cases cited by Intervenors EI support the position that the Commissien. may limit exercise litigation by means of the " fundamental' flaw" standard.

In UCS, the Court referred to the Commission's argument that an " exercise is only relevant to its licensing decision to the extent it indicates that emergency preparedness plans are fundamentally flawed, and is not relevant as to minor or ad hoc problems occurring on exercise day."

735 F.2d at 1448.

The Court ruled:

"Today, we in no way restrict the Commission's authority to adopt this as a substantive licensing standard "

I_d,. (footnote omitted).

That specific ruling was quoted and upheld by the full court on rehearing en banc in Mothers for Peace, 789 F.2d26,30(1986).

Intervenors' contentions wert.

properly rejected under the

" fundamental flaw" standard, Intervenors have not countered the Board's determination, and no basis is shown on which to vacate or revoke the Licensing Board's authorization.

G.

Other Motions to Reopen Do Not Justify Revocation of License Issuance The various motions to reopen do not raise safety significant issues which would affect the outcome in the proceeding and do not show 44/ The Licensing Board in LBP-89-38 (Slip Opinion, December 11, 1989) more fully explicated its reasons for rejecting Intervenors' attempt to litigate the 1989 onsite exercise.

-45/ San Luis Obispo Mothers for Peace v. NRC, 751 F.2d

1287, 1312, 1316-17 (D.C. Cir. 1984)

(" Mothers for Peace"); Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984) ("UCS"),

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fundamental flaws in Seabrook Emergency Plans.

As the Licensing Board concluded in LBP-89-28, 30 NRC (Oct. 12, 1989),

the natural circulation test contention did not demonstrate any significant issue that' would have been likely to have produced - a different result in' the licensing of Seabrook and thus no cause to reopen the hearing was shown.

LBP-89-28 at 41-44, 51-55. Nor were the prerequisites for new contentions satisfied in regard to this matter.

Id_. at 44-45.

Similarly, the last minute attempt to reopen the record to admit an EBS contention, as the Staff has previously shown, does not raise a significant safety issue that could affect license issuance because even-the affidavits submitted by Intervenors recognize that the EBS system for Seabrook' could be timely activated by contacting State officials or the lead EBS station in Massachusetts. E I

-46/ NRC Staff Response to Intervenors' Motion to Admit a Late-Filed Contention and Reopened the Record on the SPMC Based Upon the Withdrawal of the Massachusetts E.B.S. Network and WCGY, November 20, 1989, at 3-10.

Such action would be consistent with the best efforts presumption under the realism rule.

See Long Island Lighting Co.

(ShorehamNuclearPowerStation, Unit 1),CLI-86-13,24HRC22(1986)

(realism doctrine); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-911, 29 NRC 247, 251-55 (1989) (EBS can be activated by licensee contacting the state system directly).

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IV. CONCLUSION For the foregoing reasons, the Staff believes the Commission should deny the Intervenors' motion to vacate or revoke the license authorization N

in LBP-89-32 as.the motion and Supplement fail to provide a basis to grant the' relief sought.

Respectfully submitted, Mv I A

Edwin. Reis Deputy Assistant General Counsel for Reactor Licensing Mit i Yo'ung Coun for NRC Staff Richard G. Bachmann Counsel for NRC Staff Dated at Rockville, Maryland this 12th day of December, 1989 l

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APPENDIX NRC STAFF RESPONSE TO MASSACHUSETTS ATTORNEY GENERAL'S COMMENTS ON THE IMMEDIATE EFFECTIVEKESS ISSVE-a.

Comments on the Emergency Broadcast System (EBS) Contention-1 The Massachusetts Attorney General (MASSAG) asserts that the lack of a mechanism by which to provide notification of a radiological emergency to the populace of the EPZ poses a significant safety issue that should be resolved prior to the issuance of any operating license. MASSAG ignores

.1 the advisory opinion of the Appeal Board that the existence of a state EBS is sufficient to show complit.nce with NRC requirements.

Long Island i

Lightino Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-911, 28 NRC 247,254-255(1989). While WCGY may have withdrawn from participation in the SPMC, there is no evidence that it has withdrawn from the state EBS network.

As noted in the Staff filings with regard to this issue, the Plan dces provide procedures for activation of the EBS through state officials or t,y calling WROR (the state CPCS-1 EBS station) directly. 1/ Hence, the assertion in footncte 1 that 8 minute activction of the downstream EBS would take place after the EBS messege is provided to WR0R is largely irrelevant to a determination that the system meets the NRC regulations.

1/

NRC Staff Response to Intervenors' Motion to Admit a late Filed i

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Centention and Reopen the Record or the SPMC Based upon the With-e l

drawal cf the Massachusetts EBS Network and WCGY, November 20, 1989.

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Comments cn the Partial Initial Decisin (PID) of the Seabrook Plan for Massachusetts Communities (SFNC) and the 1988 FEMA Graded Exercise (LBP-89-32, slip op. November 9,1989)

MASSAG asserts that issuance of an operating license notwithstanding the remanded issues in ALAB-5E4 is a matter that affects the public interest. This issue is addressed in the response to Intervenors Supplemental Motion and Memorandum in Support of the November 13 Motion to Revoke and Vacate the hovember 9 License Authorization and need not be acort.ssed here. However, MASSAG asserts that LBP-69-32 is replete with erroneous rulings en the adequacy of the SPMC and the public interest raar. dates a full power license not issue while this is on appeal. This is so, they say, because there are additional risks of accidents attendant to the first few months of operation of a nuclear facility and the start up phase peses a danger that the plan will be calleo into use before it is L

reviewed.

Further, MASSAG miscites CLI-89-08 for this proposition.

CLI-89-08 notec th6t while there is a somewhat increased risk of operator error in the early pheses of operation when operators are less experienced, the I.

"slightly higher risks" due to the relative inexperience of cperators are "significantly outweighed" by lower risks at low power operation so as not to bar issuance of a low power license.

CLI-69-08 at 9.

L MASSAG simply disagrees with virtually all of the Board findings in LBP-89-32, but throughout much of his commer.ts, fails to cite any record i

support for his contention that the Board erred. While these matters are more apprcpriate to a brief on appeal of LBP-89-32, notice of which has beu iiled by EASSAG, none of them sufficiently raise a significant safety

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issue so as to preclude issuance of a license. Nevertheless, each issue-raised by MASSAG is addresseo seriatim.

1.

Evacuation Time Estimates (ETEs)

MASSAG asserts the Board is in error in not requiring separate ETEs for the six comunities in Massachusetts and the comunities closer to the Seabrook plant in hew Hampshire. This is so, according to MASSAG, since there is no integrated Protective Action Decisionmaking provided under the SPMC. MASSAG is wrong. The Board specifically pointed out that no witness f rcm the Massachusetts Civil Defense Agency was chiled to testify to this need for separate ETEs (PID at 2.24, n.6, p.46), and the evidence of record supports the finding by the Board that the ETEs in the SPMC adequately present scenarios upon which Massachusetts officials can appropriately make protective action recomendations. (PID 2.25, p. 46).

Further, MASSAG selectively quotes from the PID without noting the Board's finding that the number of ETEs generated are sufficient and limited to a reasonable number so as to be useable by a decisionmaker quickly and not be cverly cumbersome. The Board was correct that it is unrealistic to postulate an evacuation where liassachusetts communities would be evacuated cnd New Hampshire comunities closer to Seabrook would not.

PID at 2.26,

p. 47.

2.

Traffic Control Plans MASSAG asserts that since the role of traffic guides is to facilitate the traffic flow and under a fast-breaking scenario such staffing will be delayed, the ETEs are flawed. However, the ETEs are establisheo to cover

a range of possibilities for decisior.n.akers, as required by NUREG-0654, Appendi), 4, not solely for fast-breaking scenarios.

It is recognized that in a fast-breaking scenario, while staffing of TCP's may be delayed, and thus activation of these pcsts may be potentially more difficult, the existence of congestion would not preclude activation. PID at 3.74, pp.

153-154. Under most of the scenarios, staffing of the TCP's can be accomplished timely. PID 3.67-3.75, pp. 150-154. Thus, MASSAG's concern over a singular scenario (a fast-breaking accident) is not a sufficient basis to find the ETEs fundamentally tiewed.

3.

Traffic Guides and 12 hour1.388889e-4 days 0.00333 hours 1.984127e-5 weeks 4.566e-6 months shift MASSAG asserts that the Board erred in finding that state and local officials would aid traffic guides during an evacuation because there is no recera support for such an assuniption. PID at 3.84, p. 157. This is so because hASSAG failed to provide any witness from the State to confirm or deny this assumption.

However, the Board was correct in its reliance en the best efforts response of state and local officials in conformance with the regulations.

10 C.F.R. 50.47 (c)(1)(iii); Connonwealth of Massachusettsv.U.L,856F.2d378,303(1stCir.1988).

4.

Identification of road impediments MASSAG asserts the Boerd erred in finding that state and local police would aid in identification and reporting of road impediments absent any record support. Once again, MASSAG ignores the Board's correct reliance on the best efforts response of state and local officials, and the Board's ruling that a "particular accident sequence need not be isolated from all

's others for ensergency traffic management purposes." LBP-88-32, 28 NRC at

795; PID 3.107 at p. 167. MASSAG also ignores the Board's finding regarding other means for identifying such impediments.

PID 3.106 at p.

166-167.

5.

One Shift Staffing for evacuation specific personnel MASSAG asserts the Board found that some evacuation specific personnel (route guides, dosimetry record keepers and contract personnel for vehicle drivers and road crews) may be on shift for longer than 12 l

-hours. However, what the Board actually found was that in some limited scenarios it is possible that some of these personnel might on be shift as much as (not icnger than) 12 hours1.388889e-4 days 0.00333 hours 1.984127e-5 weeks 4.566e-6 months .

PID 5.13 pp. 195-196. The Beard

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1 found this acceptable since thoy are already scheduled for a 12 hour1.388889e-4 days 0.00333 hours 1.984127e-5 weeks 4.566e-6 months shift, and MASSAG offered no testimony regarding personnel staffing which contradicted the rebuttable presumption of adequacy arising from FEMA's evaluation.

PID S.14 at p. 196. Thus the. Board was correct and MASSAG cannct prevail on this issue having failed himself to provide any record suppert for his assertions at this juncture.

6.

Training for Traffic Guides MASSAG asserts that only one shift of traffic guides undergoes

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training and thus the program for traffic guides is deficient.

However, MASSAG ignores the Board's findings regarding second-shift personnel.

These personnel are drawn from the Yankee Mutual Aid Program, and those personnel already have preidentified skills and knowledge of radiation monitoring equipment and other knowledge necessary to be able to perform

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su designated tasks. PID 5.12 at p. 194-195. As the Board fcund, actual-experience is of limited utility for traffic guides, as diagrams give procedural direction and the task is not that difficult. PID 5.40 p. 206.

Secono shift traffic guides will receive training and orientation before they are dispatched to the field, and the first shift traffic guide will brief the second shift guioe on the existing situation and procedures to be followed. PID 5.10 at 193-194 Thus, RASSAG's assertion that second

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shift traffic guides have no training to perform their tasks is not supported by the reccrd.

7.

Rcute Guides to accompany vans, stationwagons or ambulance drivers MASSAG asserts there is more need for route guides on vans, anibu-lances and stationwagons thbn on buses since these vehicles do not follow prescribed rcutes. MASSAG correctly notes there is a distinction between these vehicles and buses:

buses follow specific routes to assigned l

destinations, whereas vans and ambulances are not required to follow a i

L preaetermined route to arrive at a specified destination. Thus, there is no specific route to guide them on, unlike buses where route guides wuuld be able to aid the driver in a specific route.

PID 5.43 at p. 206-207.

MASSAG provides no record support for his speculation on this point.

8.

No Sheltering Option for the beach population in Mass EPZ MASSAG asserts that a sheltering option does not exist for the beach population in the Massachusetts EPZ.

First of all, this issue was not raised as a separate contention in the proceeding regarding the SPMC.

Rather, this issue, sheltering of the beach population in the Seabrook w-

7..

l EPZ, was addressed in LBP-88-32 in detail. LBP-88-32, 28 NRC 667..

s 758-776. Furth'er, the SPMC does recognize a sheltering option. App. Exh.

I 42, SPMC 6 3.5.3.

9.

PARS are inadequate MASSAG asserts that the criteria on which Protective Action RecommerdLtions (FARS) are based are flawed.

Presumably, MASSAG is referring to his contention that the ETE's are inacequate. This was y<

addressed supra and need not be answered here. MASSAG also asserts that the assumptions underlyin5 the 0.9 dose reduction factor for sheltering l

set forth in the SPMC is fallacious. This is so, according to MASSAG, l

because this figure relates to the housing stock found most commonly in l

the beach dreas and not the housing stock inhabited by the general 1

Massachusetts population. However, as explained by FEMA,- the 0.9 dose reduction factor is appropriate because this is the most conservative figure, and is based on the assumption that the housing stock found most I

commcr.ly in the beach areas of the EPZ are wooden structures with no basements. PID et 6.26 p. 222.

PARS must be based on dose projections for the public in general, not on dose projections for occupants of various individual buildings.

Id. Further, MASSAG offered no evidence to support the contention that the Massachusetts gensral housing stock is not that most commonly found in the Massachusetts portions of the EPZ.

10.

Emergency Radio Network FASSAG asserts that range and overload problems in the emergency communications network ware " side stepped" by the Board.

In fact, these

A issues were cic1t with substantially by the Board. See PID-2.7.17 -7.55, pp. 244-257. Since.the FEMA graded exercise, Applicants have applied for a fifth radio channel to deal with the range and overload problems encountered during the exercise. PID 7.31 at pp. 248-249. MASSAG miscite.t the recora in his assertion that the Board found the system adequate since it "will seldom need to be used." P,ather, the Board was referring to the issue of a lateral versus a vertical communications structure and was citing the testimony that OR0 field personnel execute preplanned actions and have a limited need to communicate laterally with other field werkers.

PID 7.S6 at p. 250.

Again, MASSAG's complaint is that the Board chose not to rely on its witness, Mr. Cohn, and instead found this testin.ony effectively rebutted by Applicants' panel on the 4: sue. This is not error by the Board, and its findings are acequately

-supported on the record in this proceeding.

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11. Special Needs Survey MASSAG asserts that his witness, Dr. Guy Daines, an uncontroverted expert in the area, provided unrebutted testimony. This claim is utterly unsupported by the record. See PID 8.10-8.21, pp. 285-287. For example, MASSAG deserts that Dr. Daines indicated that a planning basis of between 4.3 and 57 cf the population is valio for determining the number of speciel needs individuals whc will need assistance. Yet his own survey for the Pine 11ts County office, of which he is the Director, yieldeo only 4/10ths of one percent (0.004) of the population, while Applicants' survey identifico 1 percent (0.01) of the population for the Seabrook EPZ. PID 4

6.20, p. 286.

1

Further, while tho Board noted Applicants' survey failed to identify any non-institutionalized emotionally or mentally disturbed people in the EPZ as needing assistance, there was no evidence ~in the record to even suggest, much less establish, that more than a 5_e minimus number of such 1

individuals reside in-the EPZ. PID 8.21, p. 287. The Board oid, however, point out it expects Applicants to renew their efforts to refine their techniques to provide greater confidence in their survey's lack of identifying these individuals.

Id, MASSAG also complains that the Board used a "best efforts" standaro regarding Applicants' attempt to keep Appendix M (the list of special neecs facilities) current.

However, MASSAG ignores the findings in 8.23 wherein the Board applied that standard, not to the Applicants, but to the state end local government in line with the Commission's regulations.

Specifically, the Board pointed out that the imperfect and incomplete information reflects both "the non-currency of any data gathering techniques used for future planning, and documents the effects of state and' local government decisions abdicating their own emergency planning responsibilities." PID 8.23 at p. 288. Thus the Board correctly declined to find the process through which Applicants have identified such facilities inadequate under the Commission's regulations. PID 8.23 at p.

2.88. U

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MASSAG ignores the Board's note that while Ms. Moriearty of the Massachusetts Office of Hancicapped Affairs testified that the methodology used by her office to evaluate needs and plan interven-tions for special needs populations would have been useful and she wccio make that available to Applicants, she testified that informa-(

(Footnote continuec on next page)

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12. Contacting Speciel facilities

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l MASSAG asserts the Boaro could not ignore the irrefutable fact that the EPPC does not contain provisions for contacting elderly housing projects. MASSAG is wrong. The SPMC provides for making transportation available to such facilities, and the notification system in the plan would alert them through the sirens and public information brochures and LBS breedcasts which will have a number for these facilities to call to i

request assistance.

PID 8.30-31 pp. 292-293; 8.36, p. 294-295; 8.51, p.

304. The Board is correct, nothing more is renuired beyond continuing efforts to list elderly disabled for special resource availability and l

centinuing efforte. to refine f acility-specific contact n.ethods. Emergency Planning findings are inherently " predictive in nature." 47 Fed. Reg. 30252,30235(July 13,1963).

As to overload, while MASSAG asserts that it will take three times as long to notify special facilities as schocls, since Appencix M lists more l

facilities than schools, the Board pointed out MASSAG failed to provide i

any basis upon which it could translate ano evaluate numbers of calls into units of time.

PID 8.34, p. 194. MASSAG complains that the Board has left it to the staff to monitor Applicants' compliance with the Board ruling requiring modification of the SPMC to insure timely notification of (Footnote continued from previous page) i tion her office had gathered regarding the handicapped woulo not be p

maos a nilable, unless requested by the handicappeo themselves.

PID at p. 289, note 45. Thus, the Board points out an example of the results stenir.ing from the lack of state and local participation in emergency planning.

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special facilities (P1D 8.34-35, pp. 293-294). However, this is precise $y i

the sort of issue that is appropriate to staff resolution.

i Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3),

ALA5-732,17 NRC 1076,1103-05 (1983), affirming, LBP-82-100,16 NRC 1550, 1563,1576(1c82).

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13. Ambulances for the ContaminatEc Injured MASSAG asserts the SPMC does nct provide for ambulances to transport the contaminetec injured. However, the Ecaro in this instance'was referring to the transport of individuals from reception centers outside the EPZ.

PID 8.58-6.61, pp. 307-309. As the Board found, while moving people from the Reception Centers to medical facilities will be accom-plished by ambulanccs not under agreement from the companies normally serving the host communities, common sense knowleoge of the dedication of ambulance personnel, the fact that the companies are in the regular business of providing ambulence services, and the reasonable expectation thtt the Governor would use his emergency powers to alert them provides reasonable ecsurance the service would be provided.

In addition, the pool of surplus, unused and returning SPMC committed ambulances will also be aveilable to meet this potential need. PID 8.60, p. 309, 14 Staffing for Nursing Hcmes MASSAG asserts the Board erred in finding that nursing homes and other special facilities would have adequate staff to effectuate ano evacuation, despite reduced staffing levels at night. The Board correctly relied on the Applicants' testimony that in general nursing homes have

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312-313. MA5 SAG asserts that reliance on this general finoing regarding nursing homes in other parts of the country is not sufficient to find nursing hcmes in the EPZ have the same sort of provisions. However, MASSAG presented no witness and no evidence to support the proposition that nursinD hcmes in Massachusetts are somehow deficient in this regard, unlike cthers throughout the ccuntry. Therefore, the Board had no evidence to contraoict the Applicants' testimony.

Further, if events precluded the call in of sdditional facility staff, request!. for assistance could be made to the ORO who would provide aeditionel personnel.

PID 8.70, p. 313-314. MASSAG incorrectly cites the record when he states "only approximately 80 ORO personnel (33 surplus route guides and 48 dosimetry recora keepers)" are available to lend such assistance.

In fact, an additional 60 beside the route guice.s and dosin,etry keepers people can be made available from the OR0 resource pool to assist special facilities. J_d.

15. Teachers as service providers MASSAG asserts the Board erred in making the same ruling in LBP-89-32 and is LBO-88-32 regarding teachers and special facility workers as service providers, an issue remanded by the Appeal Board in ALAB-924. The Licensing Board has clearly explainea what struck the Appeal Board as an I

anomaly in its ruling regarding teachers as "both" service recipients and E

service prcviders. See LBP-89-33 at 7-12.

lhus, the Board did not err in

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16.

Concregate Care Centers MASSAG asserts the Board erred in finding the Westborough facility a suitable congregate care facility for the special needs population, l

althcugh he provides no citations for this. However, the Westborough i

facility is a backup, not a primary, center for excess special popula-tions. PID 9.15 at p, 364.

Further, the Board points out that this suitability of this facility was never considered by FEMA since it was not designated es a host facility for those persons.

PID p. 338, n. 52.

As to the suitability of the primary facility, the Shriners' Audito--

rium in Wilmington, the Board pointed out the uncontradicted testimony of Applicents that these builoings are fully handicapped accessible, PID-8.119 at p. 338.

Further, the Board found that notwithstanding the l

absence of any suggestion in the record that the number of mobility-l l

impaired evacuees exceedeo the capacity of.the first floor of the Shriners' Auditorium, nevertheless Applicants have committed to installing an elevator at the facility to make its second floor-fully accessible to such evacuees.

Id. at p. 339.

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17. Celegating confirmatory matters to the staff MASSAG asserts the Board erreo in assigning to the NRC Staff review i.

of procedures to ensure reunification of school children with their parents. Once again, this is properly the type of confirmatory action which is left to the Staff. See Waterford, ALAB-732, supra, e

18. Holy Cross Host Facility

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detail in findings 9.135-9.161, pp.429-446. As the Boara noted, the Comission's ruling in CL1-87-5, 25 NRC 884, 888 (1987) leads to the conclusion that the Commission has found that an ARC commitnient to respond -

to an emergency, whether documented in a letter of agreement (LGA) or not, is sufficient for any finding of reasonable assurance under it emergency i

planning requiren,ents to conclude not only that an ARC response will be fcrthcoming, but that it will be adequate and effective. PID 9.145 at p.

435.

However, the Board went on to apply this ruling in the instant case as a rebuttable presumption which would need a factual basis to warrant a rejection of that presumption.

I_d.

The Board then explains in detail why this presumption has not been rebutted in the case of the SPMC.

See Findings 9.147-9-155, pp. 436-443. As the Board noted, the absence of implementing detail regarding the nature of an ARC response to a radio-logical emergency at Seabrook is one of the Commonwealth's own making.

PID 9.151 at p. 440. The ARC is cne of the most experienced organizations in the world in setting up and staffing mass shelter facilities in emergency situations. PID 9.152 at p. 440.

Further, the Connonwealth of Massachusetts itself continues te engage in planning for other nuclear sites whose EPZs are located in whole or in part in Massachusetts, including Pilgrim, Yankee Rowe and Vermont Yankee. PID 9.153, p. 441-442.

Thus, the Beerd correctly relied on the Commission's reguletions that in situaticns where inaction of the state or local units of government

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agreements.to ensure the availability of whatever resources are necessary.

PID 9.155, pp. 442-443..

19.- Adequacy of host hospitals MASSAG asserts the Boaro erred in its assessment of the adequacy of host hospitals needed to house evecuees from Massachusetts EPZ hospitals and rursing hcmes. hASSAG ignores the Board's finding at 8.137 that points out the SPMC also relies on two designated MS-1 hespitals to serve as treatment centers for hospital and nursing home patients and contami-nated injured persors. The combined capability of these two facilities exceeds the nun.ber of patients that coulo come from at-risk hospitals.

PID 8.137, p.345. Hence the Board did not err in this regard.

20. Sufficient number of ambulances MASSAG assert that the Board erred in finding sufficient ambulances 1

L available to the SPMC need for such vehicles, however, the Board pointed ct.t that one of the realities of emerger.cy planning is that over time L

needs change and the icentities and capacities of companies or organir.a-tions identified to provide the resources necessary to satisfy those needs change with them.

PID 9.32, p. 375. Hence, emergency planning is a dynamic not a static process and is subject to verification at least annually.

Id. Such eventualities are assumed under the Comission's i

emergency planning criteria and are the basis for the r.eed to periodically

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monitor the viability of agreements.

PID 9.33 at p. 375-76.

Further, the v

Board was able to find that the pool of available ambulances has increased i

since to MASSAG's own survey. PID 9.34 at p. 376-377. Thus MASSAG's claim that his testimony is uncontroverted is not supported by the record.

21. Sufficient Buses MASSAG asserts his witnesses presented testimony that if an emergency occurred during school hours, bus companies with prior commitments to the schools would leave Applicants with a shortage of buses.

However, orce again MASSAG ignores the Board's finding that Applicants have, in fact, alreacy incorporated compensatory measures to overcome the possibility of bus unavailability by entering into written agreements which create a bus pool equal to 144% of the SPMC's projected need, and a passenger van pool equal to 1E3% of the SPMC's< projected need.

PID 9.36 at p. 378. MASSAG cites no support for his proposition that bus companies that transport school children do not transport EPZ school children, and there is none in the record. Thus, the Board did not ccmmit error, but based its finding squarely en the record.

As to the lack cf an agreement with the McGreggor-Smith bus company, the Board found even without this company's buses, the Applicants still

'have more buses subject to a written agreement than is necessary to s6tisfy the transportation needs of the SPMC. PIL S.39, pp. 379-380. The l

Board did note, however, its expectation that the availability of buses, like all other vehicles, would be monitored and periccically updated to l

l reflect present realities. PID 9.40, p.380. This is proper and in keeping with the basic principle that emergency planning findings are l

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- predictive in nature, as emergency planning itself is a dynamic, not

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static process.

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22. LOA's for bed buses MASSAG asserts the Board Ordcr authorizing issuance of a license in the absence of any letters of agreement for bed buses poses a serious danger to the safety of the special i.eeds population in the EPZ. The i

Board acknowledges that such agreements do not currently exist, although l

1 Applicants have solicited bids to furnish such bed buses.

PID 9.44, pp.

}

I 381-382. Thus, the Board specifically conditioned its reasonable assurance assestr.ient subject to the acquisition of written agreements ensurie:g t.he availability of the needed 35 bed buses. PID 9.45 at p. 382.

1 Once again this points out the predictive nature of emergency planning findir:gs, and there is no support for the prcposition that the NRC will j

not er.sure that such agreements are in place prior to granting a license.

23. The 20'4 monitoring factor j

MASSAG asserts that the Intervenors challenged the planning basis of the SPMC that 20'A of the peak population in the EPZ will report to a reception certer for monitoring and decontamination in the event of a radiological emergency. MASSAG then goes on to assert that the Board ruled the issue had been litigated and decided in the New Hampshire proceeding (see LBP-88-32 at 712-715) and barred its admission in the SPML 1

proceeding. However, what the Board ruled was that the planning basis was

\\

s not acequately challenged and hence it was appropriate for use with respect to the New Han.pshire EPZ and that this finding was applicable to

e ',

the entire Seabrook EPZ, including the Massachusetts portion of the EPI.

'o -

PID 5.49 at.384.

MASSAG asserts this is in direct contravention with the Appeal Bocro holding in ALAB-924 which ruled that the issue had never been raised or litigated in the New Hampshire proceeding, although he fails to provide any citation to this holding.

In fact, in ALAB-924 the Appeal Board ruled that indeed the issue was raised in SAPL contentions 7 and 33, which were aamitted by the Board, but that.SAPL failed to mount an adequate challenge to the use of the Krimm memorandum and the FEMA utilization of the 20%

figure. ALAB-924 at 33-37.

The Appeal Board further ruled that the Licensing Board was " entitled to treut as presumptively correct the FEMA conclusicn that for planning purpcses, it mey Le assumed that at least twenty percent of the tot 6) hew hampshire EPZ population would require or seek radiological monitoring."

Id. at 42. The Appeal Bpard went on to attirs the Licensing board's firiding thbt this presumption was not satisfactorily rebutted.

Id. at 44.

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MASSAG was free to raise the issue during the New Hampshire phase of the 1

proceeding and having failed tc make the case in that proceeding, he car.not be heard to complain that he should be afforded another opportunity to retry to same issue on grounds not raised previously in the same proceeding.

24.

Dcy-Trippers MASSAG asserts the Board erred in concluding that non-EPZ resident 3

day trippers and employees (who have homes to 90 to) will use reception centers at a rate lower than that of their EPZ resident counterparts. The Board addressed this concern in detail in findings 9.62-9-67, pp. 391-396.

o-MASSAG asserts-there is no record support for the Board's conclusions in this regard, but he ignores the fact that the Board relied on MASSAG's own witness, Dr. High, to assess this issue, as well as testimony by Applicants, ld. However, the Board pointed out that neither MASSAG's

- witness, nor Applicants' suggestions of how to account for the day I'

trippers lower usage rates were of assistance. PID 9.63, at 393.

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I 25.

Parking areas at reception centers MASSAG asserts the Board did not require Applicants to develop l

procedures to ensure. parking areas _are cleared of obstacles prior to j

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issuance of an operating license.

This novel proposition, that a Board imposed requirement will somehow be left dangling prior to issuance of a license belies a fundamental misunderstanding of the NRC regulations.

l.

.This is a minor matter, appropriate to confirmatory resolution by the NRC

?

l staff (see Waterford, ALAB-732, supra), but MASSAG points to nothing (nor j

could he) to suggest that the Staff will be derelict in its duty to ensure such commitments and requirements are not satisfied prior to licensing.

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y

26. ARC l

MASSAG again raises the issue of lack of evidence regarding the i

response of the ARC, but ignores the Board's thorough discussion of this matter in findings 9.135-9.161 as discussed supra.

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, c Conclusion As discussed above, each of the matters identified by the MASSAG_was i

correctly decided by the Licensing Board based on the record of this proceeding. Moreover, none of the matters upon which MASSAG deems the j

1 Board to have erred raises a significant safety issue that is sufficient i

i to bar issuance of a license.

See 10 C.F.R. $ 2.764(f)(2). Those matters j

left to the Staff for verification of the Applicants conformance with the provisions, requirements, conditions and commitments identified by the I

Board will be addressed by the Director of Nuclear Reactor Regulation.

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V UNITED STATES OF AMERICA h

4 o

NUCLEAR REGULATORY COMMISSION 7

M&C121989h' BEFORE THE COMMISSION rIN5$$$$:u t:mmte In the Matter of

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3 Y

1

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Docket Nos. 50-443'.- i 74 PUBLIC SERVICE COMPANY OF

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50-444 OL C -

NEW HAMPSHIRE, et al.

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Off-site Emergency Planning (Seabrook Station, Units 1 and 2)

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE T0. INTERVENORS' MOTION TO VACATE LBP-89-32

. LICENSE AUTHORIZATION AND SUPPLEMENTAL MOTION AND MEMORANDUM" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail

. system, or as indicated by double asterisks, by express mail this 12th day of i

December 1989:

Ivan W. Smith, Chairman (2)*

Thomas G. Dignan, Jr., Esq.**

i Administrative Judge Robert K. Gad, III, Esq.

Atomic Safety and Licensing Board Ropes & Gray U.S. Nuclear Regulatory Commission One International Place Boston, MA 02110 Richard F. Cole

l Administrative Judge Geoffrey Huntingtcn, Esq.**

i l

Atomic Safety and Licensing Board Assistant Attorney General l.

U.S. Nuclear Regulatory Comission Office of the Attorney General Washington, DC 20555 25 Capitol Street l

L Concord, NH 03301 l

l Kenneth A. McCollom**

l Administrative Judge Mrs. Anne E. Goodman, C M rman i

1107 West Knapp Street Board of Selectmen Stillwater, OK 74075 13-15 Newmarket Road Durham, NH 03824 Philip Ahrens, Esq.

Judith H. Mizner, Esq, Assistant Attorney General 79 State Street Office of the Attorney General Newburyport, MA 01950 State House Station Augusta, ME 04333 Robert Carrigg, Chairman Board of Selectmen John Traficonte, Esq.**

Town Office Assistant Attorney General Atlantic Avenue g

Office of the Attorney General North Hampton, NH 03862 One Ashburton Place, 19th Floor Boston, MA 02108 o

.2.

I Diane Curran, Esq o

Harmon, Curran & Tousley 2001 S Street, NW Hon. Gordon J. Humphrey Suite a30 United States Senate Washington, DC 20009 531 Hart Senate Office Building Washington, DC 20510 Calvin A. Canney City Hall Peter J. Matthews, Mayor 126 Daniel Street City Hall Portsmouth, NH 03801 Newburyport, MN 01950 Allen Lampert Michael Santosuosso, Chairman Civil Defense Director Board of Selectmen Town of Brentwood South Hampton, NH 03827 20 Franklin Exeter, NH 03833 Ashed N. Amirian, Esq.

Town Counsel for Merrimac William Armstrong 145 South Main Street Civil Defense Director P.O. Box 38 Town of Exeter Bradford, MA 01835 10 Front Street Exeter, NH 03833 Robert A. Backus Esq **

Backus, Meyer & Solomon Gary W. Holmes, Esq.

116 Lowell Street 4

Holmes & Ellis Manchester, NH 03106 47 Winnacunnet Road Hampton, NH 03842 Paul McEachern, Esq.**

Barbara J. Saint Andre, Esq.

Shaines & McEachern Kopelman & Paige P.C.

25 Maplewood Avenue 77 Franklin Street P.O. Box 360 Boston, MA 02110 Portsmouth, NH 03801 l

R. Scott Hill-Whilton, Esq.

Sandre Gavutis, Chairman l

Lagoulis, Clark, Hill-Whilton Board of Selectmen

& McGuire RFD#1, Box 1154 79 State Street Kensington, NH 03827 Newburyport, MA 01950 H.J. Flynn, Esq.

Assistant General Counsel Federal Emergency Management Agency 500 C Street, S.W.

Washington, DC 20555 C

e i

3-i William S. Lord George Hahn, Esq.

Board of Selectmen Attorney fo? the Examiner Town Hall - Friend Street Hahn & Hesson Amesbury, MA 01913 350 5th Ave, Suite 3700 New York, NY 10118 Atomic Safety and Licensing Board Atomic Safety and Licensing Panel (1)*

Appeal Panel (6)*

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Office of the Secretary (16)*

U.S. Nuclear Regulatory Commission Washington, DC 20555 94(.

Attn: Docketing and Service Section Edwin J. Reip' Deputy Assistant General Counsel for Rea'ctor Licensing n

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ML19351A716

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