ML20006B216
| ML20006B216 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 01/24/1990 |
| From: | Traficonte J MASSACHUSETTS, COMMONWEALTH OF |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#190-9736 LBP-89-08, LBP-89-17, LBP-89-32, LBP-89-8, OL, NUDOCS 9002010105 | |
| Download: ML20006B216 (263) | |
Text
{{#Wiki_filter:* COLX[i[0 USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
% a 25 P4 :10 ATOMIC SATETY AND LICENSING APPEAL BOARD
!Cf DF SEChETARY Before Administrative Judges ("UCKII${g^ch G. Paul Bollwerk III, Chairman Alan S. Rosenthal Howard A. Wilber
) _
In the Matter of ) Docket Nos. 50-443-OL
) 50-444-OL PUBLIC SERVICE COMPANY )
OF NEW HAMPSHIRE, EI hL. )
)
(Seabrcok Station, Units 1 and 2) )
)
1 BRIEF OF THE MASSACHUSETTS ATTORNEY GENERAL IN SUPPORT OF HIS APPEAL OF LBP-89-32 COMMONWEALTH OF MASSACHUSETTS JAMES M. SHANNON ATTORNEY GENERAL John Traficonte Allan R. Fierce Leslie B. Greer Matthew T. Brock Pamela Talbot Assistant Attorneys General Department of the Attorney General 9002010gg"fQ$0b4 AD g 443 One Ashburton Place PDR ppn Boston, MA 02108 (617) 727-2200 l 1 DATED: January 24, 1990 i
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TABLE OF CONTENTS
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i i '#/ Table of Authorities.................................... 111 Statement of Issues........................................V
- Introduction'.............................................. 1 I. .The Utility Plan. Rule (550.47(c)(1)) and its Application by the Licensing. Board................... 2 Threshold Issues................................ 2 Earning The Presumption......................... 5 Giving Content to the Presumption............... 8 Rebutting the Presumpton....................... 15 The Adequacy of-the Presumed Response.......... 17 The Role of FEMA............................... 21 II. Rejected Contentions on the SPMC and '
June 1988 Exercise.................................. 23 Error'Affecting Several Contentions............ 25, MAG 28......................................... 27 MAG 29......................................... 27 MAG 30 and MAG 74.............................. 29 MAG 34......................................... 29 MAG 35...-...................................... 31 MAG 36......................................... 31 t MAG 38......................................... 32 MAG 39......................................... 32 MAG 41......................................... 33 MAG 47......................................... 34 MAG 48 - Basis C and MAG 49 - Basis A.......... 35 '
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~ MAG 83 Basis C ..............'................. 35 .
MAG 56 Basis A 1-8............................. 36 MAG EX 11 and 19............................... 36 MAG EX 12...................................... 38 MAG EX 13...................................... 39 MAG EX. 2, Bases A, B, C, F and G.............. 40 MAG 65 and MAG EX 18B: 20% Monitoring Planning j ! Basis.......................................... 43 ;
-4 MAG 77 Basis E and MAG 83 Basis A (11 1 and 3). 45 i
III. Evidentiary' Errors Made by the Smith Board During the SPMC Hearing....................... 45 A. The Dillman/Moriearty Testimony................ 46 ; B. Public Health's Letters to Ambulance C omp a n i e s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 7 i C. The Thompson /Goble/Beyea Testimony............. 50 l D. The Dr. Leaning Testimony...................... 51 IV. Errors in the PID, LBP-89-32........................ 52 i A. - Evacuation Time Estimates.(PID, at , 36-116)........................................ 52
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B. Traffic Management Plan (PID, at f 117-177)....................................... 37
-C. Response Personnel Staffing and Training PID, at 191-216)............................... 58 D. PAR Generation (PID at 216-240)................ 63 !
-E. Special Populations (PID at 216 -2 4 0 ) . . . . . . . . . . . 6 4 o
F. Facilities and Equipment.............. ........ 70 G. Monitoring and Decontamina'cion Centers (PID at 382-426)............................... 74 H. Reception and Congregate Care Centers 3 (PID at 414-426 and 428-499)................... 86
'V . Errors on Appeal of LBP-89-17....................... 87
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4. TABLE OF AUTHORITIES CASES Union of Concerned Scientists v. NRC, 735 F.2d 1435 (D.C. Cir 1984), cert. denied, 39, 40 469 US 1132 (1985) . . . . . . . . . . . . . . NUCTRAR REGULATORY COMMISSION DECISIONS Houston Power and Liahtina Co., (Allens Creek Nuclear Generating Station, Unit 12) , ALAB-590, 11 NRC 542
-(1980) . . . . . . . . . . . . . . . . . . . .24, 45, 46 4
Lona Island Lichtina Comoany (Shoreham Nuclear Power Station, Unit 1) , LBP-85-12, 21 NRC 644 (1985) . . . 58 Lona Island Liahtina Comoany (Shoreham Nuclear Power Station, Unit 1), 23 NRC 577 (1986) . . . . . . . . 24 w Lona Island Lichtina Comoany (Shoreham Nuclear Power Station), CLI-86-13, 24 NCR 22 (1986) . . . . . . . 92 Lona Island Lichtina Comoany (Shoreham Nuclear Power Station, Unit 1), ALAB-900, 28 NRC 275 (1988) . 41, 42 Lona Island Lichtina comoany (Shoreham Nuclear Power Station, Unit 1), ALAB-903, 28 NRC 499 (1988) . . . 25 Louisiana-Power and Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076 (1983) . . . 53 Mississioni Power and Licht Co., (Grand Gulf Nuclear Station) , ALAB-130, 6 AEC 423, 426 (1976). . . . 24, 45 Philadelohia Electric Co. (Peach Bottom Atomic Power Station, Units 1 and 2), ALAB-216, 8 AEC 13 (1974) . 23 Philadelohia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-845, 24 NRC 220 (1986) . . 24, 45 Public Service Co. of New Hamoshire (Seabrook Station, Units 1.and 2), ALAB-922, __ NRC (1989) . . . . . 22 Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-924, __ NRC __ (1989) 44, passim
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E ! 4< o ; I. REGUIATIONS 10 C.F.R.- 6 2.714 (b) . . . . . . . , ,. . . . . . . . 23 10 C.F.R. 6 50.47(a) . . . . . . . . . . . . . . . . 21 10 C.F.R. 5 50.47(b) . . . .. . . . . . . _ . . 27, passim 10 C.F.R. I 50.47(c) . . . . . . . . . . . . . 2, cassim 10 C.F.R. Part 50, App. E . . . . .. . . . 38, passim 51 Fed. Reg. 12905 (September 17, 1986) . . . . . . 20 1 52 Fed. Reg. 42078 (November 3, 1987) . . . . . . . .7 3 A l i I
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I STATEMENT OF ISSUES i I. Did the Licensing Board correctly apply the " utility-plan rule"? - Order of 7/22/88 at 15-21, 25; Order of 1/4/89 at 6-8; PID, 1.6, 1.15, 1.22-1.23, 1.27-1.33, 1.37, 3.84, 10.5, 10.27-10.29, 10.62-10.68; Tr. 15300-15471, 15476-15514; Order of 2/16/89 (LBP-89-8). II. Whether the Licensing Board erred in rejecting the ] folicwing contentions: ! MAG 18 - Bases E - Order of 7/22/88 at 38. MAG 28 - Order of,7/22/88 at 47-8. MAG 29 - Order of 7/22/88 at 49-50. MAG 30 - Order of 7/22/88 at 50-1. MAG 34 - Order of 7/22/88 at 54-5. MAG 35 - Order of 7/22/88 at 55-6. MAG 36 - Or'.er of 7/22/88 at 57-9. 1 MAG 38 - Order of 7/22/88 at 61. j MAG 39 - Order of 7/22/88 at 61-4. MAG 41 - Order of 7/22/88 at 64-5. , MAG 47 - Bases N,Q,R,S1- Order of 7/22/88 at 71-3. MAG 48 - Bases C- Order of 7/22/88 at 75-6. MAG 49 - Bases A- Order of 7/22/88 at 76-7. .i MAG 56 - Bases Al Order of 7/22/88 at 82-4. MAG Order of 7/22/88 at 91-2. 3 MAG 74 - Order of 7/22/88 at 98. MAG 77 - Bases E,F- Order of 7/22/88 at 101-2. MAG.83 - Bases Al-3,C- Order of 7/22/88 at 105-6. MAG EX 2-Bases A,B,C,F,G-Order of 12/15/88 at 15-23. Order of 12/25/88 at 34-5. MAG EX 12- l MAG EX 13- Order of 12/15/88 at 39-41. MAG EX 18-Bases B- Order of 1/13/89 at 10-5 and f Tr. 15288-15295, 15332-15340. MAG EX 19-2 PID, 6.63-6.64. III. Whether the Licensing Broad erred in excluding the following evidence: A. The Dillman/Moriearty testimony at Tr. 20120. B. The Department of Public Health's letters; order of 8/7/89. C. The Thompson /Goble/Beyea testimony at Tr. 18879-18885; PID, 6.10. D. The Dr. Leaning testimony at Tr. 19869-19896.
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<IV. Whether the Li cens i ng Board erred in finding that:
- 1) The SPMC is adequate and implementable and therefore Massachusetts officials will generally follow the Seabrook Plan for the Massachusetts Communities (SPMC) in the event of an actual emergency at'Seabrookt
- 2) That the 1988 Graded Exercise was adequate in scope.
and revealed no fundamental flaw in the SPMC;
- 3) The SPMC meets the requirements of 10 CFR-$50.47 and Appendix E to 10 CFR-Part 50 and that there is reasonable assurance adequate protective measures can and will be taken in the event of a radiological emergency at the Seabrook Station.
PID at 13.2, 13.3, 13.4 V. Whether the'On-Site Board erred in finding the alert and notification of the general population in_the Massachusetts EPZ will take place promptly enough to comply with regulatory requirements. LBP-89-17, 29 NRC 519, 537-538. i
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UNITED STATES OF AMERICA j
, NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Before Administrative Judges:
D G. Paul Bollwerk, III, Chairman Alan S. Rosenthal ! Howard A. Wilber ) U. " { . !
) I K1 In the Matter of ) Docket Nos. 50-443-OL l
) 50-444-OL l l'- PUBLIC SERVICE COMPANY ) j L
OF NEW HAMPSHIRE, ET AL. ) ;
) l
- (Seabrook Station,~ Units 1 and 2) ) January 24, 1990 )
) l q
l INTRODUCTION , 1The Massachusetts Attorney General (" Mass.AG") submits this brief in support of his appeal of the Licensing Board's partial j initial decision (Seabrook Plan for Massachusetts Communities and 1988 FEMA Graded Exercise) LBP-89-32 (dated November 9, 1989), and of certain earlier orders and rulings now reviewable by this Board. As set out in detail at 1-4 of his Brief on Appeal of , LBP-89-38 filed January 22, 1990, the Mass AG does not pursue
- further intra-a'gency appellate review in' derogation of his rights to have final agency action reviewed by the Court of Appeals. ,
t TheLMass AG joins in the claims of error asserted by all other Intervenors and1further notes that he has not briefed here the lower' Board's errors concerning the disposition of the remanded
. issues identified in ALAB-924. The Mass AG believes those errors entitle Intervenors to mandatory relief revoking the November 9 i
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license authorization. The merits of Intervenors' niotions for such mandatory relief are presently pending before the Commission. This brief is divided into five parts. The. first part sets out the Smith Board's errors concerning the interpretation and application of 10 CFR 50.47(c) (1) to the utility plan (the "SPMC") for Massachusetts. The second part deals with the errors committed by the Smith Board in rejecting numerous contentions submitted by the Mass AG on the SPMC and the Sune 1988 graded exercise. In the third part, evidentiary errors made by the Smith Board in connection with the consolidated SPMC and graded exercise proceeding are appealed. The fourth section challenges findings and rulings made by the Smith Board in LBP-89-32 regarding the SPMC and the exercise. The fifth section appeals errors made by the onsite Board in rendering its decision in LBP-89-17. I. THE UTILITY' PLAN RULE ( 6 50. 47 (c) (1) ) AND ITS APPLICATION BY THE LICENSING BohBD
+ The Utility-Rule: Threshold Issues The Mass AG filed a contention in April 1988 (MAG 2) that challenged as to matters of fact the threshold showing that the Applicants must make under the utility plan rule before that rule's-provisions are applicable. The Board refused to admit this contention. July 22 Memorandum at 15-18. After ALAB-905 issued on November 29, 1988, the Mass AG moved for reconsideration of this ruling. December 16, 1988 Motion for Reconsideration on [ July 1988] Memorandum and Order, at 2-6.
Oral argument was had on this motion at Tr. 15141-15160. On January 4, 1989, the Board denied this motion as to MAG 2 at 7 1
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t twithout providing any-reasoned basis why the Mass AG could nLt challenge as a matter of fact the Applicants' necessary demonstration 1that their inability to comply with the 50.47(b) standards resulted wholly or substantially from governmental non-participation (as opposed to some other reasons), and that they had made a' sustained, good faith effort to secure and
-retain governmental participation (as opposed to trying to reduce the emergency planning zone, and underestimate the risk of plant' operation as alleged by the Mass AG). In his Proposed
- Findings at MAG PF 1.15.B.1-B.4, the Mass AG again asserted that the Applicants never complied with the threshold requirements of 50.47 (c) (1) and never identified which (b) standards they could not comply with wholly and substantially because of governmental non-participation. As a result, the Board had no basis for finding that any particular-(b) standards should be evaluated with "due allowance" for such non-participation. The Board's response to the Mass AG's threshold challenge is set out at PID, 1.27-1.33, at 13-17.
The Smith Board is in error here because:
- 1) the Mass AG never contended that the SPMC met the (b) standards but only that its failure to meet certain of those standards had to be identified by the Applicants and demonstrated to be wholly or substantially caused by governmental non-participation; 2)- the Board, indeed, made precisely the factual finding that the Mass AG's contention, MAG 2, sought to put into question -- that the SPMC's failure to comply with the (b) standards was caused by the non-participation of the
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y governments. (PID 1.29). Thus, the Board's exclusion of this contention is contradicted by its own later recognition that' it! indeed had to make factual findings in this regard!
- 3) the finding that the SPMC's failures to meet the (b) standards -- which-failures are never identified by the Appl 1 cants or by the Board as required by 50.47 (c) (1) -- are wholly or substantially due to governmental non-participation is unsupported by the record. The Board adopted App. P.F. 1.26 citing to a series of examples of private groups not participating in planning. The Board then simply asserted based on nothina that the participation of these private groups "was discouraged by the governments." (PID, 1.29 at 15). The Board also simply cited the undisputed fact that these .
governments are non-participating. PID, 1.33 at 16-17. This fact, of course, does not support the necessary finding that the utility plan's inability to meet specific (b) standards is dug to that non-participation, but only explains why there is a utility plan ~. The Board'then engaged in its first of an unending series of maneuvers the goal of which was to shift onto the Mass AG the burden of proving what the utility-rule unambiguously requires the Applicants to prove: some citations refer to non-participation by the Commonwealth and local governments themselves. The Massachusetts Attorney General offered no evidence to the contrary. PID, 1.29 at 15.- True, but irrelevant. Review of the record citations set out at PID, 1.33 at 16-17 reveals that nothing supports the Board's finding. l-
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- 4) Similarly, the record citations set out at PID, 1.32 i
at 16 do not support the Board's necessary finding that the i 1 l Applicants made a sustained, acod faith effort to secure and l l l retain participation of the relevant state and local 1 governments. As a result, the Board impermissibly and without sufficient I record support proceeded to apply the provisions of 50.47(c) (1) and the permissive presumption that the non-participating governments would follow the utility plan. j The Utility Rule: Earnino The Presumotion The Board held that the' presumption that the-non-participating governments would generally follow the t utility plan rule was a permissive presumption; i.e., that even
.if the Board believed that (c) (1) could be , applied to the SPMC, it did not automatically follow that the Board could or would presume that the governments would generally follow that plan.
July 22. Memorandum-at 17-21, 25. This ruling was in response p to MAG Contentions 1-6-Which-were defended at length in the Mass AG's June 20, 1988. Reply to the Responses of the Staff and Applicants to the First Six Contentions (" June 20 Reply") at 7-16. On the basis of this ruling, the Board admitted MAG 3 and stated that it stood.for the proposition that the Applicants would have to earn the presumption that the governments would follow the utility plan and that they were not automatically entitled to the " follow-the-utility-plan" rebuttable presumption simply by submitting a paper plan, yet to be tested in adjudication. July Memo, at 19. However, the Board later realized that its July 1988 ruling required that before it entertained the
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. " presumed fact" -- that'the~ governments would follow-the SPMC
---the " basic facts" -- that the SPMC was an adequate plan but inr-governmental non-participation -- had to be established by the proponent of the permissive presumption -- the Applicants.
June 20 Reply at 10-12, When the Applicants relied on the FEMA review of the SPMC-for its proof of these basic facts (agg Applicants' December 16, 1988 Motion for Schedule filed 2 days after FEMA issued its finding on the preparedness at Seabrook at 4, et sea.) (PID, 1.15 at 9), the circularity of the entire 1 enterprise became obvious: FEMA had assumed in its evaluation of the plan as well as in its conduct and evaluation of the June 1988 exercise that the governments would follow the utility plan (PID, 1.23 at 11). (Egg Mass AG's December 19, 1988 Preliminary Answer to Motion for Schedule at 12-15.) As the Mass AG argued in MAG PF 1.16.B.1: It is manifestly circular and therefore illogical for the Applicants to assert that they have established the-adequacy of the SPMC as a utility plan (and thereby earned the presumption that it will be followed by the non-participating governments) by means of FEMA's review of that plan when the FEMA review and finding were based on the assumption that the governments would follow the plan. The Board does not even come close to explaining why the Mass AG's argument that the Applicants never earned the permissive presumption under (c) (1) is not valid. Instead, the Board simply punted trying to downplay its correct ruling in' July 1 1988: Finally the Attorney General argues that before the presumption that the governments would " generally follow" the utility plan may be entertained, Applicants must-prove that the plan was adequate but for the non-participation of the governments -- and that this Board so ruled. MAG PF 1.15.B.4. This is only partially correct. The Attorney General distorts the Board's ruling in the July 22, 1988 , Memorandum.- There we simply explained that Applicants do not enter the hearing cloaked with the presumption that the governments will follow nDy-plan. PID, 1.31 at 15-16 (emphasis in original). Egg also~PID,.3.84 at 157: n.35.- (equating best-efforts assumption with permissive presumption). This Appeal Board can and should. judge who is distorting the July 1988 decision. If the lower Board is
-intimating here that the Applicants, although not cloaked with the presumption as to Any plan, were cloaked with the presumption as to the SPMC then this passage simply reversed the Board's July 1988 ruling. If the Board here only means to emphasize that the Applicants were entitled to that presumption as to the SPMC because FEMA revinwed it and found it adequate, then the Board is simply repeating here exactly what the Mass AG said in MAG PF 1.15.B.4.
The only other alternative, the likely one, is just that the Board is saying somethina.no matter how illogical and irrelevant so that its decision has the appearance of responding to and dealing with the facts and arguments presented by the Mass AG. Indeed, the most frequently used device employed by the Smith Board to " decide" issues is simply to set down a series of sentences, no one of which alone or in combination will sustain ADy analysis. Nevertheless, the result is the appearance of a reasoned decision. The present issue is a perfect example of this doublespeak. After quoting MAG PF 1.16.B.1-to-the effect that its approach to the permissive presumption is totally circular; the Board's only response is as follows:
\
l l-What the Attorney General describes-as " circular" is not ] circular.at all.- Rather, the phenomenon is that the ' E Supplement 1 to NUREG-0654, FEMA's assumptions,_and ' D Applicants' assumptions are all founded in the same l regulatory ground. 10 C.F.R. 550.47 (c) (1) (iii) (B) . PID, 1.37 at 18. But the Mass AG had successfully argued in ! defense of MAG 3 in his' June 20 Reply at 7-16, that the rule's presumption had to be garned by the Applicants first l E establishing that the SPMC was adequate but for governmental non-participation. FEMA's review started with the assumption-
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'that the governments would follow that plan, NUREG-0654, :
1 Supplement 1 at I.D., " Assumptions", and thus could Dnt be used by the Applicants to make out a nrima facie case earning the i (c) (1) presumption. The lower Bocrd says nothing whatsoever in response to the Mass AG's argument here. The Utility Rule: Givina Content to the Presumotion ! Before turning to the Board's errors regarding the Mass AG's efforts at rebutting the permissive presumption, the actual scope and nature of_the presumption-itself as used by the Board should be brought into focus. What content did the presumption that the non-participating governments would generally follow the utility plan have for the Board? First, the Board understood that the SPMC has a model structure. PID, 1.6 at 3; 10.62-10.68 at 478-482. Obviously, this meant that at-least in theory the Board might have ended up presuming that the SPMC would be followed in one but not all of its modes.
, Instead, the-Board assumed that the governments could or would follow the SPMC at the time of an emergency in whatever mode
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the governments chose at that time. This assumption, in turn, is based on the Board's finding that the SPMC in an adequat.
l l plan no matter'in what mode the governments choose to follow ( it. However, there was absolutely no evidence proffered to 4 support the finding that the SPMC is an adequate plan in any mode other than Mode 2-full, in which the governments follow < theLutility plan by simply delegating the requisite authority to the--ORO. FEMA never reviewed the SPMC in any mode other than Mode 2-full. PID, 1.23 at 11. Egg MAG PF 10.1.2.E. The l Applicants also never.even attempted to establish that the SPMC was an adequate plan in any mode other than Mode 2-full. The l I result is that the Board's assumption of the " basic fact" -- l that the SPMC is an adequate plan in all modes in which it might be followed -- is without record support. Based on this I assumption, the Board cresumed that the SPMC could and would be followed-in any one of its modes (depending on the governments' I choice at the time) and then finished off this tower of illusions, by essentially cresumina that when the governments do generally follow the SPMC no matter in what mode the. result will be an adequate emergency response. The errors here are legion: F
- 1. As a threshold matter, the' Mass AG's contentions-that asserted that as a matter of fact, the Commonwealth simply would-not follow the SPMC but instead respond in an Ad h22 manner with its best efforts response were not admitted. MAG 1, 3,.4-and 5. These contentions represented the Mass AG's effort to assert-(and then prove) that as a matter of fact it would not-follow the SPMC -- no matter how adequate it might be found by the Board. Thus, these contentions represented the Mass AG's effort to rebut the presumption that the Commonwealth
~ TI would follow the SPMC with a factual case as to what'it would do. These contentions were defended as a permissible form of rebuttal under 50.47 (c) (1) in the June Reply at 16-27. In its
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July Memorandum at 19-21, the Board reasoned that once the q utility plan was found adequate and implementable, the best I efforts assumption in the new rule would reauire the Board to presume that the governments would follow that plan or engage in an ad h22 response sumerior to that olan. Thus, the Board imposed on any factual rebuttal of the presumption by the , governments (for example by testimony of governmental , responders as to their ad h22 responses) the condition that the i governments also establish that its Ad han response be superior in result to generally following the utility plan. The Board essentially superimposed an objective standard over the best efforts assumption, i.e., the government's best efforts would be viewed from an objective perspective and not from the perspective of the responding governments at the time. The refusal to admit these contentions put an end to any factual inquiry-into what the Commonwealth's response would actually be.
- 2. Had the Mass AG's factual contentions been admitted, the Mass AG would have had the burden of going forward with the j evidence concerning what the Commonwealth would actually do in ,
any Seabrook emergency. The Board rejected these contentions and imposed on any evidentiary presentation by the Commonwealth concerning what its best-efforts response would be the absurd condition that the Commonwealth also establish that its Ad h22 response would be superior to following the utility plan. July Memorandum at 19-21. Nonetheless, the Board continued to A
t ' assert and rule that the commonwealth had-somehow defaulted on an evidentiary showing it was at no time called upon to make.
- PID, 10.27 - 10.29 at 464-466.
- 3. The Board's predeliction for finding the Commonwealth in default reached an epiphany during the discovery phase of this proceeding and the' Board in its PID relied on its own earlier purported rulings. PID, 10.29 at 466 (citing Tr.
15319, 15487-88, 15508-09). What actually transpired is instructive in grasping how the Licensing' Board has "done
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justice" in this proceeding. The facts are as follows: the Staff filed its Third Set of Interrogatories on October.6, 1988' On October 25, 1988, the Mass AG filed a Response to this set and a motion to extend time in which to answer these interrogatories. As to Interrogatory No.12, the Mass AG t objected on the grounds that the legal contentions.(including MAG 6 (JI 44A) to which No. 12 was expressly connected) did not support discovery. This was an error corrected by the Mass AG in a letter dated November 9, 1988 and sent to the service list. In any event, the Board granted an extension of time (until December 19, 1988) for answering the Staff's Third Set of Interrogatories. In another letter from Traficonte to Staff counsel Turk dated November 18, 1988,-the Mass AG made it clear that even though discovery was possible on JI 44A, the Mass AG was not going to answer Interrogatory No. 12 because the Mass AG's brief in opposition to the Applicants' Motion for Summary Disposition of the legal contention was filed on November 7, 1988 and available. The Mass AG in the November 18 letter took the position that the Mass AG's brief on JI 44A was in effect l
> an adequate response to the Staff discovery on that so-called alegal" contention. Instead of indicating its disagreement with the Mass AG's position, the Staff waited for almost a month to file a Motion to Compel Answers including an answer to Interrogatory 12. Egg December 14, 1988 Staff Motion to Compel at 1-2, 7-9, and 10-11 reciting the above history. Instead of a written response to-this motion, the Mass AG presented oral" argument in opposition to it at the pre-hearing conference held in Washington on December 20, 1988, noting, inter alia, that the Staff's Motion to compel was out of time. Tr. 15012. (The lengthy discussion of the Staff's Motion to compel is at 15006-15132). Review of this transcript makes clear that the Smith Board's interpretation of the utility rule informing its entire decision is simply wrong: Judge Smith: Doesn't the presumption extend beyond, that they.will make their best efforts? Doesn't it also go to the point that absent to the. contrary, that their best efforts will be sufficient? I mean isn't that a part of the statement of considerations, that-they (the non-participating governments) do have the capability to protect their people, and that they will respond with sufficient resources and capability? Don't you (the Staff) alresay rave that? Mr. Turk: I believe that's correct . . . . (Tr. 15098). Judge Smith: You know, I don't know if that's a part of (the) presumption or not. I think that an inherent part of presumption is that you would make the best efforts and that has been the case, that the best efforts do result in effective action. Now what effective action is, I don't know. . . . Mr. Traficonte: Is the Board entertaining the notion that that-best efforts response comes with it the judgment of adequacy . . . . (Tr. 15108-109). In any event, on January 4, 1989, the Board issued an Order assertedly memorializing rulings it had made at the December 20
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4 i pre-hearing conference. At 6 of that Order the Board granted the Staff'sinotion to compel answers to certain subparts of
- Interrogatory 12. The Board stated:
The presumption is that the Commonwealth will do each of the 19 items listed in Basis A.2 of Contention 44A and will do a " workmanlike" -(best efforts) job at each of-them. The Attorney General in response to this interrogatory will have to explain why the presumption may not apply for each of the items. on January 17, 1989, the Mass AG timely filed his Supplemental Answers to the Staff's Third Set of Interrogatories which at 6-11 responded to Interrogatory 12. In response to the Board's having shifted the burden onto the Commonwealth of proving that the emergency response will Det be " workmanlike", the Mass AG stated at 7-8: The Commonwealth does not believe that the best efforts assumption set forth in 10 C.F.R. 50. 47 (c) (1) supports any presumption concerning the quality or effectiveness of the Ad has best efforts response by the non-participating governments. In this regard,.the Mass-AG does not believe that-there is any basis for presuming that the Commonwealth's best efforts response will be " workmanlike"
-in regard-to any of the emergency actions or functions delineated in JI 44A Basis A.2. The Mass AG does not believe that'there is reasonable assurance that adequate-protective measures can and will be.taken based on the
. presumption that,the Commonwealth will make'a best efforts response to an emergency. There is an important difference between attempting to do something at the time of an emergency in accordance with one's best efforts and
~ presuming that that best efforts will result in a certain level of effectiveness.
In response to this supplemental answer, the Board during further pre-hearing conferences held on January 18 and 19, 1989 initially sanctioned the Mass AG stating that it had defaulted by its January 17 pleading and that as a consecuence of this default, the Board would presume that the Commonwealth's best ______________________________________________________________j
efforts response would be adesuate. This remarkable " ruling" is then referenced at PID, 10.29 at 466. However, what the Board suppresses in its PID is that when the Mass AG challenged the logic of such a sanction, the Board did n21 order it. (The-remarkable (and remarkably lengthy) conclusion to this-discovery dispute is set out at 15300-15471 and 15476-15514.) Instead, the Board acknowledged that its December 20 and January 4 orders compelling the Mass AG's ' + further answers to Interrogatory 12 were " fuzzy" (Tr. 15511) and that although the Mass AG might have understood that his January 17 Supplemental Answer to Interrogatory 12 might support a presumption that the Commonwealth's emergency response would be " workmanlike" (which the Board actually equated with "best efforts" at 6 of its January 4 Order) it was less clear that the-Mass AG's answer deserved to be sanctioned with a presumption that " workmanlike" means " adequate". Tr. 15508-15512. In any event, no sanction was ordered at that time. Tr. 15512. The Board told the NRC Staff that it could propose a sanction order. Id. The Staff never followed up with a sanction order (although it did seek unsuccessfully to obtain a stipulation with the Mass AG that the Commonwealth's best efforts response would be " adequate") and no sanction order was ever entered! Thus, not only were the Mass AG's contentions seeking to challenge the presumption that the Commonwealth would follow the SPMC on factual grounds not admitted, but there was no basis at all for otherwise shifting onto the Mass AG the burden of either establishing what the Commonwealth's response would
.I
Lii.Tv ,
- -be or of disproving the Board's unsupported assumptions (based on an erroneous reading of (c) (1) and a non-existent discovery sanction) that that response would somehow be " adequate".
The Utility Rulet Rebuttina the Presumntion Having improperly entertained the permissive presumption without an adequate basis, the Board then proceeded to err in its treatment of the Mass AG's efforts to rebut that presumption. As discussed, the Board precluded the Mass AG's contentions which directly asserted on factual grounds that the Commonwealth would not follow the SPMC. Egg June 20 Reply and Exhibit 4 thereto: the transcript of the oral argument before the.First Circuit Court of Appeals on appeal of the utility-rule. It is obvious that instead of interpreting the utility rule as simply an evidentiary device -- as the NRC represented it to the First Circuit -- the Board used the rule as a coercive reaulation designed to make the nonparticipating governments' engage in planning or suffer the inference that
'they would follow the utility rule. Indeed, the Licensing Board extended the coerr.ive aspect of the rule -- coercive in the-strict sense that the Board is trying to make the governments do something they do not have to do and which the Board can not order them to do -- by actually finding that in resconse to licensina, the nonparticipating governments would engage in planning and that this future olannina would be adeaunte. PID, 10.5 at 454.
The Board also erred in its disposition of MAG 6 and another contention linked to it (consolidated as JI 44A and i
-44B). These contentions represented the Mass AG's effort to
l
' .l
- rebut'the presumption that'the governments would follow tho' utility plan' in Mode 2- full by establishing that the delegation i of authority required by a Mode 2-full implementation could not be accomplished as a matter of law.- In the June 20 Reply at 1 L
27-43, the Mass AG_had set-out his argument in support of the admissibility of MAG'6 and the basis for rebutting the presumption with a legal challenge. The Board admitted this contention. (July Memo at 26-27.) (The Board also admitted - the parallel June-1988 exercise contention MAG EX 4: 333 1 December 15, 1988 Memorandum and Order Ruling on Exercise contentions at'24-25). The Applicants moved for summary disposition on October 7,.1988 supported by a Statement of Undisputed Facts and a Memorandum of Law. The Mass AG's Answer was filed on November 7, 1988. On November 30, 1988 the i Applicants' filed their Response to this Answer to which the Mass AG then filed a Reply on December 28,- 1988. On
- i. -
February _16, 1989, the Board issued its Memorandum and Order , l granting: Applicants' notion for summary disposition and ruling
' in a case of first impression under Massachusetts: law that in ;
the event of an emergency, it is lawful for the Governor of the
- commonwealth to delegate plenary emergency response authority to a private foreign corporation. (LBP-89-8) With this ruling, of course, the Board retroactively validated the assumption made by FEMA which formed the entire basis of its review of the SPMC .and the conduct of the exercise; i.e. , a stand-alone utility plan'with the role for the governments limited to nothing more than a delegation of plenary authority k e - wm, --e - a,e- -- <-w- s , , . - - a . . , , - , - - ---~~s- ., -me-
= a;
{ - L tx) the utility response organization. This entire artifice, of course, is called " realism." < The Mass AG sought interlocutory review from this Appeal Board of LBP-89-8 by motion filed on February 27, 1989 supported by a Memorandum filed March 1, 1989. This Board denied such review on April 11, 1989. That Memorandum at 8-14 set out in. detail the Mass AG's arguments establishing why the Smith Board's holding as to the delegation of authority under Massachusetts law is in error. The Mass AG relies here on this Memorandum as well as on his pleadings filed on this issue with ! the Smith Board. The Mass AG has not been afforded an adequate number of-pages for_this appeal brief if he is obligated to set out again in detail the legal arguments he has already made to this Board. The Utility Rule: The Adecuacy of the Presumed ResDonse Having presumed that the government will follow the SPMC -- i based on a legal error as to Mode 2 full and without any record i support at all as to all other modes -- the Board then proceeded to evaluate the presumed response and find it adequate no matter in what mode the governments chose to follow the SPMC. The adequacy of this presumed response was challenged in JI 61 and JI 63. PID, 10.99 at 493-94. Even though the Commission had made clear that it "will be more difficult for a utility-to satisfy the NRC of the adequacy of its plan in the absence of state and local participation," 52 Fed. Reg. 42078, 42084 (November 3, 1987) cited at MAG PF 1.15.A, it is obvious that the Board failed to distinguish between the presumption that the governments would follow the 1 l
F L plan and the presumption that that presumed response would be adequate. First, in Mode 1 the SPMC contains a fundamental ambiquity: it is unclear whether when it is presumed that the governments will follow the SPMC in Mode 1 this is to be understood as the government's responders following their own plans or following the procedures set out in the SPMC. ERA MAG PF 10.1.1.C. If the presumed response under Mode 1 is that the governments follow their own plans (PID, 10.99 at 493: " follow their own plans"; 10.66 at 481) there is absolutely no record support for the Board's finding that this response would be adequate. Certainly, FEMA made no review of the nonparticipating governments' capabilj.cies. Tr. 18421-53. E22 MAG PF 10.1.2.A. The Applicants did not secure or even to .
' attempt to secure the testimony of a single state official to testify as to the Commonwealth's capabilities. Instead, the Applicants simply presented the history of earlier planning efforts which the Board adopted. PID, 10.30-10.50 at 466-474.
The-governments did not participate in the June exercise. The Mass AG's exercise contentions (MAG EX 3 and 5) which asserted
'that the absence of the governments' participation made impossible a finding of the adequacy of the SPMC if presumed to be followed in Mode 1, were rejected by the Board. December 15 Memo. at 23-24. Thus, the presumed Mode 1 response that the governments will follow the SPMC by taking command and control
-of-the emergency and following their own plans is simply a set of assumptions and nothing supports the finding that this mode (which is really just an ad hoc response) will be adequate.
MAG PF-10.1.1LD. PID, 10.11 at 457-58; 10.26 at 464 (expressly stating that best efforts would be adequate in Amesbury). In-the alternative, Mode 1 also might mean that the official responders are presumed to follow the utility's plan, just as the Redskins might follow the Giants' playbook if they were-handed it at gaaetime. MAG PF 10.1.1.E. The Mass AG established that the official responders are unfamiliar with the SPMC and that the plan was not written to be implemented in this fashion. MAG PF 10.1.1.F.-G. citina the record. In
- response to this uncontradicted testimony the Board first assumed-that the official responders gra familiar with the SPMC. PID, 10.6-10.7, at 454-456. This presumption was both legal and factual. Legally, the Board asserted without any basis in law or any citations to law that the commonwealth departments of government have at least constructive knowledge of the information gathered by the Attorney General in this proceeding. (455)
The Board made this ruling without at any time during this litigation informing the Mass AG that his efforts to critique the utility plan would have this legal consequence. Moreover, when the NRC defended the rebuttability of the utility rule p before the First Circuit it never disclosed that the governments' efforts to rebut the presumption would actually be used as support for the presumption. Factually, the Board used its old reliable rule that'the Mass AG had the burden of proving that the information he gleaned did H2t become generally available to the official responders instead of the ADDlicants Drovina that those officials are familiar. (456) The Board also assumed that after Seabrook was licensed, the < 4 Commonwealth would then become familiar with the SpMC and then planning would be adequate. PID, 10.5 at 454. This pervasive error - _that. preconditions for licensing can be-assumed based on postlicensing events -- indicates that the Board understood the utility rule as a coercive rule designed to prod the governments into planning by permitting licensing based on assumptions concerning postlicensing governmental action. The rule was defended successfully before the First Circuit as the opposite, of course, as simply an evidentiary rule required because the nonparticipating governments were in control of the evidence. Egg Exhibit 4 to June 20 Reply. Turning to " Mode 2 partial" (PID, 10.99 at 494) this presumed response mode would involve a mixture of ORO response with governmental response. The Mass AG established that the SPMC was unworkable in this mode as well. MAG PF 10.1.1.H citina the record. FEMA did not review the plan or exercise it in this mode. Tr. 18422. The Mass AG's September 18, 1988 exercise contentions (MAG EX 1 Bases A and B; Mass AG's September 1988 exercise contentions are cited as " MAG EX") which asserted-that the absence of the governments' participation and the failure to use any substitutes to role play actual interaction between ORO and the responding governments (with whom in Mode 2 partial ORO is supposed to be coordinating its response) made impossible a finding of the adequacy of the SPMC if presumed to be followed in Mode 2-partial, were rejected by the Board. December 15 Memo at 13-15. The Board's basis for finding this mode adequate was theoretical: I
Because FEMA found-the SPMC to be adequate in this mode, [ Mode 2-fu11), and because it can be assumed that any response which included the additional benefits of assistance and/or resources from the Commonwealth would be better than a response by the (ORC) alone . . . . PID, 1.24.at 12. Egg MAG PF 10.1.2.E.-F. Again, this reflects the Board's underlying interpretation of the utility rule: that the governments' best efforts response can be assumed to be adequate. The Utility Rule: The Role Of FEMA As already noted, the Board erred in its reliance on the FEMA review -- which was limited to Mode 2-full -- as supporting Applicants' orima facie case that the SPMC is an adequate and implementable plan in general. Moreover, reliance on the FEMA review was also error for the following reasons:
- 1. FEMA at the time it conducted the SPMC review had no legal authority to review utility plans. MAG PF 1.16.A.1.
- 2. 50. 47 (c) (1) does not contemplate any role for FEMA in reviewing utility plans. Cf. 50.47 (c) (1) with 50.47 (a) (2) .
MAG PF'1.16.A.2 The Board relies on 2 decisions it cites at PID, 1.35 at 17. In neither decision was the issue of FEMA's rebuttable presumption as to utility plans even presented. (MAG EX 6 and 7, not admitted by the Board, December 15 Memo, at 25 set out the legal issues in detail.) At the time the Commission adopted the utility rule, FEMA was on record that it did not believe planning would be adequate without governmental participation. (MAG EX 7, Basis D not admitted by the Board at December 15 Memo at 25, sets out FEMA's earlier position.) Thus, it was not inadvertence that led the Commission to craft a rule that clearly did n21 give a rebuttable presumption on
w
?
adequacy to FEMA. The Board erroneously excluded evidence of , FEMA's earlier position on utility-only planning. (Mass AG Exhibit-61) (Tr. 18333-18354; 18386-18403.) 3.. FEMA completely misunderstood " realism" as that doctrine has developed in NRC law. MAG PF 1.16.B.2. See also
-June 20 Reply.at 27-42; MAG EX 7, Basis B. <
- 4. FEMA.used a "best efforts" standard'in judging the adequacy of the SPMC, making no qualitative or quantitative judgment at all concerning the plan's " effectiveness." Tr.
18499-18501 (Donovan acknowledging that FEMA could make
" reasonable _ assurance" finding even for a reactor sited in Boston Common if-checklist requirements for plan are met); ggg also MAG Exhibit 58 rejected at Tr. 18204 and 18228. .This evidentiary ruling was in error. (Tr. 18195-18228). The FEMA r>tipulation is read at Tr. 18196-18197. Indeed, FEMA counsel (at Tr. 18205) essentially restated what he had earlier stipulated to during discovery and made clear that FEMA had been driven to'this nosition, as the Board is well aware, by the rulina'on the Sho11v/Bevea testimony and the citation in that ruling to CLI-83-13 which made it very_ clear that the standard to be applied was not a quantitative -- that there was no particular level of dose savings to be achieved.
(emphasis supplied). Egg also Tr. 18222. The only apparent basis for rejecting the stipulation was that FEMA is not a
" party" and that FEMA counsel objected to its being admitted.
The stipulation should have been accepted at least with the modifications made at Tr. 18204-206.
- 5. The Board's ruling during the New Hampshire proceeding (Egg ALAB-922) substantively changed FEMA's view of the emergency planning standards. It is deeply circular for the
l', Board then to grant a rebuttable presumption to FEMA's findings as if they reflect an independent assessment of an outside expert agency when they actually just reflect the conformance of FEMA's views to the best-efforts standard set by the Licensing Board. Ett PID, 1.45 at 22-23; Att A112 MAG EX 7, Basis C.
- 6. FEMA representative Donovan was arbitrary and capricious in his review of the SPMC. MAG PF 1.16.B.1-B.4; Cl-C2. He also destroyed documents which he knew or should have known were discoverable. MAG PF 1.19. The Board's decision in this regard is superficial and cursory and never addressed the arguments set out by the Mass AG. PID, 1.49-1.68 at 23-35.
II. REJECTED CONTENTIONS ON THE SPMC AND THE JUNE 1988 EXERCISE The Mass AG submitted several contentions for litigation that were rejected by the Licensing Board. Certain of the rejected contentions presented significant emergency planning issues that were clearly proper subjects of litigation that should have been admitted for hearing before the Board. The standards for the admission of contentions are well established. While licensing boards enjoy a " considerable amount of discretion", Philadelchia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3) , ALAB-216, 8 AEC 13, 21, modified on other arounds, CLI-74-32, 8 AEC 217 (1974), whether to admit contentions, such discretion must be tempered by consideration of the underlying purposos for the requirements of 10 CFR 62.714(b). Those purposes are: 1) "to help assure l at the pleading stage that the hearing process is not improperly invoked", 14. at 201 2) to provide notice to the parties as to what issues are in litigation: and 3) "to assure the issues raised are appropriate for litigation in the particular proceeding," Philadelthia Flectric Co., (Limerick Generating Station) ALAB-845, 24 NRC 220, 230 (1986), citina ALAB-216, aupIA at 20-21. Furthermore, it is black letter law that although the basis for a contention muut be identified with reasonable specificity, there is no need to plead evidence. Houston Power And Liahtina Co., (Allens Creek Nuclear Generating Station, Unit 12), ALAB-590, 11 NRC 542, 551 (1980) ; Mississinoi Power and Licht Co., (Grand Gulf Nuclear Station), ALAB-130, 6 AEC 423, 426 (1976). At the pleading stage, intervenors need only allege the reason (s) for their concern that a particular emergency planning standard is not met. They need not at the pleading stage demonstrate " factual support for the particular assertions which they have advanced as the basis for their contentions." ALAB-590, suora at $51. In deciding on whether to admit a contention m licensing board may not attempt to reach the merits of the contention in making its decision. Seabrook, 16 NRC 1649, 1654 (1982), citina ALAB-590 supra. In addition to the general considerations governing their admission, contentions that raise issues pertaining to emergency planning exercises must reveal " deficiencies which preclude a finding of reasonable assurance that protective measures can and will be taken, i.e., fundamental flaws in the plan." Lona Island Liahtina comoany. (Shoreham Nuclear Power ! l Station. Unit 1), C LI-8 6-11, 23 NRC 577, 581 (1986). In a subsequent LILCo decision this Board defined a fundamental flaw as having two principal components: "it reflects a failure of an essential element of the plan, and, second, it can be remedied only through a significant revision of the plan." Lona Island Liahtina Connanv. (Shorehan Nuclear Power Station. Unit li, ALAB-903, 28 NRC 499, 505 (1988). Error Affectina Several Contentions Based on a generic error, the Licensing Board rejected several contentions, or portions of contentions relating to particular bases, on the ground that the issues had been previously litigated during the hearings held on the adequacy of the New Hampshire Radiological Emergency Response Plan ("NHRERP"). The contentions and bases rejected on this ground include MAG 18E, MAG 29, MAG 30, MAG 34, MAG 35, MAG 38 (first 4 sentence), MAG 47, MAG 48 - Basis C, MAG 49 - Basis A, MAG 74, MAG 83 - Basis C, MAG EX-13 Basis A and B, and MAG EX-18. Although licensing boards have discretion to limit the introduction of redundant evidence in a proceeding, the rejection of contentions on that ground at the pleading stage of the SPMC litigation had the effect of preventing issues from being litigated under the SPMC simply because similar issues had been litigated under the NHRERP. Such a ruling ignores the fact that the SPMC is a separate emergency plan with a separate response organization, separate and distinct procedures and separate resources. The Licensing Board's most detailed explanation of its logic in rejecting SPMC contentions because similar issues had
I l been litigated in connection with the NKRERP is found at pages 1 71-73 of its July 22, 1988 order. There the Board states that l it is n21 rejecting the contentions because there has already 1 been a finding by the Board on the issues contained in them, j Instead, the Board states that it is rejecting the contentions ! because evidence on similar issues had been received under the ) NHRERP. Such reasoning ignores the object of pleading contentions. In pleading his contentions on the SPMC, the Mass l AG was pointing out what he perceived to be flaws in the emergency plan. He was entitled to do that even if similar flaws existed in the NHRERP. . At the time that contentions were submitted on the SPMC, no decision had yet been rendered on the NHRERP. The Mass AG was ; entitled to raise issues pertaining to the inadequacies of the SPMC even if they were identical to challenges raised in ; connection with the NHRERP. A contrary holding illogically permits flaws to go unchallenged in plans even if they were actually found to exist in other plans simply because they were i l raised in previous litigation. By rejecting the contentions at the pleading stage, the Licensing Board precluded the Mass AG from even raising those problems in connection with the SPMC. ! Since the Board excluded the issues contained in the rejected contentions from being raised in connection with the SPMC, the Mass AG was in turn precluded from introducing evidence on those issues that pertained uniquely to the SPMC. l In many instances such evidence could not have been introduced i i l earlier on similar issues in the NHRERP proceeding because it l would have been irrelevant to the NHRERP. For example, the
l Mass AG could not have introduced evidence in the NHRERP j i hearing that all the teachers from a particular school or town - in Massachusetts declared that they would not accompany children on buses in an evacuation because that evidence would , have been irrelevant to the adequacy of the NHRERP's provisions l for the evacuation of New Hampshire school children. , MAG 28 { This contention alleged that the SPMC fails to meet the requirements of 10 CFR 50.47 (b)(10) because it fails to make ; any provision for a particular special population, the I residents of trailers. The basis of the contention is that since the shielding factor afforded by trailers is significantly less than the shielding factor afforded by the typical house in the Massachusetts EPZ, there is a need for a l separate PAR decision making mechanism for these residents. The Licensing Board impermissibly rejected the contention , l on evidentiary 9, rounds. July Memo, at 48. The Board held that i because the Mass AG had not specified the number of people who reside in trailers, there was not an adequate foundation for the contention. MAG 29 The Licensing Board erred (July Memo. at 49) in refusing to admit MAG 29. Over the Mass AG's. objection that the issue -- the public's response to a nongovernmental private emergency response organization -- had not been litigated in the NHRERP phase of the hearings, the Board rejected the contention on the grounds that "no adequate basis is provided to warrant re-litiaatina the issue."
l l The Licensing Board was wrong in concluding that anything like this issue had previously been litigated in the NHRERP proceedings. The NMRERP is a government-sponsored plan using i state and local police and officials to direct an emergency { response for 16 New Hampshires communities, most of which participated in the emergency planning effort. By comparison, 1 the SPMC is a utility-sponsored plan that uses people who work ] l for Seabrook's owners to direct the emergency response. The ! limited issues touching on human behavior which were litigated in the New Hampshire proceedings had nothing to do with the reaction i of the Massachusetts oublic to information, traffic guidance, and , emergency response advice given by people who work for the owners of Seabrook and are deeply mistrusted. MAG 30 AND MAG 74 The Board rejected these contentions, first, because it , failed to find any practical reason (a " basis") for having snow removal capability during a radiological emergency and, second, because the " general tenor of the contention . . . is inconsistent with the best efforts presumption (sic)" of 10 C.F.R. 50.47 (c) (1) . July Memo, at 50-51. The Board's failure to find a reason for having snow removal capability appears to be based on the notion that - sheltering rather than evacuation would be ordered if unremoved snow makes a vehicular evacuation " impractical." This vastly oversimplifies a serious problem facing Seabrook's emergency planners during the winter. There are clearly two categories of snowstorms that emergency planners in New England need to consider if they are seeking to reasonably maximize dose
l reductions. The first category includes those common light and i l moderate snow storms during which a vehicular evacuation is l l i still feasible so long as road crews keep the roads plowed. The second category is much rarer and includes only those very : I severe snow storms in which the roads cannot be kept open even l with a full force of road crews in operation. In focusing only on the second of these two categories, the Board dismisses or overlooks entirely the need to have snow-removal crews j available for the many light and moderate snow storms which occur in this area. ; Absent planning for such crews, evacuation options which would otherwise be available will be unavailable during many light and moderate snow storms. ; Demanding that the SPMC have a reasonable snow removal capability is not inconsistent with the best-efforts assumption. As the contention basis states, the Massachusetts EPZ communities " generally rely on private contractors for snow r removal, but there is no assurance that private snow removal-companies will continue to provide services for roads and highways in the EPZ during a radiological emergency." Thus, even if town officials do their jobs and call up their private > contractors, those orivate snow plow operators may simply decline to plow during a Seabrook emergency. MAG 34 The Licensing Board erred in excluding this contention on the grounds that it lacked "an adequate basis to support its admirsion." July Memo. at 55. It is not clear whether what the Board found lacking was a factual basis, a legal basis, or
i i 1 both. The contention on its face, however, meets the basis and specificity requirements and has both a factual and legal basis. It alleges that during a summertime evacuation of the , beach areas when the beaches are crowded, the traffic queues wil; be so long and slow moving that many vehicles, will run out of fuel before leaving the EPZ. The contention asserts that . in order to meet the requirements of 10 CFR 50.47 (b) (10) and NUREG-0654, Supp. I, II.J.9. and 10.g., the SPMC must offer reasonable assurance that sufficient resources are available to provide gasoline to the vehicles that may be anticipated to , need it given the length of the summer ETEs. The primary focus of this contention is not that evacuation routes would be blocked for the vehicles behind, but that there would simply be no means of evacuation for occupants of stalled vehicles as is required by 50.47 (b) (3 0) . Thus, the Applicant's objection that the issue of stranded vehicles was previously litigated fully is irrelevant (as well as incorrect). Applicants also objected to admission of this contention on the grounds that there is no requirement in either the regulations or the guidance that there be arrangements made to provide fuel for evacuating vehicles. This argument strips
- 50. 47 (b) (10) knd NUREG-9654, Supp. I, II.J.9. and 10.g. of any meaningful content. Because of certain unique features at the Seabrook site, there are a series of reasonably anticipated but very serious problems, such as this one, that must be addressed in plans in order to have reasonable assurance of conducting a successful vehicular evacuation. The regulations and guidance
cannot be construed so narrowly as to leave unique but serious site specific problems unaddressed. MAG 35 This contention alleged that the SPMC's provisions for responding to the foreseeable problem of stalled cars in the summertime are inadequate because the plan does not contain adequate provisions fort 1) removal of those cars from evacuation routes, and 2) transportation of the passengers in those vehicles. The bases provided for this contention were:
- 1) that the towing companies listed in the SPMC could not be relied upon; 2) that even if they could be, two-way traffic flow to the Massachusetts beaches could not be maintained; and r
- 3) ride sharing is not an adequate compensatory measure.
What is at issue under this contention are the provisions of the SPMC for handling the stalled traffic phenomenon. The Mass AG did not and could not have litigated that issue under the NHRERP proceeding because those provisions would have been irrelevant. MAG 36 MAG 36 asserted that a vehicular evacuation was not possible during summer days and that any attempted vehicular evacuation would lead to an exodus on foot by many. At 59 of the July Memo the Board rejected this contention first by simply making a factual finding that a vehicular evacuation is possible and then by translating the contention into an assertion that evacuation is too slow and ETEs too long, an issue otherwise raised (although not admitted). The Board inaccurately cited the Mass AG's June 22, 1988 Reply to the Y
Staff's and Applicants' Responses to Contentions 7 Through 83.
- The Mass AG made it clear at 21 of that Reply that MAG 36 did
-ngt "really mean()" that evacuation is too slow but that it is ngt feasible at all.
MAG 38 The Board rejected as previously litigated a sentence from this contention's basis asserting that many beach area evacuating drivers will cross the center line and drive on the inbound lane in order to avoid long traffic queues and drive ranidiv. The Mass AG appeals this ruling as a " placeholder" appeal, pending this Appeal-Board's decision on the NHRERP's traffic management plan. In the NHRERP proceedings, the Mass AG asserted that the likelihood of substantial driver crossover occurring on the beach egress roads necessitated the use of additional traffic guides in order to ensure that two way flow on those roads (needed for emergency vehicles, buses, and returning commuters) could be maintained. The Board rejected this notion, NHRERP PID $$7.82, 7.89, 7.90, and the Mass AG has appealed that ruling. Mass AG's Brief on Appeal of the NHRERP PID at 20-29. In the event that the Mass AG prevails on this issue, not only should the Appeal Board direct that the number of traffic guides in the NHRERP be re-evaluated but it should direct the Licensing Board to conduct further hearings on MAG Contention 38. , MAG 39 Only certain bases were rejected by the Board. The Mass AG seeks review of the Board's rejection of the following bases:
. - .. - . . . . - .~ _ - - - - . _ _ . . - ..
i Basis F Basis F asserted that the SPMC's ETEs are unrealistic ; 5 because'they i fail entirely to take into account the delays that must be expected to result-from drivers and their : passengers becoming ill from the radiation to which they can reasonably be expected to be exposed for a . wide range of accident sequences. ; i The Board rejected this basis "because it is lacking in
- l foundation for the statement that radiation sickness can reasonably be expected to cause traffic delays, even assuming the wide range of accident sequences alleged in the basis."
July Memo. at 62. , The Board knew full well that the Mass AG had already > prepared testimony (which the Board excluded) which described the radiation doses that can be expected, and the health consequences which would occur from those expected doses in the l beach areas within the time frame that it would take to evacuate the beach areas. Egg ALAB-922. MAG 41 MAG 41 asserted that the ETEs at Seabrook are simply too long and that the Salisbury beach populations are entrapped without a sheltering alternative set forth in the plan. Based on its view that the effectiveness of the plan is irrelevant to its adequacy, the Board rejected this contention. July Memo at
- 65. This was error. 333 Mass AG's brief on the Question Certified in ALAB-922. Egg also ALAB 924 (finding sheltering plan and procedures necessary 11 nianners have determined shelterina would ha dose-minimizina igr certain accidents).
,,,,,.--w,-,, . . _ , , , _ _ . . . - . , .,,
I I MAG 47: Bases N,Q,R,and S.I. , These bases for MAG 47 were rejected by the Board as being previously litigated human behavior issues concerning school i children. In seabrook, 28 NRC 729-732, the Licensing Board had , i rejected arguments made during the NHRERP hearings that l teachers would not fulfill the role assigned to them under that j plan. The Board precluded the Mass AG from litigating human behavior issues concerning schools under the SPMC on the ground that the Mass AG participated in litigating human behavior issues concerning other issue areas under the NMRERP. This is ; error. In essence it is a ruling that, because the Mass AG perceived issues concerning human behaviour as bearing on flaws in the NHRERP, he is prohibited from even challenging flaws in the SPMC on the same grounds. There is no reason to think that the observation of flaws in one emergency plan somehow eliminates the possibility that similiar flaws will exist in another plan. It is even more absurd to treat the introduction of l I contentions dealing with human behavior under the SPMC as an attempt to reopen the evidentiary record on the NHRERP. At the time that profiled testimony on the NHRERP was due to be filed, the SPMC did not even exist. There was no way to know that the _ provisions of the two plans as they pertained to schools would be similiar. It would have been fatuous for the Mass AG to have filed testimony on the NHRERP as to how Massachusetts teachers would have behaved if they were called upon to fulfill roles similiar to those imposed on New Hampshire teachers by _ _ . _ _ _ __. -.. _ . - . _ . . . _ _ _ _ _ _ _ ..___ _ ..._.~_ ___ - _ . _ . _ - _ _ _ _
l the NKRERP. It is ironic that the same Licensing Board who did not even credit the testimony of New Hampshire teachers as to ! how their colleagues would behave in a radiological emergency should claim that the Mass AG could have introduced testimony about human behavior responses of Massachusetts' teachers in the hearings on the NHRERP. , MAG 48 - Basis C and MAG 49 - Basis A j These rejected bases raised the issue of whether there is adequate provision for the patients in the two Massachusetts i hospitals and for the residents of Massachusetts special facilities given the lack of assurance that hospital and l special facility staff would stay or report to duty in a i 1 radiological emergency because of role conflict. The Licensing Board brusquely rejected those bases for the same reasons that it rejected the bases dealing with role conflict in teachers. For the reasons discussed in connection with the rejected bases of MAG 47, the Mass AG should have been permitted to litigate role conflict for the Massachusetts hospital and special i facility staffs. Contrary to the Licensing Board's ruling the Mass AG did not and could not have litigated that issue in the NHRERP proceeding. HMAG 83 Basis C This contention basis was also rejected because the Board found it to be "similar" to previously litigated issues. July Memo. at 107-108. For the reasons provided above, this ruling was in error. The provisions of the SPMC for dealing with the problem posed in the contention basis could not have been litigated in a hearing on the NHRERP. ,
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MAG 56 Basis A 1-8 MAG 56 Basis A 1-8 asserted that various inputs used to formulate protective action recommendations (" PARS") were not appropriate. The Board rejected this basis (at 84 of the July Memo) based on jurisdictional grounds; i.e., the difference between its purported "offsite" jurisdiction compared to the Wolfe Board's "onsite" jurisdiction. As ALAB-916 makes clear, at the time this contention was filed (April 1988) the Smith Board had jurisdiction over these issues. The ruling was in error. MAG EX 11 and 19 The Board also erroneously excluded the Mass AG's challenge to the PARS issued by the Seabrook Station emergency ) organization pursuant to the Seabrook Station Radiological Emergency Response ("SSRERP"), the onsite plan. (PID, a 6.63-6.64 at 223-224) The facts are as follows: on September 18, 1988 the Mass AG filed MAG EX 11 and MAG EX 19 both of which detailed flaws in the PARS made during the June 1988 , exercise. MAG EX 11 alleged that the decision criteria in the SPMC were not adequate. MAG EX 19 challenged the decision criteria (which are in fact different) set forth in the < SSRERP. Basis A specifically incorporated the flaws in the exercise PARS set out in MAG EX 11 as the factual basis for the ; assertion that the SSRERP's decision criteria are also fundamentally flawed. In his October 24, 1988 Reply to the Responses of the Staff and Applicants to his Exercise Contentions (" October 24 Reply") at 52-53, the Mass AG unambiguously stated that MAG EX 19-Basis A was a challenge to
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the ensite nian's decision criteria. The Board admitted MAG EX ! 19-Basis A at 47-48 of its December 15, 1988 Memorandum. The l parties than pre-filed testimony regarding the adequacy of the 1 decision criteria in the onsite plan. During cross-examination of staff witnesses, it bicane clear that the beach closing criteria'in the SSRERP are flawed and, in fact, were not i Tr. 24770 and Mass followed during the June 1988 exercise. Exhibit 112. Later, the Board simply ruled that MAG EX 19 , I Basis A did Det challenge the decision criteria in the SSRERP l and, as it were, excluded the contention A11ar the testimony had been admitted and cross-examined. Tr. 24865-24879, 25040-25064, 25106-25135. Since ALAB-916 had already issued by I the date of this ruling (June 12, 1989) and onsite issues could not be excluded on jurisdictional grounds, the Board relied on a new reading of MAG EX 19 Basis A asserting that it lacked specificity. As a result of this ruling the flaws revealed by the June 1988 exercise in the decision criteria in the onsite ElRD and established by cross-examination 21 staff witnesses, became non-litigable. This was error. MAG EX 19 Basis A incorporated MAG EX 11 which obviously did meet the specificity requirements because the Mass AG through it was permitted to
- litigate the SPMC's decision criteria based on the PARS issued l
l during the June 1988 exercises. The Board's ruling is illogical. (Moreover, as set out in Intervenors' Brief on Appeal of LBP-89-38 at 31, filed January 22, 1990, the Board l-l_ was obviously aware of these onsite plan defects when it proceeded to invent its notion that "later" onsite exercises i test an already validated onsite plan.) 1
MAG EX-12 While the Board rejected all four bases to this contention, 1 December 15 Memo. at 34-39, the Mass AG appeals the denial of only bases A, B, and D. The Mass AG's primary arguments in support of these bases are adequately set forth in his October l 1 24 Reply at 28-39. In rejecting these arguments, the Board erred by applying an overly lenient time standard that is not . supported by the regulations or the guidance. The Board also erred in finding no fundamental flaw, December Memo, at 38.
]
I The contention clearly asserts the failure of an essential element of.the plan -- the "means to provide early notification I and clear instruction to the populace" required by $50.47(b)(5), and the ability to essentially complete the initial notification of the public within about 15 minutes required by 10 CFR Part 50, App. E.IV.D.3. It is also apparent that the flaws observed can be remedied only through : t significant revisions of the plan. There wtre no foul-ups or glitches which on the day of the exercise, slowed down the , notification process;.the slow notification times observed were , the best the utility could do, given its design, its means of interacting with state officials, its lengthy EBS messages, and its vehicle-based siren system. Significant changes in one or more of these aspects of the SPMC will be required before this essential planning standard can be met. The Mass AG further appeals the rejection of this contention on the grounds that the application of the fundamental flaw standard in the manner applied here sets an impermissibly high threshold for the admission of exercise
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contentions in violation of Union of concerned scientists v 1 i HEC , 7 3 5 F. 2 d 14 35 ( D. C . Cir . 1984 ) , ce rt , denied, 469 U.S. 1132 (1985). Egg NECNP's Comments on the Significance of ALAB-903 to the Seabrook Offsite Exercise Contentions (Nov. 22, ) 1988). l MAG EX-13 4 The Mass AG appeals the denial of the contention and bases ; A, B, and D. December 15 Memo. at 39-41. The Mass AG's , primary arguments in support of A, B, and D are adequately set forth in his October 24 Reply at 39-43. In rejecting these arguments, the Board erred by: (1) ignoring the " summary statement" at the end of the four-part basis and (2) applying the fundamental flaw standard improperly. The " summary statement" was meant to be the primary statement of the basis; the rest of this exceptionally detailed basis constitutes specific facts observed and rational inferences drawn from a knowledge of the SPMC, the exercise scenario document, and , experts' descriptions of expected conditions during Seabrook evacuation. (References to the plume's location, for example, come directly from the exercise scenario documents, which show the location of the. plume at 15 minute intervals throughout the Exercise.) There is no unfounded speculation here at all. Thus, the " summary statement" (the final two paragraphs) cannot , be ignored. It is based on substantial facts and logical inferences and asserts a failure of an essential element of the plan, i.e., the ability to control evacuation traffic flow. t' ggg Lona Island Liahtina comoany (Shoreham Nuclear Power Station, Unit I), 27 NRC 85, 131 (1988). If proven, the
l I assertions in the basis -- including its summary paragraphs -- - constitute much more than " isolated, easily correctible problems on the day of the exercise." December 15 Memo at 40. The last paragraph describes the significant plan changes needed. In addition, the Mass AG reasserts his argument regarding UCS v. NRC made above in the discussion of MAG EX -12. ,. As to the Board's finding that parts A and B have already been litigated, 331 the October 24 Reply at 40-42, these matters have most definitely not been litigated previously. MAC EX. 2. BASES A.B.C.F AND G The' Board rejected MAG EX. 2, Bases A,B,and C on the grounds that: 1) an exercise of the VANS and EBS system was not required because they.do not represent major observable elements of the plant 2) little information would have been gained by testing them; 3) any defects that would have been revealed would be readily correctable and therefore,'not fundamental flaws. (December 15 Memo. at 17-18.) None of those i grounds withstand scrutiny. Under the SPMC the VANS are the primary means of alerting the general public to an emergency at Seabrook. The EBS was 3 the SPMC's Drimary means for notifyina the Dublic about Eg.abrook emeraencies. At the time of the June graded exercise, EBS and its CPCS-1, or primary relay, station (WCGY) for the area that includes the Massachusetts EPZ were still r participating with NHY in emergency planning and had letters of agreement committing them to cooperate with NHY. Yet, , despite the fact that both the primary means of alerting and
l t I notifying the public were available to be exercised, neither ! l the VANS nor the EBS were exercised. Contrary to ';he Board's j assertion that the VANS and EBS are only portions of the public 1 l alert and notification system, as the erinary me:.ns of alerting and notifying under the SPMC, they in essence gym the system. ' This system is a major observable element of t',te plan. Egg ALAB-900, 28 NRC 275, 294 (1988) ("Public alret and notification is unquestionably a major element of emergency J planning. Eta 10 C.F.R. $ 50. 47 (b) (5) , (6). Section IV.F of ! Appendix E makes clear that '[e]xercises shall . . . test the public notification system.') The Board was also wrong in concluding that little information would have been gained by testing those plan elements and that any defects that might have been revealed would have been minor. First, the Board's conclusions are at best speculative and not founded on any information before it. Second, had the VANS and EBS been tested, it would have been apparent that the public alert and notification system can not comply with the 15 minute notification specification found in Appendix E of Part 50 for a substantial portion of the EPZ. Seabrook, 29 NRC 519, 535 (1989). Furthermore, it would have been apparent that NHY could not have activated the EBS because it did not have the requisite communications hardware linking the ORO with the CPCS-1 station. (Egg Appendix Exhibit 1 hereto) In sum, not only was the Board wrong in speculating that the exercise of the VANS and EBS would have revealed no defects in the plan, but also an exercise of those entities could have revealed defects. Moreover, as noted in
Intervenors' Brief an Appeal of LBP-89-38, the alert and ' notification system for Massachusetts has never been fully exercised in any prelicensing exercise. , The Board also erred in rejecting Basis F. The Board , agreed that the provision for a Host Special Facility and congregate care centers are a major element of the plan, but then found that the Red Cross's non-participation excused the j exercise of'that_ element of the plan. The Licensing Board tacitly acknowledged (December Memo, at 20) that there is no - regulatory authority for such an exemption. The Board's ruling is in error because it assumes without foundation that the non-participation of the Red Cross precluded the exercise of that element of the plan. In essence, the Board decided the merits of the contention at the pleading stage without giving the Mass AG the opportunity to a hearing or even to respond to , a proper motion for summary disposition. The Board also erred (December Memo. at 22-23) in excluding Basis G which challenged the sufficiency of the scope of the l June 1988 exercise based on the failure to obtain or to try to obtain the participation in Massachusetts of school, hospital
'I and other special facility personnel, such a scope challenge is clearly admissible. ALAB-900, 28 NRC at 296-297. The Board clearly misreads Basis G as a critique of FEMA's evaluation which it is not.
Thus, in a ' full participation' exercise, their participation is not excused by 10 C.F.R. Part 50, App. E, par. IV.F.6. . . . . Absent such an evaluation of these key administrators for schools, hospitals, and other special facilities, the Exercise had insufficient scope. . MAG EX. 2, Basis G.
1 i l MAG 65 and MAG EX 18Bt 20% Monitorina Plannine Basis. In April 1988, the Mass AG submitted MAG Contention 65 which alleged, inter alia, that adequate " resources incladir.g i personnel, facilities, and equipment have not been secured to adequately respond to a radiological emergency at Seabrook."
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In the basis, the Mass AG stated that i planning for decontamination and monitoring facilities . . . required to treat and deal with the potentially large number of injured l ignores the fact that the SPMC is not, in the first instance, going to enable all or ' substantially all of the beach population to ; avoid doses causing severe health effects. ; In its July Memo. at 91-92 the Board refused to admit this I contention. On December 16, 1988, the Mass AG filed a Motion for Reconsideration of the July decision in light of ALAB-905. The Board heard argument on December 20, 1988. (Tr. 15141-15160). In an Order dated January 4, 1989, the Board denied Mass AG's motion to reconsider the disposition of MAG 65. The adequacy of the evacuee monitoring planning basis for ! the SPMC was also challenged by the Mass AG in contentions i filed in September 1988 on the June 1988 exercise. MAG EX-18 alleged, inter alla, that the exercise disclosed inadequate
" procedures, facilities, equipment and personnel for the registration, radiological monitoring, and decontaminating of evacuees. . . . " In Basis B, the Mass AG specifically alleged that " facilities" were inadequate because "many more persons
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would have been reporting to the reception centers for monitoring than ORO and the State of New Hampshire had the staff and equipment to monitor within a 24-hour period." (emphasis supplied). Initially, neither the Applicants nor the
I l Staff objected to the admission of this contention in this ) l regard. After the issuance of AMB-903 on November 10, 1988, both the Applicants and the Staff objected to the ainission of this contention based on its purported failure to allege a , fundamental flaw. In its December 15 Memorandum at 46 the , lower Board discussed MAG EX-18 and permitted the Mass AG to amend his pleading. On January 3, 1989, the Mass AG filed
" Additional Comments on the Effect of AMB-903". This pleading at 10-14 specifically addressed both AMB-903 and AMB-905. On ,
January 13, 1989, the. lower Board issued a further Memorandum and Order on the admissibility of MAG EX-18. January 13 Order . at 10-15. In this January 13 Order, the Board ruled that the , Mass AG in his January 3, 1989 pleading in effect sought to 4 file a late-filed contention raising AMB-905 issues for the first time. The Board denied admission to MAG EX-18 on this basis. Finally, on January 20, 1989, during oral argument on this issue, the Board ruled that although MAG EX-18 had raised the issue of the adequacy of the planning basis for monitoring i evacuees for the SPMC, that issue was rga iudicata in light of s its New Hampshire decision. (Tr. 15288-15295, 15332-15340). On this sole basis, MAG EX-18 was not admitted. This disposition of the Mass AG's challenge to the adequacy i of the planning basis for monitoring in the Massachusetts EPZ can not be sustained in light of this Board's holding in AMB-924 that the issue of the adequacy of the planning basis for New Hampshire was never raised by the Intervenors during that proceeding. ( AMB-92 4, slip opinion at 27-46). The Iga
I iudicata finding irreconcilably conflicts with thia Boar l's j Moreover, it is unclear why a finding on ! holding in ALAB-924. i the planning basis for New Hampshire (assuming there was one) should be ran iudicata for a different plan in a different state. MAG 77 Basis E and MAG B3 Basis A (14 1 and 31 i The Board erred (July Memo. at 102, 106-107) in rejecting ' l l these contentions which sought to litigate human behavior and , role conflict issues presented by reliance on a nonprofessional, utility worker-based response organization. 1 The Board ruled the contentions inadmissible because they > lacked foundation, were incapable of proof, were libelous and as to MG 83 Basis A, 13 involved issues already litigated. Not ! a single ground identified by the Board for excluding these : issues has any merit. f III. EVIDENTIARY ERRORS MADE BY THE SMITH BOARD DURING THE SPMC HEARING l During the course of the hearings on the SPMC and the FEMA graded exercise, the Licensing Board made several evidentiary rulings that had the effect of excluding significant pieces of evidence. As will be seen below, certain of those rulings were premised on a basic misconception as to the relationship that evidence in a hearing has to the pleading of contentions and [ bs ss. The Licensing Board throughout the hearing took the position that if proffered evidence had not been set out in the contention and bases statement, then it could not be admitted at the hearing. In adopting that position the Board ignored well-settled law that there is no obligation to set out in the
i i contention or bases the evidence that will be offered in support of the contention. Houston Power and Liahtina Co., I (Allens Creek Nuclear Generating Station , Unit 12), ALAB-590, supraf Mississippi Power and Liaht Co., (Grand Gulf Nuclear l Station) , ALAB-130, supra. The purpose or function of the contention statement is not to limit the evidence that can be accepted at a hearing, but rather it is a means of providing notice to the parties as to what the contested issues are. ' Philade?nhia Electric Co., (Limerick Generating Station, Units t l 1 and 2), ALAB-845, supra at 230. Similiarly, the basis requirement is not designed to function as a limitation on the evidence that is admissible at ; the hearing. Rather, the basis requirement is to ensure that an intervanor has a reason for asserting that the contested issue articulated in the contention has merit. Houston Lichtina and Power Co., (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, supra at 548. An intervenor does not have to set forth in the bases of a contention every factual or legal ground that supports the reasons stated in the bases. In numerous instances cited below, the Licensing Board held that the failure to set out, detail or otherwise recite ; proffered evidence in the contention statement was a fatal defect that precluded the introduction of such evidence at the hearing. A. The Dillman/Moriearty Testimony Contention JI 48 alleged, inter Alia, that the SPMC fails to comply with the applicable regulations because of deficiencies in the survey used to identify the resident
i l special needs population in the Nassachusetts EPZ. Among other alleged deficiencies, the contention stated that the plan has not identified all or even most of the resident special needs population and that planners do not have enough information as to what assistance that population will need in an emergency. Five bases provided reasons for asserting that the SPMC failed l to comply with the regulations. Basis A asserted clearly that survey by mail is an unreliable method. { The Mass AG offered the Dillman/Moriearty testimony (Mass. Exhibits 79A and 79B rejected) that critiqued the methodology , and information gathered in the special needs survey. After lengthy argument on the Applicant's objection (Tr.19957-20007, 20083-20126), the Board rejected the testimony on the ground that methodology was not specified in the original contention. (Tr. 20120.) For the reasons stated, that ruling was in error since there is no requirement that a contention plead evidence. Nor is there merit to the claim that the testimony L amounted to unfair " surprise" at the time of hearing since the Applicants had received the profiled testimony on the matter in February, 1988 approximately two months before it was proffered , at the hearing. The Board itself acknowledged that prefiled testimony serves as a form of discovery to apprise the parties as to the scope of the issues to be litigated. (Tr. 16444.) B. Public Health's Letters to M hulance Comoanies The Licensing Board made a similiarly erroneous ruling in part of its order rejecting four letters from the Massachusetts Department of Public Health as an exhibit. In its Order dated August 7, 1989, at pages 3-5, the Licensing Board as one of its ,
i I grounds for rejecting the proffered exhibit ruled that the 1 evidence was not referenced in JI 55 or its bases and , therefore, was irrelevant. In making that ruling the Board ! again clearly lost sight of the difference between issues and
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evidence. ; contention JI 55 alleged that the SPMC fails to provide adequate vehicular resources in violation of 50.47 (b) (1) , (3) l and (10) and other regulations. Specifically, it was alleged that the SPMC does not provide reasonable assurance that an adequate number of emergency response vehicles will respond in i 4 a timely manner. Several bases are then provided as reasons for , believing that the BPMC will have an inadequate number of i emergency vehicles to comply with the regulations. Bases C, D, and N generally posit that the SPMC does not provide an adequate basis for finding that there will be enough ambulances + available to provide service to the persons who will need them. There was no obligation to set out in the contention or ( bases all evidence that might be offered in support of the e contention. Such a reading of the contention requirement renders nonsensical any evidentiary developments that might occur through discovery or further investigation of an issue after the contentions have been admitted. The Board's reliance on the cases cited at at pages 4-5 of , its August 7 order is misplaced. Those cases merely stand for the proposition that a hearing is limited to the issues contested in the contentions. In that respect, litigation before the Commission is no different from litigation in front of any other tribunal. In the present litigation on off-site
i i emergency planning issues, the Mass AG could not raise new 4 issues concerning faulty valves in the plant. However, those limitations on litigation have nothing to do with whether it was proper to exclude evidence probative of the contended 1 issue, i.e. the compliance of the SPMC with regulatory l requirements. The excluded exhibit was certainly relevant to the issue of whether there would be enough emergency vehicles available under the SPMC to provide reasonable assurance of i adequate protective measures for disabled persons in the EPZ. There is also no question that all parties were on notice from the pleadings that this was a contested issue. . The Board's other reasons for rejecting the exhibit are equally faulty. The Board concluded that the exhibit > represented only speculation as to whether the out of state ambulance companies would be available under the SPMC. August 7, 1989 Order at 6-9. However, in concluding that the speculative quality of the evidence was a reason for excluding it, the Board confused the admissibility of evidence with the weight that is ultimately to be given to the evidence. Even if a fact-finding tribunal were not to ultimately give great weight to a piece of evidence, if it is admissible, it should be allowed into evidence so that an appellate panel reviewing the decision of the tribunal will have a complete record upon which to determine whether the findings of the tribunal were properly founded. The Board's third reason for rejecting the exhibit was that it was untimely. It is a fact that the exhibit was not prefiled within the limits set for the prefiling of testimony.
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On the other hand, it is also a fact that the exhibit did not ; exist at that point in time. The exhibit did not exist until l June 27, 1989. It was received by the Mass AG on June 28, and brought to the attention of the Board and the parties on June
- 29. (Tr.28097-28103.) Upon the Board's directive (Tr.28102),
it was submitted as a formal motion presented to the Board on June 30. However, the Board refused to accept it at that time. (Tr. 28195.) In rejecting the exhibit as untimely, the Board confused legal argument with factual evidence. While the public health regulations pertaining to out of state ambulances have existed for some time, the first time that factual evidence existed that the Department of Public Health intended , to act to enforce those regulations with respect to the SPMC's ambulance providers was immediately before it was offered. There is nothing in the record to indicate that the Mass AG did i 4 anything to delay (or encourage the Department of Public Health to delay) those letters. The letters were proffered as quickly as they could have been. C. The Thomoson/Goble/Beven Testimony The Board refused to admit into evidence (Mass Exhibit 72) the testimony of a panel.of experts, Gordon Thompson, Robert Goble and Jan Beyea because it was "hard to understand". (Tr.18879-18885.) Esa also PID, 6.10 at 218-219. This is not a legally permissible reason for rejecting evidence. The Board did not find the witnesses incompetent or the testimony irrelevant or immaterial. Rather, the Board simply did not like the quality of the evidence. Again the Board confused the admissibility of evidence with the weight that might ultimately
be given to it. Such a posture effectively insulates an administrative board from having to articulate specific findings with respect to the facts and issues raised in the evidence and thwarts the appellate review process for administrative agency decisions. Regardless of whether the Board would ultimately have given weight to the testimony, it should have admitted it. Moreover, the testimony is sound and clear. D. The Dr. Leanino Testimony The Board refused to admit this testimony (Mass Exhibit 78) on erroneous grounds. Although the Board acknowledged the testimony was relevant (Tr. 19883), it rejected the testimony because it did not feel that it would be "useful" (Tr. 19895). As explained above, that is not a legally permissible reason for rejecting evidence. The Board had initially rejected the evidence because it held that there was no regulatory obligation for the SPMC to provide for the care of radiologically injured persons. After it reversed itself on that ruling, it then heard argument on the admission of the testimony and again rejected it. (Tr. 19869-19896.) It is noteworthy that prior to even hearing argument on the matter, the Board had apparently made up its mind that it would not be "useful" to the Board. (Tr. 19869-19870.) The error inherent in the Board's ruling on this matter can not justified by reference to the Board's comments during the argument that Dr. Leaning's testimony as to what kind of medical care provisions are required for the radiologically
r , injured is redundant of the requirements in the NRC pol icy statenant found at 51 Fed. Reg. 32905, Sept. 17, 1986. (NRC Staff Exh. 7.) A policy statement of four lines as to what kind of care should be provided for in a plan is not in any way equivalent to a twenty-four page expert opinion detailing the kinds of nrovisions that should be made for that care. A policy statement that there should be care is simply not the same as a detailed statement of what one has to do to achieve that care. IV. ERRORS IN THE PID. LBP-89-32 A. Evacuation Time Estimates (PID. at 36-116)
- 1. Intervenors' first ETE-related contention, JI-1, asserted that "[n)o evacuation time study has been done to assess what the realistic evacuation times would be in the Massachusetts portion of the EPZ." The Mass AG argued, and the Board agreed, that while Appendix 4 of NUREG-0654 calls for a written study, a report showing the derivation of the SPMC's ETEs does not currently exist. MAG PF 2.1.14.D, PID, 2.13 at 40.
The Applicant's defense was that they have committed to complete a revised evacuation time estimate study "in the future." App. Reb. No. 16, ff. Tr. 26681, at 3. The Mass AG attacked this defense as inadequate for two reasons. First, as set forth more fully in MAG PF 2.1.14.I., since an ETE study is a complex, technical, and often lengthy document, which can play an important role in protective action decision-making, erg, e.g., Volume 6 of the NHRERP, the complete absence of this report for the SPMC's ETEs precluded the Board from finding
that the plans were sufficiently developed to make a reasonable assurance finding. Egg Louisiana Power and Licht Co. (Waterford Steam Electric Station, Unit 3) , ALAB-732, 17 NRC 1076, 1104 (1983). Because these reports can be used by PAR decision-makers, the report needed to be not only technically accurate but written in a user-friendly manner as well. As the Mass AG argued in MAG PF 2.1.14.I: How well it will be done, if it is done et all, can not yet be determined . . . . If it turns out to have been done poorly, in a manner which does not comport with Appendix 4 of-NUREG-09654, then it will serve no useful purpose in aiding decision-makers in using the ETE tables to select the most appropriate ETE for the circumstances at hand. This is especially of concern at the Seabrook site where ETEs fluctuate substantially-over the course of even a single summer day, depending on the size of the beach population. Because scrutinizing a complex ETE report for accuracy, clarity, usefulness, user-friendliness was not the kind of straightforward ministerial task which is appropriately left for the Staff-to perform, the Mass AG urged the Board to retain jurisdiction over the matter to see not only that the ETE 4 report was developed as promised, but that the result achieved was adequate to permit a reasonable assurance finding. MAG PF 2.1.14.J. Second, the Applicants' promise was " simply a promise to do something which is itself inadequate." MAG PF 2.1.14.L. As is
.more fully set forth in MAG PF 2.1.14.K at Egg., the ETEs that the Applicants have set forth in the SPMC are not estimates of evacuation times for the Massachusetts communities at all.
Instead, the evacuation times listed are for certain New
I Hampshire. communities. This result occurs due to the " regional approach" to ETEs taken by Applicants. Egg MAG PF 2.1.14.Kr PID, 2.20, 2.21 at 43-44. When asked what the ETEs for the Massachusetts communities would be, the Applicants' ETE witnesses said they-did not know. Tr. 26714. They did not even know if the times provided in the SPMC's ETE table were within an hour or two of the realistic times to evacuate the ' Massachusetts communities. Tr. 26715. The Applicants defended this state of affairs, arguing that a " regional approach" to ETEs (i.e. providing ETEs for two regions which contained both Massachusetts and New Hampshire EPZ communities) was acceptable, and that segregating the Massachusetts ETEs out from those in any region is a faulty concept. Tr. 26715. The Board agreed with this-illogical argument. PID, 2.23 at 45. Massachusetts PAR decision-makers cannot use ETEs to aid in selecting the dose-minimizing PAR for the Massachusetts EPZ communities if the ETEs provided, as is the case here, are for Hampton Beach, New Hampshire. The reasons the Board offers in support of its finding that the SPMC's " regional approach" to ETEs is " acceptable" have no merit. First, the Board cites "the reality that traffic flowing through these areas cannot be segregated temporally according to political boundaries." PID, 2.23 at 45. If by
'this the Board is suggesting that it is not possible to calculate accurate ETEs for the Massachusetts communities, this is simply not the case. While the Board is correct that for some Massachusetts communities evacuating traffic will flow from one community to another, it is also true that at discrete j
i i points in time traffic will cease flowing out of gash Massachusetts town, and these points, measured from the time the order to evacuate'is issued, constitute the Massachusetts evacuation tinea. There is no dispute that these times can be estimated. Indeed, Applicants' primary ETE witness, Mr. Lieberman, repastedly indicated that the ETEs 'or just the Massachusetts towns were being generated all along by the IDYNEV computer runs he made. Egg, e.a., Tr. 16717. The second and third reasons offered by the Licensing Board, PID, 2.23 at 45, are true statements but are just as irrelevant to the issue, which is whether Massachusetts FAR decision-makers can make dose minimizing PARS for the Massachusetts communities using New Hampshire ETEs.
-Thus, the Applicants' promise to publish a revised evacuation-time estimate study using the " regional approach" to ETEs should have been rejected as worthless. When done, it will simply not be helpful to those who need it. The Licensing Board erred in: (1) not requiring the Applicants to. prepare a full set of ETEs for the Massachusetts communities (apart from the New Hampshire communities); and (2) not requiring that report-to be prepared prior to licensing.
s
- 2. ALAB-924 held that ETEs for special facilities on an individualized basis _are required. ALAB-924 at 27 n.71.
The Mass AG argued this precise point at MAG PF 2.1.26.A in support of his position on JI 2 Basis I. The Board 48 hours after ALAB-924 issued repeated its New Hampshire error in this regard. PID, 2.104 at 89. Egg also 8.94 at 327. This was blatent error. 3 The Mass AG also appeals the Board's findings-and-rulings with respect to the impact of returning commuters on evacuation times, specifically, the Mass AG appeals those aspects of the returning commuters issue which the Board decided in its NHRERP PID at 11 9.50 and 9.51, involving-(1) commuters returning home aaainst the evacuation stream and (2) commuters moving across the general flow of evacuation traffic. gas the arguments set forth in the Mass AG's proposed findings-on the NHRERP at 6.144 3.t agg. 333 alan the Mass AG's Statement Regarding Prematureness of Accompanying Notice of Appeal (May 16, 1989); ALAB-917. .It was error for the Board in its NHRERP PID to have decided these aspects of the returning commuters issue-apart from the whole issue itself, and even if it was proper to consider these aspects separately, the Board erred in deciding that the Applicants' ETE study had adequately considered these aspects (cross- and counter-flow). The Mass AG further claims that, having determined that it would not permit the Mass AG to submit SPMC testimony on cross-and counter-flow, (agg Board's Memorandum and Order of May 5, 1989) the Board erred in allowing the Applicants' to pursue these issues further in their Supplement to Applicants' Rebuttal Testimony No. 16 and then finding that that testimony had somehow " supplemented" the Board's NHRERP findings on cross-flow and counter-flow. PID, 2.120 at 97. This was grossly unfair, and left the Mass AG with inadequate time and opportunity to respond fully. Finally, the Board has erred in rejecting Dr. Adler's many I valid criticisms of the Applicants' final effort to model n returning commuters. None of the reasons offered by the Board for. rejecting Dr. Adler's criticisms are valid, as-a careful reading of_his testimony and the Mass AG's proposed findings establish. ERA Adler Reb., ff Tr. 28198; MAG PF 2.1.36.K'- 2.1.36.BB. B. Traffic Manaaement Plan (PID at 117-177) The Licensing Board found that the SPMC procedures allow for timely and adequate staffing of traffic control posts ("TCPs") and access control posts ("ACPs") prior to the onset
-of congestion (other than beach closure) for all but very fastbreaking accidents. PID, 3.73 at 153.
That finding cannot be harmonized with the Board's finding that it will take from between one and a half hours (1.5) to three and three quarters hours (3.75) to staff those positions._ PID, 3.67 at 150. Some of.the most critical TCPs cannot be staffed for two hours and forty-five minutes. Id. The Licensing Board itself acknowledged that under fastbreaking accident conditions, some evacuation routes may experience congestion prior to the time that traffic guides can arrive at TCPs. PID, 3.73 at 153. The SPMC's procedures provide for notifying the traffic guides to start reporting to the staging area only when a_ site area emergency has been declared. The Board's finding as to the adequacy of the SPMC's procedures for staffing traffic posts ignores the fact that for almost any evacuation scenario that proceeds from a site area emergency to a general emergency within-two hours,-it is predictable that heavy congestion will exist by the time that traffic guides reach the TCPs. Since the role of traffic guides is to facilitate traffic flow, the-lack of prompt TCP staffing will mean that many critical junctures on evacuation routes will not have the advantage of. traffic guides to speed the flow during a substantial portion of the evacuation. Because the SPMC's staffing procedures do not provide for traffic guide mobilization until a site area emergency they contribute substantially to the resulting delay in the establishment of TCPs. The Licensing Board acknowledged that under the provisions i of the SPMC complete and timely mobilization of traffic guides is' impossible when there is a fast-breaking accident. PID, 3.107 at 167. The Licensing Board erroneously relies upon LEDE Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1) LBP-85-12, 21 NRC 644 (1985). At best, that case excuses such a failure only in a limited number of evacuation scenarios when there is not even enough time to activate the EOC or staging area prior to an evacuation. In the SPMC those facilities are activated at the alert stage. There may be a wide range of scenarios under which the activation of those facilities is ,< complete, but traffic guides will not be able to staff their posts prior to the onset of traffic congestion. C. ResDonse Personnel Staffino and Trainina (PID, at 191-216)
- 1. The procedures of the SPMC call for traffic
" guides to work 12 hour shifts without being relieved. The Licensing Board received evidence that traffic guides have an attention span of approximately four hours. Tr. 17026. Yet,
Lthe Licensing Board ignored evidence that traffic guides will be unable to maintain their post for twelve hours in finding traffic guide staffing adequate. PID, 3.81 at 156. Instead, the Licensing Board assumed that traffic guides will be relieved from their positions within twelve hours despite the fact that the plan has no provision for that relief. PID, 3.84 at 157. The Licensing Board assumed without any factual basis that local and state police will come to the assistance of traffic guides during an evacuation. The Board relied on the "best efforts" assumption and just assumed that local and state police would be available to staff TCPs. PID, 3.84 at 157. There is nothing in the record to indicate how many state and local officials would be available to aid the traffic guides. Nor, is there any reason to believe that those who are available will D2t be called upon to perform other~ services such as security. Finally, there is no foundation on which to assume that police will be available at the times that traffic guides need to be-relieved.
- 2. The Licensing Board made a similar error with respect to.its finding that state and. local police can be
' relied upon to identify road impediments that block evacuation routes during the first hours of an evacuation. There does not appear to be record support for that presumption. PID, 3.106 at 166. -Again, it is another instance of the Licensing Board exercising wishful thinking to make up for a lack of provision in the SPMC.
- 3. The Licensing Board erred in finding that one shift staffing was adequate for evacuation specific personnel.
. -k PID,.5.13-5.14 at 195-6; PID, 5.70 at 215. Under the SPMC, dosimetry record keepers, route guides, drivers of evacuat ion vehicles, and road crews are staffed for only one shift. That provision of the SPMC is in direct contravention of NUREG-0654, criterion II. A. 4 which calls for principal response organizations to be capable of continuous (24 hour) operations for a protracted period. The excuse the Applicants submitted for the SPMC having only one shift for evacuation specific personnel, is that such personnel will supposedly be needed 4 .
only during the limited time period of an evacuation. While under some radiological plans, evacuations may extend only for short periods of time, that is not the case under the SPMC. Under the SPMC, the Applicants have projected ETEs of nine hours, and many are in the 6-7 hour range. Although the Board acknowledges that in any emergency where it takes longer than three hours to move from an alert, or site area emergency, to a general emergency, evacuation personnel may be on shift
, for longer than 12 hours, the Board attempts to discount that fact by assuming that the " stress level of activity would not start immediately" and " peak activity would typically occur initially and then fall off." PID, 5.13 at 196.
The Licensing Board provides no record authority for its ipse dixit. Indeed, the Board's conclusions on this matter appear to be somewhat counterintuitive. It would seem that someone who was called up to function as a route guide, vehicle driver, or road crew in an area known to be undergoing a potential radiation release would initially suffer some stress. Furthermore, the Licensing Board's hypothesis that
-peak activity would typically occur early and then fall off
-appears to be equally arbitrary. - In an accident scenario where there is a time delay of three or four hours between a site area-emergency and a general emergency, the evacuation
' personnel would initially be sitting around with little to do for a number of hours and then be called upon to engage in peak activity.
- 4. The Licensing Board finding that route guides are not needed to accompany vans, station wagons, wheelchair vans, or ambulance drivers to their destination in the EPZ constrasts saarply with the provision of route guides to accompany. buses.
(PID, 5.43 at 206-7) Like the bus companies providing services > under the SPMC, the' companies providing drivers of the vans, stationwagons, wheel chair vans and ambulances are also all located outside the EPZ. There is no reason to believe that the drivers of these vehicles are better able to find their way around in the Massachusetts EPZ than non-local drivers of buses. The Licensing Board attempted to justify the lack of route. guides by. postulating that the emergency responsibilities of those vehicles are distinct from buses since those vehicles are not required to follow a predetermined ~ route (PID, 5.43 at 206-207). That distinction does not withstand scrutiny. While it is true that buses assigned to transit routes must follow predetermined routes, the vast majority of buses are assigned to go to specified assigned destinations in the same way that vans, station wagons, wheel chair vann and ambulances are. Only sixty-six (66) of the three hundred and sixty-eight (368) buses called for under the SPMC are assigned to transit ,
routes. Yet the SPMC recognizes the need for route guides'to accompany the other 300 odd buses which are assigned to specified destinations. The need for route guides to accompany vans, station wagons, and wheel chair vans-to their assigned destinations is, if anything, far greater than for route guides to accompany buses, since the smaller vehicles are assigned to pickup transit dependent persons at their private residences. Private residences are more likely to be on out of the way side streets than the large facilities such as schools, hospitals, and special facilities that the buses are assigned to. The Licensing Board's decision does not coherently account for the lack of route guides for vehicles that are not buses. PID 5.43 at 206-207.
- 5. The Licensing Board's finding that traffic cuides receive adequate training is at best internally inconsistent.
PID,'5.30-5.41 at ev.-206. The Licensing Board premises its finding on its view that an adequate training program has been developed for traffic guides. PID,-5.37-5.39 at 205. Traffic
~
L guides are required to attend six training modules comprised of approximately ten hours of instruction and undergo additional ongoing training. PID, 5.24 at 199; PID, 5.39 at 205. The fact the Board conveniently ignores is that only the first shift of traffic guides receive such training. (ff. Tr. 26265, at 9) The SPMC relies upon personnel from the Yankee Atomic Mutual Assistance Plan to provide second shift staffing for traffic guide positions. The second shift personnel undergo none of the training provided for in the SPMC. Instead, the Y , j l second shift personnel receive at best cursory instruction in the brief time that elapses from when they report to the
> staging area until-the point'at which they are dispatched into the field. PID 5.10 at 193-194.
D. PAR Generation (PID AT 216-240) i 1.- The. Board arred in its disposition of the Mass AG's challenge to the beach closings set out in the Seabrook emergency plans. MAG PF 6.1.61.A. - 6.1.61.B. The Board at .; PID, 6.62-6.63 at 233-234 does not even accurately summarize the issue let alone address it. (Also, as noted supra, the Board wrongfully excluded the Mass AG's direct challenge tx) the ! beach closing criteria in the,onsite plan.)
- 2. The Board never even addressed the issue presented by JI-17 (PID, 6.6 at 217) let alone rule on it. G1. PID,
.6.23-6.30 at 221-223 Eith MAG PF 6.1.61.B. The Board at PID
~
6.24 at 221 does not even attempt to harmonize its .r Massachusetts decision on the need for a shelter survey with E its.New Hampshire decision at 118.78-8.85.
- 3. The Mass AG established that sheltering was being underutilized for the non-beach areas. There was no record.
support for the .9 shielding assumption which, although appropriate for beach areas, is totally inappropriate for the non-beach areas. MAG PF 6.1.61.C. Again, the Board never substantively addressed this issue. PID,.6.23-6.30 at 221-223.
- 4. The Board ignored key evidence that completely rebutted .any FEMA presumption of the adequacy of the 19Jt decision criteria in the SPMC. MAG PF 6.1.8.A. FEMA never determined (or even tried to determine) whether the decision
O 4 h
- criteria set forth in the SPMC would maximize dose savings although this is key to any determination that the emergency-plan iis " adequate" (even if " adequate" means nothing more than feasible dose savings under the circumstances). ERA July Memo.
at 57 citina Zimmer, 17 NRC 760 (1983). Moreover, FEMA's Donovan had no basis for believing that .9 was a reasonable estimate of the sheltering protection afforded by the Massachusetts housing stock in the non-beach areas. Tr. 18584.
- 5. The Board made an error in its disposition of MAG Ex.
19 Basis D challenging the METPAC computer model. MAG PF 6.1.61.D-D.4. 'The Board never addressed the substance of Mass AG's challenge to METPAC. PID, 6.57-6.60, at 231-232; 6.65-6.66 at 234-235. E. 'Soecial PoDulations (PID. 277-358)
- 1. The Licensing Board erred in finding the SPMC's "special needs survey" to be adequate because it both ignores the unrebutted testimony of an expert in the field and is internally inconsistent. PID, 8.24'at 289. In-order to meet the regulatory requirement that a radiological emergency _ plan make provisions for'all segments of the population, the Applicants employed a special needs survey to identify the resident special needs population in the Massachusetts EPZ.-
c PID, 8.11 at 281. Under the SPMC, persons who are identified-
.through that survey are to be provided-assistance in the form of transportation in the event of an evacuation. Guy Daines, an expert in the area, criticized that study as,a means for
- providing assistance to the population. Mr. Daines' unrebutted testimony indicated that a planning basis of between 4.3 and 5% ,
=___x__- _ _- _ __-__ _ _ _____-____ __-_ -________ _ _ _ _ __ ____ _ _____
c, of the population is valid when determining the number of special needs-individuals who will need assistance. PID, 8.17 at 285. The Applicants'-survey identified only about 1% of the population. PID, 8.20 at 286. Mr. Daines premised that calculation on many years of experience working in the field
-and personal experience in effectuating evacuations in Pinellas County, Florida. Daines, ff. Tr. 19515 at 5; Tr. 19565, 19580. Despite the fact that Mr. Daines testimony is unrebutted, the Licensing Board took no account of Mr. Daines testimony in endorsing the Applicants' claim that all special populations in the Massachusetts EPZ are listed in their special needs survey. PID 8.18 at 285.
The Licensing. Board's findings on the adequacy of the special Needs Survey is inconsistent even within its own parameters. The Licensing Board stated that to rebut the Board's assumption that all special populations within the EPZ had been identified, the Intervenors would have to identify a special population that had been missed in its entirety. PID, 8.19 at'285-286. Yet, when the Intervenors did precisely that by showing that the Applicant's survey failed to' identify any non-institutionalized emotionally or mentally disturbed persons in the entire Massachusetts EPZ as needing assistance, the Licensing Board still expressed satisfaction with the Applicants' planning efforts in this area. PID, 8.21 at 287. Moreover, the Mass AG established on cross-examination of FEMA's Donovan, that FEMA's approval of the planning effort in this regard is not based on any assessment of the accuracy of 4
the number of special-needs individuals identified through the mail survey. Tr. 18093-18182 (18103, 18106, 18146, 18156).
- 2. The Licensing Board could not ignore the irrefutable evidence that the SPMC does not contain provisions for contacting over one-third of the special facilities during the majority of the time.- PID, 8.28-29 at 291-292. Rather than finding the inability to contact the special facilities to be a flaw in the SPMC, the Licensing Board simply accepted the Applicants' representation that they are re-evaluating the data on those facilities and will revise the notification procedure to ensure-that it is " appropriate" for the circumstances. PID, 8.28'at 291.- Licensing Board engaged in speculative optimism that future changes in the SPMC would compensate for the present deficiencies in it. Indeed, Exhibits 3, 4 and 5 in the Appendix-indicate that the proposed revisions in the SPMC will not be effective in fixing this deficiency in the plan. The Board erred in approving the SPMC with such a matter still open.
- 3. The Licensing Board also erred in approving the SPMC given the open issue that the special population liaisons have over three times as many calls to make as the school liaisons and the Applicants have calculated that it will take between 60 to 90 minutes to complete the list of school calls. PID, 8.33-35 at 293-4; MAG PF 8.1.102.A.-C. The Licensing Board simply directed the Applicants to modify the SPMC to ensure that notification of special facilities can be accomplished in a time frame similar to that for the notification of schools.
The Licensing. Board did not make that modification a condition for licensure, and did not even set a time frame within which
l 1 I this modification had to be accomplished but simply left the matter to the NRC Staff. PID, 13.6 at 568.
- 4. The Licensing Board erroneously found that nursing homes and other special facilities would have adequate staff to effectuate an evacuation despite the recognition that: 1) nursing homes operate at reduced staffing levels at night; and 2)-the Applicants' admission that they had no information as to 1whether the nursing homes in the Massachusetts EPZ had procedures for calling in additional staff. PID 8.69 at 312-313.
l In making its finding.on this matter the Board relied on-the testimony of an Applicant witness to the effect that some nursing homes in other carts of the country had such call-in procedures. PID, 8.69 at 313. Such vague testimony is not substantial evidence on which to base a decision concerning the nursing homes in the Massachusetts EPZ. _The Licensing Board attempted to buttress its finding by the assertion that if-nursing homes needed additional personnel to assist in an emergency, such personnel could be summoned from the ORO. PID, 8.70 at 313-314. The ORO has no personnel set aside to provide such~ assistance.- The SPMC iaentifies-purportedly surplus route guides and dosimetry record keepers as available to provide such assistance. Yet, even assuming that each and every route guide responded to an emergency and no dosimetry record keepers were needed to actually perform their assigned tasks, there would be only approximately 80 ORO personnel (33 surplus route guides and 48 dosimetry record keepers) to lend such assistance. PID, 8.70 at 313-4; Tr. 21307-8, 21311. Any such
) k- - + , - - , , . - - , -..-, .. , ,
- .- ~.
i assistance, however, would have to be provided on an Ad h2E basis. There are no procedures in place by which to-implement such assistance. There are no vehicles allocated by which to , transport the ORO personnel to the special facilities or to the resident special needs persons needing assistance. The Board's finding on this issue was not based upon substantial evidence.
~
- 5. In the PID the Licensing Board repeated the same error [
that it had made in its decision on the NHRERP concerning - teachers as service providers. MAG PF 8.1.70; 9.1.136. In ALAB-924, this Board found that the Licensing Board may have erred in approving the NHRERP's reliance on school teachers'as-service providers'without have record support for the ; assumption that teachers during a radiological emergency would be engaged in activities they are usually called upon or expected to perform. ALAB-924 at 7-11. The Licensing Board made the. identical error in the PID with respect to. Massachusetts' teachers. PID 8.73 at 314-315; 8.76 at 316; 8.129-131 at 342-343. I L The only difference between the Licensing Board's decision on the SPMC and the NHRERP on this issue is that in the PID, the Licensing Board compounds its error by making the same , mistake with respect to the staff of special facilities who are called upon under the SPMC to continue to care for residents of special facilities. PID, 8.73 at 314-15; 8.76 at 316; 8.129 at 342. The Board's erroneous findings on this issue cannot be saved by reliance on a "best effort" assumption concerning public officials since the vast majority of daycare centers and special facilities are private institutions.
c .
- 6. The Licensing Board erred in finding the Westborough- ,
i facility to be a suitable congregate care facility for the
'special needs population. PID, 0-15 at 364; 9.167 at 448. The use of the Westborough facility for the special needs population is not entitled to a presumption of adequacy since l FEMA never reviewed the use of that facility to house special needs persons. PID, 8.118 at 338 n. 52. The Licensing Board's
-finding that the Westborough facility is suitable for the special needs population is not supported by the record since, inter alia, there is no indication that there are even handicapped accessible bathrooms in those buildings. MAG PF
-8.1.83.A-C.
7.- The Licensing Bo'ard erred in assigning to the NRC Staff the review of procedures to ensure the reunification of school children with their parents. PID, 8.132 at'343, 13.6 at 568. A review of such procedures calls for an exercise of judgment and their adequacy should be subject to the , adjudicatory: process. Egg cases cited at 18-19 of Intervenors' l l December 1, 1989 Supplemental Motion To Revoke filed with the
- Commission for the standards for determining what issues are
' amenable to post-hearing resolution.
- 8. The Licensing Board's finding that the Holy Cross host ,
school facility is adequate is without foundation. PID, 9.15 at 364; 9.168 at 448-9. FEMA never reviewed the use of Holy Cross as a host school facility, and therefore, the use of that facility is not entitled to the presumption of adequacy. Tr. 21342, 21345. While the Licensing Board apparently concludes that the use of Holy Cross as the host school facility is
l adequate, it does not provide any underlying reasons to support that holding, nor is there substantial evidence for the finding. The Mass AG challenged the use of that facility on the grounds.that: 1) it did not provide for personnel to care for the children; 2) the material resources that children would need during their stay at the facility such as food, diapers, cribs, etc. are not provided; and 3) there is no assurance that.the facility would only be used for a brief period of; time. MAG PF 8.1.66.B-E. The Licensing Board did not address in its findings the issues raised regarding the provision of food or other material resources that small children will'need, or how long the facility will have to remain open. F. Facilities and eaulement.
- 1. In MAG 67 (JI-53) the Mass AG challenged the planned use of a building in Haverhill as a staging area based on a then-current cease and Desist Order which had issued because of alleged zoning violations. The' Board admitted the contention at July Memo. at 93-94. Because of the uncertain
~
status.of this facility, FEMA never evaluated it and it was not used during-the June 1988 exercise. MAG PF-9.1.25. The legal dispute over the:use of that facility does not appear to be resolved (although the 1988 cease and desist order was invalidated) and Applicants presented no evidence that the facility can be used as planned, that they have obtained permission to use it as planned or that Haverhill will not again enjoin this use if the facility is employed in drills or exercises. The Board's disposition of this issue (PID,
h 9.17-9.20 at 365-366) ignores the fact that there was no FEMA L review or exercise of this facility and impermissibly shifts o -onto the Mass AG the burden of establishing that the facility. g can DQt be used, when the admission of the contention and the l absence of the facility from the June exercise are enough to have required the Applicants to meet its burden of proof that the facility GAD be used. l '
- 2. The Licensing Board's ruling as to the adequacy of
-host hospitals for evacuees from the Massachusetts EPZ hospitals and nursing homes is in error. In calculating how many host hospitals are needed to house evacuees from the Massachusetts EPZ hospitals, the Applicants have based their calculation.on average daily census of the hospitals rather than what the facility's maximum census is at any time during the course of the year. PID, 8.135 at 344. The planning basis in that needs assessment is inconsistent with the Board's finding at PID, 8.36 at 294-295, that the SPMC assumes 100% of the capacity of the hospitals will need transportation out of the EPZ.
The Licensing Board assumed that only 119 persons from ,
'the ten Massachusetts EPZ nursing homes would require hospitalization rather than congregate care at the Shriners Auditorium. PID, 8.133 at 343. That premise is flawed because-it assumes that only people who need " continuous medical care" during transit need hospitalization. (Tr. 21447, 21285) It assumes that all the other residents of nursing homes will be able to be accommodated on Red Cross cots at the Shriners Auditorium. That assumption is in error since not only are the
. .. . . - . - . . . - . . . . . . . .- ~ . . . - - - ..
Applicants not providing any staffing other than Red Cross volunteers to care for the nursing home population at Shriners Auditorium, or the Westborough facility, but they are not providing any of'the material resources that would normally be required by a significant portion of the nursing home population such as bed rails and sanitary supplies. (Tr.
> C, 18953-4),
- 3. The Licensing Board erred in finding that there were.
enough ambulances available under the SPMC to meet the needs of the Massachusetts EPZ in an emergency. PID,-9.34-35 at 375-376. The only testimony introduced on this issue was that of two investigators from the Mass AG's office. MAG PF 9.1.58-59. Those investigators interviewed the ambulance companies with whom there were letters of agreement to provide services pursuant to the SPMC. Their unrebutted testimony established that of the 89 ambulances relied on in the SPMC, only 60 ambulances would be available.
~
PID, 9.31 at 374. Despite the fact that the Applicant's own assessment calls for the provision of 86 ambulances, the Licensing Board held that the gap of 26 ambulances (between the number of ambulances that would be available-(60) and those that were needed (86)) was not sufficiently significant to warrant a finding that there is no reasonable assurance that transportation needs will be satisfied. PID, 9.33 at 376. This was error.
- 4. The only testimony offered on the issue of the availability of buses to respond to radiological emergencies under the SPMC-was the testimony of the two investigators from the Mass AG's office. MAG PF 9.1.58. Their testimony
.~.. . . .. . _ _ _ _ . . . . .
E f~ ~
' established that if a radiological emergency were to occur 3
-during school hours, bus companies with a contract capacity of 393 buses would be unavailable to respond due to prior commitments. That would leave the Applicants with approximately'237 busses to meet an assessed need of 367 buses. PID, 9.35 at 377.
The Licensing Board attempts to repair this flaw in the SPMC by observing that to the extent that school buses-are unavailable because they are already transporting school children the need for buses is less. PID, 3.67 at 378-379. What this analysis fails to recognize is that the buses that are unavailable because they are transporting school children, gra ngt transoortina children yhg reside in the EPl. None of the bus companies that have Letters of Agreement with New Hampshire Yankee provide services to schools in the EPZ. The fact that those buses from outside the EPZ are carrying non-EPZ
' . school children does not in any way lessen the need to have buses available to transport school children located in the EPZ.
Furthermore, the unrebutted testimony on the matter Established that McGreggor-Smith, the largest single source of buses claimed by the Applicants, is no longer participating as a vehicle provider to the SPMC. PID, 9.33 at 379. The Applicants rely on'McGreggor-Smith to provide 120 buses. Without those 120 buses, the Applicants' claimed availability of 530 busses is reduced to 410. The result is a surplus of only-43 buses over the' assessed need. Given the uncontroverted testimony that a significant number of the remaining buses will
X:
.o; be unavailable due to prior commitments during school hours, that margin of error is not sufficient to assure that there will be an adequate number of buses to service the SPMC. The Licensing Board's finding that there is an adequate number of buses-is not-based-on substantial evidence. PID, 9.40 at 380.
- 5. ~The Licensing Board erred in its disposition of the Mass AG's challenge to the adequacy of transportation resources for the special needs population in the Massachusetts EPZ. The SPMC relies on the availability of at least 31 bedbuses to transport the bedridden who are not assigned to ambulances under the SPMC's planning basis. The SPMC relies on the use of 31 evacuation bedbuses with a capacity of ten persons per bus to; implement an evacuation from the Massachusetts EPZ. PID, .
',9.43 at 381. There was no evidence in the record that such buses-were.under contract or otherwise available. PID, 9.44 at 381-2. The Licensing Board erred in finding reasonable assurance as to the availability of bed buses without
-substantial evidence on the matter. PID, 9.45 at 382.
G.. Monitorina and Decontamination Centers (PID, at 382-426). The' Mass AG appeals the Board's finding that, with certain limited improvements, the SPMC's two reception centers are capable of monitoring 20% of the Massachusetts EPZ population within about 12 hours. PID, 9.46-9.124 at 382-426. The Mass AG established at the hearings that the SPMC's 12 hour capability was well below 20%, and the limited improvements the Board has required will still leave the SPMC below a 20% 12 hour capability.
.Even.with the-improvements required, the 20% ,
capability cannot be achieved because:
- 1. Using the SPMC's monitoring procedures and equipment, t takes much longer on average to monitor a single individual than the Board found.
- 2. The Board seriously underestimated what the
" monitoring load" was at the Beverly reception center (i.e., even using the.20% assumption, many more people would arrive there for monitoring). .
Each of these problems alone prevents the 20% goal from being achieved even with the improvements to the SPMC ordered by the Board. Before addressing each of these problems in detail, it is helpful to review what monitoring facilities the SPMC will have once the improvements required by the Board have been l made. Pursuant to the SPMC, the monitoring and decontamination functions:at-each reception center will occur inside pre-positioned trailers. See App. Reb. No. 17, ff. Tr. 25423, at 11-12. Originally, there was to be one trailer at each of i the two SPMC reception centers (Beverly and North Andover), and L each' trailer was equipped with 14 monitoring locations at 7 frisking ststions. Id. at 11. (Note that some confusion exists in-the record regarding these terms. The Mass AG's i proposed findings used the term " monitoring station," or
" station" for short, to refer to what the Applicants call " monitoring locations." The Board used the term " monitoring stations" to refer to what the Applicants call " frisking ' stations." 21. MAG PF 9.1.78.Z Eith PID, 9.98 at 412. Here the Applicants' terminology is used which appears to conform most closely to that which is used in the SPMC.) At the SPMC
i
, hearings the Applicants committed.to adding 4 additional monitoring locations in a separate trailer at each reception center to bring the total number of locations to 18. App. Reb.
No. 17, ff. Tr. 25423, at 12-13. The Board found that 18
; -locations was still too few and required that the Applicants provide two additional locations, for a total of 20, "by the first July and August of full power operation." PID, 9.99 at 412. Thus, it appears that at each reception center there will be two trailers, one with 14 monitoring locations and a second with 6 locations.
The Board required that there be 20 monitoring locations at each reception center based on the simple mathematics generated by two key subsidiary findings: (1) that the " hourly monitoring capacity" at each monitoring location (the rate at which evacuees can effectively be processed) is 50.5 evacuees per hour (101 together for the two locations at each frisking station) and (2) that using the 20% planning basis the " monitoring load" at the trailers at the busier reception center (used as a planning basis) was 12,278 evacuees, which, if all were to.be monitored over 12 hours, meant that 1023 evacuees would have to be monitored per hour. PID,.9.67, 9.97, 9.98. 1023 evacuees / hour 50.5 evacuees / hour / location Both of these subsidiary findings constitute serious errors, as they both are well below the correct figures.
T l
- 1. Houriv Monitorina Canacity The hourly monitoring capacity at each monitoring location is a factor of 1) the average rate at which the ,
monitoring probe is to be moved in inches per second, 2) the average number of linear inches the probe will be moved per 4 i
, evacuee, 3) the average "in and out" (non-monitoring) time expended at each monitoring location in between each monitoring frisk, and 4) the number of minutes of "down time" per hour at each monitoring location,'i.e., time not available for ,
monitoring primarily because it is spent decontaminating the location after evacuees with contaminated feet and/or hands have stood at the location and held the handrail. In assessing each of these components the Board erred in favor of the
- Applicants.
a)' Probe Movement Rate As the Board correctly noted,-it is FEMA policy to consider a 90-second frisk rate to be the lowest acceptable a i
. time estimate for monitoring each evacuee with hand-held 1
. instruments. -PID, 9.75 at 400 citina Mass. Exhibit 63. For the SPMC,'however, the Applicants sought to use a frisk rate of only 60 seconds, a full 33% faster than F2MA's " lowest acceptable time." In seeking permission to use this 60-second rate, the Applicants provided FEMA with two forms of quantitative evidence:. (1):a so-called technical justification and (2) the results of monitoring drills conducted at the June 1988 exercise. Applying little or no scrutiny, both FEMA and the Board accepted the " technical justification" and the drill results as sufficient evidence to justify allowing the A
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M I Applicants to use this low frisk rate. This was error. The
" technical justification" does not prove what the Applicants claim it does.-MAG PF 9.1.78.F-9.1.78.M. The drill results should n,ot be considered.as a reliable indicator of how fast the probe can be moved or how long an average frisk.will take during a real emergency. MAG PF 9.1.'78.E. The Board's reasons f 'for rejecting these Mass AG propcsed findings and approving the 60 second frisk rate are unscientific, faulty and. ignore the SPMC's actual monitoring procedures.
As to the Mass AG's refutation of the " technical justification," the Board appears to be technically incompetent to deal with it. Initially, the Board criticizes the Mass AG's refutation of the Applicants' " technical-justification" as
" hyper-technical," PID, 9.77 at 401, and then uses two wholly unconvincing non-technical " reasons" to disregard the Mass AG's
'l technical refutation.. First,.the Board states that the Mass AG fused a " fraudulent" citation in making its argument and that this is " reason alone" for rejecting it. Second, it says that the Mass AG ignored a-key sentence in the " technical
-justification." Both these " reasons" are nonsense.
Concerning the " fraudulent" citation, the Mass AG merely cited to the very section of a key INPO reference upon which Applicants " technical justification" purported to be based. Egg MAG PF 9.1.78.I. Nothing new was added to the record that the Applicants had not already brought into play with their own references to this INPO guidance document in their " technical justification". Egg App. Reb. No. 17, ff. Tr. 25423, Attachment A at "4 of 24". Although the Mass AG _ _ _ _ _ .. . _.- ___ _._. m.- _ _ _ . _ _ _ _ _ _ _ ____ _ _ strenuously asserts that he has not violated the Board's ; I restriction on his use of this document, saa Tr. 25882-89, he further asserts that if he has, it was error for the Board to have prohibited this otherwise proper citation to the very [ section of a document relied upon and referenced initially by l the Applicants themselves. Next, the Board somehow concludes that the Mass AG's ; L refutation " ignores" a sentence in the Applicants' technical justification that immediately follows the citation to the INPO Guidance, and it finds that this latter sentence "provides the l l justification for both FEMA's and our ultimate acceptance of I , the faster (probe) movement rate." PID, 9.79 at 402. This is a totally unfounded, illogical, and capricious conclusion. Clearly, the sentence (cited at PID, 9.79 at 402) was not ignored; indeed, it is a clear indictation of the flaw in . Applicants' " technical justification." The sentence mentions a document not in the record, a memorandum of a telephone L conversation between a NHY representative and Donovan of FEMA.
~
In referring to a reference to a memorandum of a conversation, the cited sentence is triple hearsay and hardly a reliable indicator of what actually was said. Nevertheless, when this sentence is read in context, it becomes apparent that the focus of Donovan's comments to NHY in that telephone conversatien was the diameter of the standard pancake GM detector and not its rate of movement. The Applicants' logic in the first two sentences of the section labeled " Discussion" in the " technical justification" is: (1) INPO states that a standard frisk should be performed using a pancake 6m detector at a frisk rate of
"less than" 2 inches per second or an equivalently sensitive technique, and (2) Richard Donovan acknowledges that the accepted pancake GM detector has a diameter of 1.75 inches. The reference in the latter sentence to "the rate of 2 inches per second" appears clearly to be simply a loose reference back to the INPO frisk rate in the prior sentence and not, as the Board has fantasized, proof of a new (and somewhat faster) frisk rate that FEMA has approved. To the extent that the Board has used the triple hearsay in this sentence as its justification for a finding that FEMA somehow approved Aptec's sensitivity based on a comparison of it with the sensitivity of a standard detector moved at 2" per second, the Board is simply wrong. There is no competent evidence in the record that TEMA ever did this. What does appear from the second sentence in the " Discussion," however, is that in their technical analysis the Applicants ignored the important distinction between 2 inches per second and 1AAA than 2 inches per second. This is the flaw in their technical justification that the Board cannot erase. The upshot is that there is no valid technical justification supporting the use of Applicants' Aptec probe at a rate faster than that allowed for standard detectors (less than 2 inches per second). The Board erred further in finding support in the monitoring drills conducted as part of the June 1988 Graded Exercise for its conclusion that Applicants' 3 inches per second probe movement rate was not too fast. PID, 9.82 at 403. The Mass AG refuted this argument in MAG PF 9.1.78.E. and the Board rejects the Mass AG's arguments giving no rational :
)
i basis for doing so. PID, 9.83 at 404. The Board fails to state what the purported misunderstanding and incorrect I assumptions were on the part of the Mass AG's witness. J b) Number of linear inches to frisk car evacues. The Mass AG established that using the SPMC's monitoring procedure on an average size adult would require the probe to be moved across 292 linear inches of the body. MAG PF j 9.1.78.P - 9.1.78.R. At a probe movement rate of 2" per second, the 292 linear inches can be traversed in 146 seconds. (Even at the Board's unfounded rate of 3" per second it would take over 97 seconds.) Adding 8 seconds for moving the probe l eight times from one body part to another, and 10 more seconds , to monitor hand carried items means that it will take 164 seconds to frisk an average size adult. (At 3" per second, it will take about 112 seconds.) The Board rejects these calculations and rational inferences for a series of reasons, all of which are capricious and fail to comport with the procedures set out in the SPMC. 1 As to the largest time component, the 292 linear inches that need to be traversed, the Board says, essentially, not to worry
-- to cover that distance in 60 seconds the probe just needs to be moved at about 5 inches per second, a rate of movement, says the Board, which "is less than the unchallenged conclusions" in the Applicants' " technical justification" that the Aptec probe can be moved at a scan rate in excess of 6 inches per second and still be as sensitive as the standard probe moved at two inches per second. PID, 9.81 at 403. This argument is completely baseless. 4
First, as noted at length above, the Applicants' conclusions in their " technical justification" were not only vigorously contested, they were refuted outright. Second, the Applicants admit that they have instructed their ORO monitoring personnel to move the Aptec probe at only 2 to 3 inches per second, not 5 inches per second. Tr. 25648-49. This is also the instruction written into the procedures. Egg SPMC IP 2.9,
$5.4.4. This being the case, the Board has absolutely no basis for assuming that during an actual emergency ORO personnel will move the probes at an average rate of 5" per second.
The Board next offers a one-sentence argument that is pure speculation: Also, we believe that any extra time spent monitoring some evacuees will be offset by shorter time necessary to monitor other evacuees, a significant number of which will be children. PID, 9.81 at 403. The Board is engaged in wishful thinking here. There is absolutely no evidence in the record whatsoever that if the average adult can be' frisked in 164 seconds (or even 112 seconds, using the probe at 3"/second), the average evacuee (all adults and children) can be frisked in 60 seconds. Moreover, the number of children that would be necessary to achieve this result are absurd. For every 100 adults monitored at an average rate of 164 seconds, there would have to be 300+ very small children monitored at an average rate of only 30 seconds for the overall average monitoring time to be below 164 seconds. The Board also argues that monitoring drills somehow refute the fact that Applicants' frisk, if done according to SPMC
k procedure, will take 164 seconds on an average adult. PID, 9.82 at 403. This argument makes no sense. The fact is that drills of this sort are simply not reliable indicators of What the appropriate monitoring rate is. 131 MAG PF 9.1.78.E. If ORO monitoring personnel at the exercise were frisking adults in about 60 seconds, it had to be because they were either moving the probes much faster than the 2 to 3"/second called for in the SPMC, or they were skipping whole steps in the frisking process.
- c. In/out Time Apart from the time needed to frisk the bodies of evacuees and their hand-carried items, everyone agreed that some time will be expended at each monitoring location just to get an evacuee in and out and replaced by the next evacuee. The Applicants, in assuming a 70-second overall monitoring time per person, included "10 seconds for the individuals to step up to and away from the monitoring location." App. Reb. No. 17, ff.
Tr. 25423, at 6. The Mass AG elicited convincing evidence that a 15-second in/out time is more realistic. MAG PF 9.1.78.V. The Board rejects this initially using two faulty citations. PID, 9.87 at 405. First, it cites to Tr. 19817 for the proposition that Applicants have over-estimated the in/out time by 200%. But Tr. 19817 contains no such information. Next, the Board cites to Mass AG witness Sneider for the proposition that only 5 seconds is needed to move evacuees in and out. That reference, however, has been completely misquoted. Ms. Sneider's words on the page cited were that "(f)ive seconds in and five seconds out would appear to be a good estimate." t
Sneider Dir., ff. Tr. 24974, at 13 (emphasis supplied). The Board has presented absolutely no justification for finding that the 10 second estimate for in/out time is excessive. Indeed, the Mass AG's arguments that 15 seconds is a more prudent estimate, MAG PF 9.1.78.V, stand unrefuted.
- d. Down Time A prudent estimate of the down-time at each monitoring location due to decontamination activities is 7 minutes per hour, as is set forth in MAG PF 9.1.78.Y. The Board erred in not adopting it.
- e. Summarv -- Houriv Monitorina caeacity Rate /hr Total (Each Frisk Monitoring Probe Rate Ting In/Out Avail Time Location) 2"/sec 164 see 15 sec. 53 min. 17.8 people /hr.
3"/sec 112 see 15 sec. 53 min. 25.0 people /hr.
- 2. Monitorina Load The monitoring load calculation for the Beverly reception center is in dispute, chiefly due to disagreements overt (1) how large the Massachusetts beach population is (all of which is assigned by the SPMC to the Beverly reception center); and (2) whether, for purposes of calculating compliance with NUREG-0654 Criterion J.12 using FEMA's 20% assumption, daytrippers in the beach areas and non-resident EPZ employees should be treated differently than other evacuees.
As to the size of the Massachusetts beach population, the Mass AG's position is that it is best viewed as 40% of the
total beach population on peak days. Egg MAG pF 2.1.15.F-2.1.15.P. How large the total beach population is on peak days is an issue currently pending before the Appeal Board on the NMRERP appeal. In the SPMC litigation, the Board assumsd (and required that the parties assume) that this number was 31,000 vehicles, the number the Licensing Board had found in its NKRERP PID. The Board erred in rejecting the Mass AG's evidence that 40% of the total beach population should be allocated to Massachusetts EPZ beach communities. Egg MAG PF 2.1.15.J. The Board's reasons are spurious. Ett PID, 9.58, 2.38-2.41. The Board also. erred in treating certain subpopulations on the beaches differently, discounting the total percentage of beachgoers from 20% to a lower percentage for certain site-specific reasons. This was error. Although the Licensing Board precluded Intervenors' challenge to the 20% planning basis, in adopting portions of the Applicants' arguments about day trippers, it has not only allowed the Applicants to litigate whether, for site-specific reasons, laan than 20% of the total Massachusetts EPZ population would arrive; it has found that this would be the case. The Mass AG's approach to the beach population, set forth in Dr. High's testimony, ff. Tr. 27974, is the only permissible approach: assume that 20% of the total beach population will Ebe monitored in Beverly. Planners should not create subgroups (such as day trippers) and assess whether liga than 20% of them will seek monitoring if it is not possible to assert that agra than 20% of non-day trippers would go.
l t Even assuming an actual monitoring rate of 17.8 people per hour (3" per second) per monitoring location, and a monitoring trailer load of 13,168 in Beverly (using the 20% assumption), there would need to be 62 monitoring locations in Beverly in order to complete monitoring within about 12 hours. The Board's finding that 20 stations will suffice is in error. H. Recention and concreaate care centers (PID at 414-426 and 428-449)
- 1. Although the Board found that parking areas at the reception centers are presently used by Massachusetts Electric Company as storage areas, and went on to require that the Applicants either identify existing procedures to ensure the parking areas are cleared of all obstacles or develop such procedures, the Board did not require those procedures be developed prior to the issuance of an operating license. PID, 9.110 at 418. That means that if an operating license issues, and an accident occurs, there is currently no assurance that the parking lots at the reception centers will be cleared of obstacles in a timely manner to accomodate evacuees in the event of an emergency.
- 2. There is no factual evidence in the record upon which to conclude that the American Red Cross (ARC) will be able to respond in a timely and adequate manner to provide staffing for congregate care centers under the SPMC. MAG PF 1.18.B.2; 9.1.28.A.-E. The ARC has not participated in emergency planning with New Hampshire Yankee. Therefore, the ARC has not identified resources necessary to staff those centers, nor has it pre-identified personnel to be available to
those centers. Any response by the ARC will of necessity take i- place on an ad has basis under the SPMC. The record contains i u no indication as to how long it will take the ARC to effectuate , such response. l Because the record provides no factual predicate for the , Licensing Board to find that congregate care centers will be activated in a timely manner, the Licensing Board is reduced to , attempting to justify its approval of the SPMC provisions for ; congregate care through a long and wandering inferential - argument that is ultimately predicated upon the histurical reliability of the ARC and the presence of ARC chapters in Massachusetts. PID, 9.142-9.155 at 433-443. This is error. l V. ERRORS ON APPEAL OF LBP-89-17
- The Applicants are required by 10 CFR 50.47 (b) (5) to have l
l established "means to provide early notification and clear instruction to the populace within the plume exposure pathway f Emergency Planning Zone." Furthermore, in accordance with 10 l CFR 50.34 (b) (6) (v), the Applicants must have incorporated into - their FSAR emergency plans that comply with Appendix E of 10 CFR Part 50. In an attempt to fulfill their obligation to - provide for a means of alerting and notifying the general public in the Massachusetts EPZ in the event of an emergency at Seabrook Station, the Applicants developed a warning system dubbed VANS (Vehicular Alert Notification System). The Mass AG challanged the adequacy of that system in a portion of the licensing proceeding that was assigned to a separately constituted licensing board.
Evidentiary hearings were held in May 1989 on the adequacy of the system. In general those hearings focused on three issues 1) whether the sirens to be used in the system are too P loud; 2) whether the personnel who are to staff the system will over time maintain the requisite degree of alertness and , motivation to ensure a rapid and efficacious response; and 3) , whether the alert and notification will take place promptly enough to comply with regulatory requirements. The findings of the Board on the third issue are in error
- because they are not supported by substantial evidence, and the Board's ultimate finding on the issue that the alert and notification system has the capability to operate promptly l
l enough to comply with regulatory requirements is against the : L weight of the evidence. t The Board reached its ultimate conclusion that the r Applicants had the capability of alerting and notifying the , l grr.eral populace in about 15 minutes by adding to certain time ! l constraints the time that it would take the VANS drivers to . travel from their staging site to their acoustic locations. Seabrook 29 NRC 519, 533. The total time constraint that the Board added to every travel time was nine minutes and eight seconds (9:08). That figure was calculated by adding together the time that it would take to alert the VANS drivers; the time to dispatch them; the time to set up the VANS units; the time to sound the siren; and the time for tuning a radio and receiving the emergency message. Id. at 533. The Board assumed it would take a member 88-
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of the public 12 seconds to find a radio and tune it to an EBS station. Id. at 533. While the Board acknowledged there was no direct evidence in the record for this assumed constraint, the Board based its assumption on the fact that the siren notification would be in accordance with EBS procedure that would have the emergency message repeated after a 3 second restart delay and a 55 second tone, and that the populace would know EBS procedure and be able to find a EBS station within the assumed time. There is no evidence in the record for this assumption. Further, the Board's finding that the populace in the EPZ will know the EBS procedure and will be able to tune in to the emergency message quickly appears to be unsubstantiated, if not actually in conflict with other evidence on the issue. The Applicants' witness, Desmarais, admitted that there are no estimates as to how long it will take for a person to find an EBS station. Tr. 151. While concededly there is pre-emergency information in the form of calenders that will contain information about tuning to the appropriate radio stations, there was no evidence before the Board that the mere existence of such pre-emergency information will ensure that people will quickly tune to the radio stations carrying the notification message. Indeed, in the hearings on the NHRERP, the Applicants' witness, Dennis Mileti, admitted that it has not been empirically demonstrated that pre-emergency information is effective in educating people to respond in ways th.at they are theoretically supposed to in emergencies. Tr. 6371. Since the Massachusetts EBS withdrew from cooperating with NHY ORO in j
c October 1989, the ability of persons in the Massachusetts EPZ to receive prompt notification under the SPMC is of significant concern. Eat Appendix, Exhibits 1 and 2. The EBS contained a mechanism by which several A.M. and F.M. stations up and down the dial come on simultaneously carrying a given EBS message. At present, a listener must locate the one A.M. or one F.M. station carrying the notification messages from among dozens of stations. The Board assumption that this will occur within 12 seconds is not only unfounded but also unlikely. Even assuming arauendo that there was substantial evidence for the Board's findings, those findings do not support the Board's ultimate conclusion as to the adequacy of the alert and notification system. In Table 2 of its decision the Board set out its calculations as to how long it will take people located proximate to the sixteen acoustic sites to be both alerted and notified of an emergency at Seabrook. Seabrook, 29 NRC 519, 535. The times for 10 of the 16 sites (Sites 1,2,3,8,9,10,11,12,13, and 16) under winter transit conditions exceed the fifteen minute specification in Appendix E of Part
- 50. 10 C.F.R. Part 50, Appendix E, D 3. The times for 8 of those 16 sites (Sites 1,8,9,10,11,12,13,and 16) exceed the fifteen minute specification by over three minutes. That means that for 50% of the acoustic sites the specification is exceeded by a minimum of 20%(18 minutes is 120% of, or 20% in excess of, 15 minutes). Winter conditions exist on one out of every twenty days per year (5.5% days of the year), seabrook, 29 NRC 519, 537. The times for 9 of the 16 sixteen sites ,
(Sites 1,3,8,9,10,11,12,13, and 16) exceed the fifteen minute
i i limit even under normal, non-winter, conditions. Those figures J 4 are calculated by subtracting the non-travel time constraint ] (9:08 minutes) from fifteen minutes, and then looking at the transit times in Table 2 that exceed the difference of 5:52 minutes. The Board draws a distinction in its decision between those acoustic sites that service the population within 5 miles of 1 the plant and those sites that provide primary siren coverage l for people located over 5 miles from the plant. The Board appears to make that distinction not on the basis of any ; l regulation, but rather it is drawn from the language in a j guidance memorandum. Appendix 3 of FEMA guidance memorandum NUREG-0654 states: i Within the plume exposure EPZ the system shall provide an alerting signal and notification by commercial broadcast (e.g., EBS) plus special systems such as NOAA radio . . . .
. . . The minimum acceptable design objectives for r
coverage by the system are . a) Capability for providing both an alert signal and an ; informational or instructional message to the population on an area wide basis throughout the 10 mile EPZ, within 15 ' minutes. L b) The initial notification system will assure direct ! coverage of essentially 100% of the population within 5 miles of the site. c) Special arrangements will be made to assure 100% coverage within 45 minutes of the population who may not have received the initial notification within the entire plume exposure EPZ. . . . Appendix 3 at 3-3. Even if one accepts the Board's position that a firm time limitation of fifteen minutes is only applicable to those acoustic sites serving the populace within 5 miles of the plant, the alert and notification system does not meet that specification. The times for three of the seven acoustic sites (Sites 1, 12 and 13) serving the area within 5 miles of the
i plant exceed fifteen minutes both under normal and winter conditions. That means that for over 40% (3 out of 7) of the most critical sites the time specification is exceeded. The times for those sites exceed the specification by 13% to 18% ) under normal conditions and 27% to 30% for winter conditions. Although, Appendix E of Part 50 states that alert and ] notification should be essentially complete "within about 15 minutes" (emphasis added), Appendix 3 of NUREG-0654 states that the system should have the capability of both alerting and notifying "within 15 minutes". The language in NUREG-0654 i removes the flexibility inherent in the word "about" for the area within 5 miles of the plant. To the extent the NUREG-0654 permits more latitude for coverage to the area beyond 5 miles from a plant it balances this latitude with a stricter stan3ard Under for the population that in within 5 miles of the plant. that standard, the VANS system fails because the times for 40% l 'of-its near-plant acoustic sites exceed 15 minutes. Ln l , The Board clearly judged the alert and notification, not against regulatory requirements, but against a "best efforts" standard. Id. at 534. This "best-efforts" standard is plainly error. Purthermore, the Board clearly considered actions that might be taken after A license was issued in making its determination. Id. at n.15. Such considerations are plainly improper under Lona Island Liahtina comoany (Shoreham Nuclear < Power Station), CLI-86-13, 24 NCR 22 (1986). 1
e CONCLUSION
- For all of the reasons set forth above, LBP-89-8, LBP-89-17 and LBP-89-32 should be reversed, the findings from which appeal is taken here should be reversed and the overall findings concerning the prerequisites to full power licensing should be reversed and vacated. The November 9 license i
-authorization should be revoked and vacated. If full power !
operation has already begun, that operation should be immediately halted, and the license authorization on which it is based should be vacated pending further proceedings on remand. Respectfully submitted, COMMONWEALTH OF MASSACHUSETTS JAMES M. SRANNON ' ATTORNEY GENERAL r ,. l
/ John Traficonte chief, Nuclear Safety Unit v/ Allan Fierce Leslie Greer Pamela Talbot Matthew Brock Assistant Attorneys General Nuclear Safety Unit Department of the Attorney General one Ashburton Place Boston, Massachusetts 02108 (617) 727-2200 DATED: January 24, 1990
_ _ _ . . . - ~ , . _ _ _ . . . ~ . . . _ - ._ _
i l UNITED STATES OF ANERICA CDCKETED I NUCLEAR REGULATORY COMMISSION f i ATOMIC SAFETY AND LICENSING APPEAL BOARD 90 JAN 25 P4 :10 i
" Before Administrative Judgest OrrlCE OF SECRETARY !
G. Paul Bollwerk, Chairman DOCKLig' .jii(VICE Alan S. Rosenthal t Howard A. Wilber ;
-t
)
.In the Matter of ) Docket Nos. 50-443-OL -
) 50-444-OL l PUBLIC SERVICE COMPANY ) ,
OF NEW HAMPSHIRE, ET M,. )
) ,
(Seabrook Station, Units 1 and 2) ) January 24, 1990
)
CERTIFICATE OF SERVICE 'i I, Leslie B. Greer, hereby certify that on Janaury 24, 1990,. I made service of the enclosed BRIEF OF THE MASSACHUSETTS , ATTORNEY GENERAL IN SUPPORT OF HIS APPEAL OF LBP-89-32 AND LBP-89-17 via Federal Express as indicated by (*), and by first ' class mail to: I l Ivan W. Smith, Chairman Kenneth A. McCollom Atomic Safety & Licensing Board 1107 W. Knapp St. U.S. Nuclear Regulatory Commission Stillwater, OK 74075 East West Towers. Building 4350 East West Highway Bethesda, MD 20814 . Dr. Richard F. Cole Robert R. Pierce, Esq.
-Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission t East West Towers Building East West Towers Building .
4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814
. . .- . .. - ~ - - . . - . - . - .. -- -
f- I i 1 j. l ODocketing and Service
- Thomas G. Dignan, Jr. I L U.S. Nuclear Regulatory Commission Ropes & Gray l Washington, DC 20555 One International Place Boston, MA 02110 i cMitti A. Young, Esq. Phillip Ahrens, Esq.
Edwin J. Reis, Esq. Assistant Attorney General U.S. Nuclear Regulatory Commission Department of the Attorney General Office of the General Counsel Augusta, NE 04333 11555 Rockville Pike, 15th Floor Rockville, MD 20852 H. Joseph Flynn, Esq. Atomic Safety & Licensing Assistant General Counsel Appeal Board Office of General Counsel U.S. Nuclear Regulatory Commission l Federal Emergency Management Washington, DC 20555 i l Agency 500 C Street, S.W. I Washington, DC 20472 l Robert A. Backus, Esq. Atomic Safety & Licensing Board i Backus, Meyer & Solomon U.S. Nuclear Regulatory Commission l 116 Lowell Street Washington, DC 20555 P.O. Box 516 Manchester, NH 03106 Jane Doughty Diane Curran, Esq. Seacoast Anti-Pollution League Harmon, curran & Towsley
-Five Market Street Suite 430 Portsmouth, NH 03801 2001 S Street, N.W.
Washington, DC 20008 Barbara St. Andre, Esq. Judith Mizner, Esq. Kopelman & Paige, P.C. 79 State Street 77 Franklin Street Second Floor Boston, MA 02110 Newburyport, MA 01950 Charles P. Graham, Esq. R. Scott Hill-Whilton, Esq. Murphy & Graham- Lagoulis, Hill-Whilton & Rotondi 33 Low Street 79 State Street ' Newburyport, MA 01950 Newburyport, MA 01950 Ashod N. Amirian, Esq. Senator Gordon J. Humphrey 145 South Main Street U.S. Senate P.O. Box 38 Washington, DC 20510 Bradford, MA 01835 (Attn: Tom Burack) Senator Gordon J. Humphrey John P. Arnold, Attorney General one Eagle Square, Suite 507 Office of the Attorney General Concord,ENH 03301 25 Capitol Street (Attn: Herb Boynton) Concord, NH 03301
i i Paul McEachern, Esq. William S. Lord ; Shaines & McEachern Board of Selectmen 25 Maplewood Avenue, PO Box 360 Town Hall - Friend Street Portsmouth, NH 03801 Amesbury, MA 01913 CG. Paul Bollwerk, Chairman
- Alan S. Rosenthal Atomic Safety & Licensing Atomic Safety & Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 10555 Washington, D.C. 10555 cHoward A. Wilber Jack Dolan Atomic Safety & Licensing Federal Emergency Management Agency >
Appeal Board Region 1 U.S. Nuclear Regulatory Commission J.W. McCormack Post Office & : Washington, D.C. 10555 Courthouse Puilding, Room 442 Boston, MA 02109 George Iverson, Director N.H. Office of Emergency Management State House Office Park South 107 Pleasant Street Concord, NH 03301 Respectfully submitted, JAMES M. SHANNON ATTORNEY GENERAL Ihslie B. Greer Assistant Attorney General Department of the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200 Dated: January 24, 1990
N i
\
00LKLIED l UWRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
% M 25 P4 :11 l ATOMIC SAFETY AND LICENSING APPEAL BOARD rFICE OF SECREltJY <
Before Administrative Judges: II UCKII((('[q 'VICI-G. Paul Bollwerk III, Chairman ' Alan S. Rosenthal Howard A. Wilber ,
) l In the Matter of ) Docket Nos. 50-443-OL
) 50-444-OL PUBLIC SERVICE COMPANY ) :
OF NEW HAMPSHIRE, ET AL. )
)
(Seabrook Station, Units 1 and 2) )
)
EXHIBITS TO BRIEF OF THE MASSACHUSETTS ATTORNEY GENERAL IN SUPPORT OF HIS APPEAL OF LBP-89-32 COMMONWEALTH OF MASSACHUSETTS JAMES M. SHANNON ATTORNEY GENERAL John Traficonte > Allan R. Fierce Leslie B. Greer Matthew T. Brock Pamela Talbot l Assistant Attorneys General Department of the Attorney General One Ashburton Place Boston, MA 02108 l (617) 727-2200 DATED: January 24, 1990
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L UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i l ATOMIC SAFETY AND LICENSING BOARD Before the Administrative Judges: t Ivan W. Smith, Chairman Dr. Richard F. Cole Kenneth A. McCollon . I
)
In the Matter of ) Docket Nos. 50-443-OL :
) 50-444-OL ]
PUBLIC SERVICE COMPANY ) ' OF NEW HAMPSHIRE, EI E. )
)
(Seabrook Station, Units 1.and 2) ) October 30, 1989
)
INTERVENORS' MOTION TO ADMIT A LATE FILED CONTENTION ! AND REOPEN THE RECORD ON THE SPMC BASED UPON !
.THE WITHDRAWAL OF THE MASSAcMUSETTS E.B.S. NETWORK AND WCGY -
The Massachusetts Attorney General (" Mass AG"), Seacoast l Anti-Pollution League ("SAPL"), and New England Coalition on Nuclear Pollution ("NECNP"), (hereinafter "Intervenors"), move this Board to admit for litigation in the above-captioned proceedings the contention filed herewith as Attachment A and reopen the record in the proceeding on the Seabrook Plan for Massachusetts Conaunities ("SPMC"). This action is filed pursuant to 5189(a) of the Atomic Energy Act and is founded upon the grounds set forth below. The Intervenors also request that this Board permit them to have a hearing on all issues raised by this contention and engage in any discovery necessary to prepare for such a hearing. _. .__________m _ . _ _ _ _ _ _ _ _ . _ _ _ _ . . . . _ _ _ __ _ __...______.__. _._._ ___ ._.__.
r . b INTRODUCTION i The SPMC contemplates the use of the Emergency Broadcast System ("EBS") as the primary means for notifying the public in the event of a radiological emergency at Seabrook Station. In a letter dated october 20, 1989 John F. Bassett, manager of I WCCM(AM)/WCGY(FM) ("WCGY"), repudiated WCGY's prior agreement to participate with New Hampshire Yankee ("NHY") in emergency planning and to activate the EBS in the event of a emergency at i Seabrook Station. Without the cooperation of FCGY, the Applicants will not be able to activate the EBS servicing the Seabrook Emergency Planning Zone ("EPZ") in Massachusetts. I Without the activation of the EBS, the Applicants will not be able to provide notification to the public in the event of an s emergency in accordance with the SPMC and as required by l applicable law and regulations. The inability of NHY to activate the EBS poses a significant safety issue that warrants admission of the attached late-filed contention and reopening ) L the record under the applicable standards. THE CRITERIA FOR THE ADMISSION OF A LATE-FILED CONTENTION ARE MET l l
.The criteria for the admission of late-filed contentions E
are set forth in 10 CFR $2.714 (a) (1) . In ruling on a motion to l j admit a late-filed contention, a licensing board must balance the factors set forth in the above cited provision. Commonwealth Edisen Co. (Braidwood Nuclear Power Station, Units l
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1 and 2), CLI-86-8, 23 NRC 241 (1986); Duka Power Co. (Catawba j 1 Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041 (1983); ' Public service of New Mannahire Co. (Seabrook Station, Units 1 and 2), ALAB 916, NRC (1989). Those factors are i (i) good cause for failure to file on times (ii) the availability of other means by which the 1 petitioners interest will be protected; { (iii) the extent to which the petitioners participation may ! reasonably be expected to assist in the development of sound record; ; i (iv) - the extent to which the petitioners interest will be represented by other parties 1 (v) the extent to which the petitioners participation will broaden the issues or delay the proceeding. A considered balancing of those five factors clearly ) establishes that the attached contention should be admitted in jg this proceeding. l TIMELINESS
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At the time that the contentions on the SPMC were initially l required to be filed in this proceeding (April, 1988) WCGY and the Massachusetts EBS were cooperating with NHY in emergency planning.1/ Both WCGY and EBS had letters of agreement with NHY to provide services to NHY in the event of a radiological emergency at Seabrook. (Attachments B and C.) Those letters l 1/ WCGY (FM) and WCCM (AM) are sister stations that are located at 33 Franklin Street, Lawrence, Massachusetts and are 1 currently owned and managed by curt Gowdy Broadcasting. i 1 3-
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1 S I P of agreement were incorporated into the SPMC' in Appendix C. l Under the terms of those letters of agreement, WCGY agreed to activate the EBS for the Merrimac Valley operational area that includes Massachusetts'when requested to do so by NHY. When i contentions on the SPMC were initially due, a review of the i SPMC's provision did not reveal any difficulty in activating : the EBS as a means of notifying the public. The SPMC at $3.2 s and I.P. 2.13 contained provisions and procedures for . activating the EBS. On its face the SPMC contained the ' documents indicating it had a means to actually activate the ! EBS through the letter of agreement with WCGY_ contained in Appendix C. Not until October 20, 1989 when WCGY withdrew did i the SPMC lose that means of activating the EBS.A/ On October 20, 1989, when WCGY repudiated its letter of agreement with NHY the provisions of the SPMC for notifying the l public became unworkable. This motion to admit a late-filed contention and reopen the record are being filed within six l working days of that repudiation. Good cause is established i for failure to file on time because the event that triggered l the filing did not occur until October 20, 1989. This motion L and affidavits attached to it are being filed as quickly as is l 2/ Douglas Rowe's withdrawal of the Massachusetts EBS occurred a few days earlier on October 13, 1989, however, until WCGY's withdrawal, the SPMC still contained a legally enforceable means to activate the EBS through WCGY's letter of agreement. (See Attachment G) 1
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practical under the circumstances.2/ PROTECTION OF THE INTERVENORS' INTEREET Other than litigation of the attached contention there is no other means to ensure that Seabrook Station operation will conform to regulatory requirements and ensure public safety. The NRC Staff cannot be relied upon to protect the public interest and interests of the Intervenors. Throughout the course of this proceeding, the NRC Staff has consistently and without exception rubberstamped the actions taken by the Applicants. There is-no reason to believe that the NRC Staff at this point will adopt a more reasoned and impartial position. The only way to ensure that the regulatory requirements cited in the attached contention are met and that public safety is provided for is through the admission and litigation of the attached contention. 2/ The first indication that there might be a problem with the l SPMC's notification procedures using the EBS was received by the Mass AG's office on October 16, 1989. On that date, ' Douglas Rowe contacted a paralegal in the Mass AG's office to learn the address of the Nuclear Regulatory Commission. He , { indicated that he wanted the NRC's address so that he could
- l. forward to the NRC a copy of his letter to NHY. Mr. Rowe sent I
to the Mass AG's office a copy of his letter to NHY, and l indicated that WCGY had been informed of h).s actions. In turn, WCGY was contacted by the Mass AG's office to ascertain what
'its status was in respect to EBS' repudiation of its letter of agreement with NNY. John F. Bassett, manager of WCGY, stated -that he knew about Rowe's action, and was contemplating sending a similar letter but had not yet done so. In a follow-up conversation on October 19, 1989 Mr. Bassett stated that he was still considering sending a similar letter and would provide the Mass AG's office with a copy of the letter.
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a 1 ' i DEVEI.DPMENT OF A SOUND RECORD The Intervenors will contribute to the development of a sound record through the litigation of the attached contention. The contention and basis sufficently identify the issues to be decided. In support of the contention, the Intervenors will offer the testimony of Royce Sawyer whose affidavit is attached to this action as Attachment D. He will testify as to how the Massachusetts EBS operates and why the non- participation of WCGY precludes operation of the EBS in the Massachusetts EPZ. Notification to the public of the status of an emergency at Seabrook Station and any protective action recommendations that are made in response to such an emergency is predicated on the operation of the EBS. Section 3.2.5, Public Notification, of the SPMC specifies that that public notification will take place through the EBS. Section 3.2.5 at p. 3.2-13 states:
"The NHY Offsite Response Organization maintains the capability to activate any of the available public notification means when authorized by the Commonwealth of Massachusetts as described below and detailed in Implementing Procedure ("IP") 2.13, Public Alert and Notification System Ingludina Ens Activatient IP 2.15, Airborne Alert Activation, and IP 2.16, Vehicular Alert and Notification System." (Emphasis added.)
That same section also provides at 3.2-15 that: "Through an extensive public education program (553.7 and 7.5), the public will be instructed that, upon hearing the sirens, they should listen to local radio stations for information and
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i instructional aescages broadcast over the ras radio network." 1 (Emphasis added.) The plan specifies that the NHY offsite Response Director will direct public notification by using the public alert and notification system including EBS. The SPMC states that the EBS will be activated concurrently with the activation of the siren system, 63.2.5 at 3.2-16, and prevides , that through the EBS the public will be informed of the import of the sirens. 1 Implementing Procedure 2.13 outlines the procedural steps that will be taken to activate the EBS. Section 5.1.5 of IP 2.13, at p. 5, states that. contact with the EBS radio station is to take place on-a dedicated ring down circuit. Section 5.1.11 of IP 2.13, at p. 7, directs that activation of the public alert and notification system is to take place by contacting the lead EBS station on the dedicated ring down l circuit, and advising it of the pre-recorded message that is to l j be broadcast or that an authorized prescripted EBS will be j telecopied to it for broa8. cast. The implementing procedures as 1 well as the plan itself clearly contemplate that under the SPMC i information is to be disseminated to the public through the l EBS. In making its finding of adequacy in respect to the SPMC, ! FEMA reviewed those provisions of the plan calling for the use i of EBS as the primary means for notifying the public. Those provisions are a predicate to FEMA's finding. FEMA's Review of 1 The SPMC, App. Exh. 43C, Page 24. I
b Royce Sawyer will testify as to how the EBS network in Ma'asachusetts worke and why the lack of participation by WCGY means that the EBS network cannot be activated. As Mr. ! Sawyer's affidavit makes clear, the EBS network functions in much the same vny as a telephone pyramid. The primary relay EBS station in Massachusetts, WROR in Boston, by transmission of its activating tone, trips the tone alert radios at the EBS i operational area gateway stations. WCGY is the gateway station l in the Merrimac Valley where the Massachusetts EPZ is located. WCGY picks up the EBS message transmitted by WROR and, through activation of its activating tone, trips the tone alert radios i located in the other Merrimac Valley EBS stations. Those I stations in turn pick up the EBS message and transmit it out on their own frequencies to the public. The activation of the EBS stations in the Merrimac Valley can be implemented directly through contacting WCGY and having WCGY send out its activating , signal. However, the activation of the EBS cannot take place through contacting WLYT, the only other station with whom NHY L has a letter of agreement, because WLYT is not a gateway or a lead EBS station. The tone alert radios in the other Merrimac ' Valley EBS stations are not tuned to receive WLYT's signal; they are only tuned to receive WCGY's signal. E Mr. Sawyer's testimony will show that the import of WCGY's non-cooperation'is that NHY will not be able to contact and activate the EBS within the 15 minute window required by
n , - i i 4 , regulation.5/- NUREG 0654, FEMA-Rep-1, Rev. 1, Appendix 3. p The identification of Mr. Sawyer as a witness who possesses I special; expertise on the topic of the EBS in Massachusetts and
-the above. statement as to what he will testify to clearly establishes that the admission of the contention will 1
. contribute to the development of a sound record. The Appeal j
-Board has-held: I A late petitioner can establish that its I participation may reasonably be expected to assist in developing a sound record by "(1).
identify (ing) specifically at leabt one witness
.it intends-to present: and (2) provid(ing) sufficient detail respecting that witness'
-proposed testimony to permit the. Board to reach a reasoned conclusion on the lihcly worth of that testimony on'one or-more of (itti contentions."
Washincton Public Power Sunniv System (WPPSS
-Nuclear Project No. 3), ALAB-767, 19 NRC 964 -
(1984),'985 (1984) quoting Washinaton Public g Power Sunnly System et al. (WPPSS Nuclear Project !
- No. 3 ) , ALAB-7 47, 18 NRC 1167, 1181 (1983).
The Intervanors in this instance have clearly met the test i u for establishing that their-participation will assist in the development of a sound record. That factor thus weighs heavily in favor in the admission of the attached. contention. lA/ Jul ' additional factor in WCGY's non-cooperation is that as
= Attachment E indicates, WCGY's activation of the Merrimac
' valley EBSiwould.immediately reach approximately 6 times the listening- public in Essex County as opposed to just WLYT transmitting an informational message. It-is contemplated that this; result will ultimately be offered as another basis to the '
attached contention. However, given the haste with which this W" 7 motion is being filed, there has been insufficient time to obtain;an 4'fidavit from an expert on this issue. It is contemplatcd that when such an affidavit from an expert is obtained, a motion to amend the basis to the attached contention will be filed.
l b THE PETITIONERS' INTEREST REPRESENTED BY EXISTING PARTIES In this proceeding, no other party has to date raised, or is known to be raising, the issues set forth in the attached contention. ABSENCE OF DELAY
.Obviously.the admission of the attached contention will broaden the issues to be decided in this proceeding, and may delay a final resolution of the proceeding. However, the same would be true with the admission of almost any new contention. !
Therefore, what must be considered by.this Board in assessing this factor is the degree to which the issues before the Board will'ba broadened and the degree of the delay that will be ' occasioned by the admission of the contention. In this case the contention that is proposed focuses ' narrowly on one aspect of the SPMC. It is anticipated that any i t-discovery on the issue can be-kept to a minimum and that any i hearings will not be lengthy. Through the prior proceedings that have occurrad in this licensing matter, the~ parties and 4 the Board are already generally familiar with the parameters of the issue. - While this factor does by its nature militate somewhat in
- favor of the Applicants, the narrowness of the issue raised in the contention and minimal amount of delay that is likely to ensue by admission of the contention do not weigh heavily in
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t-the Applicants'. favor. When the slight weight to be' accorded ' to this factor is balanced against the other four factors that strongly favor admission of'the contention, the not result is l that on-balance the contention should be admitted. Therefore, the Board.should allow the motion to admit the late-filed contention. s MOTION TO REOPEN THE RECORD The criteria that'must be met to reopen a closed record are
. set forth in 10 CFR 52.734. Those criteria are all met in this instance. The motion is timely-for the reasons set forth above. The-event that triggered the motion to reopen the record was the letter of October 20, that was sent by WCGY to NHY.. Prior to the transmission of that letter voiding the i letter of agreement that had previously existed between NHY and i
WCGY, the elements of the SPMC that called for.the activation l of the EBS could still have been implemented. Even though prior to the issuance of the letter the equipment that NHY un'ertook-to d provide to WCGY had not actually been provided, NHY had a contractual commitment to provide that equipment. In i
. return, WCGY had a commitment to activate the EBS upon request by NHY. The voiding of.the letter of agreement on October.20, 1
1989 negated those commitments. c Given the requirement that a motion to reopen the record be accompanied by one or more affidavits setting forth the basis of the motion, this motion is being filed as quickly as is l 1 m . - _ . _ . _ , _ _ __ , _ _ _ _ . _ . _ _ . . . _ .__
practicable. - ^ Not only was there the necessity of obtaining ~~. affidavits as to the factual basis for the motion, i.e., the non-participation of WCGY and EBS, but, there was also the EE necessity of obtaining an affidavit from an expert who could - ~ opine on the import of that non-cooperation. This motion is == being filed within 24 hours after the authorization and approval of that affidavit. THE MOTION ADDRESSES A SIGNIFICANT SAFETY ISSUE Both NUREG 0654, FEMA Rep-1, Rev. 1, Supp. 1 and NUREG !!k 0654, Rep-1, Rev. 1 require that means be established to provide early notification and clear instruction to the populace within the EPZ. Under Planning Standard E, Notifications Methods and Procedures, an emergency response organization has a responsibilty to demonstrate that means exist to notify and provide prompt instructions to the public. The specifications for providing such prompt notification is _ set forth in NUREG 0654, FEMA Rep-1, Rev. 1, Appendix 3. Under the criteria for acceptance in Appendix 3, the minimal acceptable design objectives for an alert and notification system require the capability of providing both an alert signal and an informational, or instructional, message to the population on an area wide basis throughout the 10-mile EPZ within 15 minutes. Appendix 3, at 3-3. Under this minimally acceptable criterion for a notification system, NHY must make provision not only for alerting the population in the EPZ by E
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l' means of a siren, or other signal, within 15 minutes, but must also.make provision for providing an informational, or instructional, message to the. population within that same time period. 4 ' The withdrawal of WCGY and the Massachusetts EBS pose two separate and distinct significant safety risks under Planning Standard E. First, the withdrawal of WCG'Y means that the EBS cannot be activated for the Merrimac Valley area. As the affidavit of Royce Sawyer makes clear, WCGY as the Common Program Control Station (CPCS-1) for the Merrimac Valley is the gateway for the activation of the EBS system in that area. All other EBS stations within that operational area-are tuned to
-WCGY's tone alert frequency to trigger their activation and' participation in the EBS. Without WCGY's activation of those stations, they will not pick up the EBS messages that are designed to carry information to the public in the event of an emergency at Seabrook Station. The manner in which the EBS operates ensures-that when the EBS is activated, an individual
-o turning on a radio to find out the significance of the alerting sirens will come fairly shortly to an EBS station. When the EBS is-activated, all non-EBS stations are required to go off the air. That means in tuning to find out the significance of the sirens, an individual will quickly encounter an EBS station carrying the authorized EBS messages.
1 l
While:NNY apparently still has an existing contract with one radio station, WHAV (AM)/WLYT (FM)/ ("WLYT") that station is not a CPCS-1 station that can activate the EBS.- While WLYT does' participate as a station in the EBS, it cannot activate any other station in the EBS, or pass on EBS messages to any but'its own immediate listening public. In making its finding as to the adequacy of the SPMC, FEMA did not find that a letter of agreement with WLYT was enough to satisfy notification requirements. The SPMC does not call for the activation of WLYT alone, rather it calls for the activation of the EBS.E/ In making its finding of adequacy FEMA stated: The Plan states that the primary system for disseminating information to the public is EBS. In event of an emergency, the NHY ORO offsite Response Director will request authority from the Commonwealth of Massachusetts to utilize EBS to broadcast emergency information and' instructions to the public. Each instructional message broadcast over EBS will also be released.as a news release by the Media Center. FEMA's Review of the SPMC, App. Exh.-43C, Page 24. Totally apart from the coverage problem that is posed by the withdrawal of WCGY, the withdrawal also poses a significant 1/ As'is indicated in Attachment _ the activation of the EBS through WCGY reaches six times the listening population than that reached by WLYT and its sister station. The activation of the.EBS by.WCGY results in twelve radio stations carrying the EBS messages rather than simply two. It further results in all other non-EBS stations going off the air, making access to-the critical EBS stations more likely. None of that happens when WLYT on its own sends out an information message. Further more, given the fact that WLYT's letter of agreement with NHY is premised on its " ongoing committment" to the EBS, it is unclear that that committment will continue since the EBS no longer recognizes the NHY ORO as a responsible local organization authorized to request activation of the EBS. 1
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O l safety issue with respect to the ability of NHY to notify any portion of the public within the 15 minute minimum requirement. One-of the reasons that EBS and WCGY apparently-
' withdrew from participation with NHY was because NHY refused to r live up to its committment to install a dedicated phone line or radio link to the radio station. The existence of those communication links ensured the ability of NHY to communicate the EBS messages to WCGY within the 15 minute regulatory requirement. Without that dedicated phone line, there is no assurance that the communication of the EBS messages and notification of the public can be made within the 15 minute window. .As John Bassett's affidavit (Attachment F) indicates, WCGY periodically experiences occasions during which all of its phone lines are busy at the same time.
It is true that if the Governor of Massachusetts was to authorize the activation of the EBS network for the Merrimac-Valley, given enough time activation of the EBS through WCGY could ultimately be accomplished. It could be made either through a tone alert activation, via WROR in Boston, or through a commercial line telephone call to WCGY. However, without a dedicated phone line or radio link between the activating agencies and WCGY, there is no assurance that the activation could take' place within 15 minutes. There has been no assessment made as to how long it would take to activate the EBS through WROR and then transmit that activation to WCGY. I
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Nor is there any assurance that a phone call.would reach WCGY t within the regulatory 15 minutes. During the normal course of i
, business,- WCGY's commercial phone lines are all occasionally busy. (See Attachment F at Page 2.)
Only the existence of a dedicated phone line, or some other means of direct access'from i the activating agency or entity to the radio station ensures ; the ability to make notification within 15 minutes.5/ Without WCGY's participation and the existence of that direct ! i access linkage, this mandatory regulatory requirement is not met. l t
,Thus, the withdrawal of WCGY poses two separate significant i safety issues.. It precludes the ability to activate the EBS as ! ?
the'SPMC calls for, an'd to notify all the public in the EPZ as required by 50.47 (b) (5) and NUREG 0654's Planning Standard E. Its withdrawal also precludes the ability to notify the public -i 1 within the time required by Appendix 3. In holding the ability to make prompt notification to the public to be a significant safety issue, the Appeal Board has stated:
" Extended discussion should not be necessary with regard to the obvious safety significance that-attends upon compliance with the Commission's regulation designed to .
provide the members of the public located inside the EPZ , with "early notification and clear instructions" in the event of.a radiological emergency." (Footnote omitted.) Public Service Comnany of New Hamnshire, et al. (Seabrook Station. Unita 1 and 21, ALAB-883, 27 NRC 43, 50 (1988). 1/ No Massachusetts agency or entity has prescripted EBS messages for the Seabrook EPZ. If any EBS messages for the Seabrook EPZ were to be transmitted by means of a state agency activating WROR, the EBS messages would first have to be transmitted from NHY ORO to the state agency, then from the state agency to WROR. p
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Without the ability to make notification to the public, the public will not be aware of the significance of the sirens; there will'not be a uniform dissemination of the information in the'EBS messages;.and protective action recommendations cannot be transmitted to, or received by, the general public in accordance with the SPMC and regulatory requirements. Therefore, the attached-contention and supporting affidavits >
. address a significant safety issue that warrant reopening the record.
A-MATERIALLY DIFFERENT RESULT IS LIKELY IF THE BOARD CONSIDERS THE ATTACHED CONTENTION AND NEWLY PROFFERED EVIDENCE IN MAKING ITS DETERMINATION ON THE SPMC First of all, it is inconceivable that FEMA would have found the SPMC to be adequate without a provision for notifying the public in accordance with Planning Standard E. Similarly, it is inconceivable that FEMA would have approved the SPMC I without specific provision in the SPMC for activation of'the EBS by means of a letter of agreement with the CPCS-1 station, WCGY. Without that station there can be no activation!of the E BS . NUREG 0654, FEMA REP-1, REV.1, Appendix 3, at Pages 3-15, specifically requires the integration of an emergency plan's notification-system with the state and local EBS.2/ I 1: 2/ It is highly unlikely that FEMA would have ever approved a plan that provided only for notification of the public through a contract with a small local radio station like WLYT that services less than half of one percent of the area's public.
'See Attachment E.
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g t i Had the Intervanors known of the non-participation of WCGY and the inability to activate the EBS, the Intervenors certainly would have put that issue before this Licensing Board-
.in the form of'a contention at the inception of this proceeding. However, as long as a legally enforceable agreement existed between the NHY and WCGY, there' existed the legal obligation on one side to provide equipment that would enable.the activation of the EBS, and on the other side, there existed the legal-obligation to activate the EBS upon request-I by NHY ORO as a recognized responsible organization. The void n, of the letter of agreement leads to a substantially-different result.
Without WCGY and the EBS, there are no provisions-for notifying all of the general public in the Massachusetts EPZ as I to the status of an emergency at Seabrook Station or~as to actions to be'taken in response to that emergency. If the l Board takes that fact into consideration, it.will doubtlessly i. come to a-different conclusion as to the adequacy of the SPMC's- - notification. provisions. 1 1 CONCLU M Therefore, the Intervenors have established that a -l balancing of the factors to be considered in admitting a p late-filed contention weigh heavily in favor of the admission l' l s l-
1 of that contention. The Intervenors have also established that, -f this motion to reopen meets-the standards that such a motion- ~
- 4. must comply with, and the gravity of the issue warrants-
[ h reopening'the record for consideration of the issue.
.c c COMMONWEALTH OF MASSACHUSETTS JAMES M. SHANNON <
ATTORNEY GENERAL. ' i
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John Traficonte ~ % Chiof,. Nuclear Safety Unit Leslie Greer. Assistant Attorney General s Nuclear Safety Unit- ', Department of the Attorney General One:Ashburton Place Boston, MA- 02108-1698 3 (617) 727-2200 -
, DATED: October 30, 1989
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The Applicants do not have'the means to provide early notification and clear instruction to the populace within the H ' plume exposure pathway Emergency Planning Zone ("EPZ") in Massachusetts and therefore do not meet the planning standards of 10 CFR 5 50. 47 (b)-(5) ,- and 10 C. F.R. Part 50, App. E.IV.D. Basis A. The Applicants' primary method for providing 9 notification.to-the populace in the Massachusetts EPZ'is by ; means of the activation of the Emergency-Broadcast System ("EBS") serving the geographic area containing the EPZ. (Plan
' 3 '. 2 . 5 , IP 2.13).- The Applicants' utility plan for ,
Massachusetts 1 formally contained provisions for activating the EBS by means of a letter of agreement with WCCM (AM)/ WCGY (FM) - ("WCGY"). That-letter of agreement was incorporated in the-i SPMC in Appendix C.'
- On October 20, 1989, WCGY repudiated that letter of agrement rendering it void and ineffective.
Therefore, the Applicants no longer have the means for implementing early notification and clear instruction to tha populace in the EPZ. - L l l- ATTACHMENT A < 1 i.
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v- ~ l A LETTER OF AGREEMENT BETWEEN RADIO STATION WCGY AND NEW HAMPSHIRE YANKEE'S OFFSITE RESPONSE ORGANIZATION
Purpose:
U.S.C. To activate Emergency' Broadcast System as Provided Title 47 151, 154 (i) and (o), and 303 (r): Chapter 1, Part 73, Subpart G, Federal Communications Commission Rules and Regulations, Radio Broadcast and=to System (EBS) as pertains to day-to-day emergency operation Yankee' provide for cooperation and coordination between New Hampshire s Offsite Response Organization (NHY/ORO) radio station WCGY 93.7 FM,. Lawrence, Massachusetts,and in.the the management.of event of an accident / incident at Seabrook, New Hampshire. the Seabrook Nuclear Power Station (SNPS) in Scope of Activity of WCGY: The management of WCGY, Lawrence, Massachusetts, (when
. requested) agrees to activate the Emergency Broadcast System for the Emergency Planning Zone located within the Commonwealth of Massachusetts Amesbury which consists of the following six (6) communities:
Merrimac, Newbury, Newburyport, Salisbury, and West Newbury. The management of WCGY further agrees to activate (Nhan-requested) system notification the tone-activated and broadcast radios supplied as part of the public emergency public information when notified to do so by the Offsite Response Director of the NHY/ORO,- using a pre-arranged authentication system.
.WCGY further agrees that they have and will maintain a-recording capability to record the actual voice of the NHY/ORO Offsite Response Director, and they will broadcast the message, acceptance of/or participation in this plan shall not be deemed as a relinquishment of program control and shall not be deemed-to prohibit the licensee.from exercising its independent-discretion and responsibility in any given situation.
WCGY further agrees that tho'NHY/ORO offsite Response Director is authorized (through a pre-arranged authentication
- procedure) to activate the Emergency Broadcast System servicing the Seabrook Emergency Planning Zone area in the event that there is an accident off-site and/or' incident at the Seabrook Nuclear Power Station with consequences.
The NRY/ORO Offsite Response Director will notify the management of WCGY when to activate the tone-alert radios and when to begin broadcasting Emergency Public Information messages. The context of these messages and the interval at which the messages will be repeated will be supplied by NNY/ORO.
\ This agreement becomes valid when signed by the signatures
' indicated below. Onco valid, it can be terminated by either NHY/ORO {
.or the management of WCGY by written notification ninety (90) days iz _ ___-_--- --- -- - - - - - --- - - -
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'T J George y. Thomas Mm-p nager Vice President of Production N.ew Hampshire Yankee .NCGY 93.7 FM Division of Public Service Company'of New Hampshire Agent for the~Seabrook
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1 , The Massachusetts Emergency Broadcast System is Committed to responding to eng emergency that mag effect residents 7 . .of Massachusetts. The Emergency Broadcast System is a potentary organization authosized by and created by the federed Comunuaications Commission, its primary function is to eiert the public la the event of a Presideatial Declaration of Emergeneg; most specifleig nacieer attack. But the authority to use the EBS has been delegated down to the individuel licenses which must use its
" independent discretion and responsibility ".
The Messachusetts Emergency Broadcast $gstem would recognize eng responsible local business or organization that meg be responsible for creating or reporting a local emergency. After review of New Hampshire Yankee's Offsite Response Orgentzetion and determining that en incident at New Nampshire Venkee could effect Massachusetts residents and that actlpation of the EBS could mitigste the effects caused by en incident the New-Nampshire Yankee Offsite Response Organization is recagonized as e responsible local organization within the meaning of the Rules and Regulations governing the EBS. IDith regard to the pleaning and implementatica of the eierting system it is understood that NNY/0B0 will provide certain services and equipment at its sapense and that this process of pleaning and implementation will be en ongoing one. The following equipment and services will be initialg supplied::
- 1. Bedicated telephone line and easwering device with competable taping equipment.
- 2. Feu or similar device for receiving hard copy of eng message.
- 5. RP5 or sinner treassait / receive equipment to enable messages to be seat / receiped without reliance on telephone. Also, to enable EDS station to treasmit from incident eroe er from areas
- that the tecident meg teese en effect.
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'Georse S./ Thomas b5 -o = ^
Vice President of Production DousladJ. Rows // Co. Chairman V New Hampshire Yankee Massachusetts Emergency Division of Public Service Broadcast System Company of New Hampshite Agent for the Seabrook Joint Owners i
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{- < UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING-BOARD Before the Administrative Judges:
-Ivan W. Smith, Chairman Dr. Richard F. Cole 1 Kenneth A. McCollom
)
. In the Matter of ) Docket Nos. 50-443-OL
) 50-444-OL -
PUBLIC SERVICE COMPANY )-
' OF NEW HAMPSHIRE, EI AL. )
)
(Seabrook Station, Units.1 and 2) ) October 30, 1989
)
AFFIDAVIT OF ROYCE SAWYER REGARDING THE VOIDING OF THE EBS LETTERS OF AGREEMENT I', Royce Sawyer, being duly sworn, state as follows:-
- 1. -
I am the communications officer for-the Massachusetts Civil-Defense Agency. My office-is located at the Massachusetts Civil Defense Headquarters, 400 Worcester Road, Framingham, w Massachusetts. As communications officer for the Massachusetts "i '
. CivilLDefense Agency I am the official who is primarily responsible for the oversight and maintenance of the
; Massachusetts Emergency Broadcast System _("EBS"), and am familiar with its purposes, configuration, and operation. I have approximately ten years experience as communications officer as well as related experience in civil defense and 1
ATTACHMENT D
emergency planning. A copy of my professional qualifications is
, provided.. '
2. The Elm is' created under. Title 47, U.S.C. 151, 154(1) and (o), and 303 (r) ; Chapter 1, Part 73, Subpart G of the Federal Communications Commission's Rules and Regulations. It , is a national communications network that can-be activated on the national level,. statewide level, or local operational area i level. Activation of the EBS national system is by authority of the President of the United States through control points for radio and T.V. networks, AP and UPI new services and participating common carriers. . Activation of the EBS within Massachusetts may.be by request of the Governor, the Director of the-Massachuetts civil Defense Agency, the Massachusetts State- < Police or the National Weather Service. Statewide activation may be made by the request for activation going directly;to the . Originating Primary Relay Station,-WROR (F.M.). Activation on a-local operational area basis may be made by contacting WROR (F.M.)'or.by directly contacting the operational area's primary relay /CPCS-1 station.- That station in turn cues in the remaining stations in the operational area. 1 In essence, activation of the EBS-proceeds as a ripple
-effect. 'If it is activated on the national level, transmission-of the EBS attention signal is made from Washington to the p
l- states Originating Primary Relay Stations followed by an l- informational message. In Massachusetts the Originating Primary l-Relay Station, WROR, would then- transmit the EBS attention i signal followed by the informational message to the operational 0 __L-_=_-__----------------- - -- - --- - '-~ - ~ ~ ~ ~ ~ ~~ ~
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I l l areas primary relay /CPCS-1 stations.$ WROR's transmissions would be received-by tone alert radios at the CPCS-1 stations that are s . in the-local operational areas and are tuned to WROR. There are seven operational areas within Massachusetts. In the Merrimac
~ Valley, WCCM (A.M.)/WCGY (F.M.) ("WCGY") is the CPCS-l' station.
WCGY functions as the primary relay station, or lead EBS station,'in'the Merrimac Valley operational area. It~ activates the EBS on the local operation level by transmitting the EBS-attention signal to the radio stations'in the Merrimac Valley operational area. Those local stations have tone alert radios that are tuned to receive WCGY's tone activation signal. See Exhibit 1. While the EBS is a voluntary association of radio and television' stations, all broadcast stations that are licensed by the FCC are. required to install an EBS two tone receiver. When the EBS is activated all radio and television stations that participate in the EBS pick up and transmit the informational EBS, message. When .the EBS is- activated, all: stations that do - not' participate-in the EBS are required to go off the air. .That-results in any listener who turns on his radio tuning in to only EBS activated stations that are all carrying the same uniform EBS message. In theory, it means that a listener who is tuning his radio to find information about an alerting signal will rapidly come to an EBS station carrying the appropriate information because all other local radio stations will be off the air. The EBS functions as a radio rebroadcast information
- - .- -- .. ~ - . - - - - - - . . . -
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. procedure so that all stations receive and retransm'it the same m ,
messages.
-3.- The. import of WCGY voiding its prior letter of agreement with NHY and withdrawing from participating in the emergency planning means that the EBS for the Merrimac Valley i
operational area cannot be activated. h0UI WCGY is the gateway , station that activates the tone alert radios in the other EBS stations in the Merrimac Valley operational area which in turn insures the uniform transmission of EBS. messages. While there appears-to still be an existing' letter of agreement with WLYT' (F.M.), WLYT cannot activate the EBS in the Merrimac Valley operational area. The tone alert radios located in the other- ' radio stations.in the Merrimac Valley operational area are not tuned to WLYT. While WLYT may be able to transmit an. informational message provided by NHY to its own listening
~
I' .public,'that message will not reach the rest of the,public who I ,;a do-not happent to be listening to that one radio station.
- 4. While in theory in the event of a radiological
- emergency at Seabrook Station, the Governor could activate the oa .
4 EBS,on a statewide basis by activating it through WROR in L L Boston, there does not exist any provision for insuring that 7 notification is made to the public in the Massachusetts emergency planning zone for Seabrook Station within the 15 .
-minutes required by NUREG 0654, FEMA-REP-1, Revision 1, Appendix ;
- 3. There does not exist a dedicated phone line, or other direct access link from any activating agency in the state government to WCGY. There is not any direct communication link with WCGY
--_-_=x-____-________--... . - . , - -.
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i b -- - other.than through commercial phone. Commercial telephone does not provide the requisite assurance of notification in 15 minutes because as noted-in-the Affidavit of John F. Bassett, WCGY's telephone lines are at times all busy. i
' l The' foregoing is true and correct to.the best of.my knowledge and belief.
Royce Sawyer
' Subscribed and sworn to before me this _ day of October,-1989. '
L-- E Notary Public My Commission. Expires:
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a MASSACHUSETTS : EMERGENCY BROADCAST SYSTEM l, i .i OPERATIONAL PLAN l 1 1 1 gr.yENsg f j
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p i 4CHU S MICH AEL S. DUN AMIS ' GOVERNOR l CHARLES V. B ARRY ^ PUB SAFE ROBERT J. BOUL AY DIRECTOR ' Revised : May 1988 I m i
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(- MASSACHUSETTS EMERGENCY BROADCAST SYSTEM-TABLE OF-CONTENTS
.P.,a,ge
,yg Record /of Changes i s Distribution List 11 L ~ Preface 111 Definitions iv
'I. Purpose 1 II -Authority 1
-III Introduction i IV General Consideration 1 A. Situation B. Physical Characteristics
, -C.- Assumptions V General-Plan A. ' Organization 3 eB.- ConceptLof Operations VI. Implementation- 5
-VII: ' Tests- '7 APPENDICES Appendix 1- Massachusetts Operational Areas Appendix 2 EBS Monitoring Assignments Appendix 3 National Weather Service Procedures Appendix-4 Attack Warning Script Appendix 5. State Test Script Appendix 6 Authorized Officials List Appendix 7 Authentication Instructions.
Appendix 8 State & Local Emergency Communications Committee Appointments
~ Appendix 9 Cable ' TV (to be developed)
Appendix 10 Approval Sheet
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MASSACHUSETTS. CIVIL DEFENSE AGENCY EMERGENCY BROADCAST SYSTEM
- i. OPERATIONAL PLAN RECORD OF CHANGES SWh 9
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STATE AGENCIES 5 p NUMBER OF COPIES l-
->t Governor's Office 1 Executive: Office of Public Safety 1 Massachusetts State Police 2 Massachusetts Civil Defense Agency 10 J
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; FEDERAL AGENCIES
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' Federal Emergency Management Agency, Region I- 2 Nat ional' Weather. Service ~ (NWS-Bos ton) 2 Federal' Communications Commission . 2-t(Emergency 1 Communications Section) l PRIVATE ORGANIZATIONS
; Massachusetts' State' Emergency Communications Committee 2 i (Chairman)- .
-e Massachuset's t Broadcasters Association (President)~ '2 Local Operational 1 Area Emergency' Communications 2 each Committee. Chairman &1Vice Chairman All. Massachusetts. Broadcast Stations 1 per station.
- Cable T.V. 1 per station-i:
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,= PREFACE The following is a revised Massachusetts Energency Broadcast Plan which encompasses many of the memorandums, practices, and innovations brought about by the' tests and activations of the system since its inception.
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The plan was written to be understood by all who have the need to know about the plan. This plan is available to all agencies and organizations who have a role to play in informing the public during an emergency. It is hoped that you will read and comprehend this plan and use y it effectively should the need for activating the Emergency Broadcast System arise. 1 This plan was only possible c';e to the outstanding cooperation i the Massachusetts broadcasters have given to the system. b 9 1
I t i DEFINITIONS r EMERGENCY: A situation posing a threat to the safety of [ life and property. Examples are, but not limited to: tornados, hurricancs, floods, tidal waves, earthquaxes. ' icing conditions, heavy snows, widespread power failures, ! incustrial explosions, civil disorders, and nuclear incidents or attack. . SEVERE WEATHER WATCH: A severe weather WAT0H indicates ! that the probabilities of a particular severe weather 1 storm are high, and is an alert to the public of such severe weather conditions.
- SEVERE WEATHER WARNING: A severe weather WARNING indicates that a particular severs weather storm has actually been sighted in the area er indicated by radar, and serves notice to the public that severe weather con-I ditions are almost certain to occur. .
AUTHORIZED GOVERNMENT OFFICIALS: The person or persons designated by governments signatory to this procedure that have the authority to request activation of the ! Emergency Broadcast System (EBS) and to make emergency p announcements / broadcasts. ; i l iv (
I PURPOSE The purpose for this document is to provide methods and procedures agreed upon by the broadcast industry, the state and the local governments which permit authorised government officials to issue emergency emergencies. information and instructions in threatened or actual II AUTHORITY Title 47 U.S.C. 73, Subpart G, 151, 154 (1) and (o), and 303 (r); Chapter 1, Part Federal Communications Commission Rules and Regulations, Radio Broadcast Services, Emergency Broadcast System (EBS) as pertains to day-to-day emergency operation. l III INTRODUCTION These procedures were prepared by the Massachusetts Emergency Communications Committee in cooperation with the National Weather ! Service L.1d the Massachusetts Civil Defense Agency. It provides background data and prescribes specific procedures for the broadcast media to disseminate emerfency information and l warning to the general public in Massachusetts, or any portion thereof within the station's broadcast coverage capability, > at the request of designated Federal, State or local government officials. Acceptance of/or participation in this plan shall ; not be deemed as a relinquishment of. program control and shall not be deemed to prohibit a license from exercising his independent discretion and responsibility in any given situation. IV GENERAL CONSIDERATION The listening and viewing habits of the general public are 1 inherent factors for consideration and are conducive to the I positive effectiveness of the Massachusetts Emergency ' Broadcast System (EBS). It is the instinctive reaction of the average person to turn on his radio or television set in time of emergency. . 1 l I l 1 i
Tha following outlinos the basic situation, physl:al thirac-teristics and assumptions used in the development of th.3 plan. , A. Situation : Broadcast radio and T.V. stations are mainly privately owned corporations using the public " air waves" and operating in the public interest. One aspect of this public interest is J to allow its facilities to be used by responsible government officials to communicate with the public in time of impending 1 l or actual emergency. Such a system, as prescribed by the Federal Communications Commission (FCC) is the Emergency Broadcast System (EBS). (FCC Rules and Regulations Phrt 3, Subpart G). . B. Physical Characteristics : The Commonwealth of Massachusetts has approximately 190 radio and television stations in the Massachusetts Emergency : i Broadcast System. For EBS planning purposes, the state of Massachusetts is sub divided into seven local EBS operational ; (geographical) areas. Each station in a local operational area j monitors the Primary Relay /CPCS Station for that area to I receive Emergency Broadcast System messages. These Primary i Relay /CPCS Stations receive the message directly by monitoring 1 either the state's Origina ting Primary Relay Station WROR(FM) or the Primary Relay /CPCS Station in an adjacent area. Using this procedure, the original Emergency Broadcasting System message is transmitted from WROR-FM in Boston and can be picked up and retransmitted by every EBS station in Massachusetts , within approximately eight minutes, j
' i C. Assumptions All licensed Broadcast Stations are required by.the FCC to install an EBS two tone Receiver. All Massachusetts stations J monitor either WROR-FM or the Primary Relay /CPCS station in I their local operational areas and contact with WROR-FM or an area's Primary Relay Station is sufficient to initiate entry into the system.
I Since many broadcast stations become essentially "one man" operations during "non-business hours", the plan must take into consideration such problems as:
- 1. Duty operator doing news or otherwise "on mike".
- 2. Duty operator absent from " control room" for personal reasons.
Duty operator's specified actions, should such activation occur, during: commercials, dramas, music etc. must be clearly defined by station management so there w.ill be no con-fusion or delay in activating the EBS on the part of such per- l sonnel. As rebroadcast authority is automatic during EBS tests and activations (under Sec. 73 935 (g) and 73 961 (g) FCC Rules and Regulations) there should be no hesitation to simulcast. ! l
-2 l
l
F ?, Precautions should be taken at all stations to automatically tape all EBS messages, in case of failure to simulcast. It is generally assumed that the Emergency Broadcast System would be implemented in the following situations. 1 Nuclear Attack The EBS will be used to warn the public of impending Nuclear Attack systems. and to augment existing outdoor public warning The Massachtsetts State Police, who constantly monitor the National Werning System (NAWAS) have been instructed to notify WRuR should they receive an Attack l Warning. A verified telephone call from the State Warning Point (State Police Headquarters) is sufficient for WROR to activate the EBS for Attack Warning. Confirmation of an attack may also come over the AP/UPI wire service as , outlined by the FCC. An appropriate warning message to be read by WROR and carried simultaneously statewide is appended. (Appendix 4) >
- 2. Other Emergency Situations !
1 The EBS will and has been activated for other situations ~ which endanger the safety of life and property. FCC Rules i and Regulations Section 73 935 cites " examples of emergency situations which may warrant either an immediate or delayed response: . tornados , hurricanes, floods, tidal waves, earth-quakes, icing conditions, heavy snows (blizzards), widespread fires, discharge of toxic gases, widespread power failures, industrial explosions, civil disorders, nuclear accidents (including power plant). '
- 3. Testing i
To test the system and its interconnects !
, V THE GENERAL PLAN A. Organization
- National Level - Rules and regulations' pertaining to the EBS '
are promulgated by the Federal Communications Commission. Oversight for the Federal Government level is the respon- - sibility of the Federal Emergency Management Agency (FEMA) ; with Natural Disaster planning and actual weather data input ~ supplied by the National Weather Service (NOAA). National EDS recommendations for changes in Rule.% and Regulations stem from suggestions of the National Industry Advisory Committee (NIAC), composed of representatives of the National Association of Broadcasters (NAB), the Common Carrier industry, cable television representatives (CATV), , and others representing the communications industry. 4 .
Statn Levn1~ - Rulos cnd Regulations for the State EBS are pro-mulgated and enforced by the FCC with oversight and program imple-mentation the responsibility of the Massachusetts Civil Defense Agency (MCDA), the National WeatherService, and the State Emergency Communications Committee (SECC) composed of represen-tatives of the Broadcast Industry. All FCC licensed broadcast facilities, may AM-FM-TV, participate including public in the Massachusetts EBS.and educational facilities, (See Appendix 1) ! Local Level (Operational Area) Based on the recommendations of the local operational area Emergency out Communications Committee, local officials should work
" local operational area activation procedures" with the local station management. This pit;.n will not attempt to address itself to specific to area.
local activation procedures which may differ from area B. Concepts of Operations
- 1. National Level Activation of the National System for Attack Warning or a national emergency is by authority of the President of the United States via control points for the radio and TV networks, AP and UPI News Services and particpating common carriers. In addition, a " wireless" system of interstate "off air" monitoring exists with its origin at the White House via Washington, D.C. I radio station WTOP, ultimately reaching WROR (FM), Boston and the primary relay /CPCS-1 Stations in each of the operational i areas.' The remainder of the Massachusetts stations monitor their' operational area Primary Relay /CPCS Station for "off air" ,
I notification / programming. In addition, a method of combining ' the major national radio and TV networks exists to provide a common National Program to stations holding Emergency Broadcast System authorizations. National level instructions are con-tained in the FCC Publication, EBS Check List. l 2. State Level l Activation of the Emergency Broadcast System (EBS) within the l l State may be by request of the Governor, the Director of the Massachusetts Civil Defense Agency, the Massachusetts State Police or the National Weather Service. Such requests shall be j made directly to the Originating Primary Station, WROR (FM) or I the Operational Area's Primary Relay /CPCS Station (See Appendix I
- 1) who, after airing the EBS Attention Signal, indicates the :
L nature of the emergency and " cues in" the remaining stations in the State EBS network. The State level concept of operations l differs from the National level in that the State does not have access to the radio and TV networks. Thus the system is entirely a radio rebroadcast information procedure, so that all stations l receive and re-transmit the message or program supplied by the i activating agency. '
I E Participation in the Massachusetts EBS is voluntary and at the discretion of station management. Most Massachusetts stations have carried EBS programming or tests. This is accomplished in several ways:
- a. Direct connection to the FCC required "off-the-air" signal monitor.
This is the same receiver which decodes and is activated by the EBS Attention Signal.
- b. A' direct notification by telephone or Radio Remote Pickup Unit (RPU) to the Originating Primary Relay -sta-tion or Primary Relay /CPCS-1 stations in the local operational areas. '
Experience has shown that the National Weather Service (NWS) may have the most requests for activation with weather warnings, while the Governor has used the system for public information during the_ Blizzard of '78 when publishing was at a stand still. Future uses are a practical reality. (See Appendix 3) VI Impl emen ta t ion The following is an explanation of procedures State officials and the broadcast industry should use to implement the State EBS if necessary. A. Procedures for Activating Officials: 1 Request activation of the EBS facilities through WROR
' T e '. . No. (617) 236-6841
- 2. Work out Dioadcast details (i.e. , live or recorded, immediate or delayed) with broadesst station personnel.
- 3. It is recommended that authorized government officials use the following format when delivering the emergency announ- )
cement. The format is deliberately general in nature to allow for the uniqueness of each emergency situation, yet broad enough to insure completeness. e
1 l
- a. aThis is of Nami771tle Jurisdiction with a request to activate tne Massachusetts Emergency Broadcast System. I authenticate as follows .
i (Sta te approiria te Authen tica tor code)
- b. Situation' summary (describe the nature of the emergency),
- c. Actions being taken by local government (s),
- d. Instructions or message to the public.
4 Keep line open if necessary Note. . . If the Greater Boston Metropolitan area and one or more other sectors through WROR (FM). are affected by the warning, activate the system If warning is to affect only one EBS opera-
.tlonal area, activate tha t local EBS opera tional area by following
'the above' procedures to the Common Program Control Station-1 (CPSC-1) in that area (Sco attached map for breakdown of state into Opera tional Areas - Appendix 1-1)
Telephone numbers: P;r ima ry Relag Stations Back Up Merrimack Valley - WCGY - 729-9470 Southeast Mass - WPLM - 746-1390 WHYS- 996-3371 Cape Cod and Islands - WJFK - 775-7400 Cen tral Mass - WSRS - 757-6321 WTAG- 793-9400 Connecticut Valley -
-The Berkshires WFCR - 545-0100 (413) WHYN-413-739-6338 >
WBEC - 499-3333 (413) L .B. Procedures for Broadcast Industry ! 1 Upon receipt of a request to activate the Massachusetts EBS, t. ' the master control operator at WROR-(FM) will begin recording emergency messages and proceed as follows: ,
- a. Broadcast the following announcement:
"WE INTEHRUPT THIS PROGRAM BECAUSE OF A STATE (OR LOCAL) EME RG EN CY . IMPORTANT INFORMATION WILL FOLLOW."
l l L
4.Lb.A '
- b. Tronsait the Energency Broadcast System Two tone Attention Signal:
(FCC Regulations, Part 73, Subpart 0, 73, 906),
- c. Broadcast the following announ* cement:
"WE INTERRUPT THIS PROGRAM TO ACTIVATE THE MASSACHUSETTS EMERGENCY BROADCAST SYSTEM AT THE REQUEST OF. AT "
( time)
- d. Make the emergency announcement. Repeat as necessary and include the source of information and time received.
- e. Official information statements during an actual " General Emergency" at a nuclear power station should be given at no greater than 15 minute intervals.
- 2. Each broadcast station, upon receipt of. a State or Local-level emergency notification will, at the discretion of station management, perform the same procedures as outlined in B. 1.
- a. thru d.
messages. above including recording all the emergency
- 3. To avoid unnecessary escalation and public confusion, all broadcast stations must be cautious in providing information and news pertaining to the emergency. All messages must be based on definite and confirmed facts. The listener must not be lef t to decide for himself what is or is not factual.
4 Upon completion of the above transmission procedures, resume normal programming. Appropriate notations should be made of all significant events as they transpire. These records
-should be carefully preserved in he Engineering Log in the event they are required at some later date.
- 5. Upon receipt of termination notice from activating. official, make the following announcement:
"THIS CONCLUDES OPERATIONS UNDER MASSACHUSETTS EMERGENCY BROADCAST SYSTEM, ALL BROADCAST STATIONS WILL NOW RESUME NORMAL BROADCAST OPERATIONS." (Repeat announcement)
VII. Tests To ensure readiness, the Massachusetts Civil Defense Agency will initiate tests at random times. These tests will be conducted and evaluated by the the Massachusetts Civil Defense Agency with the voluntary particpation of the Massachusetts broadcasters. 7
To assist EBS tests,Massachusetts Broadcasters in complying with FCC weekly State tests Mondays or Tuesdays. Should will be generally conducted on either there be no State test, then the station should conduct its own EBS Attention Signal test la ter in the week (Wednesday, Thursday or Friday). In this way, stations participating in the State test are excused from having to conduct a local test for that week. (FCC Rules and Regulations Section 73 961 (d).). Defense Adency will coordinate with The Massachusetts Civil advunce of a statewide test. the SECC State Chairman in If only one operational area is to be tested, the SECC Area Chairman State shall if Cnairman be possible. notified in advance instead of the SECC The conduct of a State EBS test by the Massachusetts Civil Defense V Agency (M CDA ) will be as follows:
- 1) M.C.D.A. ,
Will contact WROR (or for a test of just one opera-ttonal area, that area's Primary Eelay/CPCS-1 Station)
- 2) I tentify yourself
- 3) Say the following, . "I would like to conduct a test of the Massachusetto Emergency Broadcast System.
- 4) Ask them to repeat the " State test message" on the air.
Appendix 5). (See WHOR or the Primary Relay station in any operational area must issue a test of EBS and read the state test message. Tnis must be done'at, the next available program interruption, but for the test to be valid, althin a half-nour's time. All stations monitoring these primary relay stations shall repeat the test message "on air" at the next available program interrup-tion but within a half-nour's time. Eventually the system will be refined tests. to provide simulcasts of all emergency notification and - Since of Statesupplied the FCC initiated tests contain test script appropriate wording, reading is waived. (FCC Hules and Regulations Section 73.961 (c)) i l 1 t LOCAL MASSACHUSETTS EBS OPERATIONAL AREAS s 1MERRIMAC VALLEYI ' 1 F lBERKSHIRT) [ CENTRAL MASS.1 h [ itseem\ ! l l F r a n k li n
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Worceeler . Middleses lM m 0 BOS E , Hampshire lolk - Hampden . IJ - CONNECTICUT _, VALLEY l I Bristol piymouth I i l SOUTH E AST M ASS. l
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1 CAPE & ISL ANDS l Nansuchet CPCS-1 PHI RELAY l BERKSHIRE WBEC/WBEC (FM) WBEC (FM) CONNECTICUT' VALLEY WFCR (FM) WFCR (FM) CENTRAL MASS WSRS (FM) WSRS (FM) MERRIMAC VALLEY WCCM/WCGY (FM) WCGY (FM) METRO BOSTON WROR (FM) WROR (FM) SOUTH EAST MASS. WPLM AM/FM WPLM (FM) CAPE AND ISLANDS WOCB (FM) WOCB (SM) i 3; 1-1 Appendix 1 2___________. , . . _ . -.. -. . - . - . _ . _ _ - .. , - -. _.
l M ASS ActiUSETTs til% ' F ht) ItE!.AY N1.TW0l>K J L e w r .. n . . 8
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, Agency -
W(IVWR2F l 'a 9 Emergency
- e .
u1 1 1 The Massachusetts Civil Defense Agency, when activating the Emergency Broadcast System (EBS), will contact the Originating Primary Relay radio station in Massachusetts,.namely, WROR/WRKO, Boston. 2.:WROR/WHKO will broadcast the emergency message or instructions. 1
- 3. WCGY in Lawrence and WPLM in Plymouth will monitor WROR, tape the message and re-broadcast.
4 . WJFK in West Yarmouth, will monitor WPLM, Plymouth, tape t her message L and re-broadcast.
- 5. The-chain continues from WROR to WSRS in Worcester, then to WFCR, l Amherst and-rinally on to WBEC in Pittsfield.
6.. All 'other radio and- TV sta tions in Massachusetts will monitor their " L Prima ry. Relay s ta ti o'n (the stations shown on the map) in their geographical area. Geographical areas are shown by the dotted lines. i 7: .
, 1-2
1 LOCAL MASSACHUSETTS EBS OPERATION AL DETAILS BERKSHIRE OPERATIONAL AREA - BERKSHIRE COUNTY AM STATIONS FM STATIONS STA TION FREQUENCY STATION FREQUENCY F ACILI TI8S EBS DESIGN ATION FACILITI6S EBS DESIGN A TION WSBS Oreat B,*rington 360 WJJW (FM) Nortn Adams 89.5 0.25 kW D PRIMARY 0.01 kW PRIMARY-WMNb North AJ *3 1230 WMNB-FM North .d 2.ns 100.1 1 kW U Ph1 MARY 1 kW 460 ft PRIMARY-WBEC Pittsfiel1 1420 WKT0-FM Pittsfleid 101.7 I RE DA-N U PRI CPCS-1 3 kW 145 ft PRIMARY
'WERK Pittsfietd 1340 WUPE-FM Pittsf ield 95.9 1 <W ~U PRIMARY 1.0 kW 560 f t PRIMARY WUHN Pittsfiv.1 1110 'W BEC-FM Pi tts! t eld 105.5 l 5 kJ DA-D PRIMARY 3753 K7 590 f t PgI_ RELAY .
PRI CPCS 1 WTB A-FM Pi t ts t le d 89.7 > 0.30 kW DRIMARY W BSL (FM) Sheffield 91.7
- 0.01 kW 50 ft PRIMARY WRSI (FM) Greenrielt 95.3 rv STATIONS PHIMARY i
STATION FREQUENCY WCWL (FM) Stockbridge 91.3 FACILITIES EBS r>ESIGN A TION 1.34 kW 4 ft PRIMAAY dClic (TV) . CH 19 WCFM (FM) W111i4mstovi 91.9
.1.16 44 2100-rt PRIMARY 0.44 kW - 750 ft PRIMARY estations Corrently Participating i r. Broadcast Sta tion Pi ctect!an Program ( B S P I' > -
1-3
LOCAL MASSACHUSETFS EBS OPERATIONAL AREA DETAILS I CUNNECTICUT VALLEY OPERATIONAL AREA - FHANKLIN. RAMP 3'llRE & HeiPDiN COUNTIES FN STAfiUNS AM STATIONS SIATION FREQUENCY FACILI TIE 5 EBS DESIGNATION ~V STAT 10NS 3TATION FREQUENCY WAMH(FM) Amherst PACILITIES 59 3 I EBS DESIGNATION 0.15 kW 720 it FRDiARY STATION FREQUEUCY STTT Amh:rst FACILITIES EBS DESIGNAT!Cri 1430 WFCR (FM) Amharst 88.5 )jtW DA-D TRIMARY 35 kW 720 ft PHI RELAY WGBY-TV Springfield CH 57 > PRI CP':S-1 776 kW 1000 ft PRDiAhi ?NCEChicopee 730 }s kW D FRIMARY : WMUA(FM) Amherst 91.1 WGGB .3ringfield 1 CH 4) 1 kW 27 ft PRDiARY 3680 kW 1000 ft NON EB:- IXY East Longmeadow 1600 4 );5/5kWDA10 PRIMARY 'WHAl-FM Greenfield 98.3 WLP(IV) Springfield CH 22 3HAIGreenfield 1240 '.kW U PRIMARY WCCH(FM) Holyoke 89.5 0.01 kW PRIMARY lPOE Greenfield Primary IOVWD . l REB Holyoke 930 NffiP-FM Northampton
.5 kW D 99 3 .
PRIMARY 3 kW 300 ft PRIMARY "ftiP N:rthampton 1400 WMCH (FM) South Hadley 91.5 I kW U PRIMARY 0.01 kW PRDiARY '
$ATOrange 700 WAIC(FM) Springfield 91.9 kW D PRD4ARY 0.13 kW 66 ft PRIMARY "YN Springfield 560 WAQY(FM) Springfield 103.1 5 kW DA-2 U PRIMARY 17 kW 780 ft PRDIARY LAS Springfield 1450 WHYN-FM Springfield 03 1 kW U PRIMARY 10 kW 940 ft PRDIARY F bPR Springric1d 1270 WMAS-FN Springfield '#U.7 f5kWU' PRIMARY 50KW 170 ft FRD'ARY 1RE W:r] 1250- WSCB(FM) Sprirgrield 19.9 ,kW DA-N U PR DIARY 0.01 kW NON EBS DM W:3tfield 1570 WTCC(FN) Sprirgrield 90.7
- 5. kW D PRIMARY 4 kW 115 ft NON EBS hQ 'W
- st -Springfield 1490 WTRZ(FM) Sprirgfield 39.1
'kW DA-D U NON EBS 0.01 kW 80 ft PRDiARY WSKB(FN) Westtield 91.5 0.01 kW 130 ft NON EBS WNEK (FH) Springfield 97.5 PRIMARY ;tations currently partlepating in the Broadcast Station Protection Program (BSPP) 1-4
LOCAL MASSACHUSE TT3 E3S OPEHATION AL AREA DETAILS
~ CENTRAL' MASS OPERATIONAL AREA-WORCESTER AND P/O MIDDLESEX & N ~~~
AM-STATIONS FM. ST A TION S STATION FREQUENCY STATION FACILITIES FREQUENCY EBS DESIGNATION FACILITIES EBS DESIGNATION WEIM Fitchburg 1280 WXLO(FM) Fitchburg
-1/5 kW DA-2 U PRIMARY 104.5 37 kW 563 ft PRIMARY WFGL Fitchburg 960 WGA0(FM) Franklin 1 kW DA-2 U PRIMARY 88.3.
0.125 kW 95 ft PRIMARY WGAW Gardner 1340 WAYM(FM) Maynard 1 kW U PRIMARY 91.7 ! 0.125 kW 43ft NON EBS WLMS Leominster 1000 WQVR(FM) Southbridge 1 kW D 100.1 PRIMARY 3 kW 295ft PRIMARY l WSRO Marlboro 1470 WSRB(FM) Walpole 5 kW PRIMARY 91.5 l 0.01 kW 83 ft PRIMARY ' WMRC.Milford 1490 WAAF(FM) Worcester 1 kW 107 3 J PRIMARY 16.5 kW 780 ft PRIMARY ~ ! WESO Southbridge 970 WCUW(FM) Worcester 1 kW D PRIMARY 91 3 L 0.08 kW 37ft PRIMARY WFTQ Worcester 1440 WICN(FM) Worcester 90.5 5 kW DA-2 U PRIMARY 2 kW 370 ft PRIMARY WNEB Worcester 1230 WSRS(FM) Worcester 96.1 l 1 kW U 25 kW 640 ft PRI RELAY ' l ' PRI CPCS T l WORC Worcester 1310 1 1/5 kW DA-2 U PRIMARY WMWC (FM) Gardner : PRIMARY ; eWTAG Worcester 580 5 kW DA-2 U PRI CPCS-2 WBPV (FM) Charlton
. PRIMARY WGFP-Worcester 940 1 1.0 KW PRIMARY WINQ (FM) Winchendon 97.7 1.27 kW 439 ft PRIMARY WCMX Leominster 1000 PRIMARY WNRC (FM) Dudley !
PRIMARY WCHC (FM) Worcester i PRIMARY TV STATION FREQUENCY > FACILITIES EBS DESIGNATION WHLL-TV Worcester CH 27 513 kW 1531 ft NON-EBS OStation.s Currently Participating in the Broadcast Station Protection >
!- Programs (BSPP) 1-5
I ! i LOCAL MASSACHUSETTS EBS OPERATIONAL _ AREA-OPERATIONAL DETAILS DETAILED MASSACHUSETTS EBS OPERATIONAL PLAN - MERRIMAC V ALLEY OPE MERRIMtc VALLEY OPERATIONAL AREA-P/0 ESSEX & MIDDLESEX CO. j AM STATIONS FM STATIONS STATION FREQUENCY STATION ;
-FACILITIES FREQUENCY EBS DESIGNATION FACILITIES EBS DESIGNATION l WNSH Beverly 1570 WPAA(FM) Andover 0.5 kW DA-D 91.7 NON-EBS 0.01 kW NON EBS WHAV Haverhill 1490 - WVCA-FM 01ouces ter 104 9 1 kW U PRIMARY 7'kW 50 f t NON EBS-
*WCCM~ Lawrence 600 WLYT-FM Haverhill T~EW D 92.5 PRI CPCS-1 50 kW 350 ft PRIMARY ;
WCAP.Lowell 960 *WCGYtFM) Lawrence i 5 kW D A-2 U 93.7 PRIMARY 56 EW 430 ft PRI RELAY WLLH Lowell 1400 PEN 57 ~ 1 kW U PRIMARY WJ UL (FM) Lowell 91.5 s WCEA Newburport
- 1. 7 kW 39 f t PRIMARY 1450 0.5 kW D.'- PRIMARY WSSH(FM) Lowell 99.5 39 kW 550 ft PRIMARY t WQLi(FM) Newbury 66.7 0.01 kW 55 ft PRIMARY WMMC(FM) North Andover 90.5 0.01 kW 56 ft PRIMARY i WBMT(FM) Topsfield 66 3 0.71 kW PRIMARY
- Stations Currently Particpating in the Broadcast Station Protection Program (BSPP) -
(WCCM/WCGY - currently scheduled to be included in program.) 1-6 i
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k LOCAL MASSACHUSETTS EBS OPERATIONAL AREA-DETA2LS METRO BOSTON OPERATIONAL AREA SUFFOLK CO AND P/0 ESSEX, MIDDLESEX AND NORFOLK CO. AM TTATIONS STA TION FREQUENCY FACILITIES EBS DESIONATION AM STATIONS (con't) WMEX Boston 1150 WLVO Cambridge 5 kW DA-2 U 740 PRIMARY 0.25 kW D PRIMARY
'WBZ Boston '
1030 WK0X Framingham 1206 50 kW DA-1 U PRIMARY 1 kW D PRIMARY WEEI Boston 590 WLYN Lynn 5 kW DA-1 U 1360 PRIMARY 1 kW D PRIMARY WEZE Boston 1260 WXKS Medford 5 kW DA-N U 1430 PRIMARY 5 kW D PRIMARY
*WHDH Boston 850 WXLJ Sudbury :
50 kW DA-2 U PRIMARY PRIMARY WILD Boston 1090 WTTP Natick ' 1 kW D 1060 PRIMARY 2.5/25 kW DA-2 U PRIMARY WRKO Boston 680 WNTN Newton 50 kW DA-2 U 1550 PRIMARY 10 kW D PRIMARY WMRE Boston- 1510 WJDA Quincy ' 50 kW DA-2 U 1300 PRIMARY 1 kW D PRIMARY I WROL Boston 950 WESX Salem 5 kW D 1230 PRIMARY 1 kW U PRIMARY WUNR Brookline 1600 WDLW Waltham 5 kW DA-1 0 1330 PRIMARY 5 kW DA-2 U PRIMARY : WJCC Norfolk 1170 PRIMARY eStations Curently Participating in the Broadcast Station Protection Program (BSPP) 1 (FM & TV - Next Page) 1-7
~ _s l . LOCAL MASSACHUSETTS EBS OPERATIONAL AREA-DETAILS i METRO BOSTON OPERATIONAL AREA (CON'T) ' SUFFOLK CO. AND P/O E5SEXt_MIDDLESEX AND NORFOLK CO. ; TV STATIONS 4 57ATION FREQUENCY ! FACILITIES EBS DESIGNATION ) [M _ST A TION S WBZ-TV Boston 4 y CH STATION 60 3 kW 1160 f t PRIMARY - FREQUENCY l FACILITIES
-~ 'EBS DESIGNATION WCV B-TV Bos ton
~
~~~~ CH 5 WBCN(FM) Boston 100 kW 960.6 f t PRIMARY 104.1 -
19 kW 740 ft PRIMARY WOBH-TV Boston CH 2 50 kW 1040 ft 3 PRIMAF; WBUR(FM) Boston 90.9 50 kW 260 ft PRIMARY WG BX-TV Bos ton CH 44 ! 251 kW 1090 PRIMARY J WMJX(FM) Boston 106.7 21.0 kW 720 ft PRIMARY WNEV-IV Boston CH 7 ' WZOU(FM) Boston 316 kW 1000 ft PRIMARY 94.5
- 7. 7 kw 1050 f t PRIMARY WQTV(TV) Boston CH 68 WZLX-FM Boston 1337 kw 870 ft PRIMARY :
100.7 21.0 kW 720 f t PRIMARY WXNE-IV Boston CH 25- l 741 kW 1160 ft PRIMARY - WMRQ-FM Bos ton 103 3 12 kW 690 ft PRIMARY WSBK-TV Bos ton CH 38 . 1170 kW 1180 f t PRIMARY ' WE RS( FM) Boston 60.9
- 3.0 kW 727 ft PRIMARY WL VI-TV Cambridge CH 56 2240 kW 1180 ft PRIMARY WGBH(FM) Boston 89.7 100 kW 670 ft PRIMARY FM STATIONS (con ' t )
WDJM(FM) Framingham 91 3 WJIB(FM) Boston 95.9 0.01 kW NON-EBS 12.5 kW 1010 ft PRIMARY i WVBF(FM) Framingham 105.7-1 WRBB(FM) Boston 104.9 10. 5 kW 950' f t PRIMARY
'O 01 kW 106 ft PRIMARY WHHB(FM) Holliston 91.5 0.01 kW PRIMARY l
WFNX(FM) Lynn 101.7 3 kW 300 ft PRIMARY - WMF0(FM) Medford 91.5
- Stations currently participating 0.01 kW 75 ft NON EBS in the Broadcast Station Protection, Program (BSPP) WXKS-FM Med ford 107.9 21 kW 710 ft PRIMARY WMLN-FM Milton 91.5 0.01 kW 100 ft NON EBS 1-6
~ . .
METRO BOSTON OPERATIONAL AREA (CONTINUED) FM STATIONS (Con ' t) FREQUENCY FREQUENCY _EBS DESIGNATION EBS DESIGNATION
*WROR(FM) Boston 98.5 WZBC(FM) Newton 5.o kW 1190 ft ORIG PRI RELAY 90 3 1 kW 220 ft PRIMARY PRI CPCS-1 W BRS( FM) Waltham 100.1 WBOS(FM) Brookline 92.9 0.01 kW NON-EBS 15.5 kW 880 ft PRIMARY WCRB(FM) Waltham 10 2. 5 WHRB(FM) Cambridge 95.3 11 kW 920 f t PRIMARY 3 kW 100 ft PRIMARY WRSB(FM) Weston 88.3 I WMBR(FM) Cambridge 88.1 0.01 kW 45 ft 0.01 kW PRIMARY NON-EBS WUMB(FM) Boston 91.9 WIZH(FM) Concord 88.3 PRIMARY 0.01 kW PRIMARY WHAB(FM) Acton 88.7 PRIMARY PRIMARY WMWM(FM) Salem 91.7 :
PRIMARY ' i l 1-9
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f LOCAL MASSACHUSETTS EBS OPERATIONAL AREA-DETAILS i SOUTHEAST MASS OPERATIONAL AREA ; BRISTOL AND PLYMOUTH CO l l AM STATIONS FM STATIONS STATION FREQUENCY STATION FACILITIES FREQUENCY : EBS DESIGNATION FACILITIES EBS DESIONATION I WARA A ttleboro 1320 WBIM-FM Bridgewa ter 1 kW DA-2 U 91.5 i PRIMARY 0.01 kW 108 ft PRIMARY WBET Brockton 1460 WBET-FM Brockton 1/5-kWEDA-N U 97.7- 1 PRIMARY 3 kW 280 ft PRIMARY l WATD Brockton 1410 WMCI-FM Brock ton 1 1 kW DA-D PRIMARY i PRIMARY WALE Fall River 1400 W SHL- FM 1 kW'U 91 3 > PRIMARY 0.01 kW 74 ft PRIMARY ;
'WSAR Fall River 1080 WJ FD( FM ) New Bedford 97.3 5 kW DA-2 U PRIMARY 50 kW 285 ft NON-ED WBSM New Bedford 1340 WMYS(FM) New Bedford 1/5 kW DA-2 U 98.1 PRIMARY 28 kW 500-ft PRIMARY WJCC Norfolk 1170 WUSH(FM) North Dartmouth 90.5 l PRIMARY 0.01 kW 72 ft PRIMARY WNBH New Bedford 1340 WPLM-FM Plymou th 0.25/1 kW U 99.1 PRIMARY 50 kW E30 ft PRI RELAY PRI CPCS-1 ,
WPLM Plymouth 1390 WRPS Rockland 5 kW DA-2 U 91.5 PRI_CPCS-1 0.01 kW 90 ft PRIMARY l WPEP Taunton 1570 WCAV-FM Brock ton l 1 kW D PRIMARY PRIMARY WSRB Walpole WSNE (FM) Taunton 93 3 PRIMARY 50 kW 340 ft PRIMARY WATD(FM) Marshfield 95 9 3 kW 220 ft- PRIMARY TV STATIONS STATION FREQUENCY FACILITIES EBS DESIONATION WLNE (TV) New Bedford CH 6 80 kW 940 ft PRIMARY
- Stations Currently Participating in the Broadcast Station Protection Program (BSPP) 1-10
e LOCAL MASSACHUSETTS EBS OPERAT20NAL AREA-DETAILS CAPE & ISLANDS OPERATIONAL AREA BARNSTABLE. DUKES. AND NANTUCKET CO. FM STATIONS STATION -FREQUENCY FACILITIES EBS DESIGNATION AM STATIONS WORC(FM) Barnstable 99.9 F6 EW 330 ft i STATION FREQ *JEN CY ~PRI CPCS-2 FACILITIES EBS DESIGNATION WCIB(FM) Falmouth 101 9 t WKPE' Orleans 50 kW 240 ft PRIMARY 1170 1 kW D P. TIM A RY WCOD-FM Hyannia 106.1 WOCB West Yarmouth 25 kW 125 ft PRIMARY 1240 "T~Es U PRI :PCS-1
--~~~ WKPE-FM orleans 104.7 50 kW 300 ft PRIMARY WKKL(FM) West darns table 91.1 0.01 kW 71 ft PRIMARY WJ FK ( FM ) West Yarmouth 94.9 56 iihT32 ft PRI RELAY PET CPCS 1 WSDH (FM) Sandwich 91.S PRIMARY ,
WMVY (FM) Tisbury 92.7 PRIMARY , WOMN Provincetown 91.9 1.0 kW 155 ft PRIMARY
'aXYJ Nantucket 96.3 50 kW PRIMARY L-l L
l 1-11
i i-EBS MONITORING _ ASSIGNMENTS L.
- 1. The Originating Primary Relay Station WROR(FM) monitors an out of state major networks (s).
I
- 2. The Primary Relay Stations in the operational areas adjacent to the Mecro-Boston area will monitor WRCR(FM). These are the Merrimac Valley, Southeastern Massachusetts, and Central Massachusetts opera-tional areas.
- 3. The Cape and Islands Palmary Relay Station will monitor the Southeastern Massachusstts area Primary Relay Stations.
4 The Connecticut Valley Primary Relay Station will monitor the Central Massachusetts Primary Relay Station. : I
- 5. The Berk- tre area Primary Relay Station will monitor the Connecticut Valley Primary Relay Station.
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! THE MASSACHUSETTS . EMERGENCY BROADCAST SYSTEM , AGREEMENT BETWEEN , THE BROADCAST INDUSTRY OF MASSACHUSETTS i AND THE ' NATIONAL WEATHER SERVICE 1979 3-0 Appendix 3
I I PURPOSE I Th3 purpose of this document is to provide procedures agreed upon by the brCadcast industry of Massachusetts and the National Weather Service which ! w2ather informationNational porait designated Weather Service officials to issue emergency and instructions in threatened or actual emergencies,
)
j AUTHORITY Title 47 U.S.C. 151, 154 (1) and (o), and 303 (r); Chapter 1, Part 73, Subpart G, Feoeral Communications Commission Rules and Regulations, Radio l Broadcast Services, Emergency Broadcast System (EBS) as pertains to day-to-dcy emergency operations. )'
. INTRODUCTION
) These procedures were prepared by the Emergency Committee of tne Mcssachusetts Broadcasters Association and the National Weather Service. ! Tha Boardthis endorsed of Directors of theoperational EBS weather Massachusetts plan. Breadcasters Association has This document provides ba:kground data and prescribes specific procedures for the broadcast media and the National Weather Service to disseminate cmorgency weather warnings and pertinent weather information to the general public in Massachusetts, or any portion thereof within a station's broad-cast coverage capability, at the request of designated National Weather Scrvice personnel. The plan also envisions involvement of ti e broadcast m3dia as may be appropriate in areas contiguous or adjacent to the involved operational area and for other related mutual aid arrangements (Southern Now Hampshire, Southern Vermont, Northern Connecticut and Northern Rhode Island). Acccptance of, or participation in this plan shall not be deemed as a L relinqui.shment of program control and shall not prohibit a license from ) exercising his independent discretion and responsibility in any given aituation, except for relay responsibilities for certain designated primary relay stations. Stations originating emergency communications'shall be deemea to have con-ferrod reoroadcast authority (Reference, FCC rules 73.93S (6)). A system of FM radio stations has been set up to enable the state-wide dissemination of information regarding threats to the safety of 1ife and property including weather warnings and severe weather information. These l dosignated primary relay stations are shown on the map on figure 1. (Page 3-7)
> Acceptance of thi s agreenent does not prevent formulation and acceptance of agroements between the broadcast industry, the Massachusetts Civil Defense ,
sg0ncies and local nfficials concerning EBS use during non-weather emorgencies; le, nuclear accidents, toxic gas spillages, etc. This docu- ' mOnt-pertains only to the various weather emergencies and procedures agreed
- to by the broadcast industry and the National Weather Service, nor does it ,
provent or discourage participation in the EBS plans of other states in ' areas wnere local radio coverage spans into the adjacent states; for example, radio station WHYN in Springfield should continue to monitor the Connecticut Primary EBS Station in addition to the Massachusetts Primary Rolay Statin to provide its listeners in Northern Connecticut with omergency weatner information. 3-1
~ GENERAL PROCEDURES FOR THE USE OF BROADCAST FACILITIES A. When a short-fuse weather warning is issued by the National Weather Service (NWS), the NWS will notify the Massachusetts Emergency Broadest (EBS) Primary Relay Station, radio station WROR-FM in Boston, or, at the options of the NWS, the operational Primary Relay Station / Common Programming Control Station (CPCS-1) in a more local avea if the emergency warning applies to that area only. See Fig. 2.
- 2. Short-fuse weather warnings will be defined as:
- a. Severe thunderstorm warnings !
- b. Tornado warnings
- c. Warnings of flash floods, or extensive small river, stream and street flood in g
- d. Warnings of a rapidly developing major severe winter storm, and l j
- e. Hurricane warnings (under certain conditions such as a rapid change in movement or direction).
B. Responsibility for the request of the emergency broadcast system acti-vation during weather events will rest with the Meteorologist-in-Charge (MIC) of the National Weather Service Forecast Office in Boston or the Official-in-Charge of the National Weather Service Office in Worcester or designee.
'C. It is incumbent upon the primary relay stations to relay warning in for-mation whether or not said warning is relative to that station's listenin0 area to ensure complete distribution of warnings. The National Weather Service, in turn will make every attempt to activate only that portion of the state's EBS directly concerned with the warning area to minimize relaying responsibilities. (See Fig. 2 Page 3-8)
The EBS primary relay stations are: WROR(FM) Boston WSRS(FM) Worcester WFCR(FM) Amherst WPLM(FM) Plymouth WCG Y (FM) Lawreace WOCB(FM) West Yarmouth WBEC(FM) Pittsfield D. When severe weather watches and warnings are issued by the NWS, radio and television stations in Massachusetts can receive hard copy of the - watch or warning over any of the following teletype networks: NOAA Weather Wire (Massachusetts Weather Not) Associated Press (AP) United Press Internation (UPI) 3-2 ,
i i to Conaunications between the NWS and the broadcast facilities include commercial telephone line. telephone service both listed and a media-only unlisted i, I i i I i e h e f V l t i I o 1
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3-3
i NATION AL WEATHER SERVICE PROCEDURES Upon issuance of a short-fuse warning (as defind on page 2), activate the Mkssachusette EBS using the following procedures: 1 Call the Primary Relay or' Common Program Control Station (CPCS-1):
- a. If the warning is issued for a certain small portion of the state only (ie. The Berkshires, or the Merrimac Valley), activate the EBS
.for tnat portion of the state through the CPCS-1 in that sector.
(See Fig. 2)
- b. If the warning af fects several continguous areas (ie, the Conne:ticut Vallny ard the Berkshires)
,e Station in the affected ar'ea which is closestactivate to the Primary Boston (or Relay Worce ster) . In the case in which both the Connecticut Valley and the Berkshires are affected, activate the EBS through WFCR(FM) in Amherst or the bockup station WHYN in Springfield)
- c. If thi 3reater Boston Metropolitan Area (GBMA), or GBMA and one or more oatiguous nreas, or all of Massachusetts is within the weather warning, activate the EB3 tnrough WROR(FM). If Worcester County or i Worcester County and the activite through WSRS(FM) Worcester.
Connecticut Valley is within the warning, 2. Give le...... the Aprilsutnenticat:on 10 th . . . . Maycode 22ndwhich
. . . . . is e tthe
- c. ) current month and da te. . . . . .
"Id!S IS JOHN DOE,- METEOROLOGIST AT THE NATIONAL WE ATHER SERVICE !
IN BDSTON TWORCCSTER) WITH A REQUEST TO ACTIVATE THE MASSACHUSETTS ' EMERGENCY BROADCAST SYSTEM (OR PART THEPEOF). I AUTHENTICATE AS F.)LLOWS. . . . J UN E 10 TH"
- 3. Describe briefly the situation requiring EBS activation.
4 When_given the go-ahead, read the warning message and include safety I actions which should be taken. !
- 5. Follow through with frequent timely statements to keep the public fully informed of the situation - each time activating the EBS' system as in step 1 through 4 above.
- 6. Terminate as soon as conditions warrant.
Telephone numbers of the CPCS-1 Stations 5 Primary CPCS-1 Stations Greater Boston WROR(FM) Boston 236-6841 Merrimac Valley WCCM /WC0 t ( FM) Lawrence 683-7171
' Southeast Massachusetts WPLM/WPLM(FM) Plymouth 746-1390 Cape Cod and Islands WOC B/WJ FK ( FM) West Yarmouth 775-0500 :
Central Massachusetts WSRS Worcester 757-6321 . Connecticut Valley WFCR Amherst 413-545-0100 The Berkshires WBEC/W BEC( FM ) Pittsfield 413-499-3333 Backup s ta t ion s l Cen tral Ma tsachusetts WTAG Worcester 793-9400 f Connecticut Valley WHYN Springfield 413-739-6338 ; Cape. Cod & the Islands WQRC Barnstable 771-1224 { Southeast Massachusetts WMYS New Bedford 996-3371 l
i i OBROADCAST_ PROCEDURES 4 A. Upon receipt of a request to activate tne EBS, the control operator at tne Primary Relay or CPCS-1 station will proceed as follows: !
- 1. Activate the taping device I
2. When ready, the warning give the go-ahead to the Weather Service personnel and tape i message '
- 3. While taping the message, transmit the Emergency Broadcast System atten.
tion signal (FCC Regulation Part 73, Subpart c. 73, 906)...and... Broadcast the following announcement: 4 "WE INTERRUPT THIE PROGRAM TO ACTIVATE THE MASSACHUSETTS , EMERGENCY BROADCAST SYSTEM AT THE REQUEST OF THE NATIONAL WEATHER SERVICE. IMPORTANT WEATHER INFORMATION WILL FOLLOW."
- 5. As soon as the message taping is completed, broadcast it
- 6. Repeat, if necessary, including the source and time of the message. '
'B.. Each Primary Relay station, as they receive the taped message, will follow the above procecures broadcasting tne warning information to their listening crea and to their respective stations and, at the same time, relaying the message to the next area. (In general, the Massachusetts EBS is set up to relay messages from east to west across the state; ie, a message from the NWS at Boston will be transmitted first to WBOR(FM) in Boston, then to the +
relay station at Worcester - on to Amherst and finally to Pittsfield). !C. Local broadcast stations will, as soon as the message is received and taping
= completed, follow the procedures from A-1 through A-6 above to complete the. total distribution of-the warning to all listeners within the state.
1 To avoid-unnecessary puolic confusion, all broadcast stations must be cautious in providing information and news pertaining to the. emergency. Do not broadcast rumors; make every effort to verify reports of severe weather before broadcasting. All messages must be based on' definite and confirmed facts. lL. Freauent follow-up messages will be broadcasted by the NWS to keep the _r 0110 fully informed of-tne progress of the storm. The apove procedures , snauld be used in all subsequent message distribution. 1 F. Upon completion of the weather emergency, the NWS will activate the EBS for the all-clear announcement and stations snould then make the following announcement: L e l
"THIS' CONCLUDES OPERATIONS OF THE MASSACHUSETTS EMERGENCY BROADCAST SYSTEM. WE NOW RESUME NORMAL BROADCAST OPERATIONS."
3-5
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1F. . Appropriate notations should be made of all signiricant e v en t s . 'a s
. they transpi ., Tnese records should be carefully- preserved in the
- event that ade:--! squired at some later-'date.
.G. . } Send a very 'brief summary to the FCC for informational purposes-only.
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RIFE & ISLANDS l Nantucket CPCS-1 PRI RELAY BERKSillitE W llE C /W lir.il- F M WBEC-FM CONNECTICllT VALLEY WFCH (FM) WFCR (FM) CENTRAL MASS WSRS (FM) WSRS (FM) MERRIMAC VALLEY WCCM,WCGY (FM) WCGY (FM) METH0 BOSTON Witoll (FM) WHOR (FM) SOUTil EAST MASS. WPl M AM.'Fil WPLM-FM CAPE AND I SL A N I). WOCB ( f.M ) / WJFK FM) WRZE (FM) l Il lg. l- W 4 - _ . . .. .. _
w s c MASSACHUSETTS-EMERGENCY BROADCAST SYSTEM (EBS) ATTACK WARNING-SCRIPT THISLSCRIPT TO BE RESERVED FOR USE IN THE EVENT OF ATTACK WARNING (OR ,
' ACCIDENTAL NUCLEAR' MISSILE LAUNCH) (EDIT AS NECESSARY)..
LTHE MASSACHUSETTS' EMERGENCY BROADCAST SYSTEM-(EBS) HAS BEEN ACTIVATED BY.THE MASSACHUSETTS-STATE WARNING POINT TO BROADCAST THE FOLLOWING
. WARNING INFORMATION. (PARAPHRASE OR SIMULCAST WROR's MESSAGE) THE NORTH AMERICAN AIR DEFENSE COMMAND, (NORAD) HAS JUST DECLARED THAT 4
THE UNITED STATES IS UNDER (ACCIDENTAL) ATTACK AND THAT CITIZENS- I SHOULD~TAKE PROTECTIVE ACTION IMMEDIATELY! THIS MEANS THAT THE l POSSIBILITY.0F NUCLEAR WEAPONS STRIKING THIS COUNTRY IS IMMINENT AND RESIDENTS SHOULD SEEK SHELTER IMMEDIATELY! SIRENS MAY'EE SOUNDING IN YOUR COMMUNITY AT THIS TIME...IT IS NOT4 A FIRE...IT IS A WARNING THAT THIS COUNTRY IS UNDER (ACCIDENTAL) ATTACK. YOU ARE TO SEEK SHELTER AS BEST YOU CAN, INCLUDING IMPROVISED BASEMENT SHELTER OR PUBLIC SHELTERS. THIS ANNOUNCEMENT
'HAS BEEN-VERIFIED. THIS IS NOT A TEST... CITIZEN ACTION IS URGENT AND NECESSARY. IF'YOU PLAN TO USE YOUR HOME AS A SHELTER, TAKE'THE
'FOLLOWING ACTIONS IMMEDIATELY.... DRAW WATE.9 RESERVES IN T"E BATHTUB, LOCATE FLASHLIGHTS AND BATTERIES FOR PORTABLE RADIOS, DRAW WINDOWS 1
-AND-SHADES, RELOCATE FAMILY TO THE BASEMENT AND ',ISTEN FOR OTHER PROTECTIVE MEASURES TO BE BROADCAST BY THIS STATION.
4-1
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6 MASSACHUSETTS EMERGENCY BROADCAST SYSTEM SCRIPT-SEQUENCE STATE TESTS
+ ,
n _ SCRIPT FOR MASSACHUSETTS STATE LEVEL EBS TESTS
.THIS'IS A TEST. THIS STATION WILL CONDUCT A. TEST-OF THE hASSACHUSETTS EMERGENCY BROADCAST SYSTEM. THIS IS ONLY A TEST. H m +
(25 SECONDS OF SILENCE FOR THE EBS TONES) 1. J
'THE MASSACHUSETTS CIVIL DEFENSE AGENCY HAS REQUESTED THIS TEST OF-THE MASSACHUSETTS EMERGENCY BROADCAST SYSTEM. THE BROADCASTERS OF
- na YOUR AREA IN VOLUNTARY COOPERATION WITH THE MASSACHUSETTS CIVIL DEFENSE ~ AGENCY AND OTHER AUTHORITIES, HAVE DEVELOPED THIS SYSTEM TO
-KEEP YOU INFORMEDLIN THE EVENT OF AN EMERGENCY. HAD THIS BEEN AN t ACTUAL. EMERGENCY, THE. ATTENTION SIGNAL YOU JUST HEARD WOULD HAVE BEEN FOLLOWED BY OFFICIAL INFORMATION, NEWS OR INSTRUCTIONS. THIS STATION SERVES THE (insert name of) OPERATIONAL. AREA.
1.THIS CONCLUDES SYSTEM. THIS TEST OF THE MASSACHUSETTS EMERGENCY BROADCAST ' n
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y , a s- {.4 . , OFFICIALS AUTHORIZED TO' ACTIVATE THE STATE EBS
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(The following- is a list of officials authorize'd to activate the
. Massachusetts Emergency Broadcast System.
J
-JURISDICTION' TITLE NAME JMassachusetts Governor Massachusetts Michael Se Dukakis Masachusetts' State Civil Defense Director Robert J. Boulay (or Deputy Director) John L. .Lovering
> Massachusetts State Civil Defense Area Directors Area I - Northeastern. Mass. Act Dir. Kevin Tully. 'l Area-II- Southeastern Mass. Tom Rodger "
Area III-Central Mass. Act Dir. Henry Gamache Area IV- Western Mass. John Pappas Massachusetts Stat.e Police Commissioner .
~FGderal Na*,.onal Weather Service Chief Duty Officer 1Any1 questions concerning this plan should be directed to the Operational
. Area Co-Chairman. Area Co-Chairman will obtain guidance from either of
- the; state level Co-Chairman, namely:
Douglas J. Rowe : 21 Cotting Street Marlboro, MA 01752- T
-Telephone: (617) 485-5555 James Bayley 403. Main Street Norwell, MA 02061 Telephone: (617) 659-2106 ;
I ( i 6-1 ! 1
g p t. i' AUTHENTICATION: INSTRUCTIONS FOR THE MASSACHUSETTS EMERGENCY BROADCAST SYSTEM
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. In the pas t,: requests for activation of the Emergency Broadcast 1 i
System'(EBS) would be accompanied by the authenticator code words-as
. distributed by the Federal Communications Commission (FCC).at six month-
. intervals to all radio and television stations. Recently, the FCC has requested that we refrain from the use of these code words as they are for use at. National-level tests only. Therefore, should a radio or TV statior receive ~ a: phone call- for- EBS activation and the caller is unknown, or ,that the station may have reason-to suspect it is a faudu-11ent call, an immediate phone call to the calling organization (Civil Defense, Sta te Police,, Na tional Wea ther, etc. ) and to the individual who
.placed the original call should be made and the emergency situation verified.
For this reason an updated telephone list of the agencies
- responsible for EBS activation should be ~ readily available.
V i E t l' l
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'm _ _. ,
t 3 s MASSACHUSETTS STATE EMERGENCY - COMMUNICATIONS COMMITTEE The State Emergency Comunications Committee-(SECC) Co-Chairman are
; appointed 1by'.the Federal Communications Commission (FCC) and are as follows:
Douglas J. Rowe, Co-Chairman
-21'Cotting St.
- Marlboro, MA 017S2 MASSACHUSETTS OPEHATIONAL AREA EMERGENCY COMMUNIC ATIONS COMMITTEE ine Local Operational Area Emergency Communications Committee Co-Chairman are appointed by the Federal Communications, Commission (FCC) and are as follows:
B83K5HIi6 OPERATIONAL AREA - Berkshire County Donali Colaman t Co-Chairman Paul Willey, Co-Chairman WBHK WMNB 8-1
o b CONNECTICUT VALLEY OPERATIONAL AREA-FRANKLIN. HAMPSHIRE AND HAMPDEN COUNTIES Charles-Ferguson Co-Chairman Paul Donovan .Co-Chelrman WFCR WHYN CENTRAL MASS OPERATIONAL AREA-WORCESTER AND PART OF MIDDLESEX & WORCESTER COUNTIES John'Andrews- Co-Chairman -John Flynn Co-Chairman WTAG W3gs MERRIMAC VALLEY-OPERATIONAL AREA-PART OF-ESSEX AND MIDDLESEX COUNTIES Ike Cohen Co-Chairman Steve Boudreau Co-Cha i rma n -- WCAP WHAV 8-2
- _ _ - - - = - _ _ _ - _ - _ _ _ _ _ - _ _ _ .
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i p __Co-Cnairman Paul Hurd -Co-Cnaleman WHDH ' 1 g SOUTHEAST MASS. OPERATIONAL AREA-BRISTOL AND PLYMOUTH _ COUNTIES i
' Paul.Doherty :o-Chairman _
_ _ _ __C o- Ch a i rtha n tPLM-1 i
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[' 1 LAPE'AND :SL ANLS OPSR A TION AL ARE A-BA RN S TA BLc', l-l- DUK :S AND N ANTJCKET COUNTIES Douglas M. Shackett Co-Cnairman Joseph'Jarioura Co-Chairman t WKPE. - WCIB l
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MAS $ACHUSETT3 COUNfva E9988 ugest thee9 est?tStt 505tC38 808VLAf9N1I*1 665.900 ftLfvets0N 408: imta0: I=$30 806?ON . ETHNIC wef4 wt>vt estTWO estilthv eWistae
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l + ' i I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ! i ATOMIC SAFETY AND LICENSING BOARD Before the Administrative Judges: l t ' 1 Ivan W. Smith, Chairman o Dr. Richard F. Cole p Kenneth A. McCollom I
)
In'the Matter of ) 1 Docket Nos. 50-443-OL-
) 50-444-OL PUBLIC SERVICE COMPANY )
OF'NEW MAMPSHIRE, EIE&L. )
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(Seabrook Station, Units-1 and 2) ) October 27, 1989 R l
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4
. AFFIDAVIT OF JOHN F. BASSETT REGARDING l
THE VOIDING OF THE EBS LETTERS OF' AGREEMENT I'
~ I, John F.
Bassett, being duly sworn,-state as'follows:-
- j. l.-
L I am the manager of WCCM (A.M. )/WCGY (F.M. ) ("WCGY")' located in Lawrence, Massachusetts. WCGY is the primary relay, or. lead Emergency Broadcast System ("EBS") station, for.the. . Merrimac Valley operational area of the Massachusetts EBS. In the operational plan for the Massachusetts EBS WCGY is designated as the CPCS-1 station that has responsibility.for activating the EBS in the Merrimac Valley operational area. That activation is implemented by WCGY transmitting the EBS
- attention signal followed by an informational message which is received by tone alert radios at the other Merrimac Valley EBS stations.
WCGY takes its role as the CPCS-1 EBS statio7 for the
. Merrimac Valley seriously and, in addition to regular I I
.. . . - . .dD O N
m participation in the EBS testing program, has assumed responsibility for keeping itself operationally current-by
. investing:in additional equipment including EBS recording devices and a back-up power supply source.
2. It was pursuant to WCGY's serious commitment to the EBS that I signed a letter of agreement on September 14, 1987 w!.th J New Hampshire Yankee (NHY). (Exhibit A). The Massachusatts EBS
' l 1
had recognized the NHY Offsite Responsa Organization ("ORO") as I a responsible local organization within the meaning of the rules ! and_ regulations governing the EBS. In light of that recognition,.WCGY agreed to activate the EBS serving the i Seabrook' Emergency Planning Zone in the event that there was an ' emergency at seabrook Station. In return, through its agreement ' mada with the Massachusetts EBS, NHY committed to provide WCGY-
-with certain equipment including a-dedicated phone line and radio. link that could be used to communicate with NHY in the
' event of an emergency at Seabrook Station. While WCGY has eight ;
outside telephone lines, in the normal course of business on 1 active news days those phone lines at times-are all busy.
- 3. i Despite the fact that NHY committed to providing that-equipment to WCGY over two years ago, to date none of the equipment has been-forthcoming. While approximately a year ago, '
WCGY engaged in discussions with a communications contractor sent by NHY, ALLCOMM, NHY never followed up in providing the promised equipment.
- 4. In late September 1989, I learned from Douglas J. Rowe, the Co-Chairman of the Massachusetts EBS, that NHY now took the position that they would not provide any of the promised i equipment to WCGY, or any of the other EBS statinna 4" *ha 1
4 . Merrimac. valley. . I was informed by Mr. Rowe that EBS no longer (. recognized the NHY ORO as a responsible local organization
-within the means of the rules and regulations governing the EBS.
I was also informed that the Massachusetts EBS was voiding - the letter of agreement that it had entered into with NHY, and I received a copy of Douglas Rowe's letter withdrawing the
~ Massachusetts EBS from participation in NHY emergency planning. ,
(Exhibit B). 5. 1 In light of the Massachusetts EBS withdrawal and NHY's failure to live up to its letter of commitments to WCGY, I sent NHY a letter dated October 20, 1989 (Exhibit C) voiding the
>1etter'of agreement that I had signed on September 14, 1987 and g
1 withdrawing WCGY from participation in emergency planning with NHY.
.While I am aware of the 90 day termination clause in-the letter of agreement, I consider the withdrawal and cancellation of that. letter of agreement to be effective.immediately because '
of NHY's failure to live up to its commitments under the 1 letter. In any event, under the-language of the letter of agreement, the termination is certainly effective 90 days from-
- October 20, 1989.
The foregoing is true and correct to the best of my kn'owledge and belief. A
?
',. p Y ftcc%f&
s - John F. Bassett
/
Subscrikes and sworn to before me
-t 2'7 day October, 1989.
Am> ~ + 14otary Publice My. Commission ires: ____m-_______________.._._._. _ __ . . . _. . .._ . __ , _ __ _
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I' UNITED STATES OFIAMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before the Administrative Judges: Ivan W. Smith, Chairman Dr. Richard F. Cole Kenneth A. McCollos
^^
.)
In the Matter ofl )- Docket Nos. 50-443-OL.
) '50-444-OL PUBLIC SERVICE < COMPANY )
OF NEW HAMPSHIRE,.EI &L. )
)
(Seabrook Station, Units 1 and 2) ) October 27,-1989
)
AFFIDAVIT OF DOUGLAS J. 70WE REGARDING THE VOIDING OF THE EBS LETTERS OF AGREEMENT I, Douglas J. Rowe, being duly sworn,. state.as follows:
- 1. -
I amico-chairman of'the Massachusetts Emergency Broadcast System. The Massachusetts Emergency Broadcast System ("EBS") is the association of radio and television stations in Massachusetts that voluntarily agree to participate in the EBS.
.I an also the Federal Communications Commission appointed
. co-chairman of the State' Emergency Communications Committee; an
- owner and operator of WSRO (AM) located in Marlboro, Massachusetts; and a practicing attorney in the Commonwealth of Massachusetts with an offica located at 21 Cotting Avenue, Marlboro, Massachusetts.
ATTACHMENT G d i_=_____-- _ - - --- - --- - - - - - - - - - - - ~
M g 2. On September 14, 1987 in my capacity as co-chairman of the Massachusetts EBS, I signed a' letter of agreement that recognized the New Hampshire Yankee ("NHY") Offsite Response. organization {"ORO") as a responsible organization within the l meaning of the rules and regulations governing the EBS. . (Exhibit A) .In accordance with those rules and regulations, the Massachusetts EBS is authorized to recognize any
.{
responsible local business or organization that may be j responsible for creating or reporting a local emergency.
- 3. .
In return for the above-described recognition, NHY committed to provide certain services and equipment at its own i expense'to the Massachusetts EBS stations in the Merrimac Valley operational area that includes the Seabrook Station
' Emergency Planning Zone. That equipment was to include a t
- dedicated telephone line.and answering device with compatible taping equipment, a radio link and other equipment as needed-q for the Merrimac Valley operational area. As recently as !
' November, 1988, NHY confirmed its'committment'to providing that '
equipment. This confirmation was evidenced by NHY sending out a communications contracting firm, AllComm,.to discuss the , provision of equipment to the EBS stations. That committment was further evidenced by the follow up letter sent by Gary J. , Catapano, president of Allcomm, as a follow up to.those discussions. (Exhibit B)
- 4. On September 20, 1989, I met with representatives of NHY to discuss NHY's committments to the Massachusetts EBS.
During the course of that meeting, I learned that NHY would not live up to its-agreement with the Massachusetts EBS stations.
. i Asia result of that meeting, I drafted a letter dated September-20, 1989 that revoked'my' previous letter of agreement dated September 14, 1987.- (Exhibit C)
In response to a request by NHY'that time be afforded to tneir management to discuss-the matter, I withheld that letter of termination. 5. In response to a letter dated September 29, 1989.from R. Boyd, Jr., Performance Service Manager of NNY, (Exhibit D)-I sent.a letter dated October 13, 1989 that officially informed , NHY of and formally affirmed the revocation of the EBS letter. of agreement with NHY. (Exhibit E)
- 6. Because of NHY's refusal to live up to its i committments to the Massachusetts EBS, the Massachusetts EBS will no longer continue to participate in emergency planning
.with.NHY, does not-recognize the NHY ORO as a responsible organization,.and.any and all former agreements between NHY and the Massachusetts EBS are void.
The1 foregoing is true and correct to the best of my knowledge and belief. l
. ,. ., i .
i Lec 4 Douglas J. Rowe y' I Subscribed-andsworntobeforethisda;_dayofoctober,1989. R v . , l Notary Public, ~j My-Commission Expires: i; , 1674n 1 l s U? w , - , - .w.. ---..._.--_,,.n..,.n.,,_-.n,----,.-~ - - - - - , - - , ,-
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Gr.eatRadio..- ' P.O. 80s $66 e 48 Fitchburg St + Mariboro, Massachusetts 01752 e (508)485 1470 pmag October 13, 1989 I hs i ed Mr. R. Boyd,-Jr. a 58I .Teriormance Services Manager ' Sq ~P. O. Box.300-f Seabrook, NH 03874
' -r[ Dear Mr. Boydt 1
'Your 1ctter.of Septembcr 20, 1 9119 , in lio t .a ccu r.i te !
.t It.
attempts to describe a mectlug bril.wcon un, if you will ( recall,:at-the cooperation. end of that meeting there was no spirit of , I said to you that as Co-Chairman of tha EBS Systems in Massachusetts, 14, 1987. I was. going to withdraw my letter.of September In fact, a copy of the letter I intended to send " you was FAX'D to you on September 20th q'ivinq you the rurther opportunity.to review the commitment made by Mr. Thomas. t After telephone calls and a request by N.il.Y. to delay tho withdrawal, I agroed. It was understood that the reason for=the delay was N.H.Y. was to: submit a revised commitment. Yo'ur p'lanlas'. submitted to NRC.includos the EBS System. ; You.now-'say,'and I quote, "IF the Morrimac Valloy E.B.S.
' Network is ,utili::ed. "
y I still remember the days of N.ll.Y. as!:ing Mr. Bassett of WCGY
' and myself'tocsigni " quick instant"' drawn agreements with tho' intent of complying with FEMA requirements. My recollection D was that tho' FEMA regulations recuire nuclear plants to cooperate with and be integrated with the E.B.S. System. As I i tried to tell you at our mooting, there was an intent-to put ' ; residents.
Massachusetts residents on equal footing with Now Hampshire Mr . Ca t.ip.iuo .mn u rect me t.h.i t he would install a system in the Morrim.u- V.i l l e y conn i n t..in t, with the nyutem
- doscribed lator in the attached letter. r
+
R L To myLdisappointment, the CPCS-1 station WCGY "the gateway" to ! Massachusetts, has not received the committed equipment or services, not to mention the other stations of the Merrimac
' Valley.
Your selection of WLYT as a source to activato' specific i; h receivers is well intentioned and commendahlo, but does not activate the E.B.S. S ys t em .
. Sonnng the Affluent Suourbon Morket Between Boston and Worcester 24 Hours o Doy
er _. . _ __ _ _ e' h C ( Your letter' indicates a total lack of understanding of the E.B.S. System. WLYT does NOT trigger a notification to the general public. It triggers only YOUR system. The many radio stations-serving the general public would receive NO notice. Your idea that the media would decend on your media center is perhaps accurate, but FEMA and the E.B.S. System do not work by press release. FEMA regulations involve agreements with CPCS-1 stations and coordination with state emergency E.B.S. chairmen..I suggest you review the regulations. My most disappointing thought about your letter is that you say that N.H.Y.'s commitment concerning Public Notification waa negotiated. Can you please tell me when, where and who negotiated away the rights of.the general public ? As.you can read from the_ attached copy, which was previously ' FAX'D to.you, I said that I had reviewed your plans and determined that N.H.Y. was a " recognized responsible" organization. In view of the apparent' change in attitude of the operators of N.H.Y.,.I now formally submit ~withdracal authorization, dated September 20, 1989, and I am sending a copy L of this communication to the CPCS-1 station WCGY. very truly yours, h~w . .hs Douglas J Rowe ' Co-Chairman Massachusetts Emergency Broadcast; System ATTACHMENTS; A. Letter of withdrawal 9/20/89 B. Co-Chairmans ERS letter 9/14/87 C. WCGY letter 9/14/87 D. All-CommSystem Plan & Letter dated 11/14/88 E. N.H.Y. letter'9/29/89 cc: WCGY ,
- y. -.ws. ee - e.. , . w r y =* y-a
p t. Amendment 5
-IP 2.13' Page 12 Rev. O i 5.2.11 If at any time, a report is received that a VANS vehicle has operational problems which include the following, arrange for either a Backup VANS vet.icle to replace it or for Air- l borne Alert System Activation. '
A.- VANS vehicle. manual interlock switch problems
- 8. VANS vehicle onboard generator problems' ;
C.- VANS vehicle'is unable to enter its assigned acoustic location ,
- 0. VANS voiticle siren f ailure i
E. Repeated (2) false siren activations , L
6.0 REFERENCES
6.1 . Implementing ProcedJre 1.1, NHY Offsite Response Director / Assistant 7 6.2 Implementing Procedure 2.1, Notification of Emergency Response , ) Personnel and Support Organizations 6.3- Implementing Procedure 2.12, Public Information - News Releases and I Rumor Control- T g 6.4 Implementing Procedure 2.15, Airborne Alert _ Activation
- 6. 5 , Implementing Procedure.2.16, Vehicular Alert and Notification System 6.6 Implementing Procedure 3.1, EOC Activation and Operation l
l l i l i. t l~
~ __ . _ _ _ . _ _ _ _ . . _ ._..________ _ ____
. -. . . - - . . - . . ... .. . . .~
l 1
.v.
Amendment 6' IP 2.13 Page l'- Rev. O s
. SEASROOK: PLAN FOR MASSACHUSETTS COMUNITIES IMPLEMENTING . PROCEDURE l
4 IP Number 2.13-Title. Public Alert and Notification System Includino EBS
< Activation
~
. Prepared-by:
r - e e di - Date 7-M*M ' i l , l Approved'by: / ) / Date: 7/ OO' [ New 'o%BWre Yankee V / / Marager f Plans and Procedures i l J Revision 0 ; 1 l Amendment 6 j l Effective.Date 08/01/88 y b^ .) l
)
i i b I x l
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Amendment 6 IP 2.13 Page 3 Rev. O PUBLIC ALERT AND NOTIFICATION SYSTEN INCLUDING ESS ACTIVATION 1.0 PURPOSE ,
- The purpose of this procedure is to describe the actions necessary to acti-vete'the Public Alert and Notification System, which includes the Vehicular Alert.and Notification System (VANS), the Airborne Alert System, Emergency Broadcast System (EBS). This procedure is activated at the Alert level and upon staffing the NHY Offsite Response Organization with the NHY Offsite ,
Response Director, Public Notification Coordinator and Communication l Coordinator. 2.0 RESPONSIBILITIES 2.1 The Public Notification Coordinator is responsible for a timely ~end , coordinated activation of the Public Alert and Notification System,
. development of EBS messages, and coordination of EBS messages with.
New Hampshire. l t 2.2- The Communication Coordinator is responsible for siren activation. h " from the NHY Offsite Response EOC during an emergency, verification i of the operability of the EBS radio station, verification of EBS
' activation and operation of the remote programming unit should it I
l become necessary. b ,
' - 2.3 The NHY Offsite Response EOC Contact has the responsibility, upon !
l direction of the Short Term Emergency Director, to dispatch VANS L vehicles immediately at an Alert or higher emergency classification level. 3.0 PRECAUTIONS Prior to activation of the Public Alert and Notification System, including EBS, authorization from the Governor of Massachusetts or his designee is required. 4.0 ' PREREQUISITES
. 4.1 An Alert or higher emergency classification level has been declared 7
'at Seabrook Station.
n 4.2 A decision has been made by the NHY Offsite Response Director and authorized by the Governor of the Commonwealth of Massachusetts, or i his designee, to notify the general public. I g ev+- w - , e,--.~ ,~
I i L. j Amendment 5 1
!P 2.13. Page $ 1 Rev. 0 i
*6.1.5 Upon verification from the NHY Offsite Response Otrector tnet .
Public Alert and Notification System responsibilities have I been assumed by the NHY Offsite Response Organitution, make ! contact with the ESS radio station on the dedicated ringoown l I circuit and provide the authoritation code obtained from the / NHY Offsite Response EOC Contact. l
]
Inform the Ett radio station that you are now the primary. l l contact and relay your name, position, and phone number. If j the Ett radio station has not already been contacted, request l l the radio station go to a stand-by status. l
$6.1.6 Contact the New Hampshire State EOC Operations Of ficer and l 1 the appropriate Massachusetts official, to establish coor- )
dination of activities reisting to activation of the Public ? Alert and Notification System and issuing ESS messages. l
',,,,, Coordinate with Messechusetts official by telecopying EDS message. Give your name, position, and phone number. Request ,
to coordinate with the New Hempshire IF0 Controller for PANS l .l activation. f NOTE l Request the essistence of the Assistent offsite Response Director Support Liaison for contacting Massachusetts and New Hampshire Officials, if ! ic required. NOTE Should the telecopier be inoperative, use the alternate telecopier, dedicated ring-down ; circuit, commercial telephone or Remote Pro- t gramming Unit to transmit EBS messages. ,
~
)~# 6.1.7 Verify that Public Notification Coordinat6r \
Position Packet l (,, has current E85 messages. -~ f i
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- -. - - - - . .. - . . -. . ~ --- _ -- - - - ---. _. .
Amenoment $
!P 2.13 page 7 Rev. 0
*0. Obtain approval of the EDS message from the NHY Offstte Response Director.
*6.1.11 Upon orders of the NHY Offsite Response Director to activate the Public Alert and Notification System, complete the l following steps.
*A. Note the time authorization was received from the Governor of Messachusetts/ designee.
]
pm g tir CAUTION l IMPLEMENTATION OF THE POLLOWING FOR NOT!FICATION OF THE PUOLIC MUST BE COMPLETED WITHIN 15 MINUTEE OF THE GOVERNOR'S AUTHORIZATION.
*B. Inform the New Hampshire IF0 Controller of the time that l authorization was received from the Governor of Massachu.
^
setts and the time the siren system wi11 be activated. !
*C . Contact the lead EDS station on the dedicated ringoown circuit with your name, position, and authentication code and advise them of the title of the prerecorded '
' #, ,fmessa,geappropriateforbroadcast,orinstructthemthat ;
the authorized prescripted ESS message for broadcast will be telecopied to them immediately.' Advise the announcer >
-) whether the message is to be preceded by the EBS active-
- tion announcement and tone.
..<E
/r
-/ f NOTE l If the sirens are to be activated, the message l ;
must be preceded by the ESS activation announce-ment and 26-second tone. , Request that the EBS message be broadcast at least three
- times consecutively and at 15-minute intervals thereafter until further notice.
NOTE Should the telecopier be inoperative, use the alternate telecopier, dedicated ring-down circuit, commercial telephone or Remote Pro- . gramming Unit to transmit EBS messages. , 4 a ~ - - , . , , - - - - ,,nr, . _ . , ,-,,.rw,,-w - ~,.v.., . - _ , - ,.-.,we,ww-,,.. ,,~+,---,,..-,,,a,g-..-,, - . . ,- - - , >
r Amendment 6 IP 2.13 Page 9 Rev. O B. Notify the NNY Offsite Response Director, the Communica- l tion Coordinator, the Public Information Advisor, the ; Nassachusetts Civil Defense Agency (MCDA) Director and the New Hahpshire State EOC Operations Officer. 5.2 Communication Coordinator : 5.2.1 Establish and maintain a chronological event log using Attechnent 1. Chronological Event Log, Implementing Procedure 3.1, EOC Activation and Operation. Document your actions in response to the emergency condition and information received from other organizations. This information should include ! sufficient detail to document the chronology of events and response actions.
*5.2.2 Receive a eriefing from the NHY offsite Response EOC Contact on the status of the Public Alert and Notification System:
A. Vehicular Alert and Notification Systes deployed. B. Public Alert and Notification System activated (by direc-tion of Seabrook Station Emergency Response ; Organization).
. *5.2.3 Verify operability of the Public Alert and Notification System using the Verification of Public Alert and Notifica-
, tion System Oi.orability section of the Siren Activation ! Procedures maintained in the Communications Room at the NHY I ! Offsite Response EOC. 5.2.4 Report the status of the siren system and EBS radio station to the Public Notification Coordinator. 5.2.5 Prepare for siren activation by instructing one of the radio op6rators to review the Siren Activation Procedures.
*5.2.6 Upon direction from the Public Notification Coordinator to activate the siren system, select the appropriate procedure from the Siren Activation Procedures.
5.2.7 Notify the VANS Operator of siren activation. 1 i
*5.2.8 Verify activation and content of the EBS radio station !
broadcast and concurrently activate the siren system. l
- 5.2.9 Verify activation of the siren system by performing a roll l call of the VANS operators at the acoustic locations. 1 l
. ~
Amendment 6
!P 2.13 Pege 11 Rev. 0 E. Receive radio reports from Sackup VANS Operator (s) upon manual siren activation. ,
E E Manual activation of backup VANS Continue procedure with Step 5.2.10. siren is successful. Manual activation of Sockup VANS Continue procedure with Step 5.2.9.F is unsuccessful. F. Contact Airborne Alerting Pilot and provide a briefing on the followings o Time of departure o Acoustic locetion for siren system activation l o Time of siren system activation G. Direct Airborne Alerting Pilot to commence airborne alerting. H. Receive report on status of Airborne Alerting, if applicable. I. Direct Airborne Alerting Pilot to land and standby at the Lawrence (or Beverly) airport, as applicable. 5.2.10 Report the status to the Public Notification Coordinator and the Assistant Offsite Response Director, Response . Implementation. If at any time, a report is received about a VANS siren 5.2.11
, sounding without having been activated (f also sir,en):
A. Complete the Clearing a False Siren Procedure which is maintained in the Communications Room at the NHY Offsite Response EOC. B. Infore the Public Notification Coordinator. C. Deploy a backup VANS vehicle to the scoustic location ' where siren activation took place to replace the VANS vehicle at the location if the siren is declared inoperable. I
ft i . ,'( EXHIBIT 2 I i l l l' l l i 1 i l l [ i l i I
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD tefore the Administrative Judges: Ivan N. Smith, Chairman Dr. Richard F. Cole Kenneth A. McColloa i In the Matter of ) L Docket Nos. 50-443-OL L ) 50-444-OL PUBLIC SERVICE COMPANY ) 0F NEW MAMPSHIRE, ET &L. )
)
(Seabrook Station, Units 1 and 2) ) November 22, 1989
)
INTERVENORS' MOTION TO ADD AN ADDITIONAL BASIS TO THE LATE FILED ATTACHED CONTENTION TO THE MOTION OF NOVEMBER 9, 1989 The Massachusetts Attorney General (" Mass AG".), Seacoast Anti-Pollution League ("SAPL"), and New England Coalition on Nuclear Pollution ("NECNP")', (hereinafter "Intervenors"), move this Board to admit for litigation in the above-captioned proceedings'the additional basis filed herewith as Attachment A and reopen the record in the proceeding on the seabrook Plan for ' Massachusetts Communities ("SPMC") . This motion is filed pursuant to list (a) of the Atomic Energy Act and is founded upon the grounds set forth below. The Intervenors also request that i this Board permit them to have a hearing on all issues raised by this basis'and engage in any discovery necessary to prepare for such a hearing.
u INTRODUCTIOM on November 9, 1989, the Intervenors filed a motion to admit. a late filed contention and reopen the record on the SPMC. The contention alleges that The Applicants do not have the means to !' provide early notification and clear instruction to the populace within the plume exposure pathway Emergency Planning tone ("EP8") in Massachusetts and therefore do not meet the planning standards , of 10 C.F.R. $ 50. 47 (b) (5) , and 10 C.F.R. Part 50, ' App. E.IV.D. (hereafter the "EBS Contention). As a basis for that contention, the Intervanors submitted that the SPMC contemplatem the use of the Emergency Broadcast System ("EBS") as the primary means for notifying the public in the event of a radiological emergency at Seabrook Station and without the cooperation of WCGY, the gateway station for the ' Merrimac Valley operational Area, the Applicants will not be able to activate the EBS servicing the Seabrook Emergency , Planning Zone ("EPZ") in Hassachusetts. e
.In that motion, it was indicated that the Intervenors :
anticipated an additional basis would be filed in support of the contention when they were able to obtain an opinion in- ' support of this basis from an expert who would be available to ; testify at a hearing on the matter.1/ The Intervenors' '
-having now located such an expert seek to supplement the basis t 1/ Intervenors' Motion to Admit Late Filed Contention and '
Reopen-the Record On the SPMC Based Upon the Withdrawal of the Massachusetts EBS Network and WCGY (the "EBS Motion") page 11, 4 note 4. L ! l l i L' supporting the EBs Contention. The thrust of the supplemental basis (Attachment A) i s that not only does the SPMc lack its i L ; r primary means of notifying the public because of the loss of ! WCCM (A.M.)/WCGY (F.M.) and the EBS, but the remaining means it - J has for providing notification i.e. , WHAV (A.M.)/WLYT (F.M.) { (hereafter "WLYTa), is also inadequate. i 1 l THE c1TTrefa FOR THE af1AffBEION OF A IATE-Fff FD COi&zNTION AR i The criteria for the admission of late-filed contentions i are set forth in 10 CFR 62.714 (a) (1) . In ruling on a motion to admit a late-filed contention, a licensing board must balance i the' factors set forth in the above cited provision. Comannwamith Edison Co. __(Braidwood Nuclear Power Station, Units 1 1 and 2), CLI-86-8, 23 NRC 241 (1986); Duka power Co. (Catawba j i Nucisar Station, Units 1 and 2), CLI-83-19, 17 NRC 1041 (1983); Public Service of New Famnaby's Co. (Seabrook Station, Units 1 ' and 2), ALAB 918, hRC (1989). l Those factors are: (i) good cause for failure to file on times (ii) the availability of other means by which the petitioners interest will be protected; : (iii) the extent to which the petitioners participation may reasonably be expected to assist in the development of sound records (iv) the extant to which the petitioners interest will be represented by other parties; (v) the extent to which the petitioners participation will broaden the issues or delay the proceeding. A considered balancing of those five factors clearly establishes that the attached contention should be admitted in this proceeding. ,
,- - ---4-- .- ,.--
l l IllTLINES$ The supplemental basis in Attachment A is timely for the same reasons as the EBS Contention is as set forth in the EBs Motion, and those reasons are adopted by reference in this motion. The SPMC's primary means for notifying the public in an emergency became unavailable as of october 20, 1989 when John Sassett repudiated WCGY's letter of agreement with New Hampshire Yankee ("NNY"). As evidenced by Attachments B, C, and D prior to that-date the Applicants had represented they would be using the EBS to notify the populace in the Massachusetts EPZ. Furthermore, through the letter of agreement with WCGY, NNY had the means to implement that notification.A/ 2/ At best it seems disinegnuous of the Applicants to claim that they had contemplated the use of WLYT as the sole means of providing notification to the public since the spring of 1988. Attachments A, B, and C all post dated that time frame. The Applicants own witness Desmarais agreed with Assistant Attorney General Stephen Jonas as recently as May 2, 1989 that the use of WLYT and HQE1 was contemplated for notifying the publA;. Attachment D. The use of WCGY since it is the gateway station for the Merrimac Valley Operational hrea under the terms of WCGY's than extant letter of agreement with NNY would have triggered the activation of the EBS. It'is of no consequence that in the FEMA Graded Exercise only WLYT was a player since participation in such an exercise by an outside entity that is not part of the response organization is limited by the negotiated scope of the exercise. If one were to follow the perverted logic that the use of only one radio station during an exercise puts the world on notice that an emergency plan is going to be using only that radio station, then the same logic would be true for a limited demonstration of other contracting entities in an exercise.
-That would mean the June 1988 graded exercise should be viewed as a declaration by the Applicants tha n to rely on only one ambulance company and only buses since they were the only vehicles used in the exercise. I 1
(footnote continued)
~4-
1 In the original motion the Intervenors brought to the attention of the Licensing Board the facts that are at the {' heart of the now offered supplemental basis in Footnotes 4 and 7. At that time the Intervenors' did not have an expert witness to opine on those facts but was in good faith engaged in the process of trying to find such an expert. On Friday, ' October 27, 1989 the Mass. AG obtained a copy of one page of the 1989 Edition of Arbitron's Radio County Coverage Report for 1 l- Essex County, Massachusetts (the~"Arbitron Report"). The ' representative of Arbitron from whom the Mass. AG obtained that page was out of the office on that day and unavailable to answer questions on it. The following week the Mass. AG contacted the Arbitron representative and sought to enlist Arbitron's aid in obtaining an expert who could opine on tite contents of the Arbitron Report. The Arbitron representative indicated that she did not know whether Arbitron could be of (footnote continued) The deposition of Gregory Howard also clearly cannot be
. regarded as effective notice that the Applicants rely on only WLYT as the'means of providing notificatidn in the SPMC. No reasonable person would have given weight to the fact that .
Howard aantioned'only one of the two radio stations identified in the SPMC during his deposition. . Howard had consistently erred-in SPMC. his knowledge of and performance with respect to the ! Indeed, apparently NNY removed him from his offsite Response Organization position because of his incompetence. It was to be expected that Howard would refer to WLYT rather than WCGY because WLYT was the station he had dealt with during the June Graded Exercise. Similarly, Anthony Callendrello's testimony on June 28, 1989 cannot be viewed as effective notice that the Applicants were relying on only WLYT since he did not name any radio station in that testimony. There is no way of knowing whether he was referring to WCGY or WLYT in his unresponsive answer at Tr. 27893-94.
assistance but would inquire of her supervisors within the company. 'On Wednesday, November 1, 1989 the Mass. AG received a call back from Arbitron's Vice President and General Counsel, A. Anthony Kelsey. Mr. Kelsey explaiaed that Arbitron did not usually provide expert witness services, but under the circumstances would.be willing to consider doing, and certainly would be willing to furnish suppuenetary explanatory documents that permit assessment and interpretation of the information in the Arbitron Report. He went on to state that if after receipt of that information, the Intervenors believed that an Arbitron representative could be of service in the matter, he would be willing to discuss the matter, review and consider furnishing an affidavit on the matter and provide testimony at any hearing
.that resulted. On November 7 and 8, 1989 the Mass. AG received the explanatory documents from Arbitron. After reviewing the materials the Mass. AG again spoke to Mr. Kelsey'during the week of November 13, 1989 and sent a draft affidavit to him for his review. On November 20, 1989 Mr. Welsey provided his comments and corrections to that draft. affidavit. He signed final version of the affidavit on November 21, 1989. This motion-is being filed within twenty-four hours of the signing , of that affidavit and on the same day as the Mass. AG received it.
The supplemental basis is being filed only slightly over ! one month from the triggering event for the EBS Contention and as quickly as practicable under the circumstances.
^
_c_ m
l l Pretmetlan of the Intervenars' Intermat, and the . Petitlanar's Internet Renceaanted by Ewintine Partiam The Intervenors adopt, and by reference incorporate, the i arguments on these two factors set forth in the EBs Motions. DrvrtaperruT or A souwn arcomo The Intervenors will contribute to the development of a i sound record through the litigation of the attached basis. The EBS contention and supplemental basis sufficiently identify the issues to be decided. In support of the contention and supplemental basis, the Intervenors will offer the testimony of l l A. Anthony Kelsey whose affidavit is attached to this motion as 4 Attachment E. He will testify on the issue of how few people l { in the EPZ are likely to hear any notification made solely over 1 WLYT. Mr. Kelsey is knowlegable on the methodology used to ! develop studies and analyses estimating the relative market share of commercial radio stations in a given listening area. ! In particular, he is familiar with the study conducted by the i Arbitron company, the leading provider of audience outimate studies in the United states, that is reflected in the ArLitron 3 l Report. Attachment F. ! i Mr. Kelsey will testify that the Arbitron Report shows that during an average quarter hour between 6 A.N, and Midnight on any. day of the week, for all persons over the age of 12 years, the combined listernship of WLYT comprises less than one half of one percent (0.5%) of the 121 persons population in that i J
listening area. In contrast, the combined estimated share of listenership for WHAV, WCCM, WLYT, WCGY and WSSH, which comprise the Merrimac Valley operational Area Emergency Broadcast system ("Ets") stations that appear in that report, is over 10 times as great. lHe will also testify that it is his opinion that an emergency message transmitted on WHAV-AM and WLYT-FM alone would have the potential for reaching a relatively small segment of the population in that radio coverage area at any point in time. It is conceivable that relatively few people would tune their radios to WLYT in the event that they heard sirens or ~ other audible warnings, and that at least ten times as many, and theoretically geometrically even more people would hear emergency messages if they were transmitted simultaneously over the combined facilities of the entire Merrimack Valley Operational Area EBS network. The identification of Mr. Kelsey as a witness who possesses , special expertise on the issue of the number of people in the Massachusetts EPt who are likely to hear any notification put 4 out over WLYT alone, and the above statement as to what he will testify to clearly establishes that the admission of the contantion will contribute to the development of a sound ' i record, The Appeal Board has held; -I h late petitioner can establish that its i participation ney reasonably be expected to assist in developing a sound record by "(1) identify (ing} specifically at least one witness 1
I
- l L i i
I i !. it intends to presents and (2) provid(ing) l l sufficient detail respecting that witness' 1 proposed testimony to permit the Board to reach a reasoned conclusion on the likely worth of that testimony on one or more of (its) contentions." w =hineten Public rcuer sunnly svatan (WPPSS s Nuclear Project No. 3), ALAB-767, 19 NRC 964 ) (1984), 985 (1984) quoting washinaten public : I Power Bunniv Evatam at al. (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167, 1181 (1983). The Intervenors in this instance have clearly met the test
]
for establishing that their participation will assist in the ! r development of a sound record. Since WLYT is the only remaining means the SPMC has for providing notification to the populace in Massachusetts, it is important for the Licensing Board to be aware of how few people are likely to actually receive notification by that means. As set forth above the Intervenors are prepared to significantly contribute to the development of a sound record on this issue. That factor thus weighs heavily in favor in the admission of the attached contention. ABSENCE OF DELAY Obviously the admission of the EBS contention and
\
supplemental basis'will broaden the issues to be decided in 1 this proceeding, and may delay a final resolution of the i proceeding. However, the same would be true with the admission of almost any new contention and basis. Therefore, what must be considered by this Board in assessing this factor is the degree to which the issues before the Board will be broadened and the degree of the delay that will be occasioned by the admission of the contention. l
In this case the contention and basis that are proposed - focus narrowly on one aspect of the SPMC. It is anticipated that any discovery on the issue can be kept to a minimum and that any hearings will.not be lengthy. Through the prior proceedings that have occurred in this licensing matter, the parties and the Board are already generally familiar with the parameters of the issue. While this factor does by its nature militate somewhat in ! favor of the Applicants, the narrowness of the issue raised in l the contention and supplemental basis and minimal amount of i delay that is likely to ensue by admission of the contention do not weigh heavily in the Applicants' favor. When the slight- l l^ weight to be accorded to this factor is balanced against the , other four factors that strongly favor admission of the L contention, the not result is that on balance the contention : should be admitted. Therefore, the Board sh.vid allow the L action to add an additional basis to the late-filed EBS. '
. contention.
MOTION TO REOPEN THE RECORD The criteria that must be met to reopen a closed record are set forth in 10 CFR 52.734. Those criteria are all met in this instance. The motion is timely for the reasons set forth l above. The event that triggered the motion to reopen the r record was the letter of october 20, that was sent by WCGY to NNY. Prior to the transmission of that letter voiding the _____z_ . _ _ _ _ . . _ _ _ _ . . _ . _ , _ _ . . _ . . . . , . _ . _ . . _ , , _ _ . _ , _ . , . . . . ,, . . _ . _ . . -
1 letter of agreement that had previously existed between NHY and WCGY, the elements of the SPMC that called for the activation of the EBS could still have been implemented. Without the EBS the Applicants can look to provide notification to the public only by means of WLYT. Given the requirement that a action to reopen the record be accompanied by one or more affidavits setting forth the basis of the action, this action is being filed as quickly as is practicable. There was the necessity of obtaining an affidavit from an expert who could opine on notifications made solely by means of WLYT. This motion is being filed within 24 hours after the signature of that affidavit. THE MOTION ADDRF1BER A BIGNIFIFAWT BAFETY IBRUE Both NUREG 0654, FEMA Rep-1, Rev. 1, Supp. 1 and NUREG 0654, Rep-1, Rev. 1 require that means be established to provide early notification and clear instruction to the populace within the EPE. Under Planning Standard E, Notifications Methods and Procedures, an energency response organization has a responsibilty to demonstrate that means exist to notify and provide prompt. instructions to the public. The specifications for providing such prompt notification is set forth in-NUREG 0654, FEMA Rep-1, Rev. 1, Appendix 3. Under the criteria for acceptance in Appendix 3, the minimal acceptable design objectives for an alert and notification system require the capability of providing both an alert signal i
4 and an informational, or instructional, message to the population on an area wide basis throughout the 10-mile EPZ within 15 minutes. Appendix 3, at 3-3. Under this minimally acceptable criterion for a notification system, NHY must make provision not only for alerting the population in the EPZ by means of a siren, or other signal, within 15 minutes, but must also.make provision for providing an informational, or instructional, message to the population within that sama time period. The withdrawal of WCGY and the Massachusetts EBS poses a distinct significant safety risk under Planning Standard E. The withdrawal of WCGY means that the EBS cannot be activated for the Merrimac Valley area. All other EBS stations within that operational area are tuned to WCGY's tone alert frequency to trigger their activation and participation in the EBS. Without WCGY's activation of those stations, they will not pick up the EBS messages that are designed to carry information to , the public in the event of an emergency at Seabrook Station. The manner in which the EBS operates ensures that when the EBS is activated, an individual turning on a radio to find out the , l significance of the alerting sirens will come fairly shortly to : L an EB8 station. When the EBS is activated, all non-EBS stations go off the air. That means in tuning to find out the significance of the sirens, an individual will quickly encounter an EBS station carrying the authorized EBS messages, D 12-
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i While NNY still has an existing contract with WLYT that i station le not a CPcS-1 station that can activate the EBS. While WLYT does participate as a station in the EBS, it cannot
)
activate any other station in the EBS, or pass on EBS messages to any but its own immediate listening public. In making its j finding as to the adequacy of the SPMC, FEMA did not find that ! a letter of agreement with WLYT was enough to satisfy notification requirements. I The SPMC does not call for the i activation of WLYT alone, rather it calls for the activation of i the EBS. In making its finding of adequacy FEMA stated: The Plan states that the primary system for disseminating information to the public is EBS. In event of an emergency, the NHY ORO offsite Response ! Director will request authority from the Commonwealth of Massachusetts to utilize EBs to broadcast emergency information and instructions to the public. Each j instructional message broadcast over EBS will also be i released as a news release by the Media Center. ' FEMA's Review of the SPMC, App. Exh. 43C, Page 24. As indicated above and evidenced in the Affidavit of A. Anthony Kelsey relatively few people in Essex County where the { EPz is located listen to WLYT. The means that when the ! l populace of the EPS hears the sirens and turns on their radios i
~
i to learn information, relatively few people will be tuned to- j WLYT and hear the emergency informational messages. For the j l vast majority of people in the EPE who do not normally listen l to WLYT it will be by chance if they happen to click on to WLYT when an emergency message is being aired as they tune up and L ( down the dial. Notification to the public in a radiological ,
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emergency plan cannot in any right headed world be left to chanCo. The Applicants cannot rely on pre-emergency information to accomplish for them what the notification provisions of the l SPMC lack. Their own expert in this area, Dr. Dennis Mileti i has saidt It's not_been empirically demonstrated that pre-emergency education or information has an i impact on what people do in response to l emergencies. That doesn't make sense. But it p hasn't been empirically demonstrated yet. That leads se to conclude that we need an ! emergency warning system during the emergency that will work independent of pre-emergency education and information. It doesn't make sense , to give up pre-emergency information and education. It may accomplish some good. For 1 example, illustrate to residents of the EPE if . the live in the EPE. People who don't live in the EPE, that they don't et cetera. And in ! general, help prime perso,ns for an emergency, but it's not empirically demonstrated that it will ! have an effect on the actual emergency response one way or the other, to the best of my knowledge. T;*anscript (11/19/87) at 6371. . Based upon the opinion of the Applicant's own expert witis.as, pre-emergency information cannot be relied upon to assure that people in the EPE will know to turn to WLYT. Dr. Mileti has indicated in his testimony in this proceeding that relir.nce on pre-emergency information is particularly problematic with , respect to transient populac'lons such as those that visit the ; Massachusetts beaches.A/ 1/ Transcript (11/19/47) at 6362-6365. Attachment G. b_______---_---------- ~ ~ ~ ~ ~ ~ - ~ ~ ~ ~ ~ ~ ~ ~ ~
Because the sirens in the Massachusetts beach areas do not function in a voJoe mode as they do in New Hampshire, the beach population cannot be expected to know to tune in WLYT. M Thus, the withdrawal of WCGY poses a significant safety issue. It precludes the ability to activate the Ets as the SPNC calls for, and to notify all the public in the EPZ as required by 50.47(b)(5) and NUREG 0654's Planning Standard E. The loss of WCGY is not companeated for by the presence of WLYT. In holding the ability to make prompt notification to r the public to be a significant safety issue, the Appeal Board L i has stated: I "Ertended discussion should not be necessary with regard to the obvious safety significance that attends upon compliance with the Commission's regulation designed to provide the members of the public located inside the EPZ with "early notification and clear instructions" in the event of a radiological emergency." (Footnote omitted.) Public Earvice connany of New Ma===hira, at al. (sambrook Station. Unita 1 and 21, ALAB-883, 27 NRC 43, 50 (1988). Without the ability to make notification to the public, the public will not be aware of the significance of the sirens; i there will not be a unifera dissemination of the information in ' the ESS messages; and protective action recommendations cannot , be transmitted to, or received by, the gar. oral public in accordance with the SPMC and regulatory requirements. Therefore, the attached basis and supporting affidavit address a significant safety issue that warrant reopening the record. jb/ Transcript (5/24/49) at 22654). l 15-
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A MATERIALLY DIFFERENT RESULT Is LIKELY IF THE BOARD CONSIDERS THE ATTACNED CONTENTION AND NEWLY PROFFERED l EVTBatscE IN MarTNG ITs DETemwfMATION OM iKE s 1 It is inconceivable that FEMA would have found the SPMC to ha adequate without a provision for notifying the public in accordance with Planning standard E. similarly, it is inconceivable that FEMA would have approved the sPMC without
]
specific provision in the sPNC for activation of the EBS by means of a letter of agreement with the CPCS-1 station, WCGY. Without that station there can be no activation of the EBs. . NUREG 0654, TEMA REP-1, REY.1, Appendix 3, at Pages 3-15, specifically requires the integration of an emergency plan's i notification system with the state and local Ess. Because ; emergency information messages disseminated through WLYT will i reach a small segment of the population in the EPE, it cannot be relied upon to provide for adequate notification. Without WCGY and the EBs, provisions for notifying the ' general public in the Massachusetts EPE as to the status of an emergency at Seabrook station or as to actions to be taken in response to that emergency are inadequate. If the Board takes that fact into consideration, it will doubtlessly come to a ' different conclusion as to whether the SPMC complies with l NUREG-0654 and other relevant planning standards.
- CONCLUSION Therefore, the Intervenors have established that a balancing of the factors to be considered in admitting a >
late-filed contention weigh heavily in favor af the admission I of the supplemental basis. l The Intervenors have also h established that this motion to reopen meets the standards that J- such a motion must comply with, and the gravity of the issue
-warrants reopening the record for consideration of the issue.
P COMMONWEALTH OF MASSACNUSETTS JAMES M. SHANNON ATTORNEY GENERAL t A s b h en > John Traficonte Chief, Nuclear safety Unit ~ Leslie Greer .i Assistant Attorney General ! Nuclear Safety Unit Department of the Attorney General One Ashburton Place Boston, MA 02108-1698 (617) 727-2200 DATED: November 22, 1989 e l I
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r i h Attachment A l ( SUPPLEMENTAL RABIS ! 5. The Applicants remaining means for providing notification to the Massachusetts EPE under the SPMC is by ! transmitting energency information messages over WHAV ' ( A.M. )/WLYT (F.M. ) . A relatively small proportion of the I population in the EPE listen to those stations. Pre-emergency ' information is not an effective means to ensure that people ' will tune to those stations in an emergency. Therefore, the Applicants no longer have means for implementing notification i and instructions to the population in the EPE. . i i
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e 4 h 6 M 3 ATTACIDGlNT B s 9
L SEABROOK STATION PUBLIC ALERT AND NOTIFICATIDW SYSTEM FEMA-REP-10 DESIGN REPORT l
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New Hampshire Yankee O sar April 30,1988
PLANNING STANDARD E - NOT1)lCATION METMOD5 AND PROCEDURIS EVALUATION CRITER10N E.5: Notification Methods The primary means of disseeinsting inf ormation and instructions to the public is through broadcast of sessages over the Emergency Broadcast Syttee (EBS), a netweth of commercial radio stations. New Hampshire and Massachusetts portions of the EP! are covered by separate EWS networks. In the event that occurrence) at Seabrook Station lead to an emergency classification of ALERT, the EDS stations in both states are put on standby. The New Hampshire ESS stations say, at the ALERT Level, be activated for issuance of instruction for precautionary closing of beach aross. At the SITE AREA EMERGENCY or CENERAL EKERGENCY level, broadcasts over the El8 are activated for both Massachusetts and New Maspshire in conjunction with stree activations. In addition to providing public information and instructional messages, the EBS networks in both states are used in supplementing the stran systes coverage for alerting of institutions in the EFZ. These institucions will be of fered tone-elect radio receivers that will be activated by a two-tone algnal over the El$ network. The use of institutional tone-elert radio receivers te supplement stren systes coverage is discussed more fully in Chapter 2, Section E.6.2.4.2. New Maasshire EBS Network In New Maspahire, the Seacoast Operational Area Common Progree Control Sta-tion (CPCS) is WOEQ. W0EQ. a 50,000-watt FM station broadcasting at 97.5 mms f rom Dover, NM, operates 24 hours per day, seven days a week, and is , equipped with a backup power supply. As the CPC5, W0EQ is responsible 1-2
_.1 n J I f or notif ying, via the two-tone El8 signal, the other New Haapahire Sea-coast EDS stations in the network. Although not a CPCS station, WMYT provides 26 hour AM El$ broadesst capability for New Hampshire. WTF , a 5,000-watt AM station broadcasting at 1540 KH f ree tuete r , NH , is ope r-ational f roe 5 AM to midnight, seven days a week and is equipped with a backup power supply. WYT has been specially equipped to provide 24-hour. seven day per week ERS coverage by reacte activation f rom WOKQ during of f 2 m hours. Activation of the EBS covering the New Hampshire portion of the Seabrook Station EPZ prexeda as follows:
- 1. The New Maspshire State Police Cosaunications Center (NMSPCC) receives notice of an energency from Seabrook Station.
- 2. "
The NHSPCC notifies the New Hampshire Of fics of Emergency Management (NHOEM) of the energency, a
- 3. If the eme rgency reaches the ALERT level, the Director of the NMOEM, or his designee, notifies the CPCS station.
putting it on standby and preparing it for possible broad-cast of public information or instrue;1onal messages.
-1 4. The CPCS is om.itored by the other New Hampshire ESS stations and broadcasts are staultaneously aired or recorded f or subsequent broadcast.
' 5. If beach precautionary actions are recommended or if the emergoney reachee SITE AREA EMERCENCY cr CENERAL EMERGENCY, the Director of the WHOEM, or his designee, notifies the CPCS to activate the broadcast over the ERS of specific information or instructional messages.
. q Figure 1-1 depicts the activation cosaun16ation sequence for the New Memp-shire EDS network. The activation of the New Heapshire Ell network is discussed in Volume 1. Section 2.1 of the Stt,te of New Hampshire Radiological d Eastgency Response Plan, 2 Massachusetts El$ Network In Massachusetts, the contract ESS radio station is 1 station broadcasting at M frem 6 Massachusetts. M is 13 s--
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operational 24 hours per day, seven days a week, and is equipped with a back'up power supply. p Provides 6 l W. station broadcasting at M fros lf M. M is operational 24-hours per day, seven days per week and- - is equipped witha backup power supply. [ p Activation of the E55 covering the Massachusetts portion of the Seabrook [ i Station EPZ proceeds as follows:
- 1. The NNY Of feite Response EOC Contact receives notice of. en I- energency from the Seabrook Station Short-Tern Emergency ;
L Director (STED). l 2.. In an escalating.esergency, af ter the NNY Of fsite Response-Organisation is activated, the NNY Offsite Response Direc . tor (NNYORD) assumes responsibility for ESS activation from 3 the Seabrook Station Emergency Response Organisation '(ERO). ~ ?
- 3. If the energency reaches the ALERT level the STED or NNYORD *'
(depending on #2 above) notifies W],, putting- the station
. on standby and preparing it for possible broadcast of publie 9- information or instructional sessages.
4 If the energency reaches SITE AREA ENERGENCY or CENERAI. EMERGENCY, the STED or NHYORD obtains authorisation from H officials of the Comeonwealth of Massachusetts to' activate e the Public Alert and Notification Systes and' notifies W ) . to activate the broadcast over the E55 of specific informa- 1 tion or instructional sessages. Figure 1-1 depicts the activation communication sequence for the Massa-chusetts EBS network. The activation of-the 188 network for the Masse-4 chusetts communities 'in the EPE is described more fully in Section 3.2 of 1: L the Seabrook Plan for Massachusetts Coannities. 1 Once the decision has been made by the Director of- the NH0t:M and the Massa-D chusette Civil Defense Agency Director to activate the ESS networks, the I ?% system provides the capability of ~oroadcasting inforestional and instructional-messages within 15 minutes. l' ) 1-4
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>y l; ' q 4 t a, l iLI:228 (a) Applicants' position on JI-33 is that the mechanism for' providing emergency information to the'public through
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.the Ets is in place and can be activated in accordance with the Massachusetts ES# Operational Plan or with provisions in the SPMC and its supporting agreements. ,
The underlying facts supporting this position include:- i Letters of Agreesent between the NNY ORO and the l Ets radio stations relied on in the SPMC are in place to facilitate activation of the EBS system delegation.of the requisite authority from appropriate Massachusetts governmental authority to' p the oRo to activate the ESS. A Letter of Agreement between NNY-and the Massachusetts Emergency Broadcast System organisation has also~been executed. The sample EBS messages relied on by the SPMC, except. Supplemental Message 1, 2 and the Early seheel Dismissal message,-clearly identify the Governor of Massachusetts or other State officials
, -t as the source of the energency information being. '
disseminated. The SPMC, IP 2.13 at 5.1.6 provides for transmittal of ESS messages to the appropriate Commonwealth i
]
officials bafags broadcast, allowing these j a 1
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e { officials the opportunity for review and/or modification. consistent with the Operational Plan, the 8PMC anticipates that-the Governer of Massachusetts will, authorise activation of the Ets. j (b) The sources relied on for the underlying facts include 'I IP 2.13, Attachment 4.24, Imttere of Agreement, IP 3.13 at 5.1.6, Massachusetts EBS Operational Plan. NUREG
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06 54/ FEMA-REP-1, Rev. 1. Supp. 1~. (c) None selected. (d) None selected.
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A P 1 v 1 i As to Answere l A gg o. Vice,. 3.-Thomas . . President,-Nuclear Production New Naapshire Yankee Divielen of Publie Service Ceapeny ef New Maapshire R i LCateber 25,'1988 i state of.New Neapshire ! Reekingham County, es. , Thomas and made oath ~that he-is the Vice Preside
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-theiApplicants8 teregoing.answere available:to the App 11oents. escurately set forth information as'is- ;i.
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u,essenenesamenesta em. L As te objectione , d af e.km / [*M ;; , .'- F Thomas G. Dignan, Jr. ~ GeorTe N. Leveld 7 . ;- ' - Nathryn A. Selleek . 3 Jeffrey P. Trout ' ' , ' Jay Bradford Smith
- 4 Repee 6 Grey i 22S Franklin. Street L Boston, MA- 02110 J I
(417)'423-4100, I Counsel for Amaliennes [ ;h g y' 0)*%- o - . - -. _ . , _ _ . _ c- --- - - -~~ ~ " "' ~ ~ ~ "
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1 I Q J stationsI take in-theit that area? that's not all of the radio , L -l A (Desmarais) That's right. ' Q ; For FM, that's WLYT; is that right? A i (Desmarais) If I could take a quick look at the REP-10 design report I would be able to verify that. , JUDGE BLOCH: I recall that in some of the documents those names givent was that correct? were not -- the station names were not MR. DIGNAN That was part of the -- JUDGE BICCH: And it's now public. 10 L< (Documer.t proffered-to witness.) THE WITNESS - (Desmarais) Thank you. ' JUDGE Bloc 1t: While he's looking, is there a stipulation you want about this? ,* MR. JONAS: Well, there are two stations, WLYT and WCGY on the FM dial; and.one, WNAV on the A4 dial. ,
' JUDGE.8 LOCH: Yes.
+MR.:JONAS: .That's just what I want to establish.
THE. WITNESS - (Desmarais) but.my copy of the REP-10 design report has theI believe that's accurate,
-stations blanked out as well.
MR. DIGNAN: They don't trust the lawyers. p THE WITNESS: (Desmarais) I believe it's accurate.
- MR. DIGNAN:
I'm nou going to argue with you.If.you represent that that's what it says, JUDGE BIACE: Is there some point about that? MR. JONAS: -Well,.the point I'm raising only is that there are two -- SY MR. JCNAS: 1 Q Do you know how many radio stations in the area? A (Desmarais) No, I don't. w s .
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su , s e l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: Ivan Smith, Chairman _Dr. Richard F. Cole Dr. Kenneth A. McCollom
)
In the matter of- ) Docket Nos. 50-443-OL
) 50-444-OL PUBLIC SERVICE COMPANY ') (Off-Site Emergency OF NEW HAMPSHIRE, ET AL. ) Planning Issues)
)
(Seabrook Station, Units 1 and 2) )
)
AFFIDAVIT OF A. ANTHONY KELSEY
.I,c A.' Anthony Kelsey, being duly sworn, state as follows:
- 1. .I am the Vice President:and-General Counsel of The
; Arbitron-Company. My office is located at 142 West 57th Street, New York, New York 10019.
, 2.. The-Arbitron' Company is the leading. provider of-radio audience estimates-studies and reports for commercial radio stations in'the continental United States. As part of its regular and. ongoing business, it provides, for a fee, to licensed subscribers, and~others, studies and analyses estimating the relative market share of commercial radio stations-in a given-listening market area which meet " minimum reporting standards" for the tabulation of available data. All Arbitron' studies, reports, databases and analyses are based upon data-collected, compiled, analyzed and projected by The
'Arbitron: Company.
i 3. I have worked as General Counsel for The Arbitron Company for nearly 11 years, and have been Vice President and General Counsel since 1984. I am thoroughly familiar ~with the methodology that-Arbitron uses to compile and' project-its ~ i
.c research data, and I am also familiar-with the manner that such data is analyzed and expressed in its. reports which are derived: !
from raw collected data. A resum4 reflecting my professional ! qualifications is attached, i 4.
- I have reviewed the 1989 Edition of Arbitron's Radio
-County Coverage Report containing data and audience estimates /
1
.for Essex County, Massachusetts. That report reflects Arbitron's professional estimate that during an average quarter hour between 6 A.M. and Midnight on any day of the week, for
. all persons over the age of 12 years, the combined listenership .
- of radio stations WHAV-AM and WLYT-FM comprises-less than one half of.one percent (0.5%) of the 12+ persons population in that listening area.
In contrast, the combined estimated share of listenership for WHAV, WCCM, WLYT, WCGY and WSSH, which comprise the Merrimack Valley Operataonal Area Emergency
- r. Broadcast System ("EBS") stations that appear in that report, is-over-10 times as great. It is also our research experience that better-than 90%.of all persons listen to radio at least once a week.
5. Based upon a fair reading of the 1989 county Coverage
' Study, it.is my opinion that an emergency message transmitted on WHAV-AM and.WLYT-FM alone would have the potential for- '
reaching <a relatively small segment of the population in that
t' L L radio coverage' area at any point in time. It appears from our sampling research that relatively few people in that geographic area listen to WHAV and-WLYT. Furthermore, it is conceivable
~
that relatively few people would tune their radios to those two stations in the event that they heard sirens or other audible s warnings . Based upon the data available, it appears to me that at-least ten times as many, and theoretically geometrically even more people would hear emergency messages if they were transmitted' simultaneously over the combined facilities of the entire Merrimack Valley Operational Area EBS network. The foregoing is true and correct to the best of my knowledge and belief. As / A. Anthony Ke
' Sworn to and subscribed before me i this 21gg day of November, 1989.
/ ns<. 7.,Gsc7:<%k ';
Notary Public My'CommisFion Expires: j l x i W 1h4 o.amaa.w%. . p_c -
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> w A. ANTHONY KEl.SEY Attomey ami Counsellor at law Residence:
717 The Parkway Office: Mamaroneck, New York 10543 845 Third Avenue (914) 698 3332 8th Floor New York, New York 10022 (212) 826 5000 (212) 230-0383 Curr6culum Vitae EXECUTIVE
SUMMARY
was r Candidate has been admitted to the Bar for 15 years ar%ecentlyof Counsel Wolff k Candidate DonniJy, is now a 200 attomey Arm engaged in general practice with ofnces in 5 U . Vice President and General Counsel of Arbitron Ratings Company, a natio television and market research coatpany.l s CURRENT POSITION Vice Presalent and Gewral Counsel. The Arbitron Co trynny o ADDITIONAL PO5!TIONS ll Of Counsel. Oppenheirrer, Wolff & Donnelly: l- Assistant General Counsel, Control Dets Corporation Member, Board of Directors, Arbitron Ratings Company Member, Board of Directors Burke Marketing Services,Inc.
. General Counsel, Assistant Secretary, ScanAmerica, Inc. "
Ceneral Counsel, Magnicom Systems EDUCAT10N . t bgal - Fordham University School of law - Received Juris Doctor Degree: June,1972 ' Col!ege - Fordham College of Fordham University - Received B.A. Degree: June,1968 PROFESSIONAL ACCREDITATIONS . Admitted to: Practice: New York: February 1973 g United States Distnet Court Southem and Eastem Districts of New York: 1973 l Second Circuit Court of Appeals; 1975 Sixth Circuit Court of Appeals; 1990 United States District Court, Northem District of Caldomia; 1986 L-1 . . .
A. ANTHONY KELSEY Also Page 3 September,1983 to Sepeember,1996 C.ENERAL COUNSEL to Megmcom Sysarms, a Control Data Corporation venture engaged in the development. manufacture and markenng of computer systems for cable TV franchess. PersemaRy - responsible for the dissolution of the venture and the wmdmg up of its affairs, mekwJing wetlement with the venture's partne=s, customers and third partes. CENERAL COUNSEL
' to SorriAmmco, fac., ongmally a whollyewned subudiary of Burke Marketm8 S ervices, Inc.
of Cinemnati, Ohio. ScanAmence is a new technolq;y venture of Arbitron, directed toward the creation of a nanonal state.ohan interscave televnion metenng speem designed to capture household and mdmdual televeson viewmg together with product purchase behavior. MEMBER, 8ertt Martrerig Serimcm lac the largest suppher of Custom Survey research in the United BOARD OF States. . Research includes advemming team, product tests. - y -"::wareness O{ RECTORS tracking studies, market deArunon segmentanon studies and qualitative group and indmdual meerviews January,1977 NEW YORX TE1FHONE COMPANY to - 1095 Avenue of the Amences. N.Y N.Y.10036 Decembe+. '978
, , ASSISTANT One of seven in-house trial anomeys for a selfinaused telephone operstmg utility with :
CENERAL COUNSEL oWretang revenues of $7 Billion annually. Responsible for a personallocal anal caseiend of . 250+ cases (eachadant collecean cases), together with supervision of upstate counsel. Trial of both P'ainedra and Defendent's tort and commeraal haganon; clauns relanns to the Company's lumishing of telephone arvice, the Company's tardit daractory listep and Yellow Page directory adverasmg; defense of no fault arberat.on cleams; Workmen's Compenannon appeals, tnal of general commeraal and real emate haganon; insolvency
- counseling and heiganon.
September.1971 WHrrMAN 4: RANSOM, Esqs.
= to 522 Fifth Avenue. N.Y., N.Y.10036 December,1976 ASSOCIATE ATTORNEY with a firm of 140 attomeys. Area of speaakaanow Umganon and Tnals. A substaneal amount of tune expended in the bagseon of are and casualty insurance defense and -
-L ,, . casse, especally where arson, fraud and/or false sweanns were suspected.
Other aseas of substannel expenence indude: commernal and general Itu6 anon, bankrupcy and insolvency maners, mammonials; federal secunees haganon; artnernoons; state envuonmental beganon; some estate and trust. real estase and appeilase Precace PERSONAL DATA Age 42 Height: 67'; Weight: 220 lbs. - Health: Good Marned; one chdd 1
- . . . - . . . . . . - - - - - ~ - - -. -
x., A. ANTHONY KELSEY p PROrtSSIONAL EMPLOYMENT HISTORY . Page 2 Sepwmber,1996 OPPENHEIMER, WOLFF & OONNELLY to Dece nber,1943 ' Primanly respons;ble in the conunumg tepresen+at.on of Arbreto below) with addmonal personal chents as follows: Sinrod Marketmg 4 Calbememcs, Inc.; Donohue Research and Marketeg, Inc.; RadioTe
. Marketmg Services, Inc.; llM. Lord er
- Strategy Corporanon.
Associates. (advemsmg); and Automonve Engaged in the pnvate preence of law m the areas of audience a1 broadcannns adversmng, corporate law, commercial law, intellectu and hei atwn.. 1 a 6 Decerriber,1975 & to Seotember,1986 ~ ARBITRON RATINGS COMPANY
- 142 West 57th Street, N.Y N.Y.10019 ,
and Dece nber 1988 to Present y , VICE PRESIDENT j '^ ' CENERAL COUNSEL Sole intemal legal resource for nanonwide radio and television ranng and BOARD OF company
- ocanons.
with annual revenues in excess of $170 Million, havmg 1,000 employ DIRECTORS Personally responsible for all legal actmnes and concems of the Compan wholly owned subsuhary of Control Dsta Corporanon Sigruncant areas of legal responsibihty for Arbitron included: > l
- Annerust counsehng, bnganon and prevennve acnon,
- Acquisitions, divestitures, and technology inveenganons, s Advice and counsel regarding Communicanons Law; Lu ,
l o Drafung, administronon and enforcement of all Subsenber tJeense Apwme # Vendor Contracts for all services and products; (-i , e Advice, claims and heigation regarding Copynght and non-subsenbers' unautho use of Arbitron audience eenmates:
. o Protecnon and licensmg of on hne and syndicated data bases; e Counsel of record for, or direct superwsion of, all lit'6 anon matters mc methodology, policies and procedur% ratmg complaints, ranng distomon, i stamon actmnes, sample secunty and signi6 cant collection actions;
- One of four members of a "New Venture Renew Board" which was renew and pass upon all new technology, invennons, and busmess opportunm sented to the Coripany; e
attennons to compliance with Federal Trade Commission Consem Decree and Elec-trome Media Ranng Council accreditanon, includes preparanon and review of all of ' Arbitron's "Desenpnons of Methodology", and all documents in which claims are
.made concernmg Arberon audwnce esumates;
- Patent and Trademark counsehng and advice;
- 4 General Corporate and Personnel counselmg and advice;
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t 1 4 l i j i NtnL ec], ? - ,pt y3 ; , 1 Q Ol<ay. 2s So that you have never been in the beach areas in the 3 day time for,the_ purpose assembling information on the basis of-4 d which you could provide recommendations to the utility? 5 A (Mileti) No. i 6' Q But you have been there in the evening driving-7 .\ through, and you based your recommendation on that? l 8' A (Mileti) I was there in the evening and observed 3 that most of the people I saw were young; what I observed when ! I 10 I was.there during the day was that the populat1on appeared 11 much more heterogeneous. 12 Q And is>that a significant fact, that.It appeared more 13 heterogeneous? -i 14 A (Mileti) It did not appear that evetvene was in one l 15 part icular - I . don' t know that it.is significant at all, it I 16 .justflooked .like people on the beach, which I don't get to see ; 17 very much, given that I live in Denver. i m 18- Q- One last-point, does'itimatter that the people in the* 19 ' summer months, a healthy percentage of,the people in the-beach
- 20. areas, are transient and non-resident from the perspective :f Il designing an adeguate emergency information system. 1: that-a
, 22 relevant consideration? - 23 A (Mileti) It certainly is one thing that you would
, 24
- ant to take into' account in designing a good emergency warning 25 system., For example, the thing that would make visitors to an sh-Heritage Reporting, Corporation (202) 628-4888
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area different, be they hotel or-motel cw,el ice c. o r- ;cq:.'; w. g 2 beach, is that they may not have had access to pr'e-emer goney' 3 information, for example, brochures. 4 However, that sort of information, rarely, if ever, 5 has an effect on-what people do in response to an emergency ses 6 of warnings, and that would suggest,.again, that one issue 7 warnings frequently. 8 And that is built into the emergency warning system.'! 3 'Q ! So,-if I understood that testimony, the fact that th( 10 transients would be relevant in that they may not have had the 11 pre-emergency broch,ures.and information available but such-12 information is not particularly important, in any case, is that i,
, 13 what you are saying?
14 A -(Milet i ) What I -- I don' t believe that I n a '. . 15-available, I said that they may not have read it, prior to 16 receiving emergency warnings. [ 17 And then I did suggest, which is the case, that that ; e 18 ). sort of' pre-emergency education or information, if you will, 'iI l 19
'has'not been empirically demonstrated to have an effect on what!k 1
- 10. people do in response to subsequent emergency warnings. i 21 I am not suggesting that pre-emergency education ;s ,
22 not important but suggesting that emergency warnings are verv 4 23 important. 24 Q I am sorry, did you say, not suggesting that it is 1 23 not important? p ci_C } Heritage Reporting Corporation (202) 628-4888 : w -
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I l1-h l i- 0:1NCL No. 7 - Ct033 .li p 1' A- .M11sts) ( That as cortoct. ! wou l :: e,e t e ec om,n e.e
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that we give up the effort to supply people with trochures, fo! ~+ 3 example. g , 4 Q In fact, l- you would make the recommendation that pre- !. . 5 emergency brochures and information should be disseminated, j 6 isn't that correct? i
-7 A (Mileti) Yes. (
8 G And what steps have been taken, if you know, to 9 disseminate pre-emergency information to transients on the e to beaches'in the.EPZ? p 11. A (Mileti) I don' t know. 1 12 Q Have you made such a recommendation?. 13 A. i (Mileti) That they hand out brochures to beach l 14' goet's ? l l 15 Q No,-I did not say that. 16 I said pre-emergency information? '1' 17 A ;(Mileti) No nor would I suggest that they do'it. 18 Q Why not? ! I 19- A (M11sti) It is not needed in terms of getting the-20 public to engage in a good, emergency warning response. 21 Q But you would t ecornmend that, generally it as your
- 22. recommendation, that such pre-emergency information be .
23 ~ distributed 24 A (Mileti) In general, yes, to the general population H 25 who lives.in an EPZ. J. ,.
'I Heritage Reporting Corporation (202)-628-4888.
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i Q But to a t ranutent . occulat ion in the CN. vou ~1513 2 not escommend that it be distributed? 3 A (M11sti) I would not recommend that people be hand ( 4 brochures as they go.onto a beach, no.- \ 51 G 'e Well, in any other form that human invention can co 6 up with, would you recommend that pre-emergency information b 7L made available to the transient population on the beach? i l 8- A (Mileti) It in general, would not hurt, although Il 3 don' t - know if it would help if signs were posted regarding .; 10 where' emergency information could be obtained .1 in an actual { 11 emergency. 12. However, whether people turn to EBS stations, for ; i 13 example, is probably more a result of the warnings that enov
'14 get during an emergency. '
'15
.And I would recommend tothisutilityoranybodyels{ _
.16 -;
planning for any emergency of any sort, that the emphasis be -! 17-placed on adequate emergency warnings during an emergency.
- 18 Q Now,-I understand that is the focus, one of the main?
1 19 foet of your testimony. 20 But would you then recommend that pre-emergency 21 information'be made available to transients or not'
,' 22 A
, (Mileti) I think emergency information, such as, f
'23 w maps, routes, that sort of thing, should be availaole to pooold 24 in the EPZ in some form. i 25-For example,' phone books or that sort of thing, et c. _i c -
Heritage. Reporting Corporation (202) 628-4888
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- 4 UNITED STATER OF AMERICA NUCLEAR REGULATORY COMMISSION LATOMIC SAFETY AND LICENSING BOARD
. Before the Administrative Judges:
Ivan W. Smith, Chairman . j + Dr. Richard F. Cole Kenneth A. McColloa
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In the Matter of ) Docket Nos. 50-443-OL i
) 50-444-OL PUBLIC SERVICE COMPANY )
.OF NEW HAMPSHIRE, 32 AL. )
) J (Seabrook Station, Units 1 and 2) ) ~ November 22, 1989 !
.)
CERTIFICATE OF SERVICE I, Leslie B. Greer, hereby certify that on November 22, 1989, I' s made service of the within INTERVENORS' MOTION TO ADD ~AN ADDITIONAL ~
= BASIS TO THE~ LATE-FILED CONTENTION,. ATTACHED To THE MOTION-0F +
NOVEMBER 9,- 1989 by, Federal Express.as indicated.with-(*)-and by 5 a.,w- first. x - class' mail tos
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*Ivan W.-Smith, chsie#
- Atomic: Safety 4 Licensing Board *Kenneth A. McColloa l~ U.S. Nuclear Regulatory 1107 W. Knapp St. !
4 . Commission Stillwater, OK 74075 < p East. West Towers Building
- Docketing and Service 4350:EastLWest Highway U.S. Nuclear Regulatory Bethesda,'MD 20814 Commission Washington, DC 20555 !
i: *Dr. Richard F.' Cole Paul McEachern,'Esq.
' Atomic Safety & Licensing Board Shaines & McEachern U.S.= Nuclear Regulatory Commission. 25 Maplewood Avenue East West Towers Building P.'O. Box 360 ~
P ' 4350' East West Highway Portsmouth, NH 03801 Bethesda, MD':20814 L , L
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- Robert R. Pierce, Esq.
- Thomas G. Dignan, Jr. , Esq.
Atomic Safety & Licensing Board Katherine Selleck, Esq. U.S. Nuclear Regulatory Commission Ropes & Gray East West Towers Building-4350-East West Nighway one International Place Boston, MA Bethesda,- ND 20814 02110 H. Joseph Flynn, Esq. *Mitti A. Young, Esq. Assistant General Counsel Edwin J. Reis, Esq. office of General Counsel U.S. Nuclear Regulatory Federal Emergency Management Commission Agency 500 C Street, S.W. Office of the General Counsel 15th Floor Washington, DC 20472 11555 Rockville Pike Rockville, MD 20852 Atomic Safety & Licensing Robert A. Backus, Esq.
-Appeal Board Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 031067 Atomic Safety & Licensing Board 9..
U.S. Nuclear Regulatory Commission Jane Doughty i) Washington, DC 20555 Seacoast Anti-Pollution League 9 5 Market Street Portsmouth, NH 03801 Charles P. Graham, Esq. Barbara St. Andre, Esq. i Murphy & Graham Kopelman'& Paige, P.C.- 1 33 Low Street 77 Franklin Street
; Newburyport, MA- 01950 Boston, MA 02110 2 Judith H. Misner, Esq.
79 State Street R. Scott Hill-Whilton, Esq. Lagoulis, Hill-Whilton 2nd Floor & Rotondi Newburyport, M&. 01950.. 79 State Street e_ pe- . !;f g-cEs.},;@a G ~- *Meetiusyporty M&- 01956"'... ,,r" ' ~ n
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2.v. . -- Dianne curran, Esq. y Harmon, curran, & Towsley Ashed W. Amirian, Esq. ,
! Suite-430 145 South Main Street. '
2001 S Street, N.W. P.O. Box 38
" Bradford, MA 01835 Washington, DC 20008 Senator Gordon J. Humphrey Senator Gordon J. Humphrey U.S. Senate One Eagle Square, Suite 507 Washington, DC 20510 Concord, NH 03301 (Attn: Tom Burack) (Attnt Herb Boynton) 2-1
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, John P. Arnold,-Attorney General Phillip Ahrens, Esq.
Office of the Attorney General Assistant Attorney General
-25 Capitol Street Department of the Attorney Cortcord, NR 03301 General Augusta, ME 04333 William S. Lord Board of Selectmen Town Hall - Friend Street Amesbury, MA 01913 COMMONWEALTH OF MASSACHUSETTS JAMES M. SHANNON ATTORNEY GENERAL
~
d . hDDn Leslie B. Greer Assistant Attorney General Nuclear Safety Unit Department of the Attorney General One Ashburton Place Boston, MA 02108-1698 (617) 727-2200 DATED: November 22, 1989 s
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'I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Before Administrative Judges:
G. Paul Bollwerk, Chairman Alan S. Rosenthal' Howard A. Wilber
)
In the Matter of ) Docket Nos. 50-443-OL
) 50-444-OL PUBLIC SERVICE COMPANY )
OF NEW HAMPSHIRE, ET E. )
=
)
(Seabrook Station, Units 1 and 2) )
)
AFFIDAVIT OF MICHAEL CRONIN j I, Michael Cronin, being duly sworn, state as follows: ;
- 1. I-am the police chief of the town of Amesbury. My office is located at 19 School Street, Amesbury, -i Massachusetts. As police chief.I am familiar with the !
personnel resources of the police department in the town and the number of officers who are usually assigned to be on duty i' during the various shifts. I have also had occasion to try and elicit off-duty personnel to respond to emergency situations. From those experiences, I can make a fairly good estimation as to how many officers will be available to respond to an i emergency. i 1
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- 2. The Amesbury Police Department has three shifts, the day and evening shifts comprised of one supervisor, one foot
. patrolman and five officers in cars, on the third shift one supervisor.and three officers in cars are scheduled. However, l
on the majority-of days, these shifts are not fully staffed. '
- 3. Due to a lack of full manpower even on routine days, I ,
would not be able to obtain any off-duty personnel to aid in * ' an emergency. This manpower shortage was illustrated when an Amesbury dam was at risk and not enough police were available e to staff the evacuation process of that affected part of town.
- 4. I have reviewed a portion of Revision 1 of the Seabrook Plan for Massachusetts Communities. Specifically , I have looked at that portion of Implementing Procedure 2.7 that calls for Special' Population Liaisons to notify the local police departments if off-business hours and telephone contacts with special facilities are unsuccessful. Under the revised '
procedure, the liaisons are at'that point supposed to request the local police to notify the residents of special facilities.
- 5. If during an emergency at Seabrook Station the
, Amesbury police department was to receive such a call from a
~ 1iaison, the Amesbury police department could not respond to such a. request. The staffing availability described above
. wculd limit the department from being able to assign officers to perform a notification function for the residents of special facilities. As Chief of Police, I would be the individual
._. _ _ . _ _ . . _ . _ _ _ . _ _ _._ _ _ _ _ _ _ _ . - -- _ _ -__..__. _ , . ~
w primarily responsible for assigning officers to tasks in an amargeney, and I would-net assion my effleses te perfeem that function because I would--need to have them available to perform other higher priority tasks such as traffic control and security.
'The foregoing is true to the best of my knowledge and
- belief.
Vik/J4.&& MICHAEL CRONIN e&a/10 Date Subscribed and sworn to before me this 1 day of January,.1990 Yneu 0 '
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Notary My commission expires d2 z 3, f 9 9 % 1j
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UL Rn i r i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i ATOMIC SAFETY AND LICENSING APPEAL BOARD ~ j Before Administrative Judges: { G. Paul Bollwerk, Chairman Alan S. Rosenthal Howard A. Wilber !
)
In the Matter of ) Docket Nos. 50-443-OL
) '50-444-OL PUBLIC SERVICE COMPANY lt ) 1 OF NEW HAMPSHIRE, ET AL. )
)
(Seabrook Station, Units l'and 2) ) .! L
)
j; AFFIDAVIT OF FRANCIS O'CONNOR I, Francis O'Connor, being duly sworn, state as follows:
- 1. ' I am the City Marshal (police. chief) 'of the city of Newburyport. My office;is located at 4 Green Street,'
.Newburyport,' Massachusetts. As City Marshal.I am familiar with the personnel resources of the police departmentLin the city i and the number of officers who are usually assigned to be on ,
duty during-the various shifts. During the time that I have
--been'with the department, I have also had occasion to try to '
raise or call in off duty and officers to. respond to situations where additional staff were needed in excess of the officers assigned to shift on duty. From those occasions, I can fairly.
.[
. accurately estimate how many officers might be expected to be available to respond to an emergency.
u t b< b 2. For.each of the three shifts et the police department,- s there is'an average of-four men in the field, one of which is i
- on foot with the remaining three in vehicles. One supervisor
- is present on each shift.
- 3. If there was to be an emergency at Seabrook Station, I would only have those scheduled officers available, as there is no list of reserve officers who can be snamoned in the event of an emergency. The union of police officers in Newburyport voted unofficially on whether off-duty offices would respond
[' undar their employment contract in the event of an emergency at Loabrook. The result of the vote was that they would not. My understanding is that as a result of that vote, 1 could not P I legally oblige off-duty officers to respond. Nor, as a practical. matter, given that vote and my past experience with r
- calling.in off-duty officers, could I, or would I, count on 3
such officers responding to a call in.
=
- 4. .I have reviewed a portion of Revision 1 of the
.Seabrook Plan for Massachusetts Communities. Specifically , I
- have11ooked at that portion of Irplementing Procedure 2.7 that 5 calls for Special population Liaisons to notify the local 1 police departments if'off-business hours and telephono contacts with special facilities are unsuccessful. Under the revised procedure, the liaisons are at that point supposed to request the local police to notify the residents of special facilities.
E '
- 5. During an emergency at Seabrook Station if the Newburyport police-department was to receive such a call from a r liaison, the Newburyport police department would not be able to 2-
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c i respond to such a request because the limited staff 4 availability described above would foreclose the department . from being able to assign officer.s to perform a notification function for the residents of special facilities. As City Marshal, I would be the individual primarily responsible for assigning officers to tasks in an emergency, and I would not assign my limited number of officers to perform that function because I would need to have them available to perform other
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higher priority tasks. I would be very concerned that if I L.: assigned an officer to make notifications at a special facility like'an elderly housing project, he or she would become tied up there responding to the needs of the residents and would be unavailable-to respond to other police situations. The foregoing is true to the best of my knowledge and belief.
?& h 4W FRANCIS O'pONNOR l j
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-UNITED STATES OF AMERICA O NUCLEAR REGULATORY COMMISSION-l W ATOMIC SAFETY AND LICENSING APPEAL BOARD Before Administrative Judges:
G. Paul Bollwerk, Chairman l Alan S. Rosenthal Howard A. Wilber l
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In the Matter of ) Docket Nos. 50-443-OL ,
) 50-444-OL j PUBLIC SERVICE COMPANY )
OF NEW HAMPSHIRE, ET AL. ) j
) 1 (Seabrook Station, Units 1 and 2) )
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I AFFIDAVIT OF ROGER MERRY L I, Roger Merry, being duly sworn, state as follows:
- 1. I am the police chief of the town of Newbury. My office is located at 25 High Road, Newbury, Massachusetts. As police chief I am familiar with the personnel resources of the police' department in the town and the number of officers who are usually assigned to be on duty during the various shifts.
I have also had occasion during my tenure with the.Newbury police department to muster off duty and/or reserve officers to respond to situations were additional staff in excess of the I officers assigned to shift were required. From those occasions, I.can make a fairly good estimation as to how many officers can be expected to be available to respond to an emergency. J l
- 2. There are only eight (8) full time police officers who
. work'for the Town'of Newbury. The usual duty roster has three
'(3) officers scheduled for the day shift, .three (3) for the evening shift, and two-(2) the late night shift. Newbury has a list of reserve officers who can b'e summoned in the event of an emergency. However, many of those reserve officers live and/or -
work out=of town and often are unavailable for assignment. Past experience has proved that it is particularly difficult to obtain additional staffing during the usual Monday through Friday working hours.
- 3. If there was to be an emergency at Seabrook Station and I was to attempt to augment the usual complement of police officers on duty by calling in off-duty and reserve officers, I.
could realistically expect to obtain a total of eight officers-at a maximum, including the officers normally assigned to shift and those called in. I would consider myself extremely lucky j if I managed to obtain ten officers respond.to an emergency. ; i
- 4. I have reviewed a portionlof Revision 1 of the !
Seabrook Plan for Massachusetts Communities. Specifically , I ! have looked at that. portion of Implementing Procedure 2.7 that calls for Special Population Liaisons to notify the local police departments if off-business hours and telephone contacts ' i with special facilities are unsuccessful. Under the revised ! procedure, the liaisons are at that point supposed to request the local police to notify the residents of special facilities.
- 5. If during an emergency at Seabrook station the Newbury police department was to receive such a call from a liaison, the Newbury police department could not respond to such a l
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o request. The--limited police staff availability described above would preclude the department from being able to assign-officers.to perform a notification function for the residents of special facilities. As Chief of Police, I would be the individual primarily responsible for assigning officers to tasks in an emergency, and I would not assign my one, or more, of my limited number of officers to perform that function because I would need to have them available to perform other higher priority-taska. The foregoing is true to the best of my knowledge and belief.
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ROGERMERRY /
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Date Subscribed and sworn to before me this d day of January, 1990
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