ML19354D525
| ML19354D525 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 11/10/1989 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#489-9434 ALAB-924, OL, NUDOCS 8911160070 | |
| Download: ML19354D525 (15) | |
Text
f$IflY et I
C0(fried November 10f11989 i
.g7
,,13 M2.03
)
UNITED STATES OF AMERICA before the NUCLEAR REGULATORY COMMISSION
)
i In the Matter of
)
)
l PUBLIC SERVICE COMPANY
)
Docket Nos. 50-443-OL OF NEW HAMPSHIRE, it al.
)
50-444-OL
)
(Seabrook Station, Units 1
)
(Offsite Emergency and 2)
)
Planning and Safety l
)
Issues) i
)
APPLICANTS ' PETITION FOR REVIEW OF ALAB-924 The Decision Below After some 51 days of hearings which commenced on i
October 5, 1987 and ended on June 16, 1988, the cognizant Atomic Safety and Licensing Board (Licensing Boaro; issued, on December 30, 1988, a Partial Initial Decision which, in substance, held that the State of New Hampshire's Radiological Emergency Response Plan (NHRERP) provided reasonable assurance that adequate protective measures can l
and will be taken in the New Hampshire portion of the emergency planning zone (EPZ) surrounding Seabrook Nuclear Power Station (Seabrook).1 This conclusion en the part of the Licensing Board is in complete accord with the views of the State of New Hampshire, which sponsors the plan, and the 1 ublic Service Comoany of New Hamoshire (Seabrook P
Station, Units 1 and 2), LBP-88-32, 28 NRC 667 (1988)
(hereafter referred to as "PID" and cited to 28 !GC).
APP 924.$5
@911160070 891110 ADOCK OSO g 3 DR
i e
h o
f i
Federal Emergency Management Agency (FEMA) and has been j
i further confirmed by a two-day graded exercise wherein FEMA found no deficiencies.
Nevertheless, in a decision issued r
some ten months after the PID, disposing of only a portion of i
the Appeals pending before it, the Atomic Safety and LJeansing Appeal Board (Appeal Board), on November 7,
- 1989, f
reversed and remanded the PID with recpect to four stated matters.2 f
l Matters Raised Before the Arceal Board The matters raised in this petition for review all were f
raised in the briet's to the Appeal Board except for those originating with the Appeal Board gua sconte.
Reasons the Holdinas Are Erroneous 1.
LpAs for Teachers:
On May 21, 1986, the Licensing
[
Board ruled that no LOAs were required for teachers.3 On May
[
18, 1987, the Licensing Board ruled that "(s)eparate letters P
of agreement are not required for recipients of services (as opposed to providers) nor for individuals who collectively supply a labor force or activity."4 In the LOA section of the PID the Licensing Board specifically referenced the 2 ublic Servic3 Comoany of New Hamoshire (Seabrook i
P Station, Units 1 and 2), ALAB-924, 30 NRC (Nov.
7, 1989)
(hereafter referred to as "ALAB-924" and cited to the slip opinion).
3 Memorandum and Order (Rulina on Late-Filed Contentions of Seacoast Anti-Pollution Leacue) (Unoublished). (May 21, 1986) at 7-8.
i 4 Memorandum and Order (Providina Basis for and Revision LL foard's Rulinas'on Contentions on Revision 2 of NHRERP)(Unpublished) at 37 (May 18, 1987). -
C i
C latter two prior decisions which appear (*spositive of the issue of whether LOAs were required for 1 ars.
EID at 673.
Presumably LOAs were not required for teachers first, because they were service recipients, and second, because, to t
the extent teachers are service providers, they are
" individuals who collectively supply a labor force or j
activity *5 However, the Appeal Board did not let the matter i
rest there.
It turned to a later section of the PID dealing with human behavior issues, nnt 1963 Thore the Licensing Board, in rejecting the concept that teachers would abandon j
children simply stated that, while emergency planners viewed P
teachers as recipients of services, 1 3.,
members of the public, it could not rest a decision as to human behavior
[
solely on these grounds because, "we believe that, to the extent that the teachers would be expected to accoupany l
P pupils in an evacuation rather than leaving in their own transportation, the teachers should be regarded as service providers."
EID at 730.6 The Appeal Board, on the basis of this statenent, then proceeded to make the following analys.4r sit seems that the normal practice of FEMA and NRC has i
been not to require LOAs from teachers or other school
^
personnel.
Egg Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit 1), LBP-84-26, 20 NRC 53, 70, 80, 112 (1984).
6The statement was not made in denigration of the previous LOA rulings, and had nothing to do with LOAs.
It i
was made to indicate that the Licensing Board was treating teachers as part of the group which was to be analyzed for
" role abandonment" human behavior as opposed to " predicted response" human behavior on the part of the general public.
Sam EID at 728, 11 7.1, 7.1 and 742, 1 7.67. -
e.O f
(which was not suggested in any Intervenor Brief): the 7.icansing Board's prior rulings were correct; teachers did not need to sign LOAs so long as all they were expected to do was to bring the children to the bus, but as soon as they left the grounds on a bus with the children they became
" providers" necessitating an LOA because nothing in the t
record discloses whether or not school personnel usually would or would not be expected to accompany the children in 1
other types of emergencies.
In fact the record shows that State officials do believe that teachers would perform the duties (including riding the buses) in other emergencies.
II. 3387-89.7 This is consistenc with the notion that the basic duty of any teacher is to act iD loco parentis to children committed to his or her care.
And as is clear in this record, Appo_ Din. No.
7, Post II. 5622 at 126-27, l
history reveals that teachers do not abandon children; rather they do what is necessary in emergency situations.
- Moreover, the Appeal Board ignored, without an explanation, the obviously correct ruling that individual members of labor groups need not sign letters of agreement.
2.
The special needs survev:
Certain SAPL contentions raised the issue of whether proper steps were being taken to identify persons located in the Seabrook EPZ who had special needs to be taken account of in emergency planning.
The 7The State officials also testified that the successful operation of the plan does not require participation of the teachers though it would be better to have them.
4-
State did a mail card survey, a copy of which is attached f
hereto and marked "A."8 The survey was mailed out, using I
utility billing lists, and also circulated by other means; in additica, other informational announcements were made i
encouraging people to send in the response card if they had a
[
family member who had special needs.
The State further i
committed to conducting the survey annually.
These facts were set out in a motion, and affidavit in support thereof, seeking summary disposition of the issue of the contentions
" insofar as these contentions assert that there do not exist adequate procedures for identifying persons with special i
needs."9 SAPL countered with an affidavit by an individual asserting 20 years experience "in the design and implementation of questionnaires for personal interviews, telephone interviews, and mail surveys."
Affidavit of Frederick H. Anderson Jr. (June 6,1986).
The affiant made three points: (1) the utility list did not reach everybody (this is why the State taade other distribution as well); (2) that seasonal residents may not have been in the area when the survey was done (this is why the survey was to be done l
annually and announcements and other distributions were used), and (3) tne affiant would have asked differently worded questions and used different motivational language.
l l
8ADolicants' Motion for Partial Summar" Disoosition of South Hamoton Contention No.
- 8. NECNP Conte'ntion NHLP-4 and SAPL Contentions 18 and 25 (June 9, 1986), Attach.
"A".
91d et 1-2....
5 4.
.J
's J
v a
)
s Cndcubtedly ten experts in the field would come up with ten I
t different approaches to these matters.
But the issue is l
whether the survey, while perhaps not perfect, was performed j
t in a manner that would give reasonable assurance of accomplishing its intended purpose.
We submit the commission can decide for itself that it was.
The Appeal Board seemed to feel that if any witness suggests a better way to conduct l
a survey, a full blown trial must occur even if the survey i
performed was adequate.
The Licensing Board corrsetly felt I
that to force the state to accommodate a number of experts in their pet views of how such questions should be worded or to 1
go beyond the reasonable distribution approaches it used r
would be an " extraordinary measure."
And the Licensing Board I
correctly read this commission's decision in Southern California Edison Co. (San Onofre Nuclear Generating Station, 7
Units 2 and 3), CLI-03-10, 17 NRC 528, 533 (1983) as holding that states were not required to undertake extraordinary
+
measures solely to plan for nuclear accidents.
This survey is clearly an approach that gives reasonable assurance that the matter has been adequately addressed.
No more should be required.
In addition, although the Appeal Board gave it no importance, the Staff was correct in pointing out that the survey in fact wss testified to and relied upon and open to i
cross-examination in the hearing.
Thus, any alleged error was harmless as a matter of law.
~6-e
c 3
i F
i i
3.
Soecial facility E,IEst The Appeal Board has held that there should be a further look at the assumption as to preparation times for individual special facilities.
The t
Appeal Board reached this conclusion by first adopting testimony given by an Intervenor w..t. ass that it would take 6
twenty-eight minutes to one hour to move an advance life support patient from a bed to a stretcher.
The Appeal Board then read a statement in the local emergency plans included in the concept of operations section which says:
"As evacuation vehicles arrive, assemble residents.
.n10 as meaning " assembly only begins when the evacuation vehicles arrive," &LAR-131 at 26, instead of reaning that assembly i
commences when the evacuation decision is made and proceeds while vehicles are being mustered, assigned, and travelling to their destinations, all of which takss a certain amount of time.
As a result the Appeal Board concluded that a further look must be had at special facility ovacuation time assumptions for purposes of accounting for the Witness' 28 m!.nutes to an hour.
The fact is that the ETE study for the NHRERP did assume a 40 minute loading time for persons (such p
as those on advanced life support) wP) are evacuated in ambular.ces, App. Ex.
5, Vol.
6, p. 11-26.
The Appeal Board simply must have missed this in its analysis.
In addition, while, as seen above, the ETEs for special facilities have l
been analyzed, special facility ETEs play no role in the 10 ee citations in ALAB-924 n.69.
S
).
t i
I actual execution of the plan because the evacuation times for the general public which control PAR decision making are of such duration that.he ETEs for special facilities will not serve to lengthen the overall times.
There is absolutely no warrant for further exploration of ETEs for special facilities.
4.
Shelter imolementina details:
The Appeal Board ll required that the ruled that two of its prior decisions same implementing detail be put in the plan for those cases where general sheltering is ordered for the beach population as that contained in the plan for the temporary sheltering of beach transients without transportation when evacuation is ordcred.
The Appeal Board could see no difference between temporary sheltering and general sheltering as far as need for implementing detail.
There is!
Transients awaiting evacuation must be sent to designated shelters along the bus route or they will not be picked up.
Egg Aeolicants. Ditz i
No.
6, Post II. 10022 at 20-21.
In the general shelter j
situstion, the people are to shelter in place" which is the shsiter concept adopted throughout the State of New Hampshire in emergencies and does not contemplate or require designated shelters.
Acolicants Dir. N2t_f, Post II. 10022 at 18-20.
This is the method of choice of the New Hampshire experts who 11LUt2_ Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-8 3 2, 23 NRC 135 (1986), afX1g, CLT 12, 26 NRC 383 (1987) and PhiladelDhia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681 (1985), r,sview declin.ed, CLI-86-5, 23 NRC 125 (1986) i L-1
M
~
l Vo
+,
I fully articulated their view that there was no neet for further detail on the temporary shelter option beyond assuring themselves that the quantity of shelter was i'
I suft'icient.
Tr. 10579-73, 10693-95, 10698, 10711-12.
That choice is rational and should not be disturbed.
- Moreover, the Staff was correct in its view that what tha Irtervenors (and now the Appeal Board) want is not " implementing detail" but ":nore implementing detail. "
There is " detail" in the form of the shelter study.
The Licensing Board left the issue of implementing detail to the State and FEMA to resolve.
EID at 769 18.76.
In fact, this has been done.12 Finally, the Licensing Board was not adopting a position that because an accident was unlikely, soniething need not be done as was clearly the case in Limerick.
What they adopted was i
the concept that gven assuming the accidrunt daga occur, adoption of the sheltering alternative was highly unlikely.
Indeed, to invoke 6.he beach area general shelter option l3 requires the occurrence of an immediate general emergency concurrent with a sudden blizzard in July or a planned
' gaseous puff release" occurring prior to the decision to cvacuate, its ALAB-924 at 49-51 & n.133, because once evacuation commences there can be no change to a shelter PAR.
II. 10417.
l J
12 etter Huntington to Judge Ivan W.
Smith (October 13, L
1988).
13At any lesser emergency action level the beaches would have been closed and cleared. -
1 ::',A 1
1 a
Why C-insion Review Shguld Be Exercised j
None of the matters as to which reversal has been i
ordered is even close to being a " fundamental flaw" in the j
NHRERP.
The plan clearly satisfies any reasonableness standard for caergency plans.
The Appeal Board has directed the holding of further proceedings which could result in the closure of the two-year dgraded axercise window" for 1
Seabrook, which opened in June of 1988.14 Only Commission review can avoid the " endless loop of litigation",
j CONCLUSION
]
The Appesi Board's decision should be reversed.
l Respectfully submitted, fp T~
i
_ s/N r Thomas Tl. Dief3fafi, Jr.
Georgr H.
Lewald Jeffrey P. Trout Jay Bradford Smith Geoffrey C. Cook William L.
Parker Ropes & Gray One International Place Boston, MA 02110-2624 (617) 951-7000 Counsel for Applicants t
14Indeed, in certain instances, the Appeal Board took l
the position that only after the Licensing Board has resolved the particular matter the Appeal Board deemed to constitute error, wocid the Appeal Board thcn address certain matters l.
which may flow from that resolution but which need not be addressed at this time in light of the issuance of ALAB-924.
C j
Egg 1.g., ALAB-9 2 4 at 19-2 0.
The Intervenors have already L
taken the position that extensive evidentiary hearings are necessitated by this decision.
Egg Recuest for Prehearing Qonference in Response to ALAB-924 (Nov.
9, 1989). ;
I t
l
j Special Em:rgency Help r
i e You o. someone you know mtht need special help in an emergency,if so, l
L-please fell out this card now so we can plan ahead. This information will be i
kept confidential and will be used for emergency planning only.
P i
N l
aG0rtet i
C.ty ans 2e Coos Phone weneer. Home wom Spaces eerschens a pot w year nouse i
i I
Help Nooded: (Check only those that apply. Please indicate how many people i
in your household would need this help.)
{
Nanber of Poesie
,t D. Need a ride duri,ig an emergency.
O Need notification in addition to the siren system, because of hearing imoairment.
~ Need special help because of other health conditions.
j c Sight impaired.
O Wheelchair disabled.
i c Bedr6dden.'
j O Other 1
Q Nood an ambulance because of health condition.
t
.Can every adult in your household speak English?
i O Yes D No
't no, how many cannot speak English?
What language do they speak?
Person Submitting th6s Card:
~.-
s Ehone Nmbef. Mome W ork
~
l
- m -
Co ste1 em nettame.maart vanha r arti is on outside 180e and rnall,
'e a
l
N i
l c-
)
e
)
i
[ERTIFICATE OF SERVICE 1
'89 10V 13 P12 :03 I,
Thomas G.
Dignan, Jr., one of the attorneys for the Applicants herein, hereby certify that on November,10, 1989, I made service of the within document by depositing copies.thereof with Federal Express, prepaid, for delivery to (or where indicated, by depositing in the United States mail, first class postage paid, addressed to) the individuals listed below:
Kenneth M. Carr, Ch?irman Thomas M. Roberts, Commissioner U.S. Nuclear kegulatery U.S. Nuclear Regulatory l
Commission Commission one Whito Flint North One White Flint North 11555 Rockville Pike 11555 Rockville Pike Rockville, MD 30852 Rockville, MD 20852 James R. Curtiss, Commissioner U.S. Nuclear Regulatory Commission one White Flint North 11555 Rockville Pike Rocs /ille, MD 20852 Kenneth C. Rogers, Comi.914s ioner William C.
Parler, Esquire U.S. Nuclear Regulatof.
General Counsel Commission office of the General Counsel One White Flint North One White Flint North 11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852 Rockville, MD 20852 l
C.
Jaul Bollwerk, III, Chaizzan Howard A. Wilber Atomic Safety and Licensing Atomic Sefety and Licensing Appesl Panel Appeal Panel' U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission
(
Sast West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 l
Alan S.
Rosenthal, Esquire Thomas S. Moore l
Atomic Safety and Licensing Atomic Safety and Licensing
(
Appeal Panel Appeal Panel U.S. Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission East West Towers Building East West Towers Building 4300 East West Hignway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 l
l 1
l
I a
.t i
a i
Administrative Judge Ivan Smith Administrative Judge Kenneth A.
Chairman, Ator.ic Safety and McCollom Licensing Board 1107 West Knapp Street U.S. Nuclear Regulatory Stillwater, CX 74075 Commission i
East West Towers Building 4350 East West Highway Bethesda, MD 20814 Administrative Judge Richard F.
H. Joseph Flynn, Esquire cole, Atomic Safety and office of General Counsel Licensing Board Federal Emergency Management U.S. Nuclear Regulatory Agency Commission 500 C Street, S.W.
i East West Towers Building Washington, DC 20472
~
j 4350 East West Highway Bethesda, MD 20814 Mr. Richard R. Donovan Diana curran, Esquire Federal Energency Management Andrea C.
Forster, Esquire r
Agency Harmon, Curran & Tousley Federal Regional Center Suite 430 130 228th Street, S.W.
2001 S Street, N.W.
Bothell, WA 98021-9796 Washington, DC 20009 Robert R.
Pierce, Esquire John P. Arnold, Esquire Atomic Safety and Licensing Attorney General Board George Dana Bisbee, Esquire i
U.S. Nuclear Regulatory Assistant Attorney General l
Commission office of the Attorney General i
East West Towers Building 25 Capitol Street 4350 East West Highway Concord, NH 03301-6397 Bethesda, MD 20814 Adjudicatory File Mitzi A. Yoitng, Esquire Atomic Safety and Licensing Edwin J. Re.'s, Esquire Board Panel Docket (2 copies) office of the General Council U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East Went Towers Building One White Flint North, 15th F1.
4350 East West Highway 11555 Rockville Pike Bethesda MD 20814 Rockville, MD 20852
- Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Board Backus, Meyer & Solomon U.S.
Nuclear Regulatory 116 Lowell Street Commission P.O.
Box 516 Washington, DC 20555 Manchester, NH 03105.
i a
I t
Philip Ahrens, Esquire Mr. J. P. Nadeau Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central Road General Rye, NH 03870 Augusta, ME 04333 Paul McEachern, Esquire John Traficonte, Esquire Shaines & McEachern Assistant Attorney General Maplewood Avenue Department of the Attorney P.O. Box 360 General Portsmouth, NH 03801 One Ashburton Place, 19th Floor Boston, MA 02108 Chairman Mr. Calvin A. Canney Board of Selectmen City Manager 95 Amesbury Road City Hall Kensington, NH 03833 116 Daniel Street Portsmouth, NH 03801 i
- Senator Gordon J. Humphrey R. Scott Hill-Whilton, Esquire l
U.S. Senate Lagoulis, Hill-Whilton &
Washington, DC 20510 Rotondi (Attn Tom Burack) 79 State Street Newburyport, MA 01950
- Senator Gordon J. Humphrey Barbara J.
Saint Andre, Esquire one Eagle Square, Suite 507 Kopelman and Paige, P.C.
Concord, NH 03301 77 Franklin Street (Attn:
Herb Boynton)
Boston, MA 02110 Mr. Thomas F. Powers, III Mr. William S.
Lord Town Manager Board of Selectmen Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 Ashod H. Amirian, Esquire Judith H. Mizner, Esquire 145 South Main Street 79 State Street, 2nd Floor P.O. Dox 38 Newburyport, MA 01950 Bradford, MA 01835 Gary W.
Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03842 Concord, NH 03301
L
! ^
i 6
I Marjorie Nordlinger, Esquire office of the General counsel Ons White Flint North 11555 Rockville Pike Rockville, MD 20852 f8
_ />Wn Thoiaa F. DignefiGr.
(
l u..
.-