ML20206M825
| ML20206M825 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 11/23/1988 |
| From: | James Smith PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#488-7555 ALAB-903, OL, NUDOCS 8812020019 | |
| Download: ML20206M825 (31) | |
Text
____ _ _____-_ _ _,-_ _ __ __________ __ _____ __.
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NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443-OL NEW HAMPSHIRE, et al.
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50-444-OL
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Off-site Emergency (Seabrook Station, Units 1 and 2)
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Planning Issues
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APPLICANTS' MEMORANDUM IN RESPONSE TO NOVEMBER 14. 1988 LICENSING BOARD MEMORANDUM Applicants previously submitted "Applicants' Response to Intervenors' contentions on the June 1988 Seabrook Exercise."
On November 14, 1988 this Board issued its Memorandum inviting "comments by the parties in this proceeding on the significance of ALAB-903 to the exercise contentions."
Pursuant to that Eemorandum Applicants herein submit their response.
A.
FEMA's Finding of No Deficiencies creates a Rebuttable Presumption of the SPMC's Adequacy and Implementr tion capability.
Mass AG, in "Massachusetts Attorney General's Exercise Contentions Submitted in Response to the June 1988 Seabrook 8812O20019 091123 PDR ADOCK 0b000443 O
e t
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Initial Full Participation Exercise," argued that a presumption attributed to FEMA findings only applies in respect of state and local emergency plans.
Mass AG contended that the NRC's finding as to the adequacy of utility offsite plans "is not based on any determination made j
by FEMA and no rebuttable presumption attaches to a FYMA j
finding in the event a contention raising the adequacy of utility offsite preparedness is admitted."
Id. at 2.
s i
Applicants argued in response that Mass AG's argument proved too much.
The logical extension of his argument would, in the final analysis, lead to the conclusion that the i
i t
FEMA finding of no deficiencies precluded litigation of any 1
i exercise contentions other than those addressed to the scope of the exercise.
Applicants argued that to the extent that the logical and necessary extension of Mass AG's argument was held to follow, Applicants would agree with Mass AG.
otherwise, Applicants urged the Board to reject Mass AG's assertion that the adequacy of utility offsite plans cannot be based on any dstermination by FEMA and to conclude that a rebuttable presumption does, indeed, attach to a FEMA finding i
and that this fact be given some deference in determining whether a contention should be admitted.
]
The Appeal Board's decision in Lonc Island Lichtina Co.
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(Shoreham Nuclear Power Station, Unit 1), ALAB-903, 28 NRC __
(November 10, 1938) ("ALAB-903"), has mooted this discussion i
1 1 :
1 i
i t
between the parties.
In ALAB-903 the Appeal Board, in passing on the only other utility-generated off-site emergency plan aside from the Seabrook Plan for Massachusetts Communities ("SPMC"), established the legal standard for the admissibility of contentions concerning an (~ercise of a l
utility plan.
ALAB-903 makes it abundantly clear that a FEMA finding constitutr.. "a rebuttable presumption on questiens of (emergency plan) aGequacy and implementation capability," 10 C.F.R.
$ 50.47(a)(2), regardless of whether that finding i
relates to the exercise of a utility plan or a state or local plan.
As a result, "if FEMA has found no Deficiencies or assigned a less severe rating to a problem revealed by the exercise, an intervenor seeking the admission of contentionJ that allege a fundamental flaw has a more difficult task, but it cannot be precluded from even offering such contentions."
ALAB-903 at 12.
With this presumption in mind, the application of ALAB-903 to the individual contentions is considered.
l l
B.
Application of ALAB-903 to Individual Contentions.
i To be admissible, an exercise contention must allege both "a failure of an gatential element of the plan" and that that failure "can be remedied only through a pionificant revision of the plan."
ALAB-903 at 6 (emphasis added).
As l
the Appeal Board has exp)ained:
t
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l With respect to the first factor, whether an essential element of the plan is involved should be determined by reference to the 16 basic emergency planning standards set fort. in 10 C.F.R $ 50.47(b) i and the requirements of 10 C.F.R. Part 50, Appendix E.
The s.cond factor requires consideration of how the failure in the plan, as revealed by the exercise, can be corrected.
If the i
involved portion of the plan itself agat be t
reassessed and reconceived to a sianificant extent in order to prevent such a failure in the future, then there is a fundamental flaw.
i
- 14. at 7, 8 (emphasis added).
Intervenors face a heavier than usual burden of pleading exercise contsntions fully and with specificity.
Because
"(s)uch contentions arise very late in the proceeding," and since "substantially more information (is) available on which to base exercise contentions than is ordinarily the case",1 f
i Intervenors are required to present "well-focused, concrete contentions."
Id. at 9.
Egg also id. at 9-10 ("it is i
reasonable to expect graater detail in such contentions").
Finally, that burden of making detailed and specific assertions, showing both elements of a "fundamental flaw" to be present, is even heavier when FEMA has found no Deficiencies in the exercise in question.
Id. at 12 ("if i
FEMA has found no Deficiencies or assigned a less severe l
I 1
Such is especially the case here, whure Intervenors l
had the benefit of their own observations of the exercise, j
j and access not only to the FEMA report, but also to the t
i exercise-related docunents produced by Applicants on July 27, i
1988 (which locunento Intervenors specifically requestad for i
the purpose of drafting contentions).
Ens Applicants' Notice Regarding Exercise-Related Documents (July 25, 1988).
l 1
4 1
)
i
Lating to a problem revealed by the exercise, an intervenor seeking the admission of contentions that allege a fundamental flaw has a more difficult task, but it cannot be precluded from even offering such contentions").
In light of these requirements for exercise contentions as articulated in ALAB-903, Applicants make the following observations concerning the contentions submitted by Intervenors.
These observations supplemer:t the positions as to those contentions..ich are stated in Applicants' Response I
to Intervenors ' Contentions on the June 1988 Seabrook Exercise (September 28, 1988) (hereinafter the "Response"),
i but do not supercede those positions except where specifically so noted below.
l.
MAG EX-1 i
This contention asserts that the scope of the Exercise was inadequate because Applicants exercised only Mode 2 of I
the SpMC, under which the ORO responds to the emergency with i
no state or local help or participation, rather than e
simulating the potentially infinite permutations of Moda 1 and mixed-mode responses by state and local officials.
In j
effect, Mass AG seeks now to penalize Applicants because Applicants took Commonwealth and local officials at their word when those officials stated -- in contentions submitted in the SPMC portion of these proceedings, as well as in other forums -- that they would not participate in any response by
-s-l
Applicants, at any time, under any circumstances.
- Eig2, Joint Intervenor Contention 41 ("State end local officials responsible for emergency preparedness and response in Massachusetts have no intention of implementing or following the ;!PMC in the event of a radiological emergency at Seabrook.").
Mass AG states that the Commonwealth and the EPZ municipalities will D21 cooperate with Applicants, but j
then argues that Applicants must pretend that they E111 Quite aside from the inconsistency of Mass AG's position, the assertions contained in the contention fall l
short of the rigorous requirements of ALAB-903.
In order to comply with ALAB-903, a scope contention,ust allege in detail that the exercise excluded an entire "essential element" of the plan, and that any flaw in that element of the plan could "be remedied only through a sianificant revision" of the plan itself.2 This KAG EX-1 fails to do.
l 1
2 In ALAB-900 the Appeal Board held that an exercise contention as to scope must call into queation whether the i
exercise was "comprehensive enough to permit a meaningful test and valuation of the emergency plan to ascertain if that plan is fundamentally flawed."
Lona Island Lichtina Co.
(Shoreham Nuclear Power Station, Unit 1) A LA B-9 00, 28 NRC __,
slip op. at 11 (1988) (emphasis deleted).
Seven weeks later, the same Appeal Board further refined that standard by defining what it meant by a "fundamental flaw" -
"a failure of an essential element of the plan" that "can be remedied I
only through a significant revision of the plan."
ALAB-903 at 6.
The two Appeal Board decisions, when read in conjunction, leave no doubt that a scope contention must allege, with greater-than-usual specificity, that the exercise excluded an "essential element" of the plan in which flaws could only be remedied by a "significane revision" of l-i i
The cor.tention contains no allegations of f act, let alone the i
requisite detailed and specific ones, from which one could conclude that an "essential element" of the SPMC went untested.
To the contrary, the contention concedes that the Exercise did test "0RO's capacity to meet the ' legal authority-sensitive' objectives assuming the Commonwealth delegates all necessary authority".
Moreover, the contention fails to allege, let alone describe in detail, facts from which one could conclude that any "sianificant revision" of the SPMC would have been revealed to be necessary if the scope of the Exercise had been different.
For both of the reasons, as well as those discussed in the Response, MAG EX-1 i
should not be admitted.
2.
MAG EX-2 MAG EX-2 is another scope contention, alleging that seven "major portions of the SPMC" were not 9ested.
While f
r the contention itself, at least in very general terms, could t
be read to allege that "essential elements" of the SPMC were excluded, it contains no suggestion that a "significant revision" of the SPMC would be required for those excluded t
elements.
l
[
To the contrary, Mass AG's allegations concerning VANS r
e in Basis A are not sufficiently detailed and fact-specific to the plan itself.
e call into question the presumption raised by FEMA's finding that the VANS capability was successfully exercised.
Egg Exercise Report at 201.
Moreover, the contention would at most seem to suggest areas where a need for more or better hardware might be revealed.
)
Basis B at most raises an issue of delay, which in order to amount to a fundamental flaw "must be substantial and thus l
likely to have affected the protectiva action recommendation l
in an actual emergency."
ALAB-903 at 7.
Mass AG does not allege the possibility of a "substantial delay" or any "likely" effect on PARS; nor would one seem possible on the facts alleged in Basis B.
Here too, moreover, Mass AG's allegations are not sufficient to call into question the presumption of adequacy raised by FEMA's findings.
Egg Exercise Report at 214.
Basis c is so undetailed as to preclude even the speculation that it might allege a need for a "significant revision" of the SPMC, let alone that the FEMA finding of i
adequacy might be rebutted.
has Exercise Report at 214.
Basis D is similarly deficients at most, an exercise of this component, even if possible to exercise, would have revealed a need for more or better public education and information dissemination, rather than a plan change.
Basis E, aside from being ludicrous on its face for suggesting that Applicants had to conduct an actual complete
~8-
evacuation of the EPZ's two hospitals, at most addresses an area where more equipment and training could have been shown to be needed.
Basis F does not allege facts indicating that a "significant revision" of the SPMC would be required.
Likewise, Basis G at most implies that a need for more preparation of school, hospital, and/or special facility administrators might have been revealed.
Accordingly, Applicants herein modify their original position that MAG EX-2 could be 3dmitted in part.
- Rather, the contention and all of its bases should be excluded, for the reasons stated above and in the Response.
3.
MAG EX-3 This contention merely reprises, somewhat less florldly, the assertions of MAG EX-1.
It should be excluded for the reasons stated above under MAG EX-1, and for those stated in the Response.
4.
MAG EX-4 Given Mass AG's concession that KAG EX-4 has no substance of its own, but is merely a "placeholder" for an issue that will be decided in the SPMC litigation, nothing need be added as to it.
5.
HAG EX-5 Again Mass AG repeats, even more tersely, hic arguments from MAG EX-1 and EX-3.
Again the contention fails -- here, - -
i l
even more dramatically -- the specificity, essential element, and significant revision prongs of ALAB-903.
.l 6.
MAG EX-6 l
I f
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A LAB-9 03, in which the Appeal Board reviewed the f
l y
exercise of a utility-only plan, conclusively establishes 1
i l
that the FEMA review and evaluation of such an exercise are i
I "entitled to prerlaptive but not conclusive weight".
ALAB-l t
h 903 at 12.
Mass AG's contention that the FEMA review and I
i evaluation "are a legal nullity and have no legal effect or significance in this proceeding or otherwise" is, therefore, f
itself a legal nullity, wholly without merit.
MAG EX-6
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should be excluded.
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1 7.
MAG EX-7 j
j l
ALAB-903 settles that FEMA findings as to the exercise
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of a utility plan are entitled to the usual rebuttabla I
presumption.
ALAB-903 at 12.
MAG EX-7 s therefore wrong, l
l i
4 as a matter of law, and should be excluded.
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8.
MbG EX-8 i
1 MAG EX-8 is built upon four bases.
Basis A is merely
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another "placeholder" for an issue that will be decided in i
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the SPMc litigation.
The first three sentences of Basis B, l
1 1
plus a).1 of Basis D, merely cross reference to issues raised I
1 in other ccatentions, which issues will be resolved (or
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excluded) under those contentions.
The admissibility of MAG f
EX-8 therefore depends on whether Basis C and the remainder f
h i
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l of Basis B meet the standard of ALAB-903.
They do not, and i
so the contention snould be excluded.
Basis B's allegations concerning the adequacy of Applicants' radios at most raise an issue of whether more l
and/or better hardware is needed.
Likewise, the two instances of delay described -- 20 minutes for one ambulance, and 80 for one van - are not (nor could they be) alleged to amount to "substantial" delay that is "likely to have affected the protective action recommendation in an actual emergency."
ALAB-903 at 7.
Since ne "significant revision
)
j of the plan" would be called for, even if Mass AG's 0
assertions were all taken as true, no fundatsntal flaw is alleged in Basis 3.
Basis c is similarly defective.
Subpart 1 at most would call for the institution of "verification methodology" which would not require the SPhC to "be reassessed and reconceived to a significant extent."
ALAB-903 at 8.
Subpart 2 repeats
'f9t again Mass AG's arguments that the non-participating government = m,vt participate in the Exercise, and is objectionable for the same reason as MAG EX-1, MAG EX-3, and MAG EX-5.
Subpart 3 at most calls for a change in radio frequencies.
In other words, this basis too is bereft of any factual allegation of fundamental flaws.
9.
MAG EX-9 Thir contention raises issues concerning the timing and content of EBS messages and news releases.
It contains no allegation which, if true, would indicate that a "significant revision of the plan " er opposed to more siaining and/or better pre-drafted messages, would be needed.
Nor are the allegations sufficiently detailed and fact-specific to call into question the presumption of adequacy raised by FEMA's finding that the EBS messages a.1d press releases were "reasonably well drafted."
Ems Exercise Report at 216.
Similarly, the delays alleged were neither "substantial" nor "likely to have affected the protective action recommendation in an actual emergency."
MAG EX-9 should be excluded.
10.
MAG EX-10 Applicants do not object to the admission of MAG EX-10.
However, any order admitting this contention should exclude Basis B, Basis D, and Basis F (as well as Basis G, as noted in the Response).
f i
Basis B alleges a minor, ad hgg problem that occurred on j
l the day of the Exercise --
two telephone calls to one school i
went unanswered - -
for which num6rous contingency plans exist, and from which no "significant revision of the plan" could be postulated.
Basis D, for all 4.ts excruciating length, merely raises issues of alleged non-compliance with l
SPMC procedures which would, if true, call for acre training j
f f i
et, rather than a "significant revision of the plan."
Basis F, 1
j.
concerning buses, at most raises training and resource 4
issues, rather than implicating the SPMC itself.
Accordingly, none of these ) ises allege faces indicating the ex.=tunce of
- 6. "fundamental flaw" in terms of ALAB-903.
11.
MAG EX-11 No objection.
Any order admitting this contention, however, should exclude Basis A and Basis B.
Basis A does 4
i not allege that the SPMC needs to be revised; to the contrary, it faults certain ORO personnel for deviating from the plan.
Nor does Mass AG's attempt, in Basis B, to second-guess after the fact certain PAR recommendations raise any issue that would require revision of the plan as opposed to, for example, morn training.
Neither basis alleges facts from which one could conclude that a "fundsmental flaw" exists.
12.
MAG EX-12 In the Response, Applicants objected to the admission of Basis D and the "placeholder" Bacis C of MAG EX-12.
Since Bases A and B allege delays which were neither "substantial" nor "likely to have affected the protective action recommendation in an actual emergency," the contention is left without any basis and therefore should be excluded.
13.
HAG EX-13 This contention should be excluded.
In addition to the failings noted in the Response, the contention alleges only
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individual mistakes by ORO personnel that, if tru.i, would at i
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most require more training to correct.
This does not constitute allegation of a need for "substantial revision ot
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4 the plan."
I 14.
MAG EX-14 ALAB-903 reinforces Applicants' position, stated in the I
response, that this contention should be excluded.
Use of, i
7 1
the morgue for decontamination cannot, by any stretch of the imagination, be said to implicate either an "essential elemant" of the plan or to call for "a significant revision" l
1 i
of the plan itself.
Likewise, the alleged failings of certain hospital employses, which even the contention itself l
i concedes could be remedied by training, do not indicate a
[
3 need for plan revision.
Basis A does not allege facts which, i
t if true, would require a "significant revision" of the SPMC.
l The contention should be excluded.
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lb.
BbG EX.11 t
This contention fails to meet the "specificity" t
)
requirement of AIAB-903.
Indeed, to the extent that the i
i I
contention relies on FEMA findings of an ARCA, it is doubly i
[
l flawed -- any FEMA fjeJing less severe thar a deficiency j
)
- arries a presumption that the problem at assue does n91 i
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f constitute a "fundamental flaw."
Mass AG's vague allegations
[
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are not sufficiently clear and detailed to meet the usual heavy burden on an exercise contention, let alone to call 1
l -
I I
1 t
1
i into question the FEMA presumption.
It simply is impossible L
to determine what mistakes Mass AG is alleging occurred, or how those mistakes might require a "significant revision of the SPMC."
This contention should be w>;1uded.
1 16.
MAG EX-16 No objection.
However, Baseu B and C should be
]
excluded.
Noither basis is sufficiently "well-focused,"
l "concrete" or detailed to meet the test established at 9-10 j
i of ALAB-903, let alone to call into question the FEMA finding of adequacy.
Egg Exercise Report at 211.
17.
MAG EX-17
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Applicants maintain their position as stated in the Response.
In addition, Basis C should be excluded as not j
alleging any facts that would require a "significant revision of the plan"; rather, it raises at most a training issue.
18.
MAG EX-La No objection.
However, Basis C :. most alleges facts which could requice, equipmerit changes and/or more training, and not the failure of an "essential element" of the SPMC requiring any "significant revision" thereof.
Likewise Basis D, which alleges a naed for more training and ngt for a "significant revision of the plan," should be excluded.
19.
MAG EX-19 Applicants' position in the Response was that this conteation could be admitted, but Bases A, C and D were.
t
[
S improper and shorild be excluded.
ALAB-903 reinforces Applicants' argument that those bases are inadmissible.
As discussed above, the alleged PAR mistakes listed in MAG EX-11 and incorporated into Basis A of MAG EX-19 raise a training, t
not a plan revision, issue.
Likewise, Basis D at most alleges that the METPAc computer model, and not the SPMC, needs revision.
Moreover, the allegations are insufficient I
to call into question FEMA's finding o.' adequacy as to the use of METPAC.
Egg Exercise Report at 212-213.
(
.1 j
However, Basis B too fails to meet the requirements I
elucidated by the Appeal Board.
Two allegedly inappropriate PARS raise no issue of "significant" plan revision.
Accordingly, the contention is without a single admissible basis, and should be excluded.
20.
MAG EX-20 i
This contention shou?d be excluded.
Mass AG has 1
l withdrawn Basis C, and the other bases are inadmissible.
In addition to the objections detailed in the Response, i
l Applict.nts note that Basis B at most calls for more equipment and training.
Even af one makes the dubious assumption that l
media displays constitute an "essential element,',' no
'significant revision of the plan" is implicated.
- Finally, f
ALAB-903 should terminate Mass AG's fixation with the size of i
l Applicants' traffic mones.
Even if replacement of the cones t
I l
i
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were called for, that would not require a plan r
- tsion, significant or insignificant.
21.
MAG EX-21 Applicants do not object to the scope issue raised in Basis B, and repeated in Basis D, so long as the two bases are consolidated.
Basis A and C, however, should be excluded.
The second sentence of Basis A, which is the only part which does not deal with human behavior issues, calls for resource enhancement, not a plan change.
It is insufficient, moreover, to call into question the FEMA finding of adequacy.
Egg Exercise Report at 226.
Basis C, which is built entirely on the alleged mistakes of two individual players in the Exercise, is simply too petty a matter to litigate in an exercise contention.
ALAB-903 at n.7 ("undue attention should not be devoted to the performance during the exercise of any one individual").
22.
SAPI EX-1 This contention and Basis A appear to present, in a I
large part, a scope issue.
The contention and baais do not allege, with the specificity necessary to sustain Intervenors' heavier than usual burden, nor are the f acts stated sufficient to conclude, that the failure to conduct the Exercise while schools were in session demonstrated a failure that "can be remedied only through a significant revision of the plan."
l Basis B provides a description of PA's recommended for portions of the State rf New Hampshire and concludes, with the benefit of hindsight, that this was a confused and untimely response which did not satisfactorily demonstrate that effective PA's can be recommended and carried out for school children.
The contention and Basis B, however, do not allege with sufficient specificity, and the facts stated are not sufficient to conclude that the Exercise demonstrated, a failure that "can be remedied only through a significant revision of the plan."
{
consequently, Applicants herein modify their original position tnat Applicants did not in the main object to SAPL i
EX-1.
Rather, the contention and all of its bases should be
{
i excluded, for the reasons stated above and in the Response, j
23.
SAPL EX-2 This contention is, in large part, another scope contention.
In any case, the contention and its basis do not allege with sufficient specificity, nor are the facts stated sufficient to conclude, that not exercising additional buses and ambulances demonstrates a fail'. ire that "can be remedied only through a significant revision of the plan."
To the extent the contention and the basis allege
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l failure (s) in the demonstration of those buses arid ambulances exercised, they do not allege with sufficient specificity, j
b and the facts stated are not sufficient to conclude that the
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Exercise demonstrated, a failure that "can be remedied only through a significant revision of the plan."
Accordingly, Applicants herein modify their original position that SAPL EX-2 should be admitted.
Rather, the contention and its basis should be excluded for the reasons stated above.
24.
S'PL EX-1 Applicants supplement their objection to SAPL EX-3 by stating that the contention and its only basis do not allege with sufficient specificity, and the facts stated are not sufficient to conclude that the Exercise demonstrated, a "failure of an essential element of the plan" nor a failure that "can be remedied only through a significant revision of the plan."
The contention and its basis should be excluded for the reasons stated above and in the Response.
25.
SAPL EX-4 This wontentio.s appears to raise, in part, a question of scope.
To the extent *. hat it does, the contention and its basis do not allege with sufficient specificity, nor are the facts stated sufficient to conclude, that not exercising additional sampling teams demonstrated a failure that "car. be remedied only through a significant revision of the plan."
l To the extent the contention alleges failure (s) in the demonstration of the sampling teams exercised, Applicants _________________
e supplement their objection to SAPL EX-4 by stating that the contention and its only basis do not allege with sufficient specificity, and the facts stated are not sufficient to conclude that the Exercise demonstrated, a failure that "can be remedied only through a significant revision of the plan."
Given the rebuttable presumption that attaches to FEMA's favorable reports on field sampling teams, mas Exercise Report at 122, 154 and 211, SAPL has an even "more difficult task", ALAB-903 at 12, in gaining admission of this contention. The contention and its basis should be excluded I
for the reasons stated above and in the Response.
26.
SAPL EX-5 To the extent that the basis to this contention alleges a question of scope in that "cach hospital simulated the handling of only one patient," the basis does not allege with sufficient specificity, nor are the facts stated sufficient to conclude, that not exercising additional patients demonstrated a failure that "can be remedied only through a significant revision of the plan."
To the extent the contention alleges failure (s) in the demonstration of the patient exercised, Applicants supplement their objection to SAPL EX-5 by stating that the contention and its only basis do not allege with sufficient specificity, and the facts stated are not sufficient to conclude that the l
Exercise demonstrated, a failure that "can be remedied only l
2 I
through a significant revision of the plan."
The contention and its basis should be excluded for the reasons stated above i
and in the Response.
27.
SAPL EX-6 Thie contention appears to be a scope contention.
The contention and its basis, however, do not allege with l
sufficient specificity, nor are tle facts stated sufficient l
to conclude, that not exercising additional TCPs and ACPs demonstrates a failure that "can be remedied only through a significant revision of the plan."
Given the rebuttable presumption that attaches to FEMA's favorable report on TCPs and ACPs, 313 Exercise Report, September 1, 1988, at 182, SAPL has an even "more difficult task," ALAB-903 at 12, in gaining admission of this contention.
Accordingly, Applicants herein modify their original I
position that SAPL EX-6 should be admitted.
Rather, the contention and its basis should be excluded for the reasons stated above.
28.
EAEL EX-7 SAPL EX-7 appears to be a scope contention.
The contention and its basis do not state with sufficient specificity, nor are the facts stated sufficient to conclude, that the demonstration of decontamination facilities at the Recep;. ion Centers that were exercised fails to demonsttate the capability for decontamination at the Emergency Worker 7______
Facility.
Thus, it does not demonstrate a failure that "can be remedied only through a significant revision of the plan."
Accordingly, Applicants herein modify their original position that SAPL EX-7 should be admi';ted.
Rather, the contention and its basis should be excluded for the. reasons stated above.
29.
SAPL EX-8 SAPL EX-8 appears to be, in large part, a scope contention.
The contention and its basis, however, do not state with sufficient specificity, nor are the facts stated sufficient to conclude, that the demonstration of shift changes at those locations in which they were exercised fai'.a to demonstrate tie capability to perform shift changes at those locations listed in the basis.
Thus, it does not demonstrate a failure that "can be remedied only through a significant revision of the plan."
The remainder of the contention and its basis, listing a variety of ad h22 Problems that occurred on the exercise day, fails to allege with sufficient specificity, and the facts stated are not sufficient to conclude that the Exercise demonstrated, a failure that "can be remedied only through a significant revision of the plan."
Accordingly, Applicants herein modify their v.i;dnal position that SAPL EX-8 should be admitted.
Rather, the
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contention and its basis should be ey.cluded for the reasons stated above and in the Response.
30.
SAPL EX-9 As discussed in the Response, the basis "only raises an issue of notification delay and not the much more general 1
contention statemen'; "
Response at 85.
The Appeal Board, in
)
l ALAB-903, has made it clear, however, that, in orner to be admissible, any exercise contention alleging delay must allege facts, which, if 1elieved, show that the delay was substantial.
The basis alleges that RCDC personnel were unaware that there had been a release until approximately 1 hour1.157407e-5 days <br />2.777778e-4 hours <br />1.653439e-6 weeks <br />3.805e-7 months <br /> and 16 minutes after the release occurred.
SAPL EX-9 and its basis do not allege fai. s whi.ch, if believed, shov i
that this was a substantiel delay nor is this apparent on its face.
Consequently, the contention c.nd 1*.s basis should be excluded for the reasons stated above and in the Resoonce.
31.
SAPL EX-10 This contention apprirs to be a scope contentien.
The contention and its basis, however, do not alleje with sufficient specificity, nor are the facts stated sufficient to conclude, that not exercising the capability te respond to either an unannounced and/or off hours emergency demonstrates a failure that "can be remedied only through a significant revision of the plan."
Consequently, the contention and _ _ - _ _ _ _
P its basis should be excl.ided for the reasons stated above and
^
r in the Response.
]
32.
SAPL EX-11 SAPL EX 11 raises an issue of notification delay.
The l
Appeal Board, in ALAB-903, has made it clear that, in order to be admissible, any exercise contention alluging delay must state, with sufficient specificity, that the delay was j
r a
substantial.
As stated in the Response, however, "(njo j
l criteria exists for judging the proper amount of time from f
General Emergency or Site Area Emergency declarations to notification of the public of the selected protective action i
recommendation.
This is because, inter alia, that time frame j
encompasse-the time for decisionmaking that is unlimited in scope and indeed, in fact, consisted of most of the time in 1
this exercise."
Response at 87.
Given this flexibility, one would be hard pressed to allege in a contention that a j
significant delay occurred.
SAPL EX-ll and its basis, in i
l fact, do not allege with sufficient specificity a substantial l
i delay nor is this apparent from the face of the time delays l
i i
alleged.
l Accordingly, the contention and its basis should be t
l excluded for the reasons stated above and in the Response.
1 J
33.
SAPL EX-1R 1
To the extent that this contention and its basis i
encompasses a question of scope, it does not state with
}
24 1
i
..m
o sufficient specificity, nor ar) the facts stated sufficient to conclude, that the demonstration of Rec 3ption Centers in Salem and Dover failed to demonstrate the adequacy of procedures, facilities, equipment and personnel of the registration, radiological monitoring and decontamination of evacuees.
Thus, it does not demonstrato a failure that "can be remedied only through a significant revision of the plan."
The remainder of SAPL EX-12, listing a variety of ad h2G problems that occurred on the exercise day, fails to allege with sufficient specificity, and the facts stated are not sufficient to conclude that the Exercise demonstrated, a failure that "can be remedied only through a significant revision of the plan."
Therefore, the contention and its basis should be ux:luded for the reasons stated above and in the Response.
34.
SAPL EX-13 This contention and its basis should be excluded for the reasons stated in the Response.
35.
SAPL EX-14 SAPL EX-14 and its only basis fail to allege with sufficient specificity, and the facts stated are not sufficient to conclude that the Exercise demonstrated, a failure that "can be rsmedied only through a significant revision of the plan."
For this reason and the reasons t
t l
i l
stated in the Response, the contention and its basis should I
be excluded.
4 I
I i
36.
TOM /NECNP EX-1 1
As stated in the Response, the proffered bases in l
TOH/NECNP EX-1 "only address a few specific points, most of i
l which were covered in SAPL EX-1, SAPL EX-2, and SAPL EX-6."
1 Response et 93.
As with ths SAPL contentions addressing 4
l these points, TOH/NECNP EX-1 and its bases do not allege with 1
I
{
s'1f ficient specificity, nor are the facts stated suf ficient to conclude, that not exercising additional personnel and
{
equipment demonstrated a failure that "can be remedied only l
r through a significant revision of the plan."
j f
With respect to the only non-repetitive pieces in this l
)
contention, Applicants supplement their objection by stating l
that neither coLplaint alleges with sufficient specificity, l
nor are the facts stated sufficient to conclude, that not exercising a traffic impediment in TCH and not identifying j
resources by some other means demonstrated a failure that f
i "can be remed'.ed only through a significant revision of the plan."
For these reasons and the reasons stated in the Response, this contention and its bases should be excluded, j
l 37.
TOH/NECNP EX-2 j
As stated in the Response, this contention, despite its
[
accompanying long narrative, raises the same points already covered by SAPL EX-1.
Through this description TCH/NECNP elleges that the Exercise did not demonstrate that there is reasonable assurance that adequate measures can and will be tahan to protect school children during a radiological emergency.
As with SAPL EX-1, TCH/NECNP EX-2 and its basis fail to allege with sufficient specificity, and the facts stated are not sufficient to conclude that the Exercise demonstrated, a failure that "can be remedied only through a significant revision of the plan."
For this reason and the reasons stated in the Response, the contention and its basis should be excluded.
38.
IQH/NECNP EX-1 Applicants supplement their objection to TCH/NECNP EX-3 by stating that the contention and its only basis fail to allege with sufficient specificity, and the facts stated are not sufficient to conclude thit the Exercise demonstrated, a failure that "can be remedied only through a significant revision of the plan."
The contention and its basis should I
be excluded for the reasons stated above and in the Response.
e
,e t
conclusion The Intervenors' contentions should be disposed of as set forth above and in "Applicants' Response to Intervenors' contentions on the June 1988 Seabrook Exercise."
Respectfully submitted, slA*9 j
Thoma's G. Di4 nan, Jr.
]
George H.
Lavald i
Kathryn A. Selleck Jeffrey P. Trout j
Jay Bradford Smith Ropes & Gray 225 Franklin Street I
Boston, MA 02110 i
(617) 423-6100 Counsel for Aeolicants a
4
.I i
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l ld i
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2
- E6 NW 23 R2:28 l
CERTIFICATE OF SERVICE I,JayBradfordSmith,oneoftheattorneysforthe\\r[
Applicants herein, hereby certify that on November 22, 1988, I made service of the within document 'uy depositing copies thereof with Federal Express, prepaid, for delivery to (or, where indicated, by depositing in the United States mail, first class postage paid, addressed to):
2 Administrative Judge Ivan W. Smith Robert Carrigg, Chairman l
Chairman, Atomic Safety and Board of Selectmen Licensing Board Panel Town office U.S. Nuclear Regulatory Atlantic Avenue Commission North Hampton, NH 03862 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Judge Gustave A. Linenberger Diana Curran, Esquire Atomic Safety and Licensing Andrea C.
Forster, Esquire Board Panel Harmon & Weiss U.S. Nuclear Regulatory Suite 430 Commission 2001 S Street, N.W.
East West Towers Building Washington, DC 20009 4350 East West Highway Bethesda, MD 20814 Dr. Jerry Harbour Stephen E. Merrill Atomic Safety and Liceneing Attorney General Board Panel George Dana Bisbee U.S. Nuclear Regulatory Assistant Attorney General Commission Office of the Attorney General East West Towers Building 25 Capitol Street 4350 East West Highway Concord, NH 03301-6397 Bethesda, MD 20814 Adjudicatory File Sherwin E. Turk, Esquire Atcaic Safety and Licensing Offico of General Counsel Board Panel Docket (2 copies)
U.S. Nuclear Regulatory U.S. Nuclear Regulaton Commission Commission East West Towers Building one White Flint North, 15th Fl.
4J50 East West Highway 11555 Rockville Pike Bethesda, MD 20814 Rockville, MD 20852
- Atomic Safety and Licensing Robert A.
Backus, Esquire Appeal Board Panel 116 Lowell Street U.S, Nuclear Regulatory P. O.
Box 516 Commission Manchester, NH 03105 Washington, DC 20555
U Q
- l Philip Ahrens, Esquire Mr. J.
P. Nadeau Assistant Attorney General Selectman's Office i
Department of the Attorney 10 Central Road General Rye, NH 03870 Augusta, ME 04333 Paul McEachern, Er, quire Carol S.
Sneider, Esquire Matthew T.
Brock, Esquire Assistant Attorney General Shaines & McEachern Department of the Attorney 25 Maplewood Avenue General P.O.
Box 360 One Ashburton Place, 19th Fl.
Portsmouth, NH 03801 Boston, MA 02108 Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall Route 107 126 Daniel Street Kensington, NH 03827 Portsmouth, NH 03901
- Senator Gordon J. Humphrey R. Scott Hill-Whilton, Esquire l
U.S. Senate Lagoulis, Clark, Hill-Washington, DC 20510 Whilton & McGuire (Attnt Tom Burack) 79 State Stree?.
Newburyport, MA 01950 l
- Senator Gordon J. Humphrey Lconard Kopelman, Esquire i
one Eagle Square, Suite 507 Kopelman & Paige, P.C.
i Concord, !!H 03301 77 Franklin Street (Attnt Herb Boynton)
Boston, MA 02110 I
j Mr. Thomas F. Powers, III Mr. William S.
Lord Town Manager Board of Selectmen' Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NM 03833 H. Joseph Flynn, Esquire Charles P. Graham, Esquire Office of General Counsel Murphy and Graham Federal Emergency Management 33 Low Street Agency Newburyport, MA 01950 I
500 C Street, S.W.
Washington, DC 20472 Gary W. Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street i
Hampton, NH 03841 Concord, NH 03301 l
i k i
i l
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s Mr. Richard R.
Donovan Judith H. Mizner, Esquire Federal Emergency Manajement 79 State Street, 2nU Floor Agency Newbur) iort, MA 01950 Federal Regional Center 130 228th Street, S.W.
i Bothell, Washington 98021-9796 Ashod N. Amirian, Esquire
[
376 Main Street Haverhill, MA 01830 Robert R. Pierce, Esquire John H. Frye., III, Alternate Atomic Safety and Licensing Chairman Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission U.S. Nuclear Regulatory East West Towers Builditg Commission 4350 East West Highway East West Towers Building Bethesda, MD 20814 4350 East West Highway Bethesda, MD 20814
/
James H. Carpenter, Alternate Technical Member i
Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Comuission East West Towers Building i
l 4350 East West Highway Bethesda, MD 20814 l
I
]A*f hak M [-
Jay BradfordTSmith
(*=0rdinary U.S. Fitst Class Mail) l I I t
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