ML19354D537
| ML19354D537 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 11/07/1989 |
| From: | Hagins E NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#489-9416 ALAB-924, LBP-88-32, OL, NUDOCS 8911160128 | |
| Download: ML19354D537 (75) | |
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t m4Tii aMC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 8
gjy -7 N0 GB ATOMIC' SAFETY AND LICENSING APPEAL BOARD
,i n :
Administrative Judges:
bucni M f y
G.
Paul Bollwerk, III, Chairman November 7, 1989 Alan S. Rosenthal (ALAB-924) i Howard A. Wilber o
SERVED NOV -7 $89
)
In the Matter of
)
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PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443-OL NEW HAMPSHIRE, 31 31
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50-444-OL
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(Offsite Emergency (Seabrook Station, Units 1
)
Planning Issues) and 2)
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John Traficonte, Boston, Massachusetts (with whom Alan Fierce, Boston, Massachusetts, was on the brief), for the intervenor James M. Shannon, Attorney General of Massachusetts.
l Diane Curran, Washington, D.C.,
for the intervenor New England Coalition on Nuclear Pollution.
Egbert A. Backus, Manchester, New Hampshire, for the intervenor Seacoast Anti-Pollution League.
Paul McEachern, Portsmouth, New Hampshire (with whom Matthew T. Brock, Portsmouth, New Hampshire, was on the brief),
for the intervenor Town of Hampton.
Thomas G. Dianan.
Jr., Boston, Massachusetts (with whom Georce H.
Lewald, Kathryn A.
Selleck, Jeffrey P. Trout,
(
g Jay Bradford Smith, and Geoffrev C.
Cook, Boston, j
Massachusetts, were on the brief), for the applicants y
Public Service Company of New Hampshire, at al.
t j
Sherwin E. Turk for the Nuclear Regulatory Commission staff.
L Y
DECISION f
In order to resolve one of the central issues presented by the pending appeals of intervenors Attorney General of Massachusetts (MassAG), the New England Coalition on Nuclear 8911160128 891107
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[7 PDR ADOCK 05000443 O
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Pollution (NECNP), the Seacoast Anti-Pollution League (SAPL), and.
the Town of Hampton (TOH) from the Licensing Board's December 30, 1988 partial initial decision on emergency planning for the New Hampshire portion of the Emergency Planning Zone (EPZ) for the Seabrook Station,' in ALAB-922 we certified to the Commission an
.e o
s issue concerning the meaning of the term " reasonable and feasible dose reductions under the circumstances" as used in its 1986 2
Shoreham emergency planning decision.3 Despite the pendency of that certification, we believe it is appropriate to address at i
this time certain additional issues raised by intervenors in their appeals.
In its December 1988 decision, the Licensing Board found that the New Hampshire Radiological Emergency Response Plan (NHRERP) met the Commission's emergency planning standarbs.
As previously noted, intervenors have raised a variety of challenges l
to the legal and factual findings made by the Licensing Board in 1
support of its determination.
In this decision, we will address issues raised concerning those portions of the Licensing Board's decision titled " Letters of Agreement," " Transportation
)
I LBP-88-32, 28 NRC 667 (1988).
2 Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC 22, 30 (1986).
3 ALAB-922, 30 NRC (Oct. 11, 1989).
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Availability and Support Services," " Decontamination and Reception Centers," and " Sheltering of Beach Population."'
I.
LETTERS OF AGREE 6t!T Under the Commission's emergency planning regulations, emergency plans such as the NHRERP must assign the primary emergency response responsibilities among the utility and appropriate state and local emergency response organizations;
-establish the responsibilities of supporting organizations; and ensure that arrangements have been made for effectively using e
assistance resources.3 Guidance for fulfilling these requirements has been provided in NUREG-0654/ FEMA-REP-1 (NUREG-0654), a document issued jointly by the NRC and the Federal Emergency Management Agency (FEMA).'
Among other things, NUREG-0654 declares that written agreements, also referred to as
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letters of agreement (LOAs), should be obtained from various participants in the emergency planning process to show the allocation of operational responsibilities and the availability of assistance from various sources.7 Before us, intervenors SAPL and TOH contend that the Licensing Board erred on a number of
' Intervenors' challenges to other portions of the Licensing Board's December 1988 decision will be dealt with in a subsequent issuance.
5 10 C.F.R. S 50.47 (b) (1), (3); id. Part 50, App.
E, 6 II.B.
6 NUREG-0654/ FEMA-REP-1 (Rev. 1), " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants" (Nov. 1980).
7 Id. Criteria II.A.3, II.C.4, II.P.4.
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accounts in its findings on the adequacy of LOAs entered into by various parties and on the need for additional LOAs for other organizations and individuals.s In two instances, intervenors' assertions merit extended discussion.
The genesis of both these concerns is a May 21, 1986 Licensing Board order rejecting certain bases for SAPL Contention 15 challenging the adequacy of LuAs for the NHRERP.
The J
Licensing Board held that no LOAs are required between the State of New Hampshire and the seventeen local New Hampshire communities in the Seabrook EPZ or the four communities that will host the reception and decontamination centers outside of the EPZ.'
Also in that order, the Board ruled that LOAs are i
necessary only for " providers" of services and, therefore, are not required with schools, school personnel, day-caro centers, and nursing homes because they are the " recipients" of services."
Intervenors now assert that in both instances the Licensing Board reached the wrong conclusion."
7 a Seacoast Anti-Pollution League's Brief on Appeal (Mar. 21, 1989) at'25-28 [ hereinafter SAPL Brief); Town of Hampton's Brief in Support of Appeal (Feb. 10, 1989) at 40-42 (hereinafter TOH Brief].
' Memorandum and Order of May 21, 1986, at 7-8 l
(unpublished).
Egg also LBP-88-32, 28 NRC at 673.
- Memorandum and Order of May 21, 1986, at 8.
Egg also L
LBP-88-32, 28 NRC at 673.
" In the context of its challenge to the Licensing Board's May 1986 order, SAPL Brief at 25-26, SAPL also makes reference to L
a May 18, 1987 order in which the Board ruled that LOAs are not required for individuals, like bus drivers, who collectively supply a labor force or activity, Memorandum and order of May 18, (continued...)
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5 A'.
Before the Licensing Board, SAPL contended that LOAs are required for local EPZ and host communities under criterion II.A.3 of NUREG-0654."
That provision states in pertinent part that, t'o aid in the assignment of organizational control responsibilities "[e]ach plan shall include written agreements referring to the concept of operations developed between Federal, r-Stato, and local agencies and other support organizations having an emergency response role within the Emergency Planning Zones."
The. language of criterion II.A.3 is not without ambiguity;
..unetheless, we have concluded that in the particular circumstances here there is no merit to SAPL's assertion that, to provide " reasonable assurance"' consistent with this criterion, written agreements with the local communities are necessary.
In specifying that written operational responsibility agreements (or signature pages verifying those operational responsibility matters agreed to in the plan) are needed "between Federal, state, and local agencies and other support organizations having an emergency response role," we believe that L
Criterion II.A.3 suggests that a written agreement should be 1
executed to cover the allocation of operational responsibilities i
between a federal agency, a state agency, and a local agency, on l
"(... continued) 1987, at 18-19.
SAPL ruling was erroneous; provides no explanation as to why this therefore, we need not consider the matter 1,
further.
Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-469, 7 NRC 470, 471 (1978).
" [SAPL's] Third Supplemental Petition for Leave to Intervene (Apr.
8, 1986) at 5 [ hereinafter SAPL Third Supplemental Intervention Petition).
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6 the one hand, and, on the other, some emergency response support organization (rather than between any two of the three named agencies as well as between a named agency and a support organization).
As a result, SAPL's assertion that written agreements are needed with local EPZ and host communities regarding the allocation of their operational responsibilities with New Hampshire " state agencies" turns on whether those communities are considered " local. agencies" (in which instance NUREG-0654 would not require a written agreement) or are " support organizations" (for which agreements would be needed).
'Although NUREG-0654 does not define either the term " local agency" or the-term " support organization," its glossary does include an enucleation of the term " local organization" that provides helpful guidance in resolving this question.
The
-NUREG-0654 definition of " local organization" distinguishes between the " local government agency or office having.the L
orincioal or lead role in emergency planning and preparedness" and "(o]ther local government entities.
with supportive roles to the urincioal or lead local government organization.""
L This distinction between " principal / lead" and " supportive" local government entities can reasonably be employed to differentiate between the terms " local agency" and " support organization" used in Criterion II.A.3.
Further, in determining here whether local 1
EPZ communities and host communities are principal / lead (" local i
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NUREG-0654, App.
5, at 5-2 (emphasis in original).
Egg also Philadelchia Electric Co. (Limerick Gencrating Station, Units 1 and 2), ALAB-845, 24 NRC 220, 231 n.9 (1986).
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. agency") or supportive (" support organization") local government i
entities, we note that the emergency plans for each of the seventeen EPZ communities and the four host communities declare that under the NHRERP and in accordance with New Hampshire state law, the local EPZ communities and host communities, rather than the county governuents, have assumed all local emergency planning responsibilities."
In such instances, NUREG-0654 indicates that the local community becomes a priticipal/ lead organization."
It follows, therefore, that these communities, having the principal or lead role in local emergency planning and preparedness, would be considered to be " local agencies" rather than " support organizations" under Criterion II.A.3.
They are not, therefore, required to execute written agreements (or plan signature pages)
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as part of the planning process.
B.
The second issue raised by SAPL, and by TOH as well, is whether the Licensing Board correctly concluded that LOAs are required only for the " providers" of services, not the
" recipients."
on this matter, we agree with the general proposition stated by the Licensing Board, but find that further explanation is required from the Board relative to one of its particular applications of the principle.
" Eigt, NHRERP (Town of Seabrook), Vol. 16, at I-16 (rev. 2 1986); id. (Salem Host Plan), Vol. 38, at I-12.
" NUREG-0654, at 20.
Compare Southern California Edison C22 (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC 346, 377-38 (1983) (city without extensive emergency resources need not take lead role but can, by mutual agreement, integrate into overall county plan), aff'd, Carstens v. HEC, 742 F.2d 1546 (D.C. Cir. 1984), cert. denied, 471 U.S. 1136 (1985).
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In its' Contention 15, SAPL asserted that LOAs are required i
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with schools, school' teachers, day-care centers, and nursing homes under Criterion II.C.4 of NUREG-0654."
Criterion II.C.4 specifies that "[e]ach organization shall identify nuclear and other facilities, organizations or individuals which can be i
relied upon in an emergency to provide assistance.
Such j
assirtance shall be identified and supported by appropriate letters of agreement."
In rejecting this portion of the contention as without basis, the Licensing Board focused upon the specified participants' roles in the emergency response process.
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Because school or nursing home personnel essentially receive services provi4Rd by others involved in the emergency response process (such as from the bus drivers that would evacuate school i
children to reception centers or the ambulance drivers that would I
transport nursing home residents to special care facilities outside the EPZ), the Board concluded that emergency planners were not required to obtain LOAs from school or nursing home
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I personnel.
Contrary to SAPL's assertion, in assessing the need for LOAs t
under Criterion II.C.4, the Licensing Board's distinction between
" providers" and " recipients" is a sensible one.
It recognizes that LOAs need not be sought from everyone involved in the emergency response process; rather, they can be limited to those 1
who contribute assistance services.
Moreover, there is considerable merit to what we perceive as the Board's additional l
" SAPL Third Supplemental Intervention Petition at 5.
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qualification, reached in the context of its separate discussion j
of intervenor concerns relating to human behavior in emergancies, l
that such services must be of singular import to radiological emergency response planning.
Thus, as the Board's December 1988 decision correctly suggests, by performing their usual role as the custodians of the students in their charge, at least so long as those students remain on the grounds of the school, school personnel do not become " providers" of services for which letters of agreement would be necessary."
Further, we have no quarrel with the Licensing Board's additional conclusion there that to the extent school personnel are expected to accompany their students in an evacuation, they become " service providers.""
As intervenors point out, however, this last conclusion is not consistent with the Board's May 1986 ruling that school personnel are not " service providers" so that no LoAs are necessary for school personnel."
Recognizing this disparity, the NRC staff argues that the Licensing Board's initial determination that no LOAs were required for school personnel is correct because, even though j
they would be accompanying students to reception centers,20 teachers are not being asked to do other than what they
- Egg LBP-88-32, 28 NRC at 730.
" Ibid.
" ggg suora p.
8.
20 Egg, e.g., NHRERP (Hampton Special Facilities Plans),
Vol. 18A, App.
F, at F.1-5 (school principal shall assign one teacher to accompany each evacuation bus).
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10 ordinarily do.21 While this may be the case, review of the present record fails to disclose any definitive evidence addressing whether school personnel usually would (or would not) be expected to accompany their students in emergency evacuation situations.
Certainly, the record citations and other precedent cited by the staff, including one of our shoreham decisions,22 do not provide an answer to this question or otherwise resolve this inconsistency.
The staff's citations support the proposition that school personnel generally do not abandon their role as student custodians in times of emergency.23 This does not, p
however, address the issue of whether school personnel acting in that role are ordinarily expected to accompany their students in an evacuation, the point upon which the Licensing Board's finding l.
seemingly turned.24 l
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NRC Staff's Brief in Response to Intervenors' Appeals (June 5, 1989) at 7 (hereinafter NRC Staff Brief).
22 Lona Island Lichtina Co. (Shoreham Nuclear Station, Unit
- 1), ALAB-832, 23 NRC 135, 151-52 (1986), aff'd in cart and rev'd in Dart, CLI-87-12, 26 NRC 383 (1987).
23 Egg NRC Staff Brief at 7 & n.8.
24 In this regard, we note that in addressing the issue of teacher role abandonment in this proceeding, the Board's findings appear to be limited to the role of teachers in accounting for students and seeing their charges to a bus.
LBP-88-32, 28 NRC at 732.
Similarly, while FEMA's direct testimony on the issue of response personnel adequacy contain2 the observation that
"[w]hile schools are in session, it is the normal responsibility of the staff to provide for the safety of the student population," FEMA Pre-filed Testimony, fol. Tr. 4051, at 10, this begs the question of whether the normal responsibility extends to participation in an evacuation situation, when school seemingly is not "in session."
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'Y 11 In these circumstances, therefore, we find it necessary to
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remand this issue to the Licensing Board with the direction that it resolve the existing inconsistency in its interpretations of the role of school personnel in an evacuation and determine whether any LOAs should be obtained from school personnel.25 25 Before us, applicants have asserted that the Licensing Board's " service provider" determination for school personnel is consistent with its determination that LOAs are not required for teachers under NUREG-0654 because, as employees of a political subdivision of the State of New Hampshire, school personnel are not required to have LOAs with the state.
Brief of Applicants-Appellees (Apr. 24, 1989) at 33 [ hereinafter Applicants Brief).
This is an interpretation of NUREG-0654 with which FEMA apparently agrees.
Egg FEMA Pre-filed Testimony, at 10.
Even assuming that this interpretation is correct, about which we express some doubt, it is not dispositive of the issue here because it does not provide an answer for those school personnel from private and parochial schools in the Seabrook EPZ.
- Eigt, NHRERP (Hampton Special Facilities Plans), Vol. 18A, App.
F, at e
F.5-4 (Sacred Heart School).
Should applicants desire to pursue this " political subdivision" interpretation before the Licensing Board upon remand, we note that it appears to be inconsistent with the guidance provided by Criterion II.A.3 of NUREG-0654 on the closely related matter of obtaining written agreements (or signature pages verifying such agreements) for operational rebponsibilities allocated between government entities.
Egg NRC Staff's Response to Contentions Filed by Towns of Hampton, Hampton Falls, Kensington, Rye and South Hampton, and by the Massachusetts Attorney General, NECNP and SAPL, Attach. on Town i
L of Kensington Contentions (Mar. 14, 1986) at 4.
Moreover, even under a restrictive interpretation of NUREG-0654 guidance adopted by the Licensing Board in another context, the need for an LOA with a governmental body would be suspended only if its emergency response assistance involves the performance of a statutorily required duty.
ERE Memorandum and Order of Apr. 29, 1986, at 19 l
(unpublished).
To this point, there has been no showing about what statutorily required duties school personnel have relative to emergency response for the Seabrook facility.
Finally, even accepting applicants' argument in toto, we are unaware of any confirmation in the existing record that the Seabrook area public school systems are, in fact, " political subdivisions" of the State of New Hampshire.
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C.
We need deal but briefly with the remaining intervenor concerns regarding LOAs.26 First, SAPL asserts that the LOAN for the NHRERP generally are lacking in sufficient detail to be found in compliance with the NUREG-0654 guidance.
LOAs, which need not I
have the specificity of a contract, nonetheless must provide sufficient detail to ensure that LOA signatories counted upon to provide assistance services material to an emergency response are in a general way aware of and'willing to carry out their assistance role.
SAPL, however, has not pointed to any specific LOA:that is deficient in this regard.27 Nor has it referenced any evidence that contravenes the Licensing Board's findings that the LOAs adequately point out what is expected of signatories and that the LOAs were obtained-by state officials in a manner that was candid and not misleading.2s Moreover, contrary to SAPL's assertions, we agree with the Licensing Board that there is no significance in the fact that LOAs referred to " technological" accidents at locations including Seabrook, rather than referring specifically to " radiological emergencies," and that the 26 Egg SAPL Brief at 26-28.
27 SAPL does reference the LOAs for McKerley Health Care Center and Lemire Enterprises as examples of deficient LOAs, asserting they fail to specify responsibility for monitoring of the special care evacuees that those facilities will receive.
Id. at 26.
However, as applicants point out, Applicants Brief at 33-34, those ICAs do not need to specify monitoring responsibilities because monitoring is to be provided by persons assigned from one of the four primary reception centers.
Egg LBP-88-32, 28 NRC at 718.
28 Id. at 677.
13 emergency planning professionals who were gathering the LOAs were not cognizant of all requirements of NUREG-0654."
We also find no substance to SAPL's attacks upon the LOAs for particular transportation assistance providers.
SAPL asserts that an initial LOA with officials of Teamsters Local No. 633 was deficient because intervenor cross-examination caused planning officials to reduce substantially the number of Teamster personnel relied upon as bus drivers.
SAPL fails, however, to show any deficiency in the subsequently-executed LOAs for the forty-eight Teamster drivers now being counted as part of the emergency driver pool.
Nor is there any merit to SAPL's allegations of inadequacies in the LOAs for National School Bus Service (NSBS) or Jan-Car Bus Company.
In the former instance, intervenor-exposed shortfalls in the number of drivers covered by the LOA with NSBS have been reflected in a revised LOA,30 while i
the transportation planning deficiency caused by Jan-Car's business cessation has been corrected by a new LOA with its successor company.31 In both instances, therefore, there is no significant deficiency in the LOAs.
" Id. at 677-78.
30 jc Egg LSAPL's] Motion For Extension of Record of Litigation L
in Re: The NHRERP Notice or Appeal (Mar. 21, 1989), Attach. A.
3' Tr. 3034-37; Applicants' Exh.
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II.
TRANSPORTATION IVAILABILITY AND SUPPORT SERVICES L
As part of the emergertcy planning process,. efforts are made to ascertain the nvaber of persons who would need transportation assistance and related support services during a radiological emergency and to ensure that. sufficient resources are available to meet those needs.32 Intelvenor SAPL raises several issues relating to the Licensing Board's findings on the availability of transportation and support services under the NHRERP,33 two of which we find require further Licensing Board consideration.
A.
In order to provido adequate transportation assistance for the Seabrook EPZ population, planners sought to identify those individuals who would be "t.ransit dependent."
In addition to schoolchildren (when school in in session) and those persons confined to institutions such as hospitals, nursing homes, day-care centers, and correctional institutions, as part of this
" transit dependent" population NFIRERP planners attempted to identify those individuals with "special transportation needs."
This included homebound, physically impaired persons and those who are likely to be without transportation during an emergency.3' In its Contentions 18 and 25, intervenor SAPL challenged, among other things, the adequacy of the methods employed by planners to ascertain the "special needs" l
32 Egg NUREG-0654 Criterion II.J.10.d.
33 SAPL Brief at 35-42.
3' LBP-88-32, 28 NRC at 691.
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(
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i population.35 In November 1986, the Licensing Board granted j
applicants' motion for partial summary disposition of SAPL's contentions 18 and 25'" insofar as these contentions assert that adequate procedures for identifying persons with special needs do
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not exist.""
As the basis for this datermination, the Licensing Board made reference to the March 1986 Special Needs Survey conducted by the New Hampshire Civil Defense Agency (NHCDA).
The Board concluded that because the SAPL contentions suggesting that different or enhanced procedures were nocessary, they entailed l
consideration of " extraordinary measures."
Such measures previously had been barred by the Commission's ruling in the S.AD onofre proceeding.3#
The Board found summary di psit!.on thus was appropriate.
SAPL now challenges this Board determination.
As support for their motion for partial summary disposition, applicants put before th2 Licensing Board an affidavit executed by Richard H. Strome, then director of NHCDA, in which he l
described the general methodology employed in conducting the 1986 Special Needs Survey."
In support of its response to the 35 gggpgis) Second Supplemental Petition for Leave to i
l Intervene (Feb. 21, 1986) at 22-23, 29-30.
" Memorandum and Order of Nov.
4, 1900, at 14 1.7 (unpublished).
3I Southern California l on Co. (San Onofre Nuclear Cenerating Station, Units 2 and 3), CLI-83-10, 17 NRC 528, 536 (1983), rev'd_j n eart on other aroMDig, QUARD v. HBC, 753 F.2d 1144 (D.C. Cir. 1985).
38 Applicants' Motion for Partial Surtmary Disposition of South Hampton Contention No. 8, NECNP Contention NHLP-4 and SAPL Contentions 18 and 25 (May 20, 1986), Affidavit of Richard H.
Strome
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l 16 motion, SAPL provided the affidavit of Frederick H. Anderson, l
Jr., the President of Ideas + Information, Inc.
Mr. Anderson,
]
who stated he had twenty years experience in the area of design i
and implementation of questionnaires and surveys, maintained that l
various deficiencias existed in the methodology employed in conducting the survey, including aspects of its design and the system used for its distribution.3' Although the Licensing F,oard never expressly addressed the question, review of these presentations makes it apparent that, as SAPL asserts, there were issues of material fact relating to the survey.
This included issues relating to the methodology utilized to identify the special needs population, survey design, accuracy verification, respcnse motivation, and update procedures.
Further, we cannot accept the Licensing Board's determination that litigation on this matter nonetheless was precluded by the "no extraordinary measures" principle enunciated in the commission's SAD onofre decision.
We find no basis for the Board's unexplained conclusion that the commission's declaration in EAD onofre that emergancy planning does not require " extraordinary measures" --
such as the construction of additional hospitals or the T
3' SAPL's Response to Applicants' Motion for Summary Disposition of SAPL Contentions 5, 7, 14 and 17 and Motion for Partial Summary Disposition of SAPL Contentions 18 and 25 (June 9,
1986), Affidavit of Frederick H. Anderson, Jr.
Applicants' terse response to SAPL's argument that there were matcrial factual issues is the assertion that it is too "conclusory" to address " intelligently."
Applicants Brief at 39.
SAPL's assertion in this regard may well be conclusional; t
however, perusal of the record establishes it is also correct.
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recruitment of substantial additional medical personnel just to deal with a possible radiological emergency -- forecloses consideration of the adequacy of a survey intended to provide information that clearly was relevant to establishing the planning basis necessary to ensure transportation availability.
Whatever the reach of the Commission's EaD Onofre holding, it does not extend to the circumstances here."
t We thus conclude that, on the basis of the presentations f
6 then before it, the Licensing Board acted improvidently in granting the applicants' motion for partial summary disposition i
so as to preclude further consideration of the adequacy of the 1986 Special Needs Survey.
Perhaps anticipating our conclusion in this regard, the staff asserts that any error that may have been committed by the Licensing Board was ameliorated by subsequent events that render the error harmless to SAPL.
This result follows, according to the staff, because in their direct testimony responding to a number of intervenor contentions on the subject of transportation availability, applicants put before the L
" E22 PhiladelDhia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479, 486-89 1986)
(special needs survey upheld based upon evidentiary rec (ord established during hearing).
42 NRC Staff Brief at 22. The Board's ruling was an adoption l
of the applicants' position, which at that time apparently did not havo the support of the staff.
E22 NRC Staff's Answer to Motions for Summary Disposition of Off-Site Emergency Planning Contentions (June 11, 1986) at 7.
See also Memorandum and Order i
of Nov.
4, 1986, at 16.
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j 18 Licensing Board evidence concerning the Special Needs survey.'3 According to the staff, the introduction of this evidence f
effectively opened the door for SAPL to cross-examine applicants' l
t witnesses on the sufficiency of the survey and to present rebuttal testimony on the matter.
Having failed to do so," SAPL l
itself made harmless any error resulting from the Board's ruling.
As authority for its harriess error argument, the staff appears to be relying upon (or analogizing to) the proposition that if a party prevails on an evidentiary objection resulting in the exclusion of proffered evidence, it effectively waives or i
nullifies its objection by later introducing essentially the same evidence.'3 We find this general principle inapplicable here.
First, the applicants' brief discussion of the survey was essentially background testimony.
Their witnesses' description of the survey and its results were intended only to provide a
'3 Subsoquent to the Licensing Board's November 1986 summary disposition ruling, intetvenor SAPL again put forth contentions 18 and 25 with new bases derived from the second revision of the NHRERP.
EAR (SAPL's) Contentions en Revision 2 of the [NHRERP)
(Nov. 26, 1986), at 25-29.
In proffering these contentions, SAPL made it clear that it was not making any waiver of its right to challenge the Licensing Board's November ruling.
Id. at 29.
Thereafter, the Licensing Board admitted the new contentions fet litigation, with the caveat that they were limited to the revised bases.
Memorandum and order of May 18, 1987, at 38-40 (unpublished).
The staff expresses some doubt whether the Board's second order revised its initial determination excluding a SAPL challenge to the survey's sufficiency, ass NRC Staff Brief at 22, but we see no indication of any change in its earlier ruling.
" Egg Tr. 4282-331.
45 Egg McCormick on Evidence 5 55, at 143 & n.13 (3d ed.
1984).
2 t
19 historical explanation of the origin of the information utilized l
to determine transportation assistance for the special needs population.
This hardly constituted a sufficient basis for placing tha excluded issue of the survey's sufficiency back into I
contest.
Further, in the context of a summary disposition ruling in which the Licensing Board determined that existing Commission legal and policy precedent regarding " extraordinary measures" i
i precluded further consideration of the survey, the application of an evidentiary waiver principle is singularly inappropriate.
We are, therefore, unable to accept the staff's harmless error argument in this instance.'I Accordingly, we remand the matter of the sufficiency of the 1986 Special Needs Survey for further consideration by the Licensing Board.
Further, in light of our remand of this issue for additional proceedings, it is premature for us to render any l
judgment regarding intervenor SAPL's challenges to the Licensing Board's findings concerning availability of adequate numbers of i
vehicles and drivers.'s once the propriety of this special needs
" Sag Applicants' Direct Testimony No. 2 (Special Needs/ Transportation), fol. Tr. 4228, at 9-10.
'I We also are unable in this instance to rely upon the Licensing Board's determination that there is an excess of available evacuation vehicles and drivers, aan LBP-88-32, 28 NRC at 695, as the foundation for a finding of harmless error.
In many instances, intervenor assertions establish an upper limit against which the adequacy of planning can be judged.
Egg infra pp. 45-46.
On the present record, however, we have no basis for etting a limit on the uncertainty about the size of the "special needs" population that accrues from the Licensing Board's erroneous summary disposition ruling.
48 Egg SAPL Brief at 37-39.
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20 survey's methodology has been aired, it then will be appropriate
}
for the Licensing Board to consider waether the number of vehicles and drivers identified as available to assist in t
transportation of the "special needs" population is sufficient.
B.
In addition to ascertaining transportation requirements for the "special needs" portion of the dtransit dependent" i
population, evacuation planning guidance also calls for an institution-by-institution estimate of the population in "special facilities," including schools, hospitals, nursing homes, day-care centers, and jails, and a description of their individualized transportation requirements.50 After evaluating the testimony and exhibits, the Licensing Board concluded that adequate transportation and support services will be available to evacuate this segment of the transit dependent population."
Intervenor SAPL takes issue with this conclusion, particularly as it relates to health core institutions such as hospitals and nursing homes.52 SAPL complains that the Licensing i
Board failed to give appropriate consideration to testimony that it contends refuted many of the bases employed in developing transportation assistance for such institutions.
Further, SAPL asserts, in making its finding concerning transportation adequacy, the Board improperly relied on the fact that, in the
Egg ALAB-83 2, 23 NRC at 154.
50 NUREG-0654, App.
4, at 4-3.
" LBP-88-32, 28 NRC at 691-92, 698-99.
52 SAPL Brief at 39-42.
l l
l t
?
Fo
.s s
i 21 event of an emergency, ad hoc responses may be utilized to change the number of vehicles assigned to an institution under the current plan.
We find no basis for disturbing the Licensing Board's determinations relative to most of the matters that SAPL maintains were, in the face of intervenor-sponsored testimony, incorrectly decided.
As the Licensing Board noted, the concerns of intervenors' witnesses Joan Pilot, Maureen Barrows, and Daniel Trahan about the need for particular types of vehicles (e.g.,
ambulances) and the number of vehicles needed were not persuasive.
First, evidence in the record established that, in setting the " default" values for transportation assignments (i.e., the preplanned number and type of vehicles that would be dispatched to an institution absent changes requested by institution staff at the time of an emergency evacuation), the staff at each institution was consulted about the amount and type of transportation required.53 Further, the record evidence also demonstrated that each institution would be contacted at least annually to ascertain new information concerning changing transportation needs.5' This was in addition to evidence showing t
that physicians and nurses or those otherwise charged with making j
care determinations would decide what transportation would be 53 Tr. 4398; gag Tr. 7824-25.
I' E.o.,
NHRERP (Town of Seabrook), Vol 16, at III-14; gag Applicants' Direct Testimony No.
2, at 4.
l
.~. --
I 22 i
appropriate for their patients in an emergency situation.55 By the same token, given the evidence that complete disaster l
evacuation plans existed at the institutions at which they were employed and that their institutions previously had carried out successful emergency evacuations, the Licensing Board acted j
within the discretion afforded it to resolve evidentiary disputes by declining to credit the general concerns of witnesses Barrows f
and Trahan about nursing home staffing being inadequate for an emergency response.5' We also find no merit in SAPL's argument that the Board's acceptance and endorsement of potential ad hoc changes in the
(
vehicle " default values" for particular institutions is violative of our decision in ALAB-832 in the Shoreham proceeding.57 The situation in Shoreham bears little similarity.
Our concerns i
55 si.ta Applicants' Direct Testimony No.
2, at 4; Tr. 7678-80.
56 Es.3 Tr. 4426-31, 4434, 7810, 7821-22, 7843-44; Applicants' Exhs. 11, 12, 25.
Particularly unconvincing in this regard is the testimony of witness Trahan.
Mr. Trahan stated that his facility was not adequately staffed to carry out a radiological emergency evacuation, but thereafter declared that the facility was adequately staffed for the number of patients it had, that the facility staff was trained in all aspects of disaster preparedness, and that the staff has participated in training and drills so they can promptly and correctly carry out their specific roles during a disaster.
Compare Profiled Testimony of Daniel Trahan, fol. Tr. 7806, at 5-6 with Tr. 7816, i
7823.
57 ALAB-832, 23 NRC 135, 154-57 (1986), aff'd, CLI-87-12, 26 NRC 383, 398-95 (1987).
SAPL does not specify what part of ALAB-832 is relevant to its argument and neither the applicants nor the staff address SAPL's argument in their briefs.
We presume, however, that the pertinent portion of ALAB-832 is that addressing the evacuation of EPZ hospitals.
\\
l..
Y J
23 there rested, inter,alia, on the fact that (1) different j
standards were used in planning the protective actions for nursing homes, on one hand, and hospitals, on the other, and (2) i there was a deliberate omission in planning for the t
i implementation of hospital evacuation, which did not conform to regulatory requirements.58 That is not the case with respect to vehicle " default value" changes for the NHRERP.
Appropriate planning implementation has been undertaken, as evidenced by the specification of the number and type of vehicles assigned to evacuate particular special medical facilities " based on the maximum capacity of each facility and on the best judgment of each facility's administrators, physicians, and disaster committee members," and actions undertaken to ensure that the appropriate va! deles and drivers are available.59 Moreover, going a step beyond, the plan requires that at the early " Alert" stage of any emergency," local emergency response officials will contact each of the particular facilities either to obtain confirmation that the predetermined, " default value" transportation remains adequate and should be dispatched, or to ascertain thet transportation needs now have changed and will require different vehicle allocations from the state's emergency l
L j
58 Ibid.
l 59 Applicants' Direct Testimony No.
2, at 4-5.
" gge infra p. 48.
1
i i
t 24 I
L response vehicle pool.
Although those changes in vehicle allocations might be loosely referred to as "ad hoc," they come about as the result of emergency plan implementation measures i
that evidence the flexibility appropriate to satisfy fully the f
1 guidance of NUREG-0654 that an institution-by-institution review i
of needs be undertaken."
In no way do they touch upon our concerns about inconsistent or insufficient implementing measures that were the focus of ALAB-832.
i There remains, however, a SAPL concern about the time it would take to prepara special facility advanced life support (ALS) patients for transit and to load them into emergency i
vehicles and the effect this preparation time may have upon j
evacuation time estimates (ETEs).'3 As the Licensing Board noted:
The primary purpose for having evacuation time estimates is to assist responsible governmental officials in making informed decisions regarding what protective l
actions are appropriate in a given i
radiological emergency in order to maximize dose savings.
To make these decisions the i
government officials must have available to i
them evacuation time estimates that are realistic appraisals of the minimum period in j
which, in light of existing local conditions, evacuation could reasonably be accomplished.
j The nearer to plant the area that might have l
'l Applicants' birect Testimony No.
2, at 17-19; Tr. 4398-99.
l
" Sag supra note 50.
'3 SAPL Brief at 41-42.
I 25 to be evacuated, the greateg the importance of accurate time estimates In view of the proximity of several special facilities to the Seabrook plant, as well as the fact that sheltering in large buildings such as these institutions may offer greater protection than that assigned to residential properties," thus making sheltering a more acceptable alternative to evacuation if the evacuation times increase appreciably, the question of how much ETEs for these patients will be increased by preparation time is a matter of concern.
Intervenors' witness Joan Pilot testified, without apparent contradiction, that Lscause of the intravenous lines and the medical complexity of the cases involved, it would take from "28 minutes to an hour" to move an ALS patient from a bed to a stretcher adjacent to the bed and that nons of this activity can be accomplished before the arrival of the evacuation vehicle.
In dismissing SAPL's challenge concerning evacuation times for special facilities, however, the Licensing Board stated that
"[t]he plan assumes that patients are at the loading point when
" LBP-88-32, 28 NRC at 777 (citing cincinnati Gas &
Electric Co. (William H. Zimmer Nuclear Power Station, Unit No.
- 1), ALAB-727, 17 NRC 760, 770-771 (1983)).
E2g2, NHRERP (Hampton Special Facilities Plans), Vol.
18A, App.
F, Seacoast Health Center Plant id. (Exeter Special Facilities Plans), Vol. 26A, App.
F.,
Exeter Hospital Plan, Exeter Healthcare Plan, Eventide Home Plan, Goodwin's of Exeter Plan.
" Egg LBP-88-32, 28 NRC at 760.
67 Rebuttal Testimony of Joan Pilot, fol. Tr. 7670, at 1-2; Tr. 7674-76.
i
'c
[
26 transportation arrives (NHRERP, Vol. 6 at 11-(21)), not in their beds awaiting pickup as Intervenors argue.""
If this were the case, then present planning assumptions seemingly would encompass l
the not inconsiderable amount of time that Ms. Pilot asserted it i
would take to prepare special f acility ALs patients before taking i
them to the transportation loading point.
The Board's statement, t
however, is inconsistent with the direction given in the individual emergency plans for New Hampshire EPZ towns that patients / residents of special facilities will be assembled a3 (not before) the avacuation vehicles arrive.69 If, as these L
plans suggest, assembly begins only wheti the evacuation vehicles i
arrive, then the preparation time factor highlighted by Ms. Pilot seemingly has not been considered as part of the present planning basis for ETEs.D In these circumstances, we are unable to conclude that the issue of preparation time has received appropriate consideration i
as a factor in deriving accurate ETEs for this class of the 6a LBP-88-32, 28 NRC at 699.
Egg NHRERP (Hampton special Facilities Plans), Vol. 18A, App. F, Seacoast Health Center Plan at 15-16; id. (Town of Rye),
Vol. 20, App. F, Webster at Rye Plan at 15-16; id. (Portsmouth Special Facilities Plans), Vol. 21A, App.
F, Portsmouth Hospital Plan at 17, Edgewood Centre Plan at 15, Mark H. Wentworth Home Plan at 15, Clipper Home Plan at 15-16, Parrot Avenue Home at 15; id. (Exeter Special Facilities Plans), Vol. 26A, App.
F, Exeter Hospital Plan at 18, Exeter Healthcare Plan at 15-16, Eventide Home Plan at 15, Goodwin's of Exeter Plan at 15.
" Richard H. Strome, Director of New Hampshire Office of State Emergency Management. also testified that he was not aware of any state time estimate for loading advanced life support patients.into ambulances.
Tr. 4302.
j l
1 l
27 special facility population."
Accordingly, we remand the matter to the Board to resolve this deficiency.n III. DECONTAMINATION AND RECEPTION CENTERS i
i Another central issue raised by SAPL's appeal goes to the treatment the Licensing Board gave to SAPL's contentions respecting the adequacy of the reception centers for evacuees i
from the Seabrook EPZ in the event of a radiological emergency.
i In essence, SAPL charges the Board below with a failure to give l
1 l
" Correction of the preparation time omission suggested by the Licensing Board's statement also will ensure that special i
facility planning conforms to the guidance of NUREG-0654 that
{
evacuation time "(e)stimates for special facilities shall be made with consideration for the means of mobilization of equipment and manpower to aid in evacuation" and that "(ejach special facility j
shall be treated on an individual basis."
NUREG-0654, App.
4, at j
4-9 to 4-10.
1 n Also on the subject of transportation availability, as we earlier noted, in their testimony on this subject applicants stated that the planning basis for determining transportation needs was the maximum capacity of each facility.
Egg supra note j
59 and accompanying text.
It seams, however, that this criterion was not met in tha cases of Webster at Rye Plan and the E:'.eter Healthcare Plan because the assigned transportation resources do not appear to accommodate the number of patients / residents.
For the Webster facility at Rye, New Hampshire, the plan states that two school buses with conversion beds that accommodate ten persons per bus and one reclining seat bus that accommodates 40
)
persons is to be made available.
NHRERP (Town of Rye), Vol. 20, App.
F, Webster at Rye Plan at B-1.
The stated number of 1
residents, however, is 70.
Ibid.
Egg also.isk (State Agency i
Procedures for Seabrook Station), Vol.
4, App.
B, at 18B-20.
At the Exeter Healthcare facility in Exeter, New Hampshire, the shortfall is 15.
13L (Exeter Special Facilities Plans), Vol.
kpp B, $t 4
In the context of its consideration of the adequacy of transportation and drivers, gag supra pp. 19-20, the Board should ensure that these plans conform with the commitment given in the applicants' testimony.
)
g u
a-.
r I
f 28 proper effect to ALAB-905," which was rendered in the Shoreham i
proceeding just a month before the issuance of LBP-88-32.
t We necessarily commence our appraisal of the SAPL claim with l
a close look at ALAB-905.
With the setting and holding of that decision in mind, we will then turn to a consideration of what SAPL put before the Licensing Board in support of its contentions pertaining to reception center inadequacy.
From that point, we will move on to explore whether there is an inconsistency between i
the Licensing Board's disposition of the contentions and ALAB-905.
Finally, we will undertake to determine whether, ALAB-905 to one sida, there is a sufficient record foundation for the reception center contentions with the consequence that SAPL should have prevailed on those contentions.
A.
In ALAB-905 we came to grips with an important aspect of the general requirement that emergency plans for the area surrounding a nuclear power plant provide adequate facilities and equipment to support the emergency response.I' Specifically, we focused upon the matter of the radiological monitoring of evacuees at reception centers.
On that score, we took note of the guidance provided in NUREG-0654.
Criterion II.J.12 of that document specifies that l
U Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit.1), ALAB-905, 28 NRC 515 (1986).
By memorandum to the j
Appeal Board and the parties dated February 17, 1989, the Commission indicated that it had declined any review of ALAB-905.
7' See 10 C.F.R. S 50.47 (b) (8).
s 29 J
[e)ach organization shall describe the means for registering and monitoring of evacuees at relocation centers in host areas.
The i
personnel and equipment available should be capable of monitoring within about a 12 hour1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> period all residents and transients in the plume exgosure EPZ arriving at relocation centers ALAB-905 went on to observe that NCREG-0654 does not directly address the question of the number of individuals 1
1 (expressed as a porcentage of the total EPZ population) that must be used as a planning basis in deciding upon the necessary facilities and equipment for monitoring evacuees.
FEMA placed before the Shoreham Licensing Board, however, an internal FEMA memorandum, dated December 24, 1985, and signed by Richard W.
Krimm, Assistant Associate Director for Natural and Technological
[
Hazards, Office of State and Local Programs and Support.
Directed to certain regional FEMA officials, the memorandum stated at the outset that its purpose was to provide
" interpretative guidance" with respect to Criterion II.J.12.
s After a brief discussion of the matter, it opined that state and local radiological emergency preparedness plans should include trained personnel and equipment at relocation centers for the D NUREG-0654, at 65.
This guidance was reinforced in the recent September 1988 supplement to NUREG-0654 concerning utility-prepared offsite emergency response plans, such as the ones in issue in Shoreham and in this proceeding with respect to the Massachusetts portion of the EPZ.
The supplement states that the personnel and equipment available shall be capable of monitoring within about a 12-hour period all residents and transients in the plume exposure pathway EPZ arriving at relocation centers.
NUREG-0654 (Rev.
1, Supp. 1) at 20.
30 l
monitoring of a minimum of twenty percent of the population within the EPZ.I' i
The Eh2reham intervenors closely interrogated the sponsoring FEMA witnerses with respect to the foundation for the Krimm memorandum." Moreover, in their proposed findings of fact, those intervenors devoted ten pages to a detailed attack upon the memorandum in a section titled "The Krimm Memorandum.""
The attack concluded with a proposed finding to the effect that
" substantial weight" could not be given to " FEMA's interpretation of the meaning of (Criterion II.J.12] as reflected in the Krimm Memorandum or to its witnesses' opinions regarding an appropriate l
planning basis for monitoring.""
"Likewise," the proposed finding continued, "the Krimm Memorandum provides no persuasive support for (the Shoreham applicant's) planning basis.""
In a partial initial decision, the Licensing Board rejected the intervenors' position.
As a foundation for its determination that the appropriate planning basis was twenty percent of the EP4".
l I' See ALAB-905, 28 NRC at 523-24, setting out the full text of the three-paragraph analysis in the Krimm memorandum.
In addition, ALAB-905 described the genesis of the memorandum.
Id.
at $24.
- See id. at 525 and accompanying citations to the Shoreham record.
78 Egg Docket No. 50-322-OL-3, Suffolk County, State of New York and Town of Southhampton Proposed Findings of Fact and Conclusions of Law on the Suitability of Reception Centers (Sept.
14, 1987) at 28-37.
" Id. at 37.
" Ibid.
I 31 I
population, the Board relied virtually exclusively upon the Krimm memorandum.st on their appeal decided in ALAB-905, the intervenors insisted that the Licensing Board's raliance on the Krimm i
memorandum was misplaced.
We agreed.
In our view, apart from the lack of proper sponsorship," the mamorandum had crucial shortcomings.
For one thing, without explanation, it appeared to rest on the tacit but dubious assumption that the issue is generic in character 1.e., that a twenty percent planning basis i
will suffice in the formulation of monitoring arrangements for all nuclear facilities."
For another, we pointed to weaknesses in each of the three factors that had been identified in the memorandum as the bases for its guidance, deficiencies we found had not been resolved on the Licensing Board record."
For all of these reasons, we concluded in ALAB-905 that the Licensing Board erred in endorsing, on the strength of the Krimm memorandum alone, the twenty percent planning basis for the at Egg Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-88-13, 27 NRC 509, 523-24 (1988).
In this connection, the Board set forth at some length the intervenors' criticism of the Krimm memorandum.
Id. at 517-18.
s2 None of the sponsoring witnesses had contributed to the preparation of the memorandum and the single FEMA employee among those witnesses disclaimed any role in the formulation of FEMA policy.
Moreover, the witnesses were unable to provide dignificant information on either the memorandum's development or the reasor.ing behind its assumptions.
Egg ALAB-905, 28 NRC at 525.
u Id. at 526.
" Id. at 527-28.
l l
l 32 i
monitoring of evacuees.e5 Determining that there was no other
)
evidence of record so compelling as to have mandated the acceptance of the twenty percent figure, we remanded the planning basis issue to the Licensing Board for further consideration."
In doing so, we stressed:
This is not to say that we have now determined that it would be impossible to i
justify the use of the twenty percent figure.
We need not and do not speculate on that i
point.
It is enough for present purposes to decide that nothing in the portions of the
)
existing record brought to our attention supplies the requisite justification.
It may be, of course, that the parties have 7
overlooked some crucial evidence nestled in the deep recesses of that record.
It is also conceivable that the applicant and staff might be able to adduce additional evidence that would cure the deficiencies in the proof presented by them to date.
But these are matters that must be dealt with by the Licensing Board in the first instance.
i In this connection, we appreciate that there has been no prior experience in this country with the immediate monitoring of individuals who were located within a nuclear facility's EPZ at the time of a radiological i
accident at that facility.
Moreover, our attention has not been directed to any other type of accident or natural disacter that might call for some form of monitoring.
consequently, there will not likely be hard empirical evidence to justify any conclusion respecting the number of persons likely to seek monitoring, but not sheltering, in the event of a Shoreham radiological emergency.
It does not perforce follow, however, that it will prove impossible to provide a reasoned estimate on that score, sufficient to 85
(
Id. at 528.
l l
" Id. at 528-31, 535.
l
\\
i...
)
33 undergird a monitoring planning basis well under one hundred percent of the EPZ population.
There are many areas in which I
estimates likewise must be m.ade, for one
- purpose or another, without the benefit of empirical experience.
Whether an estimate so disadvantaged can carry the day necessarily hinges upon whether a rational explanation has been supplied for it.
As we have seen, j
the present difficulty with the Krimm memorandum (and the Licensing Board's finding based upon d. t ) is th auch an explanation,gt they are devoid of t
B.
In common with the intervenors in Shoreham, SAPL put into issue in this proceeding the adequacy of the monitoring capacity of the designated reception centers.as And, as in Shoreham, the Krimm memorandum was offered by the applicants in response to SAPL's claims --
i.e.,
as establishing that, for planning purposes, it could properly be assumed that twenty percent of the EPZ population would arrive at a reception center in quest of monitoring.a9 Subsequently, FEMA referred to the memorandum in the course of its testimony on the monitoring capability question."
87 Id. at 530-31 (emphasis in original; footnote omitted).
as This was accomplished through the Licensing Board's admission of SAPL Revised Contentions 7 and 33.
San Memorandum and Order of May 18, 1987, at 33-35, 44-45 (unpublished).
1 89 San Applicants' Direct Testimony No. 4 (Decontamination and Reception Centers), fol. Tr. 4740.
The Krimm me*norandum was appended as Attachment 1 and was discussed at pp. 3-4 of the testimony under the heading " Anticipated Number of Evacuees."
l
" San Direct Testimony of FEMA Panel on Reception Centers, l
fol. Tr. 5091.
The reference to the Krimm memorandum as I
representing FEMA's position on the planning basis matter is contained in the section titled " FEMA Response to SApL 7" on a page bearing the number 59.
l s'-~-wr---
T---
e y
.-w,.-.--t
+
i 34
+
l SAPL counsel extensively cross-examined the witnesses for both the applicants and FEMA."
In sharp contrast to the
[
interrogation conducted by intervenors' counsel in Shoreham,
[
however, the cross-examination did not undertake to discredit the analysis contained in the Krimm memorandum.
In questioning the applicants' panel, SAPL's counsel did take note of the twenty percent planning basis and of the fact that its selection was founded upon the Krimm memorandum.92 counsel went on to inquire why a more conservative figure was not used," but that was the sole extent of the cross-examination on the subject.
More specifically, counsel made no attempt to probe the ingredients of the memorandum for the purpose of showing that its conclusion rested on a shaky foundation."
" Tr. 4742-4928 (applicants' witnesses); Tr. 5092-99 (FEMA witnesses).
For its part, as stated at the outset of Applicants' Direct Testimony No.
4, the applicants' witness panel included i
officials of both the New Hampshire state government (e.g., the Director of the New Hampshire office of Emergency Management) and the lead applicant (e.g., the Manager, Emergency Planning, of New t
Hampshire Yankee).
The FEMA panel was composed of two agency l
officials (e.g., the Chief of the Natural and Technological Hazards Division in FEMA's Region I office in Boston) and one consultant in the employ of the Argonne National Laboratory in Illinois.
Egg Direct Testimony of Edward A. Thomas, Edward A.
Tanzman, and Bruce J. Swiren on the (NHRERP) Presented on Behalf of (FEMA), fol. Tr. 3088.
92 Tr. 4767.
" Tr. 4768-70.
" In this connection, SAPL's cross-examination plan for the applicants' witnesses on reception centers contemplated only the following line of inquiry on the Krimm memorandum:
2.
Is it not true that the FEMA Memorandum from Richard W.
Krimm, referred to at p. 4 of (continued...)
)
I
~
35 The SAPL cross-examination of the FEMA witnesses was not materially different.
Counsel inquired as to whether the Krimm memorandum reflected a FEMA position that LLenty percent of the i
t total EPZ population was the " minimum number of evacuees that should be potentially considered to be needing monitoring.""
After receiving the answer that it is the " minimum number of evacuees that should be planned for within 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />," counsel stated his understanding that it is " FEMA's position that if one is prepared to monitor and potentially decontaminate 20 (percent) of the evacuees within 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />, that an ad hoc response can be counted on to take care of higher numbers than that.""
obtaining the agreement of the witness that this was the FEMA position, counsel did not further pursue the matter of the Krimm memorandum with the FEMA panel.
SAPL presented one witness of its own on the reception center matter, Dr. Donald L. Herzberg.
Dr. Herzberg is the
"(... continued)
Applicants' direct testimony states that provisions should be made for personnel and equipment to monitor a minimum of 20% of the estimated population to be evacuated?
(See (2 of 2) at page 2).
Why is the State of New Hampshire not basing its planning more conservatively and planning for more than 20%?
(SAPL's] Cross-Examination Plan For Applicants on Reception Centers, fol. Tr. 4928, at 1.
" Tr. 5093.
" Tr. 5093-94.
'I Tr. 5094.
i
t 36 Director of the Division of Nuclear Medicine and a staff radiologist at the Mary Hitchcock Memorial Hospital in Hanover, New Hampshire.
He also is a Clinical Professor of Medicine (Radiology) at the Dartmouth-Hitchcock Medical Center."
In his supplemental testimony, presented in question and answer form, Dr. Herzberg made no direct reference to the Krimm memorandum.
Responding, however, to a question seeking to elicit his concerns about the number of individuals projected to arrive at the Seabrook reception centers, he had this to says Based upon my experience with small decontamination exercises it is my opinion 4
that the vast majority of evacuees will come i
to be checked.
I have for many years observed the reaction of human beings to information about radioactivity and it is my opinion that more people would report for t
services after potential exposure to radioactivity than would report for services following other natural or technological emergencies.
It would interest me greatly to l
find out what is alleged to form the empirical basis of the 20% estingte of evacuees reporting for services l
Similarly, at no point during his cross-examination or redirect l
examination did Dr. Herzberg undertake an analysis of the Krimm l
memorandum, let alone embark upon a critical evaluation of its content.'"
l l
l
" See Dr. Herzberg's curriculum vitae appended to Direct l
l Testimony of Donald L. Herzberg, M.D.,
Relative to SAPL l
Contentions 7 and 33, fol. Tr. 5011.
" Supplemental Testimony of Donald L. Herzberg, M.D.,
Relative to (SAPL's] Contentions 7 and 33, fol. Tr. 5012, at 2.
1 "O Egg Tr. 5014-73.
Indeed, the Krimm memorandum was not mentioned at all by Dr. Herzberg while on the witner's stand.
{
l l
37 In the circumstances, it is not surprising that, again in t
contrast to the situation in Shoreham, SApL's proposed findings l
of fact did not confront the Krimm memorandum directly and assert (with a supporting explanation) that its guidance rested upon faulty reasoning.
The most that the Licensing Board was asked by i
SAPL to find as a fact was that this guidance conflicted with the testimony of Dr. Herzberg that, based on his experience in observing human reaction to information about radiation, the vast majority of evacuees would report to reception centers to be t
checked."'
In its proposed conclusions of fact, SAPL invited the Licensing Board te find, on the strength of Dr. Herzberg's opinion, that "it is unreasonable to plan for only 20% of evacuees reporting 1 centers for services" and that, instead, "all evacuees must be afforded a reasonable opportunity to be monitored for radiation contamination within a 12-hour timeframe."u2 Here too, however, SAPL made no effort to enlighten the Board respecting the justification for preferring t
Dr. Herzberg's conclusion to that of FEMA."3 C.
1.
In decermining in LBP-88-32 that the twenty percent planning basis employed in the NHRERP "is both reasonable and adequately supported by the record,""4 the Licensing Board took
"' Egg (SAPL's] Proposed Findings of Fact, Rulings of Law and Conclusions of Fact (?!ay 9, 1988) at 56-57.
22 l
Id. at 69-70.
"3 None of the other intervenors was significantly involved l
in the reception center issue before the Licensing Board.
"" LDP-88-32, 28 NRC at 714-15.
s 38 note of ALAB-905.
Acknowledging "the apparent contradictory holding on facially similar facts" in that shgxsham decision, the Board nonetheless concludod that continued reliance on the FEMA
)
guidance found in the Krimm memorandum was appropriate in the present case."
In a nutshell, the foundation for this conclusion was the i
fact that, in ALAB-905, we were " faced with a direct and specific challenge to the FEMA analysis underlying its guidance and the application of that guidance to the Shoreham EPZ," as well as an unsuccessful attempt to learn from FEMA's witnesses the basis for that guidance.*
A similar challenge, the Licensing Board continued, had not been mounted by SAPL in this proceeding.10#
On
[
that score, the Board found Dr. Herzborg's testimony to be of no assistance to SAPL.
For, in addition to what the Board deemed to be his " limited value as an expert," it also declared that "a close reading of his testimony reveals that he did not assert that the 20% planning standard was based upon a flawed analytical i
basis but rather, simply expressed an interest in learning about the empirical basis for the 20% standard."*
- M. at 713.
- Ibid.
'07 Ibid.
- M. at 714.
Just prior to discussing ALAB-905, the Board pointed to Dr. Herzberg's " limited experience with radiation emergency plans" and, based thereon, found that he "is no expert at all in the area of large-scale emergency planning or the prediction of populace response in the case of an emergency."
M. at 713.
Accordingly, his " observations about the possible (continued...)
i d
e I
j 39 l
In these circumstances, the Board reasoned, the day was l
carried by the " FEMA finding" reflected by the testimony of the FEMA witnesses to the effect that FEMA's position is that the
{
i monitoring provisions must address at least twenty percent of the total EPZ population.
This was because, under Commission regulations, a FEMA finding constitutes a rebuttable presumption and, thus, must be respected in the absence of contrary evidence.'"
2.
We find our 21ves in essential agreement with this disposition of the matter.
To begin with, it is a settled principle of appellate practice that an appellant is ordinarily A
precluded from pressing issues or advancing arguments not presented to the trial tribunal.
Wa long ago declared our acceptance of that general principle, with the notation that an exception might possibly be made "in the case of a serious t
substantive issue as to which a genuine problem has been l
l l
l l
"*(... continued) response of evacuees in the face of an emergency at Seabrook" were dismissed as "but speculations entitled to little, if any, weight."
1hi4
"* Id. at 714 (citing 10 C.F.R.
$ 50.47(a) (2) and, among other decisions, Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), A LAB-698, 16 NRC 1290, 1298 (1982),
aff'q, LBP-81-59, 14 NRC 1211, 1460-66 (1981)).
I 1
40 demonstrated.""'
In this instance, there is every reason to apply the principle in full measure.
As we have seen, unlike the Shorcham intervenors, SAPL made j
no endeavor below -- either in the presentation of its affirmative case or in its cross-examination of the witnesses for other parties -- to bring into serious questien the analysis undergirding the Krimm memorandum's conclusion, let alone to demonstrate that its analysis was faulty.
This being so, but for j
r the intercession of ALAB-905 there would be little room for doubt i
as to the outcome of any attempt by SAPL to attack the analysis for the first time on appeal.
Accordingly, the question is whether a different outcome is mandated by that intercession.
Stated otherwise, was the Licensing Board obliged to give effect as a matter of stare decisis to our Krimm memorandum determinations in ALAB-905, notwithstanding the total failure of SAPL (or any other intervenor) to challenge the analysis j
contained in the memorandum?"'
Ho Tennecsee Vallev Authority (Hartsville Nuclear Plant, Units 1A, 2A, IL, and 2B), ALAB-463, 7 NRC 341, 348 (1978) i (referring to Northern States Power Co. (Frairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-244, 8 AEC 857, 864 (1974)).
Accord Pennsylvania Power & Licht Co (Susquehanna t
s Steam Electric Station, Units 1 and 2), ALAB-693, 16 NRC 952, 956 n.6 (1982); Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 NRC 43, 49 (1981),
aff'd sub nom. Townsiiin of Lower Alloways Creek v. Public Serv.
Elec. & Gas Co., 687 F.2d 732 (3d Cir. 1982).
Egg also Detroit Edipon Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-709, 17 NRC 17, 22 (1983).
"' Needless to say, the doctrine of Igg iudicain could not possibly come into play inasmuch as (1) neither SAPL nor anyone in privity with it was a party to the Shoreham proceeding; and (continued...)
l t
l 41 i
As the United States Court of Appealo for the First Circuit has observed, one of the " essential principles" of stare declaim is that "an issue of law must have been heard and decided.""8 Manifestly, no issue of that stripe is involved here.
We did not decide in ALAB-905 that, as a matter of 1AM, the twenty percent planning basis was unaccertable.
To the contrary, all that we determined was that the evidentiary record then before us did not supply an adequate foundation for such a planning basis.
It was in that context that we agreed with the intervenors' claim, f
advanced before the Licensing Board and renewed on their appeal, that within its four corners the Krimm memorandum did not provide a reasoned explanation for the adoption of the twenty percent figure."3 Thus, while the Licensing Board in the proceeding at bar was certainly obliged to consider ALAB-905, it was not obligated by stare decisis principles to give dispositive effect to the portion of ALAB-905 concerned with the Krimm memorandum.
l l
Moreover, considerations of fundamental fairness militate
"'(... continued)
(2) there is not the requisite identity of cause of action, claim or demand.
Egg Alabama Power Co. (Joseph M. Farley Nuclear Plant Units 1 and 2), ALAB-182, 7 AEC 210, 212, remanded on other arounds, CLI-74-12, 7 AEC 203 (1974).
The difference in parties likewise forecloses resort to the related issue preclusion doctrine of collateral estoppel.
Egg id. at 213; Southern 2311fornia Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-673, 15 NRC 688, 695 (1982).
"2 EEQQ v. Trabucco, 791 F.2d 1, 4 (1st Cir. 1986) (citing 1B Moore's Federal Practica 1 0.402(2), at 30).
"3 E23 suora pp. 32-33.
e, 42 strongly again6t allowing SAPL to rely cn ALAB-905 now, notwithstanding its failure to have mounted a serious attack upon the Krima memorandum below.
SAPL had, of course, the same opportanity to challenge the memorandum as was available to, and utilized by, the Shoreham intervenors."'
Had SAPL chosen to take advantage of that opportunity, either through the affirmative testimony of a witness or during cross-examination of the witnesses for the applicants and FEMA, the applicants might well have proffered additional evidence to shore up the analysis contained in the Krima memorandum.
There being no substantial attempt to discredit the memorandum, however, both the applicants and FEMA could justifiably have assumed that there was no occasion for any such rebuttal.
That being so, justice would hardly be served by now remanding the matter to the Licensing Board on the authority of ALAB-905.
Such a course would enable SAPL to profit, to the applicants' detriment, from its failure (for whatever reason) to put the Krimm memorandum squarely in issue at the appropriate time.
It follows from the foregoing that, notwithstanding ALAB-905, the Licensing Board was entitled to treat as presumptively 1
correct the FEMA conclusion that, for planning purposes, it may be assumed that at least twenty percent of the total New i
Hampshire EPZ population would require or seek radiological l
l monitoring in the event of an accident at Seabrook.
It in much t
"' In common with SAPL here, the Shoreham intervenors had no l
l advance knowledge respecting how we might regard the Krimm memorandum were we called upon to appraise its content.
- ];) '_
43 too late in the day for SAPL (or any other intervenor) to claim with respect to the NHRERP that this conclusion should be i
entirely disregarded as resting upon a faulty analysis on FEMA's purt.
What remains for decision is whether the Licensing Board was equally justified in finding that the presumption was not satisfactorily rebutted by Dr. Herzberg's testimony.
In answering this question in the affirmative, we think it unnecessary to pass ultimate judgment on the warrant for the i
Licensing Board's belief that Dr. Herzberg "is no expert at all in the' area of large-scale emergency planning or the prediction of populace response in the case of an emergency.""5 Be that as it may, we are persuaded, as was the Licensing Board, that Dr.
Herzberg's testimony fell far short of rebutting the presumption favoring the FEMA determination."'
On this score, it suffices to take note of the factors to which the Board pointed:
Dr. Herzberg's observation, based on his experience in nuclear medicine and perhaps six small decontamination exercises at medical facilities involving less than twenty people, was that a " vast majority" of evacuees would seek monitoring.
In arriving at this view for the Seabrook EPZ, however, Dr. Herzberg did not review or even know of the plans or planning standards developed with respect to other nuclear facilities, did not review all parts of NHRERP Revision 2, and could not quantify his proposed " vast majority" approach.
Moreover, Dr. Herzberg testified that his only experience with implementing a nuclear power reactor emergency plan was as a participant in, rather than planner or evaluator of, a
M Sgg suora note 108.
M6 Egg 10 C.F.R.
S 50.47 (a) (2).
44 medical facility's portion of a }978 or 1979 u
emergency drill in the Midwest 3
When these factors are combined with the additional consideration (likewise noted by the Licensing Board) that Dr. Herzberg's sole reaction to the Krimm memorandum was an expressed interest in the empirical basis for the twenty percent standard,na it is simply impossible to conclude that the trier of fact was obliged to reject the FEMA position on the strength of Dr. Herzberg's contrary opinion."'
D.
For the foregoing reasons, we affirm the Licensing Board's acceptance of the twenty percent standard.
The question remains whether the NHRERP satisfies that standard:
1.e.,
whether the four designated New Hampshire primary laception centers are capable of monitoring, within a twelve-hour period, twenty percent of the total population within the New Hampshire portion of the EPZ.120 "I LBP-88-32, 28 NRC at 713 (citations omitted).
"" ERS EMPIA p.
36.
"' ror the reasons set forth in the text, we are also satisfied that allowing SAPL to challenge the analysis in the Krimm memorandum for the first time on appeal could not be justified on the theory that there exists "a serious substantive issue as to which a genuine problem has been demonstrated" and thus the general rule precluding such a challenge should be waived.
Egg gygra pp. 39-40.
120 Because our review of the record did not reveal the basis for the Licensing Board's conclusions concerning compliance with the 20 percent standard, by order dated August 30, 1989, we requested that applicants provide us with the necessary numerical quantities (and appropriate record citations) that would establish the NHRERP's conformance with that standard, Intervenors MassAG and SAPL utilized the opportunity afforded (continued...)
45 As ons applicants' witness testified, each of the primary centers will be staffud to accommodate, within the twelve-hour period, 9,667 evacuees (making a total for the four centers of 38,668 persons).121 Thus, the twenty-percent standard is met if the total New Hampshire EPZ population does not exceed approximately 193,000 persons.
On that score, there are four components to that population.
The size of three of them is not in dispute:
the permanent residents, nonbeach transients, and l
nonrosident workers within the EPZ total approximately 106,000.122 There is not similar agreement on the number of beach transients l
that might be fcund in the New Hampshire portion of the EPZ.
We 120(... continued) them to comment on applicants' response to raise a host of new issues concerning the adequacy of reception centers.
As we have
)
already indicated in this decision, gas supra pp. 39-40, arguments first raised on appeal generally will not be i
considered.
This admonition is particularly appropriate in this context; we. decline, therefore, to accord any substantive consideration to these freshly hatched concerns.
121 Egg Applicants' Direct Testimony No.
4, at 5.
SAPL raised several challenges to the adequacy of staffing for the reception centers.
SAPL asserts that the centers need more administrative and registration personnel, SAPL Brief at 45-46, more training for this personnel, id. at 46-47, more firefighters to perform monitoring functions, id. at 47, and monitors for L
evacuees from special facilities, id. at 48.
For the reasons set forth by the Licensing Board, LBP-88-32, 28 NRC at 717-721, we find these claims are without basis.
We will, however, require (rather than suggest, as did the Licensing Board, id. at 721) that the NHRERP be revised to document the availability of nonhost community fire department personnel for decontamination and monitoring services.
l 122 Egg Applicants' Exh. 5; NHRERP (Seabrook Station Evacuation Time Study), Vol.
6, at 2-5, 5-7; id. App. M, at M-1 to M-5; Applicants' Direct Testimony No. 7 (Evacuation Time Estimates and Human Behavior in Emergencies), fol. Tr. 5622, at l
16-17.
)
1 i
4G find nothing in the record, however, to suggest that, even on a peak population day on a summer weekend, that figure would exceed I
the 87,000 persons needed to reach the previously-calculated base j
population value -- a figure about seventy-five percent greater than the applicants' estimate of 49,000."3 To the contrary, as we read the expert testimony adduced by the MassAG, the intervenors' position is.that the peak New Hampshire beach population would be in the neighborhood of 70,000."'
Accordingly, the NHRERP complies with the twenty percent standard."5 "3 Egg Applicants' Direct Testimony.No. 7, at 16-17, 38.
We are aware, of course, that at least in the first instance there might not be an even distribution of evavases among the four reception centers.
This should not be a potential problem except on peak population days.
Also, two of the reception centers (Rochester and Dover) are located within approximately 10 miles of one another and the distance between the other two (Manchester and Salem) is approximately 20 miles.
These relatively close proximities undoubtedly will enable a redistribution of evacuees in the event it proves necessary.
Moreover, these figures do not take into account the additional capacity at the secondary centers included in the planning.
Egg Applicants' Direct Testimony No.
4, at 11.
"' Egg Testimony of Colin High, Thomas J. Adler and William A. Befort on Behalf of the (MassAG) on SAPL Contention No. 32, SAPL Contention No. 34 and Town of Hampton Revised Contention III, fol. Tr. 6849, at 5'n.1, 16.
The witnesses estimated a presence of 24,664 vehicles in the beach area, with an occupancy rate of 2.854 persons per vehicle.
us Also with regard to the matter of decontamination and reception centers, intervenor NECNP argues that guidance in l
NUREG-0654 requires that a second-shift (i.e., 24-hour capability) be provided for reception centers.
New England Coalition on Nuclear Pollution's Brief in Support of Appeal (Mar, l.
24, 1989) at 24-25 [ hereinafter NECNP Brief].
NECNP asserts that this result is mandated by the guidance in NUREG-0654 Criterion II.A.4, which requires that principal organizations "shall be capable of continuous (24-hour) operations for a protracted i
(continued...)
.1,.
'a 47 IV.
SHELTERING OF BEACH POPULATION i
As is recognized in NUREG-0654, in assessing the range of protective actions to be afforded by a radiological emergency plan, one component to be considered is the use of sheltering.
In ruling on three intervenor contentions (NECNP/RERP-8, SAPL-16, and TOH-VIII) relating to sheltering of persons within the beach. areas near the Seabrook facility, the Licensing Board concluded that, although sheltering would be utilized in only a few, narrowly defined circumctances and would be implemented in an essentially ad hoc fashion, the NHRERP gave sufficient consideration to this protective action option so as to comply with regulatory requirements and the guidance of NUREG-06S4.
I 125 (... continued) period," rather than Criterion II.J.12 relied upon by the Licensing Board in affirming the adequacy of one 12-hour shift, which provides that state and local organizations are to ensure that personnel and equipment at reception centers are capable of monitoring within "about a 12 hour1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> period" all arriving residents and' transients.
This challenge, however, fails to recognize the purpose and scope of each of these guidance elements.
The former criterion' specifies the terms under which the existence of a major emergency response organizaticn (e.g.,
the state or a local l
emergency response organization) is to be maintained, while the latter is intended to provide guidance on the period of operation of a'particular type of emergency response facility.
The specification in Criterion II.A.4 that emergency response i
organizations, which provide a variety of services, must function on a continuing basis for a protracted period does not extend or otherwise revice the length of time particular decontamination l
facilities must be operated under Criterion II.J.12.
Thus, there I
is no regulatory foundation for NECNP's argument.
Moreover, as L
the applicants and the staff have suggested, Applicants Brief at I
37; NRC Staff Brief at 20 n.19, there is no realistic basis for i
NECNP's related concern that the reception centers will cease i
operations prematurely.
l l
j.
f' 48 Intervenors challenge the Licensing Board's findings on the i
sheltering option on two principal grounds.
First, they question whether the Board correctly concluded that sheltering was an option to be utilized only in very limited circumstances.
Second, they dispute whether adequate measures have been taken to l
implement the sheltering option in the instances in which it has been found to be appropriate.-
For the reasons set forth below, we find that the Licensing Board was essentially correct in the first instance, but erred in failing to require appropriate implementing measures.
A.
As described in some detail in the Licensing Board's decision,126 in accordance with NUREG-0654 the NHRERP incorporates the Environmental Protection Agency's (EPA) protective action guide dose projections as guidance tools to determine the need 4
for protective actions and for choosing appropriate protective 1
actions.127 NUREG-0654 recognizes four classos of emergency 1
action levels (in ascending order of significance):
Notification l
l t
of Unusual Event, Alert, Site Area Emergency, and General Emergency.12s At the " General Emergency" level, which is l
triggered by the possibility that EPA protective action guides j
may be exceeded outside the perimeters of the nuclear facility, 1
I 126 LBP-88-32, 28 NRC at 751-58.
l 127 NHRERP, Vol.
1, at 2.6-1 to
-2.
The EPA protective action guides are found in its " Manual of Protective Action Guides and Protective Actions for Nuclear Incidents," EPA-520/1-75-001 (June 1980 rev.) [ hereinafter PAG Manual).
128 10 C.F.R. Part 50, App.
E, 5 IV.C.
l l
l i
?.*
49 I
NUREG-0654 indicates that evacuation of the general popul4 tion may be necessary."*
On the other hand, under NUREG-0654 guidance, no offsite emergency action involving extensive relocation of the general public ordinarily would be warranted at either the " Alert" or " Site Area Emergency" classifications s
because any offsite releases are not expected to exceed EPA's protective action guides except near the site boundary of the facility.'30 Because of concern over the special circumstances created by the large summertime beach population near the Seabrook plant, the NHRERP provides thau certain offsite actions affecting a relocation of the general public should be taken at the earlier action levels.
Under its terms, beach closings and beach area access restrictions are to be considered by emergency planning officials as early as the " Alert" classification, and further precautionary or protective actions such as beach closure or evacuation would be recommended by state officials at the " Site L
Area Emergency" classification.'3' Moreover, even if accident conditions do not allow for implementation of early precautionary measures (such as beach closing), evacuation, as opposed to l
129 Egg NUREG-0654, App.
1, at 1-16.
'3 ERS M. at 1-8, 1-12.
1 31 Egg Applicants' Direct Testimony No. 6 (Sheltering), fol.
Tr. 10,022, at 10-12.
l l
o 50 1.,
sheltering, would continue to be the preferred protective action."2 Under the NHRERP, therefore, the preferred protective actions for the New Hampshire seasonal beach population are early-beach closure and, as necessary thereafter, evacuation.
Nonetheless, the plan recognizes that, in the following narrowly defined instances, sheltering would be the favored protective action for at least a portion of the beach population:
(1) if sheltering is the most effective option in achieving maximum dose reduction, based upon EPA protective action guides of 1 rem whole body dose and 5 rem thyroid dose; (2) if there are " physical" impediments to evacuation; (3) if an evacuation is recommended, while a beachgoer without his or her own means of transportation is awaiting transportation assistance.u3 Applicants' emergency planners and New Hampshire emergency planning officials stated that in these circumstances use of sheltering would be limited.ua Indeed, they could conceive of only one situation in which it would be applicable under condition (1) to achieve a " maximum dose reduction":
a short i
U2 Egg id. at 17.
"3 Sag Applicants' Direct Testimony No.
6, at 19-20; 14 App.
1, at 7-8.
Planning officials consider " physical" impediments under condition (2) to include fog, snow, hazardous road and bridge conditions, and highway construction.
Tr.
10,721.
U4 Tr. 10,714.
.o a
ff 1.
1
+
r s 51 duration, nonparticulate (gaseous) release that would arrive at the beach within a relatively short time period when, because of r
a substantial beach population, the evacuation time would be significantly longer than the exposure duration."5 According to these witnesses, this limited use of sheltering would be appropriate to avoid situations in which the sheltered population 1
would be exposed or reexposed to radioactive ground particulates during their subsequent, postrelease evacuation.u6 Intervenors' central concern is whether confining sheltering to such a limited use under the plan is, in accordance with the first condition specified in the NHRERP, the most effective use of this protective action option to achieve maximum dose reductions.
Before the Licensing Board, the MassAG challenged the adequacy of state officials' planning assumptions about sheltering limitations through testimony from a panel of 1
witnesses.ur Principal among these witnesses was Dr. Robert Goble, a Research Associate Professor of Environment, Technology, and Society and an adjunct Associate Professor of Physics at Clark University in Worcester, Massachusetts."*
In his testimony, Dr. Goble acknowledged that shelter was indeed a us Tr. 10,719-20.
U6 Tr. 10,720.
u7 ERS Corrected Testimony of Robert L. Goble, Ortwin Renn, Robert T.
Eckert, and Victor N. Evdokimoff on Behalf of the Attorney General for the Commonwealth of Massachusetts on Sheltering Contentions, fol. Tr. 10,963.
Os Id. at 1-2; id. Attach.
1.
52 limited option for the beach population."
He nonetheless maintained that there were two situations in which sheltering was the preferred action option.
He described the first as a short duration, primarily gaseous release."O This release, which he categorized as a "less severe problem,""1 appears to be substantially the same as the release that state emergency planning officials recognized could call for use of sheltering.ua Dr. Goble also asserted, however, that the use of shelter for the beach population would be appropriate in instances when there is a relatively early release of a substantial amount of radioactive
' material that would involve ground deposition (groundshine) and possible inhalation doses."3 He criticized the NHRERP planning process for failing to afford adequate consideration of whether sheltering also should be the preferred protective action for such a release as well.
In support of the NHRERP's planning assumptions on sheltering and evacuation, FEMA presented the testimony of its technical consultant Joseph H. Keller.
A chemist by training, Mr. Keller is a scientist with the United States Department of l
u9 Id. at 13, 16-17; Tr. 11,461-62.
"O Tr. 11,462.
"' Ibid.; gag Tr. 11,464.
l Egg suora note 135 and accompanying text.
"3 Tr. 11,462, 11,485.
l l
l
'o.
l l
53 l
Energy's (DOE) Idaho National Engineering Laboratory."4 Under an interagency agreement between' FEMA and DOE, he provides advice to FEMA on matters relating to emergency planning for radiological emergencies."5 In his testimony, Mr. Keller declared that for the various potential dose components -- plume immersion exposure, exposure from a plume overhead (cloudshine), plume inhalation exposure, and groundshine -- the exact relationship among the various components will vary with time and distance from the point of release; however, groundshine was most likely to be the major contributor to total dose in severe accident sequences if no protective actions are taken."'
He also explained that, because the plume is dispersed and diluted as it moves away from the point of release, this groundshine dose is reduced as a function of distance from the source."7 Immediate evacuation of beach areas near the facility thus provides the distinct advantage, even in those seeming " worst case" instances when plume dispersion and evacuation routes coincido, of moving the
"' Egg Amended Testimony of William R. Cumming and Joseph H.
Keller on Behalf of (FEMA) on Sheltering / Beach Population Issues, fol. Tr. 13,968, Attach.
B, at 1-2 (hereinafter Cumming/Keller Testimony).
Mr. Keller is employed by Westinghouse Idaho Nuclear Company, Inc. (a wholly owned subsidiary of Westinghouse Electric Companf), which is the private contractor that operates the Idaho National Engineering Laboratory for the Department of Energy.
Tr. 14,141.
85 Tr. 14,142-43.
u6 Cumming/Keller Testimony at 9; Tr. 14,230-31.
"7 Cumming/Keller Testimony at 10-11.
F
.E o
J 54 population away from the more concentrated groundshine dose areas."'
The effect of sheltering, on the other hand, is to reduce the doses primarily from plume immersion /cloudshine and from inhalation, according to Mr. Keller."'
In the case of the 4
Seabrook beach area, however, the predominance of wood-frame (as contrasted with concrete or brick) structures caused state officials to assign to area shelter an extremely limited dose reduction factor of.0.9 (a dose reduction of only ten percent) for the plume immersion /cloudshine dcse component."0
- Moreover, although recognizing that the inhalation dose reduction afforded by these structures would be greater than ten percent, he noted that to the degree that the beach area structures were "unwinterized," their effectiveness in reducing inhalation exposures likely would degrade much sooner than the two hours generally accepted for wood-frame buildings."1 Finally, Mr. Keller emphasized that, to make an accurate assessment of whether, in any particular instance, evacuation or sheltering would afford greater dose protection, it would be necessary to have certain vital information on the nature of the l
particular release --
i.e.,
the release's projected beginning, l
"8 ERA id. at 11; Tr. 14,230-31, 14,242.
"' Cumming/Keller Testimony at 9.
l D
L Eag id. at 9-10; Tr. 14,222, 14,243.
Egg also Applicants' Direct Testir.ony No.
6, at 25-26.
l "1 Cumming/Keller Testimony at 10.
f'
]
. T D
55 duration, and magnitude and the meteorologicel conditions affecting release distribution.n2 It was likely, however, that in the avont of a radiological emergency'this.information would not be available or would be highly uncertain.U3 Given the need i
to avoid groundshine and the general protection evacuation affords from that dose component, Mr. Keller found these information uncertaintias further tipped the balance in favor of evacuation rather than sheltering."'
In light of these factors, Mr. Keller concluded that, for time beach areas, it was a better strategy to begin evacuation immediately.ns This would ensure that the groundshine dose savings inherent in immediate evacuation would be secured, while avoiding the groundshine exposure to individuals that would accrue during the inevitable postshelter evacuation."'
As a consequence, Mr. Keller found, the determination to r.31y upon sheltering as a protective action option in the NHRERP only in the very limited circumstances specified had an appropriate technical basis."#
In upholding the NHRERP's limited use of sheltering for the beach population, the Licensing Board adopted Mr. Keller's n2 ERA 151. at 9 ; Tr. 14,240-41.
"3 Egg Cumming/Keller Testimony at 9-10; Tr. 14,240-41.
"' Egg Tr. 14,240-41.
ns ERS Cumming/Keller Testimony at 10-11; Tr. 14,240-42.
"' Egg Cumming/Keller Testimony at 10; Tr. 14,243-44.
"I Cumming/Keller Testimony at 11.
4 l
t 56 testimony almost in toto, declaring it "well reasoned."us Before us, intervenors have launched a vigorous attack upon that testimony.
The MassAG presents a multi-pronged assault, asserting that uncertainty about warning time, the duration of any release, and whether the release will be particulate or gaseous favor, or at least warrant further consideration of, the use of sheltering as a protective action option."'
The MassAG, SAPL, and TOH also assert that the Licensing Board improperly relied on the Keller testimony.
They maintain that because the testimony is generic in nature, its use by the Board is inconsistent with the principle that emergency planning determinations should be made on a site-specific basis.'"
Although the parties have spent considerable effort challenging and defending various aspects of the planning basis underlying the NHRERP's limited utilization of the sheltering option, review of the Licensing Board'?, findings, the parties' argaments, and the evidentiary record leads inaxorably to one crucial conclusion:
for the New Hampshire beach area at issue, the physical attributes of most available structures makes sheltering a protective action eption of limited utility.
The primary dose reduction of ten percent in the plume immersion /cloudshine component that is afforded, on average, by na LBP-88-32, 28 NRC at 76G.
t D' Massachusetts Attorney General's Brief on Appeal (Mar.
24, 1989) at 61-69 (hereinafter MassAG Brief].
'" 14. at 69-71; SAPL Brief at 20-21; TOH Brief at 44-49.
j.
}.
[.
57 the predominantly wood-frame shelter in the Seabrook beach area is, as Mr. Keller graphically described it,=so "down in the dirt in the error band, it's trivial.
And it basically is, we don't have much in the way of shelter.""'
His recognition of this important site-specific factor makes it apparent that Mr.
Keller's analysis is not, as intervenors charge, impermissibly
" generic.""#
Moreover, added to the poor dose reduction quality of existing shelter in the beach area are the substantial uncertainties acknowledged to be involved in calculating meteorological conditions and the elements of release beginning, duration, and magnitude, all of which would be critical to making an informed choice be ween evacuation and sheltering in any specific situation."U Taken together, these factors provide an appropriate basis for the NHRERP planning judgment that, for the beach area, sheltering is to be limited as a protective action "I Tr. 14,243-44.
Although the MassAG also asserts that shelter would afford greater protection from groundshine than evacuation because wood-frame structures may provide "significantly" more protection from this dose component than an automobile, MassAG Brief at 67 n.58, the evidence before the Licensing Board indicates that the protection afforded is of the same order of magnitude, agg Tr. 14,229.
42 Further emphasizing the site-specific nature of his l
findings, Mr. Keller declared during cross-exam, nation that, l
"[i]f the State of New Hampshire had come in with a recommendation or an assertion.
that the shelters, the I
average shelter in the vicinity we're talking about, had a shelter factor of.5
[(50 percent)) or.4 (60 percent)], all right.- My personal opinion is, you might have looked at j
(sheltering) a little harder."
Tr. 14,243.
"3 MasoAG witness Dr. Goble also recognized the difficulties attendant upon obtaining the necessary information regarding various of these factors in order to make emergency planning decisions.
Egg Tr. 11,481-82, 11,485.
l l
h m
o.
58 option to those instances in which it undeniably will provide the maximum dose savings.'"
Therefore, giving the Licensing Board's factual determination the probative force it intrinsically commands, we find no basis for reversing its judgment regarding the efficacy of the NHRERP planning basis for limited i
sheltering."5 B.
Also raised by intervenors MassAG, SAPL, and TOH is the question of the implementation of the sheltering option for the beach population in the limited instances in which it is to be utilized."'
Although the Licensing Board declined to require implementing measures, for the reasons set forth below we find
"' Intervenors also contend that the Licensing Board erred in its interpretation of the requirement of section 50.47 (b) (10) that "[a] range of protective actions have been developed for the plume exposure pathway'EPZ for emergency workers and the public."
1 E.g., MassAG Srief at 72-75.
To the degree that intervenors' challenge is based upon the premise that the development of a
" range of protective actions" is governed by the status of section 50.47 as an " adequate protection" standard and thereby requires that " adequate" sheltering must be provided as a risk reduction measure,' we addressed and rejected it in ALAB-922.
Nor do we read section 50.47 (b) (10), as intervenors do, to impose l
such a requirement itself.
It is apparent that under section 50.47 plannera should consider whether to employ sheltering as part of the " range of protective actions" for a particular emergency plan, gag NUREG-0654 Criterion II.J.10.m (bases for l
choice of recommended protective actions must be included in emergency plan, including expected protection afforded in shelter for direct and inhalation exposure).
Nonetheless, the situations i
l in which sheltering is adopted as the recommended protective L'
action ultimately will depend, as here, upon the site-specific circumstances, as Egg, e.a., General Public Utilities Nuclear Coro. (Three Mile Island Nuclear Station, Unit No. 1), ALAB-881, 26 NRC 465, 473 & nn.30-31 (1987).
"' MassAG Brief at 54-56 & n.44; SAPL Brief at 22-25; TOH Brief at 33-35.
l
. ' ) -: e 59 that such measures are required so long as sheltering for the beach population is a protective action option under the NHRERP.
As it now stands, planners have undertaken to provide "some degree of implementing detail," which includes identification of potential shelter locations in the NHRERp, only under sheltering condition (3) for the estimated two percent of the New Hampshire transient beach population who, being without their own transportation, will be provided shelter pending evacuation."7 For the total beach population that potentially is'to be sheltered under conditions (1) and (2), which applicants' figures indicate could reach nearly 50,000 during peak summertime weekend' days,"' the planners now contemplate, and the NHRERP reflects, no
" preset sheltering' implementation."1" In the event of an emergency in which the general transient beach population would be sheltered, voice instructions would be given over the existing audible alert system directing beachgoers to find shelter in buildings near the beach.1" Available shelter in the beach area -- which is envisioned to include private residences and r
public access buildings such as shops, motels, and restaurants -
- was identified in a survey sponsored by applicants and "I Egg LDP-88-32, 28 NRC at 769.
Egg also Applicants' Direct Testimony No.
6, at 21; id. App.
1, at 10.
Ma Egg suora note 123 and accompany text.
"' LBP-88-32, 28 NRC at 769.
'M Applicants' Direct Testimony No.
6, at 20.
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60 conducted by Stone and Webster Engineering Corporation.'"
The planners indicated, however, that while this study led them to the judgment that adequate shelter exists, they do not intend to incorporate the study into the NHRERP or rely on the study as a r
planning basis for sheltering the total beach population.172 For their part, FEMA witnesses declared in their direct testimony and during cross-examination that further implementing efforts for sheltering were necessary, a position they then appeared to back away from during redirect examination."'
Acknowledging that FEMA's position on the need for further
' implementation was "not clear," the Licensing Board declared that the low-probability that the sheltering option would have to be implemented, in conjunction with its present lack of knowledge about the type of implementing detail that might be included in the NHRERP, led the Board to conclude that it would be a mistake to require additional implementing detail.17' According to the Board, the current lack of implementing detail reduced the risk that a'decisionmaker might implement the sheltering option without understanding its benefits and uncertainties; this made it unwise for the Board to accede to intervenors' request to i
'M Egg 14. at 21-22.
'" Id. at 22.
'O Comoare Cumming/Keller Testimony at 11 AD4 Tr. 14,220 with Tr. 14,252-54.
'I' LBP-88-32, 28 NRC at 769.
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'..4 61 require implementation as a condition of license approval.'"
The
[
Board also found that " cluttering the NHRERP with unnecessary detail" would not improve it."'
Further, noting its doubt that preset sheltering implementation was a'" practical or conservative" approach, the Board declared that implementing detail'was not "so material" as to preclude a " reasonable assurance" finding under section 50.47(a)."7 The Board also expressed its confidence that, because state emergency planning officials were in " virtually constant attendance" during the evidentiary hearing on the sheltering issue, they would "take advantage of any reasonably available opportunity to improve and to maintain the NHRERP and to ensure its implementability.""*
Before us, intervenors challeage the Licensing Board's refusal to require implementing measures, asserting that the Board's determination is contrary to ALAB-832 in the Shoreham proceeding.
As we noted earlier, in ALAB-832 we confronted the issue whether in fulfilling emergency ple.nning obligations, it is sufficient merely to list the hospitals outside the EPZ to which patients from hospitals inside the EPZ were to be transferred in the event of an evacuation."'
The Licensing Board found the
[
Ibid.
176 g,
l'
Ibid.
na Id. at '769-70.
L
"' ALAB-832, 23 NRC 135, 154-57 (1986), aff'd, CLI-87-12, 26
(
NRC 383, 398-99 (1987).
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. listing was sufficient because there was little likelihood that patients would be evacuated and because the listed hospitals were on notice that they might be called upon for assistance.. We concluded that the Board's analysis was flawed because (1) the probability of implementation was irrelevant in. determining whether emergency planning obligations properly had been satisfied, and (2) the commission's regulations and emergency planning guidance supported evacuation preplanning rather than an ad hoc response at the time of the emergency.
Responding to intervenors' challenge, applicants simply
' state their agreement with the Licensing Board's conclusion that the low probability that the sheltering option will ever be used means,that implementing measures are unnecessary and distracting.'"
The staff, however, goes further and attempts to distinguish the present situation from ALAB-832.
Acknowledging our holding there that the likelihood of utilization is irrelevant to a determination of whether planning obligations have been satisfied, the staff nonetheless asserts that the controlling consideration in ALAB-832 was the existence of Commission regulatory guidance that mandated hospital evacuation could not be undertaken without preplanning.
According to the staff, no such guidance exists here.
The staff also points out that, for the sheltering option under the NHRERP, the means of pub]ic notification exist; the mechanisms for a protective action determination are in place; and the size of the beach population 180 Applicants Brief at 12-13.
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63 and the quantity, quality, and location of the shelter are known.
Planning thus is much less "ad hoc" than the hospital evacuation planning found deficient in ALAB-832.
The staff concludes, therefore, that the denunciation of ad hoc evacuation planning in ALAB-832 has no relevance here."1 In reviewing this matter, we are unable to subscribe to the Licensing Board's reasons for declining to require implementing provisions for the beach sheltering option.
Under the NHRERP, as prepared by state emergency planning officials and accepted by FEMA, there are two conditions under which sheltering may be used as a protective action option for the entire beach population.
Putting aside for a moment the question of how likely it is that either of them will ever be invoked,"* the fact that these sheltering options have been incorporated into the NHRERP planning basis speaks volumes about the need for appropriate implementing details.'"
Nor can we put an imprimatur upon an "I NRC Staff Brief at 55-58.
m2 L
Acknowledging the confusion created by FEMA's seemingly I
contradictory statements about the need for implementation of the l
sheltering option, gag supra note 173, the Licensing Board nonetheless concluded that FEMA "may" be satisfied that, in light of the limited utility of the sheltering option, no further implementing detail is necessary for its approval.
Given the existing record, the Licensing Board's attempt to discern what l
FEMA has decided involves more than a modicum of speculation on its part.
Moreover, even assuming this is the case, we question whether a finding regarding the need to provide implementing I
detail for a protective action option can be based upon the probability that the option will have to be utilized.
Egg infra pp. 65-66.
1" Egg 45 Fed. Reg. 55,402, 55,406 (1980) (predetermined protective action plans are needed for the EPZ).
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l 64 approach to implementation whereby the lack of implementing detail becomes a set of blinders that protects. officials from seeing, and thereby improperly invoking, these emergency planning options.. Planning efforts are intended to make emergency response officials aware of the benefits and constraints associated with their actions, thereby providing them with the information necessary to make informed protective action decisions.'"
Faced with a situation in which the NHRERP apparently calls for use of a sheltering option but provides no clue to the details involved in implementing that option, and
'thus no accurate picture of the option's overall benefits and limitations, emergency response officials essentially are required to speculate what will be the practical impact of a decision to follow that protective action measure.
In the circumstances, rather than ameliorating the risk of misapplication, as the Licensing Board assumed, the failure to
" clutter" the NHRERP with implementing provisions for sheltering enhances that risk, particularly the risk that sheltering will not be utilized in the appropriate, albeit limited, instances contemplated by the plan.
Thus, the Licensing Board's reasons for rejecting implementing detail lack sufficient foundation to support its conclusion.1as
- S,gte PAG Manual at 1. 38. 4 0.
"5 We also are not persuaded by the Licensing Board's observation that implementation is not needed because New Hampshire planning officials were present during the hearings and, having heard all the testimony, will "take advantage of any (continued...)
l 65 We also do not find persuasive the staff's attempts to avoid the dictates of ALAB-832.
The staff (and the applicants) explain that the sheltering options at issue are extremely unlikely to be I
utilized; therefore, there is no need for implementing details.
In ALAB-832, we rejected just such an analysis, reiterating our observation in an earlier Limerick decision that for evacuation planning efforts:
"The Commission's emergency planning regulations are premised on the assumption that a serious accident might occur and that evacuation of the EPZ might well be The adequacy of a given necessary.
emergency plan therefore must be adjudged with this underlying assumption in mind.
As a corollary, a possible deficiency in an emergency plan cannot properly be disregarded because of the low probability that action pursuant to,ghe plan will ever be necessary."
Anchored as it is in longstanding Commission guidance,27 we again find no occasion to reconsider this general proposition, which is fully' applicable to the NHRERP's beach population sheltering options as well.
"S(... continued) reasonably available opportunity to improve and to maintain the NHRERP and to ensure its implementability."
LBP-88-32, 28 NRC at 770.
To base the prospect of implementation upon the hope that results will flow from the attendance at the Board proceedings of cortain individuals whose involvement in the planning process could end at any time hardly seems consistent with the concept of
" planning."
I" ALAB-832, 23 NRC at 155-56 (quoting Philadelohia Electric C2x (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 713 (1985), review declined, CLI-86-5, 23 NRC 125 (1986)).
"# Esa SAR Onofre, CLI-83-10, 17 NRC at 533.
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66 In addition,'like the hospital evacuation involved in ALAB-832, regulatory guidance relating to the sheltering option at issue here suggests that it should not be left to ad hoc implementation once an emergency occurs.'"
An emergency plan must provide "an analysis of the time required to evacuate and for takina other nrotective actions for various sectors and distances within the plume exposure pathway EPZ for transient and permanent populations."te9 As with an evacuation, such an analysis for sheltering cannot be made'until there is some specific awareness of the extent of the sheltering that is available as well as an understanding of how the sheltering would be accomplished.'"
Echoing.this theme, sheltering planning criteria in section II.J.10 of NUREG-0654 provide that the emergency planning organization's " plans to implement protective measures" shall include "(m]aps showing.
shelter areas" and "means for notifying all segments of the transient and resident population.""'
Map preparation requires efforts to identify and ins Egg GUARD v. HEg, 753 F.2d 1144, 1149 (D.C. Cir. 1985).
189 10 C.F.R. Part 50, App.
E, 5 IV (emphasis supplied).
'" Egg NUREG-0654 Criterion II.J.9 (each State and local organization shall establish a capability for implementing protective measures based upon EPA protective action guides and other criteria); 14. Criterion II.J.10.m (plans for implementing protective measures shall include bases for the choice of recommended protective actions).
See also PAG Manual at 1.38
.40.
"' NUREG-0654 Criterion II.J.10.a, c.
The need to provide for implementing details for sheltering condition (2), involving local condition impediments to evacuation, seeming arises also under NUREG-0654 Criterion II.J.10.k, which suggests the (continued...)
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to. designate available, suitable shelter.
W plan for the means I
of notification carries the connotation that those means will be utilized in an effective manner.
Indeed, that this was the view of planning officials with respect to sheltering condition (3) for the beach population without transportation is apparent from their declaration that "[t]he NHRERP will identify potential shelter locations for the transient beach population without transportation" and the " appropriate [ emergency broadcast system) message will be modified to provide for instructions to persons o.1 the beach who have no means of transportation to go to public shelters to await assistance in the event evacuation of the beach is recommended."w2 In terms of the benefits afforded by implementing details, under existing regulatory guidance we see no basis for distinguishing between those who will be provided shelter under condition (3) and those for whom sheltering is to be a protective action option under conditions (1) and (2)."3 Finally, we are unable to accept the staff's characterization that, as compared to the circumstances at hand l
in ALAB-832, sheltering implementation under conditions (1) and (2) is "less ad hoc."
The principal basis for this staff assertion is the Stone and Webster shelter survey and its
- (... continued)
[
"[i]dentificaticn of and means for dealing with potential l
impediments (e.g.,
seasonal impassability of roads) to use of l
evacuation routes, and contingency measures."
"2 Applicants' Direct Testimony No.
6, at 21; gag id., App.
1, at 10.
"3 Sa2 ALAB-832, 28 NRC at 156 & nn.79-80.
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" availability" for use by planning officials.
This shelter survey might be considered a r.omewhat more elaborate list than that involved in ALAB-832.
Nonetheless, it likewise is an unimplemented list.
The planning efforts concerning sheltering already undertaken remain ad hoc until planning officials take appropriate implementing actions."'
.n this case, that would I
include designating in the NHRERP which shelters on the survey list are suitable and available for use in carrying out the protective action contempleted in sheltering conditions (1) and (2).n5 In summary, the Licensing Board should have required that the same implementation actions that are being taken for the beach population without transportation under sheltering condition (3)'be taken for the entire beach population under s
conditions (1) and (2).
Therefore, we remand the matter for appropriate corrective action by the Licensing Board.
When the
" While not all implementing details must be in place in order for a plan to be approved, ggg Louisiana Power and Licht CSA (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076,_1107 (1983), in this instance the absence of any concerted attempt to incorporate implementing details for protective action options arrived at as a result of the planning process is a deficiency that must be remedied.
Egg ALAB-832, 23 NRC at 156-57.
"5 The staff also contends that ALAB-832's mandate for implementation is not controlling because, unlike hospital evacuation preplanning that was necessary to identify and make available " scarce" transportation resources, there is no shelter resource limitation that would require preplanning.
NRC Staff Brief at 57.
Because we do not agree with the staff's premise that hospital evacuation preplanning is a matter of allocating scarce transportation resources (as opposed to ensuring that adequate resources are available), we find the staff's attempt to distinguish ALAB-832 on this basis unavailing.
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-E 69 potential shelters have been identified pursuant to our romand, it then will be appropriate for.the Licensing Board (and for us)
[
.to address any intervenor concerns relative to the adequacy of that shelter.'"
1" Before us, intervenors have challenged the adequacy of.
.the Stone and Webster shelter survey as to the quality, quantity, and availability of the shelter it identifies.
The Licensing Board found that despite problems with the Stone and Webster survey, it nonetheless identified more than twice the shelter l
that would-be required to accommodate the peak beach population with an average dose reduction factor of 0.9 or better.
LBP '
32, 28 NRC at 771-72.
This made-intervenor challenges to the quantity'and quality of the shelter immaterial.
Id. at 772.
The Licensing Board also refused to accede to intervenors' challenge l
to 'he avail. ability of the shelter based upon the theory that a significant number of beach community establishments would refuse to give shelter to the beach population.. Calling intervenors' argument " logically flawed," the Licensing Board concluded it was more likely that the establishment-owners would see the transient boach population as fellow victims and afford them shelter.
Ibid.
In light of our determination on implementation, we find it unncuessary to address these issues now.
i Also with regard to the issue of sheltering, for the reasons E
l stated in the Licensing Board's decision, 14. at 772-74, we find l
intervenors' challenges to the change in the FEMA position l
regarding sheltering are without substance.
We likewise reject j
the MassAG's assertion that the Licensing Board improperly denied i
as untimely both his June 14, 1983 motion seeking admission of L
certain rebuttal testimony concerning'the applicants' and FEMA's i
I positions on sheltering and his July 6, 1988 motion for L
reconsideration.
In support of its determination, the Licensing i
i Board found that the MassAG knew the substance of the applicants' P
and FEMA's positions on sheltering and thus was able to submit rebuttal testimony well in advance of the June 1988 motion and l
that he allowed three weeks to lapse between its June 16 oral ruling denying the MassAG's motion and the submission of his motion for reconsideration.
Memorandum and Order of Sept.
9, 1988, at 4-8 (unpublished).
In light of the broad discretion afforded licensing boards in the conduct of the proceedings before them, determinations on such questions as the timeliness of motions are not likely candidates for reversal so long as they have a rational foundation.
ALAB-832, 23 NRC at 159.
The Board's determination in this instance demonstrated such a rational foundation.
1 70 For the foregoing reasons, with respect to intervenor claims l
t on those portions of the Licensing Board's December 30, 1988 partial initial dacision, LBP-88-32, 28 NRC 667, and related rulings, regarding " Letters of Agreement," " Transportation Availability and Support Services," " Decontamination and Reception Centers," and " Sheltering of Beach Fopulation" the Board's initial decision and related rulings are affirmed except insofar as the Board (1) determined that school personnel were
" recipients" of emergency response services so as not to require the execution of LOAs regarding their duties relating to the evacuation of schoolchildren; (2) granted partial summary disposition with respect to SAPL Contentions 18 and 25 as they challenged the adequacy of the 1986 Special Needs Survey; (3) found that intervenor SAPL's concerns regarding evacuation times for special facility ALS patients were adequately reflected in the NHRERP's evacuation time acsumptions; and (4) declared that no further implementing details were necessary for conditions (1) and (2) relative to the NHRERP protective action option for sheltering the beach population.
On those issues, we. reverse and remand for further action consistent with this opinion.
We also direct that (1) the NHRERP be revised to document the availability of nonhost community fire department personnel for decontamination and monitoring services, and (2) the Licensing Board take appropriate steps to ensure that the e
planning commitment to provide for the transportation needs of
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special facilities based upon maximum facility capacity has been i
i met in the cases of the Webster facility in Rye, New Hampshire, l
and the Exeter Healthcare facility in Exeter, New Hampshire.
l It is'so ORDERED.
i FOR THE APPEAL BOARD
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Eleanor E. Hagins l
Secretary to the i
Appeal Board t
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i UN11ED $1A1El 0F ACERICA 5
NUCLEAR RE8ULATORY COMMIS$10N i
in the Matter of I
I PVILIC lERVICE COMPANY OF NEW I
Docket No.(s) 50 443/444 OL l
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(Sestrook Station. Units 1 and 2)
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CERTIFICATE OF SERVICE P
1 hereby certif y that copies of the f oregoing Al DECISION ( ALAl-924) 11/7/09 have been served upon the f ollowing persons by U.S. nell, first class, except as otheranse noted and in accordance with the requirements of 10 CFR Sec. 2.712.
Assinistrattye Judge Administrative Judge
- 0. Paul tollwerk, !!!, Chatraen Alan S. Rosenthal Atonte Saf ety and Licen6tne Appeal Atoste Safety and Licensing Appeal leera Beard l
U.S. Nuclear Regulatory Cosatssion U.S. Nuclear Regulatory Constssion Washington, DC 20555 Washington, DC 20555 i
+
Administritive Judge Howard A. Wilber Administrative Law Jurige i
Atoatt Safety and Licensing Appeal Ivan W. Smith, Chatraen leerd Atonte Safety and Licensing Board U.S. Nuclear Regulatory Consission U.S. Nuclear Regulatory Coantesten Washingtoni DC 20555 Washington, DC 20555 Administrative Judge Administrative Judge Richard F. Cole Kenneth A. McCollos Atoste Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Cosaission U.S. Nuclear Regulatory Coastssion Washington, DC 20555 Washington, DC 20555 l
Administrative Judge l
Robert R. Pierce, Esquire James H. Carpenter Atonte Safety and Licensing Board Alternate Technical Member U.S. Nuclear Regulatory Cosatssion Atomic Safety and Licensing Board i
Washington, DC 20555 U.S. Nuclear Regulatory Coastssion Washington, DC 20555 t
i Edwin J. Reis, Esq.
Mit:1 A. Young Office of the 6eneral Counsel Attorney q
U.S. Nuclear Regulatory Coastssion Office of the General Counsel Washington, DC 205L5 U.S. Nuclear Regulatory Commission Washington, DC 20555 l
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Docket No.isl56-443/444 OL i
AB DECISION (ALAB-92Al 11/7/99 f
i Diane Curran, Est.
Thomas G. Dignan, Jr., Esc.
I Hareen, Curran 6 Tousley Repes & Gray 2001 S Street, N.W., Suite 430 One International Place i
Washington, DC 20009 Boston, MA 02110 i
Robert A. Backus Esq.
Paul McEachern, Esc.
I lackt6, Meyer 6 Solomon Shatnes & McEachern 116 Low.ll Street 25 Maplewood Avenue, P.O. Box 360 Manchester, NH 03106 Portsmouth, NH 03501 E
l 1
Gary W. Holmes. Esc.
Judith H. Mitner I
Holmes & Ells Stiverglate, Gernter, Baker Fine, j
47 Winnacunnet Road Sood and Mittner Hospton, NH 03042 Sg Broad Street t
90ston, MA 02110 l
Barbara J. Saint Andre, Esq.
Jane Doherty Kopelean and Paige, P.C.
Seacoast Anti-Pollution League 77 Franklin Street 5 Market Street i
Br.ston, MA 02110 Portsmouth, NH 00801 i
i George W. Watson, Esc.
Ashed N. Aalrian, Esc.
Federal Energency Management Agency 376 Main Street 500 C Street, S.W.
Haverhill, MA 01930 Washington, DC 20472 l
Edward A. Thomas George D. Bisbee, Eht.
Federal Emergency Management Agency Assistant Attorney General i
442 J.W. McCormack (P0CH)
Office of the Attorney General Boston, MA 02109 25 Capitol Street Concord, NH 03301 Paul A. Fritreche, Esc.
lutanne Brelseth Of fice of the Public Advocate Ecard of Selectmen State House Station 112 Town of Hampton Falls Augusta, ME 04333 Drinkneter Road l
Hampton Falls, NH 03944
)
l I e Docket No.(sl50 aa3/444-OL
[
AB DECI510N (ALAB-924) 11/7/19 i
f John Traficente, Esc.
Peter J. Prann, Esq.
Chief, Nuclear Safety Unit Assistant Attorney Beneral Office of the Attorney General Cffice of the Attorney 6eneral One Ashburton Place, 19th Floor State House Station, 46 l
Boston, MA 02100 Augusta, ME 04333 The Honorable l
Edward J. Markey, Chairsan Richard A. Hespe, Esq.
ATTNI Linda Correia Haape b McNichotat 3
Subconnittee on Energy Conservation and 35 Pleasant Street Power Concord, NH 03301 House Coneittee on Energy and Cooperce Washington, DC 20515 r
l J. P. Nedeau Allen Lasport Board of Selectmen Civil Defense Director i
10 Central Street Town of Brentwood i
Rye, NH 03870 20 Frank!!n Street i
Exeter, NH 03533 Wilitan Armstrong Sandra Savutis, Chairman
{
Civil De4ense Director leerd of Selectsen Town of Exeter RFD 41 los 1154 10 Front Street Kensington, NH 03827 Exeter, NH 03033 i
l Calvin A. Canney Anne goodman, Chairman City Manager Board of telectaen City Hall 13-15 Neweerket Road 126 Daniel Street Durham, NH 03024 Portsmouth, NH 03801 William S. Lord leerd of telectmen Michael Santosuceso. Chairman Town Hall - Friend Street Board of Selectmen Asesbury, MA 01913 South Hampton, NH 03827 R. Scott Hill-Whitten, Esquire Stanley W. Knowles, Chairaan Lagoults, Hill-Whilton & McGuire Board of Selectmen 79 State Street P.O. Box 710 Neuburyport, MA 01950 North Hastiton, NH 03862 i
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Docket No.tel50-443/44a*0L I
At DECll!ON (ALAl 924) 11/7/89 i
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Norman C. Katner lanera F. Mitchell I
Superintendent of Schools Civil Def ense Director School Asaintstrative Unit No. 21 Town of Kensington alunn! Drive Box 10 RR1 Hampton, NH 03042 East Kingston, NH 03027 i
The Honorable
{
Beverly Ho!!!ngmorth 8erden J. Huaphrey 209 Winnacunnet Road ATTN Janet Colt Hampton, NH 03042 United States Senate Washington, DC 20510 l
The Honorable Nicholas Marvoules ATTN Michael Greenstein 70 Washington Street Sales, MA 01970 i
i Dated at Rockville, Md. this 7 day of November 1999 i
i 6fiiteof'the'leiritory'ci'iheConsission f
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