ML20207E426

New England Coalition on Nuclear Pollution Proposed Findings of Fact & Rulings of Law.* Supporting Documentation & Svc List Encl

ML20207E426
Person / Time
Site:	Seabrook
Issue date:	08/12/1988
From:	Weiss E HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:
References
CON-#388-6928 OL, NUDOCS 8808180042
Download: ML20207E426 (62)

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NCWID August 12, 1988 UubI UNITED STATES NUCLEAR REGULATORY C^MMISSION 3 g g g .33 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD QFF ICE is u , , ,u <

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In the Matter of )

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Public Service Company of )

New Hampshire, et al. ) Docket Nos. 50-443 OL

) 50-444 OL (Seabrook Station, Units 1 & 2) ) OFFSITE EMERGENCY

) PLANNING

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NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S PROPOSED FINDINGS OF FACT AND RULINGS OF LAW Introduction This filing is intended to be read in conjunction with the proposed finaings filed by the other Intervenors, which are adopted and incorporated herewith.

ProDosed Findinas and Rulinas I. THE STANDARD PROPOSED BY THE APPLICANT AND NRC FOR DETERMIN-ING WHETHER THERE IS REASONABLE ASSURANCE THAT ADEQUATE PRO-TECTIVE MEASURES CAN AND WILL BE TAKEN IN.THE EVENT OF A RADIOLOGICAL EMERGENCY IS CONTRARY TO LAW AND TO THE PURPOSE OF THE EMERGENCY PLANNING RULES.

1. NRC's emergency planning rules provide that no operat- l ing license will issue "unless a finding is made by NRC that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency."

10 CFR S 50.47 (a) (1) . Sixteen basic mandatory standards jointly adopted by NRC and FEMA in 1980 are contained in both 10 CFR S 1

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• 50.47(b) and 40 CFR $ 350.5(a). Originally, NUREG-0654 FEMA REP-1, the basic joint FEMA /NRC planning basis for emergency preparedness requirements, was incorporated by reference into NRC's rule, but it has since been removed. 49 End Eng. 27733, July 6, 1984. There is no question but that NUREG-0654, which elaborates on and adds flesh to the general regulatory standards, has the status of a guidance document only. Philadelphia Elec-tric Co. (Limerick Generating Station, Units 1 and 2), LBP-85-14, 21 NRC 1219, 1228 (1985).

2. It is perhaps surprising that, eight years after promulgation of the emergency planning rules, and after their application in many cases, probably the most fundamental issues in this proceeding center around basic questions of how the NRC and FEMA standards are to be interpreted. On the other hand, as the Interveners argue, Seabrook is in many respects a unique case which has pressed to the limits of the regulatory system.

3. Some of the history of this nuclear plant is worthy of note. During the earliest stages of review for Seabrook, at the construction permit hearings, the Intervenors produced evidence that the highly congested beach areas adjacent to the site could not be evacuated rapidly in the event of an accident, and con-tended that the plant should therefore not be built. Public Ser-vice Co. of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-76-26, 3 NRC 857, 871-875 (1976). However, prior to the Three Mile Island (TMI) accident, the NRC's position was that accidents so serious as to require evacuation were so improbable as to be

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"incredible" events. On that basis, the Interveners' cvidence was deemed irrelevant to licensing. New Enaland Power Co. (NEP Units 1 and 2), Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-390, 5 NRC 733 (1977).

4. Two years later, the TMI accident occurred. _ Declaring that this event had fundamentally changed its attitude (Eeg 44 Fed. Reg. 75,167, 75,169, Dec. 9, 1979), the NRC adopted 10 CFR S 50.47, requiring both emergency planning and a showing prior to licensing (and for licensed plants) that adequate measures to protect the public "can and will" be taken.

5. At that point, the Seabrook plant was in the early stages of its construction. Immediately, SAPL, one of the Inter-veners, petitioned NRC to hold a hearing to determine whether, given the uniquely congested conditions of the Seabrook resort area, it would be possible to develop adequate evacuation plans that would comply with the new rule. SAPL urged rational resolu-tion of this question before billions of dollars were spent.

6. The Applicant and the NRC opposed an early resolution of thes;e issues. NRC refused the petition, preferring to defer consideration of the effect of site-related factors to the feasibility of emergency response until after construction was completed. The Commission stated to the United States Court of Appeals that "if it appears at the operating license review that the infeasibility of EPZ evacuation renders it impossible for PSC to provide the requisite ' reasonable assurance,' the opcrating license will not be granted." Seacoast Anti Pollution Leaaue v.

N.R.C., 690 F.2d 1025, 1030 (D.C. Cir. 1982).

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7. The court held that it had no authority to order the NRC to consider these issues before construction was completed.

It observed, however:

We are not unsympathetic with SAPL's position in this '

case. SAPL has presented evidence regarding the unique 6 features of the Seabrook area and.the current State of emergency preparedness in the area that would seem to warrant the Commission's most careful examination in evaluating the adequacy of the final Seabrook EPZ emer-gency plans. Nevertheless, however wise we might think it to hold a hearing now on the feasibility of EPZ evacuation, we cannot order the Commission to hold a revocation hearing when its refusal to do so has a rea-soned basis supported by law.

Id. at 1033-3 4. ,

8. It is against this background that the question of how the emergency preparedness requirements should be interpreted and applied to Seabrook comes to us.

9. We begin, as noted above, with the mandatory regulatory requirement of a showing of reasonable assurance that "adequate protective measures can and will be taken" in the event of an accident. 10 CFR S 50. 47 (a) (1) . By the plain language of the rule then, there must be a finding that the public will ade-

! quately be orotected by implementation of the pre-planned emer-gency response.

10. The Commission, in 1986, put a further gloss on the i rules. In the context of distinguishing between emergency response with State and local government plans and emergency i

response without it, the commission stated:

i our emergency planning requirements do not require that an adequate plan achieve a preset minimum radiation l

' dose saving... Rather, they attempt to achieve ren-EQnable and feasible dose reduction under the circum-

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. stances; what may be reasonable or feasible for one plant site may not be for another.

Lona-Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC 22, 30 (1986), emphasis added. .

11. It follows that the question of whether the public can and will be adequately protected is to be resolved on a case-by-case basis. The Applicant would have us put a further gloss on the rule. Its position has been stated clearly:

Its purpose [the emergency preparedness rule) is to provide, to the greatest extent reasonably possible, additional ' defense in depth' beyond that provided in the first instance by the siting criteria. At some sites the additional orotection possibly will be con-siderable aiven the aeoarachic, democrachic and politi-cal... characteristics involved; at other sites it will be less or essentially none. This makes the latter no less acceptable.

Brief of Applicants an Appeal from the Memorandum and Order of the Licensing Board Issued April 29, 1986, May 30, 1986 (to the Appeal Board), p.17, emphasis added.

12. It should be noted that the Commission has never held, nor can it be reasonably inferred from any NRC adjudicatory deci-sion, that an emergency response achieving "essentially no" pro-tection to the public could be held to meet the regulatory stan-dard of showing that adequate protective measures can and will be taken. Indeed, we find the regulatory language inherently inconsistent with such a ruling as well as contrary to the posi-tion taken by NRC before the U.S. Court of Appeals in the D.C.

Circuit in the Seacoast Anti-Pollution Leaaue case, supra, where the agency maintained that the "feasibility" of evacuation was an k -

7 issue requiring resolution. If the Applicants were correct, the infeasibility of rapid evacuation due to site-related factors would be essentially irrelevant so long as they had edne every-thing "reasonably possible" at the site.

13. As it happens, however, a standard even less demanding

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than that requiring everything that is "reasonably possible" has I i

been applied to this plant. FEMA, which has the responsibility )

under NRC rules to determine 'yhether State and local emergency plans are adequate and whether there is reasonable assurance that they can be implemented," (10 CFR S 50.47 (a) (2)) , interpreted NRC rulings as precluding a priori the consideration of any measures which might require any physical alteration within the EPZ, such as building additional highway ramps or erecting shelters.

According to FEMA, "you take what you have at the site."

1 Tr.14069. See also Tr. 14090-1. Thus, measures to provide added public protection which are clearly "reasonably possible" have not even been considered, much less their efficacy in enhancing public protection evaluated. (See paras, 43-51, infra).

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14. It should again be noted that we are pointed to no Com-mission pronouncement holding that physical alterations to a site to enhance public protection in an accident are, as a class, l simply beyond consideration.

15. FEMA further interprets the emergency preparedness rules as requiring that a plan must achieve "some" aggregate dose savings to the entire population of the EP3, as compared with no plan. Tr.14069-70. It provides no further content to this "some dose savings" standard.

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16. The NRC staff, for its part, largely rests on pointing out what it believes the emergency response rule does not require: it does n21 require the achievenent of any preset mini-mum dose reduction or preset minimum evacuation times; it does -

H2t require a sheltering capability for all people within the EPZ (Eng e.g. MAG Exhibit 37). We do not find the staff to have clearly offered its views as to whether the Applicant's position as articulated in paragraph 11, above, is correct with regard to the acceptability of a plan which achieves essentially no protec-tion for the public. Nor are we clear on its views as to whether measures requiring some physical change within the EPZ are absolutely barred from consideration. We note that there is nothing in the language "reasonable and feasible under the cir-cumstances" which drives one logically to the conclusion that you take the site - meaning the EPZ - as it is.

17. Other "negative" aspects of the rule have been pointed out to us. For example, it has been acted in objecting generally to proferred evidence related to the protection afforded the pub-lic at other sites, that the commission has said that the ade-quacy of an emergency plan is not to be judged by comparison to another plan. 52 Egd. Rec. 42,084, Nov. 3, 1987. However, the top FEMA officials did, in fact, "compare" the Seabrook plans to others and were certainly influenced by their own staff's repre-sentation that other plans without sheltering capability had been approved by FEMA. Tr.12674-5.

18. It was further urged upon us, and we so ruled, that any evidence bearing on the actual level of dose reduction to the I

. public which would be achieved by implementation of this plan was i

inadmissible as a consequence of the Commission's ruling in the Shoreham case, CLI-86-13, and the language bearing on the rule contained in the Federal Register notice pron.ulgating the new 1

l provisions for adjudging utility plans without State or local l

l participation, 52 End. Rec. 42, 078, Nov. 3, 1987. As will be 1

discussed below, however, FEMA clearly did consider dose reduc-tions but it did so "generically" rather than considering facts specific to Seabrook. Egg Amended Testimony of William R. Cum-ming and Joseph H. Keller on behalf of the Federal Emergency Man-agement 1.gency on SheltcLing/ Beach Population Issues, June 10, 1988, Post Tr.13968, "Technical Appropriateness Analysis," p.7ff.

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19. The standard articulated by the Applicant and applied f by FEMA would, in essence, have us make the finding that adequate i

protective measures "can and will be taken" if they have done what is "reasonable and feasible under the circumstances" without altering the given physical and built characteristics of the EPZ and without demonstrating that implementation of the plan in an l accident will achieve any level of dose reduction to the popula-tion of greatest concern to the Intervenors - the many thousands of transients who crowd the beach areas during the summer.3 This is, without question, a standard that focuses on what the Applicants can..do and not on what level of protection to the pubic is achieved. Indeed, the Applicant is quite frank in argu-1 The role of NURGE-0654/ FEMA Rep-l in this determination is discussed below.

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.: ing that D2 protection need be achieved. We cannot agree that such a reading is consistent with the basic purpose of the emer-gency preparedness rules.

20. Such a reading would clash with the interpretation of -

the Commission's obligation under the Atomic Energy Act most recently explicatea by the United States Court of Appeals in Union of Concerned Scientists v. NRC, 824 F.2d 108, 114 (D.C.

Cir. 1987), where it was held that, in determining what is neces-sary for adequate protection of public safety, NRC may focus "solely on health and safety considerations." This applies both when the commission sets basic safety standards and when it enforces them, as it is in this situation, dj. at 117. A stan-dard which does not assure the achievement of any demonstrable levol of actual public protection - which, in fact, is as flexi-ble from the otandpoint of public protection as the site and environs require it to be, run directly afoul of the words of the Court of Appeals. Nor do we accept the explicit linchpin of the Applicant's position: that the Comnission intended that no application could ever be denied because characteristics of the site and its environs make ceargency planning ineffective in ensuring public protection in the event of an accident. Egg Briaf of heplicants on Appeal from the Memorandum and order of the Licensing Board issued April 29, 1986, May 30, 1986 (to the Appeal Daard) p.17. If the Commission had intended its rule to have thia. meaning, we would have expected it to say so clearly and it has not donc so. On the contrary, the Commission has told

both the D.C. Circuit in 1962, in the SAPL case, supra, and the First Circuit in 1988 that the inherent impossibility (or l

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"infeasibility") of effective emergency response due to site- l specific characteristics offsite is an issue opened to be liti-

• gated in individual cases. l

21. Moreover, this standard is inconsistent with prior NRC l practice. By letter dated June 18, 1986, Edward Christenbury, Chief Hearing Counsel, NRC, wrote to Spence Perry, General Counsel, FEMA, in direct response to r memorandum written by counsel for the Applicant purporting to correct "three misconcep-tions" about emergency planning (the so-called "Three Misconcep-tions" memo). NRC Staff Exhibit 6. This communication was con-sidered an authoritative interpretation of the emergency planning requirements and was agreed to by the FEMA General Counsel.

Tr.13211-14.

22. It is notable that Mr. Christenbury refused to accept counsel for the Applicant's assertion that NRC rulings imply "that additional facilities would never be required to be built or installed to satisfy NRC emergency planning requirement ."

Tr.13217-19, 14093-4. FEMA, until very recently, quite naturally understood this to mean that all options for reducing doses to the public should be considered, including for Seabrook such l measures as summer closing, building skating ri- 1 for use as l

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shelters or improving alternate evacuation rou. T".12671-73.

FEMA's current position, however, tracks the Ap -  ;'s on this

issue. The salient point to note here is that the standard urged a

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by the Applicant is a reprise of its position utated in the ,

i "Three Misconceptions" memo which was reiected authoritatively by i

j the NRC in 1986.2

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23. Applicant's and FEMA's proposed standard is also l inconsistent with the interpretations of the rule presented by the Commission in its most recent briefs to the United States Court of Appeals. NRC stated that it had rejected the "best efforts" approach which some had advocated:

Thus, in its final rule the Commission reiected the proposed alternative which would have shifted the NRC's focus from evaluatina the adeauacy of the utility's emeroency plan to evaluatina whether the utility had done all it could to provide effective emergency plan-ning. Rather, the Commission adhered to the basic approach to emergency planning established by its 1980 regulations. As finally promulgated the rule does not alter the principle that before any nuclear plant can operate, there must be an emergency plan that provides

' reasonable assurance that adequate protective measures can and will be taken' in the event of an emergency.

Commonwealth of Massachusetts, et al. v. N.R.C., Consolidated Case Nos. 87-2032, 87-2033, 88-1121, Brief for Respondents, Apr.

8, 1988, p.19, emphasis added.

24. The above-quoted language constitutes a direct, recent and authoritative rejection of the standard proferred by the l

Applicants and applied ny FEMA. If there is anything clear about l

that standard, it is that it would "shift the NRC's focus" away l

h from the degree of protection provided to the public to evaluat-ing whether the utility had made sufficient efforts.

f 2 This point was noted by Edward Thomas, Chief of the Natural and Technical Hazards Branch of FEMA Region 1, and the witness designated to psesent FEMA's original testimony when he pointed out '5at the "best efforts" standard is inconsistent with the Chr ;tenbury letter. Tr. 13739.

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25. There are at least two other issues related to the standard by which the adequacy of public protection should be judged which are raised by this case. These are 1) whether com-pliance with the elements of the joint guidance document NUREG-Oo.~'/ FEMA REP-1 should result in an "automatic" finding under 40 CFR S 350.5(b) that there is reasonable assurance that adequate protective action can and will be taken and (discussed more fully below at paras. 135-140) 2) whether the "range of protective .

actions" called for in 10 CFR 9 50.47 (b) (10) and 40 CFR S 3 50. 5 (a) (10) can be met in a case where there is only one protec-tive action - sheltering. It will suffice for now to observe that, as with the basic "take the site as is" issue discussed above, in both of these cases FEMA has also changed its previous views in the course of the seabrook litigation from positions unfavorable to the Applicant to positions favorable to the Applicant. Ege Tr. 14091-92; Tr.14088. The genera) 'ourse of this proceeding does support a reasonable inference that a stan-dard (or standards) for judging the adequacy of public protection has been "backfit" to meet the exigencies of the Seabrook case.

26. There are certain other curious aspects of the standard favored by App 2icants which lead us to doubt its correctness.

First, it would require less to be achieved in actually reducing public risk by reducing accident doses in precisely these cases where demographic and geographic factors increase the inherent level of public risk. There is no serious dispute that the Seabrook site posea at least a set of special "challenges" due to 1

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. L the large number of transient beach-goers in a highly congested area very close to the plant where the typical un-winterized cot-tage offers only minimal protection. (These factual issues have been treated in detail in the proposed findings of the Massachu-setts Attorney General) If the stuck of buildings available for shelter afforded greater protection, a plan for their effective use would likely have been required. Ir.14243. However, if the buildings in place are not suitable, there is no shelter require-ment, regardless of how long it takes to evacuate. Thus, for the worst hypothetical site in terms of inherent public risk - no shelter, many exposed people in a congested area causing a long evacuation time - the least would be required in terms of dose reduction and actual public protection. This strikes us as antithetical to the purpose of emergency response requirements much less in accord with the basic objective of achieving "maxi-mum dose savings." Cincinnati Gas & Electric Co. (Wm H. Zimmer Nuclear Power Statio1, Unit No. 1), A LAB-7 2 7 , 17 NRC 760, 770 (1983).

27. In addition, if we adopt this standard, we would be making a determination that there is "reasonable assurance that adequate protective measures can and will be taken" without any evidence on this record regarding the actual level of protection which the implementation of this plan would achieve for the thou-sands of people in the close-in beach areas. Neither the Applicants nor FEMA have addressed this question in other than the most "generic," generalized fashion, to wit: "the public is

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much more likely to be afforded meaningful dose reductions by moving out. of the EPZ than by moving to a shelter within the EPZ." Amended Testimony of William R. Cumming and Joseph H. Kel-1er, suora, Post Tr. 13968, p.8, quoting the submittal of the State of New Hampshire. The Board cannot rationally find that public protection will bre adequate upon the basis of this generic material. The FEMA testimony relief in no Way on data, assump-tiorm or evaluations specific to the Seabrook site. Tr. 14192.

28. Moreover, in contrast to the generic conclusions affered by FEMA, the evidence in this record is that for fast-breaking accidents clearly within the planning basis for emer-gency plans, (Tr, 12564) evacuation cannot be relied upon to pro-vide any significant public protection for the beach population.

FEMA's witness testified that for some of these accidents, the "warning time" ranges from 1/2 to 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> from onset of accident conditions to release of radioactivity. Tr. 142056. These serious, quickly developing accidents are precisely those as to which the bulk-of emergency planning effort is directed because it is so critical. Tr.11311, 11482. (This issue is treated in the proposed findings of the Massachusetts Attorney General, which are incorporated herein.)

29. FEMA's witness also agreed that evacuation has to occur either before or shortly after the start of a release in order to substantially reduce the risk to the public. Tr.14196. Yet the time required to evacuate those in the beach area is so long that one cannot conclude that substantial numbers would be outside the

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3 mile area, much less the EPZ, prior to passage of the plume.3 (See proposed findings of the Massachusetts Attorney General (in these factual issues).

30. In addition, the "special precautionary actions" in the plan for protection of the beach population, consideration of beach closure at the alert stage and consideration of early evacuation at the site area emergency, are simply inapplicable for very quickly-developing accidents; they are "past the fact."

Tr.14193-4. Given the evacuation times for Seabrook should a serious accident develop rapidly, it is entirely possible that evacuation will not be carried out until after the entire plume passes. Tr.14083-4.

31. The standard urged on us by the Applicants and FEMA is thus inconsistent with NUREG-0654/ FEMA REP-1 in that, for a sub-stantial segment of the population, the evidence is that the plan does not achieve meaningful dose reduction for accidents within the planning basis.

3?. In short, the Board does not believe that the standard for judging whether the public will be adequately protected pre-sented by the Applicant and applied by FEMA is appropriate. It 3 In this regard, FEMA's original prefiled testimony was:

"using the standard guidance for the initiation and duration 1 of radiological releases, and the current New Hampshire RERP 4 inducing ETE, it appears that thousands of people could be unable to leave during an accident at Seabrook involving a l major release of radioactivity without adequate shelter for as l much as the entire duration of that release." See 2 pages labelled "NECNP Contention RERP-8," bound after MAG Ex. 37, Post Tr. 13054. None of the FEMA witnesses who appeared advanced facts in contradiction to this statement. Tr.12871- .

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. is not mandated by any specific NRC ruling, it is inconsistent with the Atomic' Energy Act as interpreted by the U.S. Court of Appeals, inconsistent with the authoritative interpretations of NRC Counsel, inconsistent with the planning basis for emergency response and yields results which are, at best, anomalous. . It-would also appear that this standard, which is actually lower than "best efforts," since certain measures are a oriori excluded from consideration for no reason evident to us, has been crafted to meet the circumstances of the Seabrook case.

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II. THE APPLICANT DOES NOT MEET THE STANDARD IT PROFESSES TO ADOPT

33. The Board has considered whether this record supports a determination that the implementation of the emergency plan for Seabrook will achieve dose reductions that are "reasonable and feasible under the circumstances." We must begin by noting that there is no evidence whatsoever on this record that demonstrates that any particular level of dose reduction at all will be achieved in a fast-breaking accident for the population in the beach areas. As noted above, FEMA's testimony on the subject was totally generic; there was no attempt to do an analysis using data, assumption or evaluations taking account of the specifics of the Seabrook situation. Tr.14250. No calculations showing any level of dose reductions associated with evacuation in a fast-breaking accident at Seabrook were done. Tr.14192-3. The severity of the consequences of serious accidents is very sensi-tive to the-time required to effect evacuation. Tr.11589.

34. It is still FEMA's opinion that "however judged," a plan ought to take advantage of every readily available opportunity to reduce dose. Tr.13089-91. Without some reliable evidence establishing a significant dose reduction, even if it is not quantitative, the Board has no basis upon which to conciade that the Seabrook plan achieves "reasonable and feasible" dose reductions, much less that it has taken advantage of all readily i

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. available opportunities. We do not interpret the Commission's injunction against applying "preset minimum dose reduction levels" or "preset minimum ETES" to mean that a plan can be approved lacking a basis to establish that some significant dose reduction will be afforded for a major portion of the population.

35. Moreover, there is evidence to the contrary. It is now beyond dispute that the New P'mpshire plan does anticipate situa-tions where sheltering would be ordered for the general transient beach population--the so-called 98% of the people on the beach.

Tr.10058-61, 10183, 10715-6, 10744. The other 2% are a special category of beach-goers without access to transportation. This will be donc pursuant to the "shelter in place" provisions con-tained in the plan.

36. However, New Hampshire has not adopted any measures implementing shelter. It would be undertaken ad hoc.

E22 paras. 40-42.

37. The so-called "shelter survey" performed by the Applicants by Stone and Webster is an "inventory" of existing buildings. Tr.13022; See also 13015-24. The State of New Hamp-shire has not adopted it and does not vouch for its accuracy.

Tr.10707.

38. There are no EBS messages instructing people to shelter, Tr.10165, no signs or public information materials directing people to shelters, Tr.10195, and nothing to tell people how to distinguish a suitable shelter from an unsuitable shelter. Tr.10653-4. Ee2 also Tr. 13807-8. There are no provi-sions for personnel to assist people to find shelter.

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39. As recently as January 19, 1988, Richard Krimm, Assistant Associate Director, Office of Natural and Technological Hazards, State and Local Programs Support, FEMA, characterized as FEMA's views the position that the sheltering survey was not suf-ficient to fulfill FEMA's requirements because rather than being a plan, it is an inventory. Tr.13015-24.

40. FEMA's current testimony is that whenever the choice to shelter the 98% even if only in very limited circumstances, is incorporated in the plan, "implementing detail will be neces-sary." Tr.14219-20; Amended Testimony of William R. Cumming and Joseph H. Keller, suora, Post Tr.13968, p.11. Now that it is in the plan (or FEMA realizes that it is in the plan), the FEMA wit-ness agreed that there must be implementing detail for sheltering the 98% before FEMA is. sues a final finding. Tr.14219-20.4 This is apparently why FEMA was so careful to say that the plan as it regards the beach population is "adequate in concept." Tr.14072-5.

41. When it was pointed out to Mr. McLaughlin, Deputy Asso-ciate Director State and Local Programs and Support, FEMA, on the witness stand, that the sheltering option is provided in the NHRERP for the 98% and that implementing procedures are lacking, he agreed that he would have to discuss the matter with his tech-44 While FEMA's counsel on redirect attempted to blunt this

' testimony, he was not successful. The witness was very care-ful to say that the plan without implementing detail was ade- ,

quate through February. Tr.14253-4. However, as noted above, 1 now that the shelter option for the 98% is clearly included in j the plan (via the state's February submissions), implementing  ;

1 detail is required as a condition of a favorable finding.

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. nical staff and that this would revive concerns FEMA had histori-cally expressed about where people would be sheltered and the procedures to accomplish sheltering. See Tr.13133, 13186-13202.5

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42. It is obvious that, should sheltering be ordered for the general beach population, greater dose reduction would be afforded if the action is planned rather than undertaken on an ad hog basis. As FEMA's witness testified, these implementing pro-cedures are important because you want to reduce ad hoc responses. Tr.14072-5. Yet Applicants have not taken advantage of this opportunity, which is certainly readily available, for reducing doses. We cannot find that the plan provides for dose reductions that are reasonable and feasible under these circum-stances.

43. Nor have the Applicants considered, much less imple-mented, a variety of measures that were once under active consid-eration by FEMA. Tr.13241. At a meeting on June 2, 1987, held by FEMA to decide on the position it would officially take on these issues before this board, it was the agency's general opinion that all options for achieving maximum dose reduction at Seabrook, such as summer plant closing, building additional shelters, and providing alternative evacuation routes had not been explored by the state. Tr .12 6 6 8 -7 3 .

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5 After the lunch break and a consultation with his lawyers, Mr. McLaughlin pronounced himself satisfied with an ad hac sheltering option, based on a conclusion (nowhere presented in FEMA's direct testimony) that the circumstances where shelter-ing might be used are very improbable. Tr.13287-8, 13290-13293 This will be discussed more fully below, l

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.. . 44. A few days later, in response to a telephone call from Governor Sununu, after FEMA filed its original position of June 4 ,. 1987 (Tr.12680), FEMA sent a letter to Richard Strome, Direc-tor, 'lew Hampshire Civil Defense Agency, further explaining the reasons why FEMA had taken the position that the plans could not be found adequate with respect to the beach population. MAG Ex.35, Post Tr.13054. This letter is perhaps the clearest explication of FEMA's original views.

45. After laying out the "rather unusual circumstances which may be unique to Seabrook," (id., p.1), such as large num-bers of day-trippers without access to a winterized shelter in combination with long evacuation times, FEMA stated that while

"[e)vacuation times are not required to meet some specific stan-dard," "the availability of shelter in the more fast-breaking scenarios is considered to mitigate the need for come hard time objective for evacuation." However, FEMA noted, where the sheltering option is delouded," the information on sheltering and evacuation "compound one another."

46. FEMA went on:

A number of options have been mentioned over the past years which may alter the case as we understand it. In addition to our own discussions on the subject, a wide variety of sources have proposed alternatives which ,

include sheltering, seasonal operation of the plant, and alternative evacuation routes. Although sheltering is an alternative, we doubt if the use of existing pub-lic or private facilities would be acceptable. The solution to the problem may be a variety of alterna-tives due to the complexity of the issue. MAG Ex. 35, Post Tr.13054 at 2.

47. FEMA specifically asked the State if it or anyone else was considering any such options. Idz i -

48. On Septenber 2, 1987, FEMA officials sent NRC a memorandum asking for information on how NRC was considering similar ways to reduce public risk. Tr.12691-2, Tr.12881-2. No response was ever received to either the letter to New Hampshire or the memo to NRC. Tr.12885-6, 12893, 13071-3.

49. It appears that consideration of these measures, or any others, to improve the level of protection afforded the beach population at Seabrook, simply stopped sometime during the fall of 1987. No particular reason was,given for this, except for FEMA's assertion that all matters bearing on the assessment of risk are now for NRC'to handle. See e.g. Tr. 14091-2. If it is NRC's job, they have not pursued it, presumably out of the belief that such measures would go beyond what is required by NUREG-0694.

50. In the absence of any consideration whatever of the potential for increasing the level of public protection associa-ted with such measures, this Board cannot find either that Applicants have taken advantage of every readily available opportunity for dose reduction nor that they have achieved a level of public protection that is "reasonable and feasible under the circumstances."

51. Surely "reasonable and feasible under the circum-stances" must require some rational consideration of that aspect of "the circumstances" that relate to the site-specific degree of risk to the public. The Commission has ruled, by way of analogy, that special safety requirements can be imposed to address the F . -

increased risk posed by plants located in densely populated sites, because a severe release at such a site could have more serious consequences that the same release at other sites. Con-solidated Edison Company of New York, (Indian Point, Unit No. 2),

Power Authority of the State of New York, (Indian Point, Unit No.

3), CLI-85-6, 21 NRC 1043, 1078 (1985). There is no reason why the same principle should not apply in the area of emergency response.

52. Finally, focussing again on the sheltering provisions of the plan, even if one assumes that the only purpose for reviewing the evacuation constraints of a site and sheltering provisions of the emergency plans is to determine whether the decision-maker has been provided su#ficient information to make the best choice of protective action, these plans do not meet that limited test. FEMA's witness testified that for the decision-maker to know whether to order sheltering ot the beach population, he must know exactly what he's doing. Tr.14252-3.

53. Yet a review of what has been provided by New Hampshire shows that insufficient information is given to the decision maker. He is told to use sheltering when "it would be the most effective option in achieving maximum dose reduction." Post Tr.10022 at 19, Tr.10721. Yet basic data required to determine the dose reduction afforded by shelter is lacking; in particular, there is no way to evaluate the amount of time required to get people into shelte , although that is a key element in determin-ing the effectiveness of the she)tering strategy. Tr.10722-34.

. . . _ _ . - - . _ _ . - .. - --. . _.. - - _.. .-. . . - .= .. .

54. Based on'the foregoing, the Board concludes that this '

record does not support a finding that implementation of the Seabrook emorgency plan will achieve a level of public protection that is "reasonable and feasible under the ci::cumstances."

t t

_+,....r.-,, .-,-.,7.- . ... . . _ .~,-. ~_- -_.. . . . ..- .- -.-

. III. FEMA'S CURRENT POSITION IS ENTITLED TO NO WEIGHT.

55. FEMA prefiled four pieces of testimony in this proceed-ing: September 11, 1987,6 January 25, 1988, MAG Ex. 42, Post Tr.13092; March 14, 1988 and June 10, 1988. The last two are substantially the same, although the last version finally sub-mitted lists several additional "legal" events which influenced FEMA in changing its position on the Seabrook beach population.

56. The pertinent portion of FEMA's original testimony (first formulated on June 4, 1987 as responses to discovery) sets out three paragraphs of facts. The first paragraph summarizes the parameters for emergency planning for serious fast-breaking accidents established by joint NRC/ FEMA guidance document NUREG- l 0654/ FEMA REP-1. The planners are to assume that a major portion of a radioactive release may occur as soon as 1/2 hour after the onset and that travel time from the plant to the exposed popula-tion can be 1/2 - 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> at 5 miles and 1 - 4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br /> at ten miles.

57. The second paragraph notes that the thousands of summer beach-goers in the Seabrook area are as close as 1.7 miles from the plant, without access to winterized shelter.

58. the third paragraph references the evacuation time estimates for Seabrook submitted by the state, which show at least 3 1/2 hours to clear the beaches.

59. These basic facts and the statement of the relevant parameters were never challenged by any witness. In fact, to the 6 The two pertinent pages, labelled NECNP Contention RERP-8, are attached Post Tr.13054.

extent that they should be altered, it is because the evacuation times are, in fact, longer than FEMA originally thought.

Tr.12871, 14057-60.

60. The following conclusion is then reached:

Therefore, using the standard guidance for the initiation and duration of radiological releases,, and the current New Hampshire RERP including ETE, it appears that thousands of people could be unable to leave during an accident at Seabrook involving a major release of radioactivity without adequate shelter for as much as the entire duration of that release. There-fore, until these issues are resolved even if all the other inadequacies and deficiencies cited in the RAC Reviews of the New Hampshire Plans, and the Review of the Exercise of these plans were to be corrected, FEMA would not be able to conclude that the New Hampshire State and local plans to protect the public in the event of an accident at the Seabrook Nuclear Power Plant are adequate to meet our regulatory standard that such plans "adequately protect the public health and safety by providing reaconable assurance that appropriate protective measures can be taken offsite in the event of a radiological emergency." (See, 44 CFR S 350.5(b)).

61. On January 25, 1988, FEMA prefiled "Supplemental Testimony" on the sheltering / beach population issues. Post Tr.

13092. This testimony is, on its face, in no way inconsistent with the original FEMA' testimony; it merely addresses the issues in more "legal" terms and provides some greater historical con-text.

62. The January 25 testimony concludes:

Briefly put, FEMA's position is (a) that it is appropriate to consider further the adequacy of the emergency response plan for the transient population of the beaches within the Seabrook Emergency Planning Zone (EPZ) during the summer, ' hat is, from May 15 to Sep-tember 15, as indicated in the New Hampshire Radiologi-cal Emergency Response Plan (NHRERP) ; (b) that the ,

requirement of NUREG 0654/ FEMA REP 1, Rev. 1, for a "Iange of protective actions" may or may not be

T' l

satisfied by evacuation alone; (c) that FEMA cannot conclude that the NHREHP is. adequate with respect to that beach population until it is clear that the State of New Hampshire has considered the use of sheltering for the transient beach population and explains what use, if any, it intends to make of sheltering. This "

latter point should not be interpreted to mean that FEMA has imposed a requirement that sheltering be available. If the State of New Hampshire intends not to employ sheltering for the transient beach population (which is not presently clear from the NMRERP), then FEMA expect the State to develop the rationale for such a choice and provide it to FEMA for review.

Id. at 2, emphasis in original.

63. The testimony further concludes that "in FEMA's view, as the Federal agency with specialized knowledge of emergency response planning," t'he Seabrook plan is not adequate because planning standards J.9 and J.10.m. have not been met. In partic-ular, FEMA concluded that these standards "rcquire consideration of more than a single protective measure." Id. at 5. These standards implement 10 CFR S 50.47 (b) (10) and 44 CFR S 350.5(a)(10), calling for development of a"range of protective actions."

64. FEMA stated that "the current plan considers only one protective measure for the transient beach population, namely evacuation." Id. at 6. The Seabrook plan was held inadequate because it contained neither_an adequate description of how a sheltering option might be used nor a rationale for not having the option available for the transient beach population. Id.

65. FEMA further stated that its rules require a two-step analysis: first, a determination as to whether the plans comply with the elements of NUREG-0654/ FEMA REP-1, 44 CFR S 350.5(a),

l

.. and "secondly whether such plans adequately protect the public health and safety by providing reasonable assurance that appropriate protective measures can be taken offsite in the event of a radiological emergency." 44 CFR S 350.5(b). The latter l

"reasonable assurance" finding is characterized as a matter of {

s

}

professional judgment. Id. at 7. l l l

66. On the issue of dose savings, FEMA opined that "it j seems to be generally accepted that the plan, however judged, ought to take advantage of every readily available opportunity to 1

l reduce dose." Id.

l l

67. In the March 14, 1988, testimony, FEMA first dramati-cally reversed itself, again without contesting any of the fac-tual material presented in its original testimony but instead i

\

\

addressing essentially different question. See Testimony of Dr.

Joan Hock, Joseph H. Keller and William R. Cumming on Behalf of the Federal Emergency Management Agency Sheltering / Beach Popula-tion issues, March 14, 1988. With regard to its two prior posi-i tions, and how they should all be r.ead together, FEMA now stated;

}

The profiled testimony dated September 11, 1987, is outdatnd. We adopt the FEMA Supplemental Testimony filed on January 25, 1988, to the extent that it is consistent with this testimony and incorporated it by reference.

Id. at 3, emphasis added. No further guidance was offered as to how one might distinguish the parts of the January testimony that were "consistent" with this latest submission from those that were inconsistent. FEMA now concluded that elements J.9 and J.10.m had been met on the basis af submissions by the State in

February indicating that it did not intend to shelter the nummer beach population except in very limited circumstances.

68. "Legal considerations" were said to have had "a very important influence" in FEMA's 180 degree turn. Id. at 3. In summary, FEMA said it had realized, based on NRC staff represen-tations and interpretation of Commission rulings, that to "require sheltering" for the transient beach population would conflict with NRC's position that no preset minimum dose reduc- l l

tions or preset minimum evacuation times are to be imposed:  ;

This testimony reflects that realization as well as deference to the NRC staff on its interpretation of the requirement for a range of protective actions. FEMA agrees with that' interpretation.

Id. at 7.

l

69. The March 14 testimony does not on its face, address, much less contradict the view expressed by T'MA on January 25 to j j the effect that FEMA's "reasonable assurance" determination t

I involves a second tier of professional judgment that goes beyond l

meeting the. elements of the joint guidance document, NUREG-0654/ FEMA REP-1.

70. The final FEMA testimony of June 10, 1988, Post Tr.13968, essentially tracks, with a few additions, the March 14 testimony in all important respects, except that it deletes the statement that had incorporated by reference the January 25 sub-mittal "to the extent that it is consistent."

71. On the face of these documents, it is not possible to clearly trace FEMA's train of reasoning. Nor is there anything inherently inconsistent between the technical analysis on

. sheltering contained in the final FEMA testimony and the original FEMA position. There is nothing in the original June 4 or Sep-tember 11, 1987, FEMA positions which purports to "require" sheltering for the beach population.

72. Three senior FEMA program officials in charge of the radiological emergency planning (REP) program testified to explain what FEMA's position is, why FEMA has taken the position I and what the relationship is between the earlier FEMA position 1

L and the current one. Tr.12648. They were Grant Peterson, Asso- l l

ciate Director, State and Local Support Programs, Dave McLaughlin, Deputy Associate Director, State and Local Programs and Support and Richard Krimm, Assistant Associate Director, Office of Natural and Technical Hazards, State and Local Programs and Support. Tr.12649.

73. The evidence is that a piece of technical work done by Joseph Keller and presented to FEMA staff in October, 1987, was very influential in convincing FEMA to change its position. This was the only "technical" analysis done by or for FEMA in the pertinent time frame. Tr.12940-1, 13225-6. Keller is an employee of the Westinghouse Corporation at Idaho National Engineering Laboratory. He works as a consultant to FEMA through a contract with D.O.E. Tr.14141-2. Keller appeared as FEMA's sole technical witness in the case.

74. Keller's first work on Seabrook was in September, 1987, l when he was asked by FEMA headquarters personnel to develop l

analyses to either support or negate the prefiled testimony FEMA l

l L. .

. had submitted to the Board. The decision as to what kind of analyses to perform was left solely to Mr. Keller's discretion.

Tr.14144-6.

75. Keller performed an analysis, based on WASH-1400 acci-dent sequences, of the probability of fast-breaking accidents.

Tr.14146. His analysis was presented to FEMA headquarters staff at a meeting on October 28 or 29, 1987. Also presented was work done by a Mr. Baldwin of Argonne National Laboratory which pur-1 ported to them the number of people left on the beach (meaning '

both feet on the sand) at certain points in time after hn order to evacuate. Tr.13654-7, 14162-7. These were the only analyses presented to FEMA in the fall of 1987 and the only work Keller i 1

did for Seabrook between September, 1987, and the beginning of March, 1988. Tr.14163-4. Id. He was asked to do analytical work on the efficacy of sheltering as a protective action but could not complete it due to budgetary considerations. Tr.14157.

76. FEMA headquarters staff represented to Edward Thomas, the Region 1 official who was to be the principal witness sup-porting FEMA's original position, that the Keller and Baldwin work in October proved that position to be inaccurate and that the FEMA position should therefore be changed. Tr.13687, 13691-2, 13811-3, 12956-7. This was the only reference he was ever given to technical material allegedly in conflict with his testimony. Tr.13811-3.

l l 77. Mr. Thomas informed FEMA headquarters staff that Kel-1er's analysis is inconsistent with NUREG-0654, the emphasis i

I l .

. placed by NRC and FEMA on prompt action and past FEMA actions.

Tr.13661. The planning guidance for emergency response clearly requires the assumption that a fast-breaking accident can occur with a major release within 1/2 to 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> of onset of accident conditions. Adequate protection must be provided the public in the event of such an accident. Indeed, these are the very acci-l l dents as to which preparedness is most necessary.

1 i 78. Taken as a whole, it appears that FEMA's basic shift in position was directly related to its consideration of information purporting to show that a fast-breaking accident is remote in prooability. That is an impermissible consideration and does not provide a rational basis for the agency's action since it is in l 1

direct conflict with the planning basis for emergency response.

79. Mr. McLaughlin was not at the October meeting where Mr.

Keller presented his results, but he was briefed afterward by Mr.

Krimm. Tr.12700-7. Neither Krimm nor McLaughlin could describe l

what the analysis had consisted of; they were most interested in l

l the'results, which they characterized as showing sheltering to be l

l a protective action of limited efficacy for the beach population.

1 Egg Tr.13226-7, 13229-31. It should be noted that neither in l

l FEMA's original position of June 4 and September 11, 1987, nor in I

any of the other FEMA material had it been suggested that sheltering was potentially more than of limited efficacy. See e.g. MAG Ex. 35, Post Tr.13054. It is difficult to see, there-fore, now such a conclusion could be said to prove FEMA's original testimony to be inaccurate.

_ _ _ __ _ _ _ ___ _ ___-_ - _ _- - ___- _- _ - ___ _ r

- 33 -

80. Another reason to discount FEMA's current position is that the state never supplied what FEMA called for in its January 25 testimony as necessary to resolve this issue. The testimony )

required New Hampshire to "fully consider whether there might be opportunities for additional dose savings through sheltering of the transient beach population." MAG Ex. 42, p.7. The State was either to explain what use, if any, it intends to make of sheltering and, if it "intends not to employ sheltering for the transient beach population (which is not presently clear from the NHRERP) , then FEMA expects the state to develop the rationale for such a choice." Id. at 2. This was important to FEMA so that the decision-maker can figure out during an accident what to do and use the plan correctly. Tr.12729-30. What was crucial to FEMA was that the shelter plan had not been fully identified and dealt with in the planning process. They were concerned with why 1

it wasn't in the plan since they knew Stone and Webster was doing a sheltering survey. Tr.12688-12691, 12699, 12724.

81. Although the top FEMA officials now take the position l

that New Hampshire's submissions of February, 1988, fulfill the conditions set out in the January FEMA testimony, at least if they are incorporated into the plan, (Tr.12733-5), it is apparent both that New Hampshire has still not provided a clear explana-tion of the circumstances when it will use sheltering for the beach population or clear guidance for the decision-maker and that the top FEMA officials misunderstood Uhat New Hampshire had submitted.

~

9

. 82. As noted above, the New Hampshire submittal of February 11, 1988, MAG Ex. 47, Pest Tr.13210 does nothing more to clarify the situations in which shelter would be used. It points to the "shelter in place" concept as applicable, which it refers to as "fast and easily managed." Id. at 2. However, the very defini-tion of "shelter in place" excludes the transient beach-goers; it covers those at home, those at work or school and transients located indoors. Id. As to the others: "Transients without access to an indoor location will be advised to evacuate as quickly as possible in their own vehicles." Id. Despite this, the state maintains it is not precluded from "considering and selecting sheltering as a protective action for the beach popula-tion," even though evacuation is much more likely. Id. at 3.

83. The State offers little more useful information on how it would determine when to use sheltering for the beach popula-tion, except when there are impediments to evacuation or "when it would be the more effective option in achieving maximum dose reduction." Id. at 5-6. As noted above, some of the basic information which the decision-maker would need in determining whether shelter is a better response than evacuation has not been incorporated into the decision-making criteria. See Tr.10721-10734. While New Hampshire clearly does retain the option of ordering sheltering for the entire population of beach-goers, See paras. 35-36, suora, it has neither clarified the conditions when it should do so nor given the decision-maker the tools to make a rational decision. Thus, the FEMA conditions of January 25, 1988 have not been met.

l

84. Given the confusing nature of New Hampshire's submit-tal, it is not surprising that it appears to have been misread by FEMA's top officials who understood the State's response to be that there would ngt be a sheltering option for the 98% of the beach-goers (the transients with transportation). Tr.12875-6, 13164-5, 13173. After being shown some provisions of the plan and listening to the argument of counsel, Mr. McLaughlin appar-ently realized that the plan does include a sheltering option for the 98%. Tr.13170-85. He stated he had, spoken in error.

Tr.13185.

85. In his deposition, Mr. Keller had also testified that the plan did not provide a sheltering option for ths general beach population. Tr.14191-2.

86. Mr. McLaughlin agreed that lack of implementing proce-dures for sheltering is a serious question when the large numbers of beach-goers are involved, as opposed to only the 2% without transportation. Tr.13186-13202. He stated that he would need to consult with his technical people and that this would revive his-torical FEMA concerns about the need to know where people would be sheltered and procedures to get them there. Id.

87. After the lunch break, an' *a u:sions among counsel and witnesses - but without consultla, his technical experts -

Mr. McLaughlin stated that, while sheltering for the general beach population is, in fact, an option in the New Hampshire plan, ad hge sheltering would be adequate, since such a situation would be very remote in possibility. Tr.13286-13288. This was

36 -

the first time FEMA had ever said, either in writing or oral testimony, that it considered ad hsc sheltering for the large numbers of people on the beach as acceptable, much less that it had reached this determination on the basis of some probability judgment. Moreover, this testimony is in direct c'nflict with that given earlier in the day by the same witness regarding the questions raised by the lack of procedures to implement the sheltering option. Nor has FEMA provided any evidence concerning the probability of an event where sheltering weuld be the best protective action. This lith hour rationala strikes the Board as improvisational.

88. In this connection, the first draft of FEMA's original position found an ad hoc sheltering of the transients without transportation -- the 2% -- acceptable because they were a very small number of people. MAG Ex. 32, Post. Tr.12497, NECNP-REP-8, p.2-3. The same can obviously not be said for the 98%.

89. The FEMA witnesses also displayed considerable confu-sion and/or disagreement over whether elements J.9 and J.10.n.

are now met or whether they will be met when the rationale and implementing actions are incorporated into the plan. See para.

40 and n.4, supra; See also Tr.13136, 13165-7.

90. We hold that FEMA's basis for finding that the Seabrook plan meets elements J.9 and J.10.m cannot stand sinc 3 the requirements it laid out in January, and never retracted, were not met.

91. The June 10 testimony consists of legal and technical material. The "legal" portion contains a listing and brief des-a

cription of events which led FE AA ';.o reach the conclusion that sheltering is 1ot required by N.RC tuleci

92. The technical portion was prepared 'oy Joseph Keller, a Westinghouse Corp ration employee and consultant to FEMA through a DOE contract. Westinghouse designed and built the reactor sys-tems for Seabrook. Tr.14141-2.

93. As discussed caove, (paras.27-29), Mr. Keller's direct

+:stimony is totally generic, supporting the general conclusions tnat ovacuation would provide dose savings and that sheltering would not except in limitad circumstances, te the preferred option. While we have no particular basis to disagree in the abstract that, in most situations for most plants, evacuation has the best potential for dosa cavings (Tr.12744-5), neither Mr.

Keller nor any other witness, other than Mr. Thomas, has consid-ered what the consequences might be if the situation occurred which is postulated in FEMA's criginal cestimony: that thousands of beach-goers were stuck in the close-in beach areas for the entire duration of passage of the plume.

94. What Keller presented was easentially a ceneric look at dosa reduction, or the potential for it. The demographic and geographic actors specific to Setbrcok have been disregarded.

The only portion of the New Hampshire plen that Mr. Keller read was the February submissions by the State. Tr.14191, 14211-4.

He did no work on Seabrook aJter the Octcoer, 1987, probability analysis discussed above until he was called by FEMA counsel in early March, 1988, and aiked to draft the technical basis for the J

current FEMA testimony. At the time, he was somewhat annoyed because he could not get FEMA to explain clearly what he was to do. Tr.14189-91. He drafted the testimony at the end of the day on March 1 and March 2. Tr.14191. He drafted the conclusion j 1

that "the response by New Hampshire to the FEMA supplemental testimony is adequate in concept." Tr.14208

95. Keller's opinion that there will be dose-savings for the beach population is based on his belief that some undetermined number of people would be able to move off the beach before they were exposed to the plume. Tr.14194-5. There is no evidence how far they would get, however, nor even that they would get significantly farther from the plant that where they started.

96. With regard to the legal considerations presented in the FEMA testimony, we are told that the critical event, or the last straw, influencing FEMA was the receipt by FEMA of a letter from Sherwin Turk, NRC Staff Counsel in this proceeding, of Feb-ruary 18, 1988. Tr.14056, 13717-9. That letter, in pertinent part was essentially a restatement of the position taken by Mr.

Turk in a rebuttal plan filed with the Board under iate of Octo-ber 5, 1987, MAG Ex.37, Post Tr.13054, to the effecc that NRC l

believes that the absence of sheltering for the Seabrook beach population does not contravene NRC rules.

97. The great significance attached to this letter by FEMI.

is somewhat mystifying. For one thing, a FEMA witness testitTied that FEMA never believed that NRC rules "required" sheltering.

Tr.12906-11. Nor did FEMA's original testimony on its face pur-port to require sheltering. The June 11, 1987, letter from FEMA to Mr. Strome shows that FEMA understood that the question was not whether sheltering should be required but whether, consider-ing the effectivenoss together of all aspects of emergency response at Seabrook, the public is adequately protected.

Tr.12850-63; MAG Ex.35, Post Tr.13054,

98. Indeed, the pronouncement in the Turk letter that sheltering is not required by NRC rules (or lack of Cheltering does not contravene NRC rules) . is essentially' a logical' non-scquitur in relation to the issues and concerns expressed in FEMA's original testimony in this proceeding. As Mr. Thomas stated: "the problem was the number of people that would be stuck in traffic for potentially very long periods of time within site of the reactor..." Tr.13808-9. The question in this proceeding is, and has always been, whether the risk to the public associa-ted with that situation is consistent with a finding of adequate protection of public health and safety or, if not, whether the risk can be sufficiently mitigated in some fashion.

99. In fact, there were other considerations driving FEMA to its current position, which we now proceed to discuss.

100. FEMA and the members of its Regional Assistance Com-l mittee (RAC) were strongly influenced by assertions made by the Applicants and NRC over the years that, because Se8 brook allegedly has an especially strong containment system, a serious ,

accident there would take a longer time to develop than at the

, s. .-

- 4 0 ..

average plant. If this were true, it would obviously mitigate emergency response problems, espacially the beach population issues. Ege Tr.13419-20. As head of the RAC review for Seabrook, Mr. Thomas had the responsibility of leading that effort to a conclusion. His position was that if Seabrook is entitled to special treatment, and the accident release and timing assumptions established for all plants should not apply, then that should be established on the record. Tr.13420-24, 13875ff.

101. In November or December, 1985, Mr. Thomas had discus-sions with Ron Ballamy, who was the supervisor of the NRC RAC members for NRC Region 1. Bellamy told him that a serious release at Seabrook we.11d take 2-3 hours, in contrast to the 1/2-2 hours established in NUREG-0654/ FEMA REP 1. Tr.13427-9.

Shortly thereafter, Mr. Thomas wrote a memorandum to all RAC mem-bers of December 31, 1985, seeking their input on the Seabrook beach issues. His purpose was to get NRC to put the information provided by Mr. Bellamy into writing so that it cou]d be used by FEMA and the RAC in reviewing the plans. Tr.13427-31. This memo was approved by FEMA General Counsel and headquarters. Tr.13230.

Given the evacuation times for the Seabrook beaches, the dif-ference between 2-3 hours of warning and 1/2-2 hours is quite significant.

102. The response by NRC to Mr. Thomas's memo was a memorandum entitled "Protection of New Hampshire Beach Popula-tions" sent to Mr. Thomas by letter dated February 18, 1987, by l

l

c

_ 41 -

Robert W. Fores, Technical Assistant, Division of Radiation Safety and Safeguards, NRC Region 1. NRC Staff Ex. 5, l 1

hereinafter "Bores 1." Sge Tr.13469. Bores 1 was reviewed within NRC. Tr.13488. It was sent to the RAC members by Mr.

Thomas.

103. Under the heading "Plant Features and Considerations" on p.7ff., Bores 1 presents a discussion in support of conclusion that the risk to the public at 2 miles from Seabrook is equi-valent to the risk at 10 miles from a nuclear plant as presented in NUREG-0396, (the NRC document which supports a 10 mile EPZ).

Id. at 7.

104. In brief, it is asserted that there is negligible prob-ability of prompt containment failure at Seabrook (Id.), that site-specific meteorological conditions would dilute and disperse the plume (Id . ) , and that containment bypass accidents would be of low consequence and low probability (Id. at 8). A list of conclusions is given at page 10, including:

-- Containment at Seabrook is very strong;

-- Probability of prompt containment failure is negligible

-- Containment bypass is unlikely to cause severe offsite problems

-- Site specific studies for Seabrook indicated risks at two miles are comparable to NUREG-0396 analyzed risks at 10 miles.

105. After receiving and circulating Bores 1, Mr. Thomas scheduled a meeting of the RAC. At the meeting on April 15, 1987, the major portion of the discussion relevant to Seabrook related to Mr. Bores' oxplaining his coc.clusion about the risk at two miles from Seabrook being equivalent to the risk at 10 miles at another plant. Tr.12635, 13503-5.

e 106. To Mr. Thomas, the salient point of Bores 1 was that FEMA was going to give special treatment to Seabrook. Tr.13489.

He had no quarrel with this, so long as it was on the record.

107. Other RAC members also responded to Mr. Thomas' Decem-ber 31, 1985 memo. Several of these also argued that the prob-ability of a serious fast-breaking accident at Seabrook was too f low to plan for. MAG Ex. 28, Post Tr.12494, MAG Ex. 28, Post Tr.12494, Tr.13433.

108. After the RAC meeting, Mr. Rospenda of Argonne National Laboratory, prepare a draft position for FEMA. In all important respects, it tracked the conclusions listed in Bores 1 and expressed approval of the Seabrook plans as regards the beach population issues. MAG Ex. 32, Post Tr.12497, Hampton VIII, p.3-

5. It also concluded:

The use of precautionary protective actions are not the sole means for protection of transients such as visitors to beaches ano campgrounds. They are in effect, alse protected by the unusually strong contain-ment system at the Seabrook Station...

Id., SAPL-16, p.16. See Tr.13516-21.

109. A protracted dispute occurred during the hearings with regard to the intentions of Mr. Bores in Bores 1 and the inten-tions of Mr. Thomas. We need not resolve this because the impor-tant matters are not in dispute: 1) Bores 1 was withdrawn by the NRC in May, 1987 7 2) The conclusions in Bores 1 concerning the negligik ' grobability of a fast-breaking accident had been cru-7 NRC told FEMA they did not want to litigate the Seabrook cor.ta3 Dment features. Tr.13062-4.

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cial to FEMA in concluding that there was reasonable assurance the beach population was adequately protected, Tr.13062-70, 12594-5, 13519-20. ,

110. After the withdrawal of Bores 1, FEMA filed its original position of June 4, 1987 in this case. This position was the outcome of much deliberation among all the cognizant FEMA officials in Washington. Tr.12669-79.

111. NRC submitted a new paper, the so-called "Bores 2,"

dated June 4, 1987. Staff Ex. 6. Like Bores 1, it concludes that the Seabrook plan is adequate for the beach population but it deletes all reference to special containment features or acci-dent probabilities.

112. FEMA held a RAC meeting on July 30, 1986. Even though NRC had withdrawn Bores 1, some RAC members' remarks establish that they were still strongly influencad by the view that the probability of a severe accident at Seabrook was more remote than at other plants. Tr.13580, 13583; See also Tr.12564-7, 12579-

81. We believe this record establishes that FEMA and the RAC were heavily influenced by arguments made to them by NRC and the utility over a period of time to the effect that a serious fast-breaking accident at Seabrook is really not an event worth the concern of emergency planners.

113. On October 5, 1987, Mr. Turk filed his proposed rebut-tal plan, indicating that NRC was prepared to take a position contrary to FEMA's. MAG Ex. 37. This was the first Seabrook-related event directly "flagged" to Mr. Peterson. Tr.12741. It obviously created consternation at FEMA. See Tr.13650-3.

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114. At the hearings in Concord, in January, 1988 FEMA counsel announced that FEMA was reconsidering his position that the Seabrook plans were inadequate and wished not to go forward with its pre-filed testimony. Then, on January 13, FEMA Counsel announced that he had had a conference call with his superiors and FEMA, in fact, would stay with the position it had already stated. Eeg Tr.12982-90.

115. Two days later, Mr. Peternon received a telephone call from Victor Stello, NRC Executive Director for Operations. Mr.

Stello said he was surprised by reports he was getting from the hearings that FEMA had such a big problem with the beach issue.

Tr.12747-8. See also Tr.12992-8. He asked to meet with Mr.

Peterson.

116. The meeting was held on January 19. Mr. Stello told FEMA that if FEMA interpreted NRC rules to require sheltering, NRC would go to war with FEMA. Tr.13027, 12723.

117. Mr. Thomas was not invited to attend this meeting, although he was at FEMA headquarters working on preparing the testimony for this case. Tr.13032-6. Mr. Thomas was told by FEMA Counsel that a decision had been reached at the meeting to do a 180 degree turn and that FEMA was going to say that every-thing was perfectly fine. Tr.13780, 13784-6. The "total war" remark by Mr. Stello was also related to him. Tr.13777-8. This sequence of events, particularly the timing, does suggest that the NRC's actions played a significant role in FEMA's turnaround at the headquarters level.

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l 118. Considerable pressure had also been put on Mr. Thomas personally. Governor Sununu made telephone calls to complain about him personally. Tr.13242-3. As early as March, 1986, the Director of FEMA Region 1 felt the need to ask the utility to "knock off_the yelling" and to tell them that they would be worse off if Mr. Thomas were removed. They responded by saying that they couldn't control Governor Sununu. Tr.13448-52.

119. Mr. Thomas was made aware that NRC was very upset'with him. Tr.13645-7.

'120. On the occasion of his first meeting with Mr. Peterson, in the summer of 1987,_a dismissive remark was made about his role in the Seabrook situation. Tr.13610-1.

121. In early December, 1987, Mr. Thomas was told by a senior New Hampshire Yankee employee, Terry Harpster, that he would be removed from his duties concerning review of the utility plans for the Massachusetts portion of the EPZ. Tr.13721. When he called FEMA Counsel, he was told that such a move was under consideration. Id.

122. In fact, the day after the pertinent Senate Sub-committee voted affirmatively on Mr. Peterson's camination, Henry Vickers, the Director of FEMA Region 1, was called to Washington to sign a letter removing Mr. Thomas from responsibility for review of the Massachusetts plans. Tr.12966-72, 13277-8. Mr.

Vickers told Mr. Thomas that he had been given no choice - that the Washington office wanted a man named Donovan from Regicn 10 to take over and that they had refused his request that Donovan

report to Thomas as he reported to Thomas's counterpart in Region 10, Tr.13704-13.

123. Mr. Thomas was also subject to intimidation from remarks by Counsel for the Applicants at the hearing. He was told, through FEMA counsel, that there would be blood on the floor if he didn't change his testimony. Sae letter to Ivan Smith from Matthew T. Brock, Robert A. Backus and Stephen H.

oleskey, Nov. 12, 1987. He was also told that there had been threats to refer his testimony to attorneys in Massachusetts,

-which he interpreted as a threat to pursue his license to prac-tice law. Tr.13639-44. While this intimidation did not cause him to change his conclusions, it caused him great concern about "what I was going to be put through to do my job" (Tr.13642) and fear that his name would be dragged through the mud. Tr.13643.

This made him "incredibly cautious" in answering this Board's questions. Id. See also Tr.13613-21, 13847-53.

124. We have no doubt that these events were common knoul-edge within FEMA.

125. There are factors beyond those already discussed which lead us to discount FEMA's current testimony in this proceeding.

For one thing, the RAC deliberations were all based on the evacuation time estimates contained in volume 6 of the New Hamp-shire RERP. Tr.13822-6. In Bores 2, these are referred to as "relatively short." Staff Ex. 6, p.2. Even FEMA's witness ack-nowled.ges that these ETES are too low. Tr.14060.

126. Lastly, it became apparent that the FEMA testimony is driven by several fundamental decisions which, while character-

ized by FEMA as "legal," really have more to do with FEMA having decided in the context of this proceeding that it plays a wholly subordinate role to NRC. The original FEMA position and the Jan-uary 25 testimony were based on FEMA's interpretation and application of FEMA's regulatory scheme. The March 14 and June 10 FEMA testimonies reflect a fundamental shift. The FEMA posi-tion now is that NRC has the sole authority to determine what is required for emergency planning and preparedness. See Tr.13994, 14098-9. This will be discussed more fully below. Suffice it to say at this point that FEMA sees this as a legal issue (Tr.12675-6, 14134-5). It even takes the position that to the extent the FEMA rules in 44 CFR 9350.5(a) contain mandatory requirements, they are not legally authorized. Tr.14071. FEMA has deferred to NRC's views on the issues critical to a finding of plan adequacy.

Eag FEMA's June 10 testimony, Post Tr. 13968, p.6.

127. The NRC rules give FEMA's findings on the adequacy of preparedness the status of a rebuttable presumption. This surely does not apply to legal conclusions. Nor is it acceptable for the NRC to gain the advantage of a presumption by cycling its views through FEMA.

128. Based on all the foregoing, we not only reject the l

presumptive status of the FEMA findings, we find that its testimony is not entitled to weight.

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4 IV. FEMA HAS ABDICATED ITS LEGAL DUTY TO PERFORM AN INDEPENDENT ASSESSMENT AND TAKE THE LEAD ROLE IN ESTABLISHING THE CRITERIA FOR EMERGENCY PREPAREDNESS AND IN DETERMINING THE ADEQUACY OF EMERGENCY PLANS 129. The two memoranda of understanding between NRC and FEMA (45 End. Bas. 5847, Jan. 24, 1980; 50 Fed. Egg. 15485, Apr. 18, 1985) related to emergency preparedness implement a relationship established by a directive of President Carter on Dectmber 7, 1979, announcing actions in response to the Report of the Presi-dent's Commission on the Three Mile Island Accident (copy attached). In pertinent part, the President stated:

Third, I'm transferring responsibility to the Federal Emergency Management Agency, the FEMA, to head up all off-site emergency activities and to complete a thorough review of emergency plans in all the States of our country with operating nuclear reactors by June 1980.

130. The first MOU explicitly referenced this directive as "defin(ing) areas of responsibility for emergency preparedness for the two agencies." 45 Fed. Rec. 5847. It states repeatedly that FEMA had the "lead responsibility for all off-site nuclear emergency planning and response," including determining whether plans are adequate and capable of implementation. E.g. Id. at 5848, cols. 1 and 2. Significantly, "FEMA has lead responsibil-

' ity for the development of emergency preparedness guidance for state and local agencies." Id. at 5849, col.l. It is agreed, though, that NRC and FEMA will provide each other the opportunity

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to review and comment on guidance prior to adoption. Id., col.2.

There is a clear division established: FEMA has lead responsibil-ity to establish planning and preparedness requirements for all l

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aspects of off-site planning, as well as responsibility to review individual plans. NRC has similar responsibility on-sjte. NRC will review the FEMA off-site findings on individual plants, integrate them with its own on-site determinations and make the overall licensing decision. Eng Id. at 5848, col.3.

131. The second MOU makes no change in this basic rela-tionship. 50 End. Egg. 15,485, Apr. 18, 1985. The NRC rulea also reflect this relationship. 10 CFR S 50.47 (a) (2) .

132. The evidence in this case is that FEMA has abdicated its lead role as a direct result of the Seabrook proceeding. The linchpin of its position before this Board is that FEMA is sub-ordinate to NRC even in the area of assessment of off-site emer-gency preparedness. It is FEMA's testimony that it has no authority to challenge NRC's positions. Tr.14015. To the extent that the MOU gives FEMA the lead authority for establishing emer-gency planning criteria, the FEMA witness "disagrees" with it.

Tr.14101-2, 14070. The FEMA witness testified that the agency has no legal authority to set mandatory preparedness standards for nuclear power plants. Tr.14086. It follows that 44 CFR S 350.5 is therefore not legally authorized. Some people in FEMA used to believe they were lead on aspects of emergency planning.

Tr.14136-7. As a result of the Seabrook case, everyone at FEMA understands that the agency has no authority to direct an Applicant to do anything to improve safety beyond what is at the site. "That's not a call of FEMA." Tr.14091-2 133. In fact, the turning point in this case came when FEMA reversed its view that the unique demographic and geographic cir-l l

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cumstances related to the Seabrook site precluded a finding under 44 CFR S 350.5(b) of reasonable assurance that adeauate protec-tive measures can and will be taken and adopted NRC's positions

1) that compliance.with the elements of NUREG-0654/ FEMA REP-1 compels an automatic finding of reasonable assurance (Tr.13995, 13118) and 2) all issues rclated to public "risk" are totally within NRC's jurisdiction. Tr.12770, 12774-5, 13282. At that point, all consideration of factors unique to seabrook stopped.

This can be seen by comparing MAG. Ex. 35, Post Tr.13054, with FEMA's current testimony. On June 2, 2987, Ed Thomas was directed by his superiors to base FEMA's position on the factors specific to the Seabrook site. Tr.13540-1.

134. The Memoranda of Understanding, the Presidential Direc-tive and the NRC's own rules are inconsistent with the role FEMA has taken in this case. It has not exercised lead responsibil-ity, as it is required co do, in establishing the criteria for preparedness or assessing the adequacy of the off-rite plans.

The view that FEMA has no business interpreting NRC rules, Tr.12725, utterly disregards the fact tnat FEIIA has its own (

rules.

135. Moreover, the legal views to which FEMA has acceded are incorrect. First is the new position that compliance with NUREG-0654 compels a reasonable assurance finding. NUREG-G654 is on its face a guidance document. It was explicitly deleted from 10 CFR 5 50.47. 49 Egd. Beg. 27733, July 6, 1984. Failure to com-ply with the eleaents of 0654 does not compel a finding of no reasonable assurance. (Tr.13118, 13133-5)

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136. Moreover, the NRC has specifically held: "NUREG-0654 does not~ constitute the only method of meeting applicable regulatory' requirements for emergency plunning. In the absensa of other evidence. however, adherence to NUREG-0654 mav_be sq111-gient to demonstrate compliance _yith the commission's emeraency olannina reaulations." Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LBP-85-14, 21 NRC 1219, 1225, and cases cited at n.14. (1985), emphasis added. We have been provided no argument or reasoning to lead us to conclude other-wise.

137. In addition, to hold that compliance with NUREG-06r .

compels a reasonable assurance finding would m;.xe a nullity or 44 -

CFR 5 359.5(b) and of the following language in 10 CFR 5

50. 47 (a) (2) ;

A FEMA finding will primarily be based on a review of the plans. Any other information already available to FEMA may be considered in assessing whether there is reasonable assurance that the plans can be implemented.

138. It is worth noting that as recently as January 25, 1988, the FEMA witness was fully prspared to swear that FEMA's reasonable assurance finding pursuant to 44 CFR 5 350.5(b) was a separate matter from compliance wit h NUREG-0654. See MAG Ex. 42; 1-Tr.13986-90. Many others also believed so before persuaded otherwise. Tr.14088, 1352' 139. Nor is there any support offered for the proposition that any insue which involves assessment of public risk is out-side FEMA's authority or excluded from its review. In fact, FEMA does assess risk. When it determines whether there is reasonable l

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assuranca of adequate public protection even though there may be noncompliance with elements of NUREG-0654 (Tr.13118, 13133-5), it is assessing the risk to the public.8 The division of responsi-bility between FEMA and NRC turns on whether the issue involves off-site or on-site planning and preparedness. All factors related to off-site preparedness are, as discussed above, delegated to FEMA as a matter of lead responsibility. Many of these issues may involve questions of assessing public risk.

140. In fact, the ultimate effect of FEMA's action in finally accepting the proposition that assessment of the site-related factors unique to Seabrook involves a risk assessment given solely to NRC's discretion has been that those issues have been eradicated from this case. NRC has not considered them. In effect, the "deferral" to NRC resulted in transforming the emer-gency planning and preparedness issues at Seabrook into generic questions and Seabrook into a generic site. There is no evidence on this record from either of the agencies which addresses the effect of the demographic and geographic characteristics of this site which led FEMA as early as 1981 to conclude that it poses i

unique problems for emergency response. See para. 145, infra.

This Board cannot conclude that there is adequate protection for '

the public health and safety, especially at Seabrook, as if these factors did not exist.

8 In this case, FEMA also claimed that it found ad hoc beach sheltering acceptable because it considers the event of low probability. That is an assessment 'f risk, Tr.13296-7, albeit without rational support in tne record.

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V. THE ORIGINAL FEMA POSITION IS STRONG SUPPORT FOR THE INTERVENORS' ARGUMENT THAT NO FINDING CAN BE MADE HERE OF REASONABLE ASSURANCE THAT ADEQUATE PROTECTIVE MEASURES CAN AND WILL BE TAKEN IN THE EVENT OF AN ACCID,EHI 141. As noted above, the basic facts set out in the original FEMA testimony have never been challenged. Tr.14057, 12871-6.

142. The original FEliA position is consistent with the approach taken by FEMA in other cases, notably Pilgrim and Maine Yankee. In Maine Yankee, FEMA was asked by NRC in the 1982-3 time frame to review a petition filed with NRC. The issue con-sidered by FEMA was whether the length of time to evacuate the resort area, and the type of traffic, precluded a finding of rea-sonable ast:urance that the public would bc protected. Tr.13415-9, 13872-3. Obviously, if ETES are solely decision-making guides and the length of evacuation times cannot be considered in assessing the adequacy of public ptotection, this inquiry done at NRC's request would have been meaningless, if not gltra vires.

See also MAG Ex. 43, Post Tr.13106, p.4.9 143 In the recent review of the adequacy of emergency preparedness for the Pilgrim plant, FEMA also took the same approach to similar issues that it had in its original testimony A focus of that review was, in the Seabrook case. Tr.14010-5.

I like Seabrook, the question of the safety of the beach population in the event of an accident. Tr.13568-/4 1

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[ Tr.14076-81.

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144. EEMA's witness acknowledged that the negative findings regarding reasonable assurance that FEMA reached in the summer of

-1987 in the Pilgrim case would have to be "revisited" in light of its new position in the Seabrook case. Tr.14010-15. The two positions are not consistent. Tr.14109. As the Board has observed before, the exigencies of the Seaurook case seem to have caused considerable imp"ovisation.

145. TD.e origil.al FEMA position is also consistent with the views held by FEMA since 1981 that Seabrook presents a unique set of problems demanding unique solutions. This judgment first appeared at the earliest stages of FEMA's involvement in the REP progran and are contained in a 1981 document denoted FEMA-REP-3.

Tr.13375-86. This document is still an operative FEMA guidance document. Tr.13383. It identifies Seabrook as a "special case" and makes special recommendations Tr.13384. Among the measures mentioned for consideration were building shelters, and building on-ramps to I-95.

s 146. As of June 2, 1987, FEMA officials were expressing the view that Seabrook posed a unique magnitude of risk because of the proximity of the plant to the beaches, the lengthy evacuation times, the fact that people would be stuck in traffic within sight of the plant, and the large number of transients without shelters. Tr.13530.

147. The original FEMA testimony is along these same lines, as is the letter to the state from FEMA of June 11, 1988, MAG 35, Post Tr.12494.

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dents. Egg Tr.13584.

149. Although there has been an effort by NRC and the Applicants to portray Edward Thomas as a rogue elephant, that is not accurate. The record is clear that each position he took was deliberated and fully approved by his superiors. Tr.12843-6; Tr.12688-9; Tr.12668-73, Tr.13556-60. The original FEMA testimony was unquestionably acency testimony. Tr.13622-9.

150. Edward Thomas has been Chief of Natural and Technical Hazards for FEMA Region 1 since 1981. He has reviewed over 100 emergency plans and presided over 50-60 RAC meetings. Tr.13372-

3. He is the only agency witness in this case who actually reviewed the New Hampshire plans. His expertise is emergency planning and preparedness in demonstrably superior.

151. Mr. Thomas and FEMA Region 1 expended extraordinary efforts to assist in developing the New Hampshire plans ard in reviewing them. E.g. Tr.13403-6, 13393-5.

152. Mr. Thomas has reviewed other plans where summer transient populations were involved. Tr.13374. We have been >

made aware of no other case in his experience where his judgment was questioned by his superiors until Seabrook.

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• 153. Nor do we see that Mr. Thomas had any motive to attack Seabrook. He has surely suffered significantly on a personal and professional level from continuing to take the position that the current situation at Seabrook does not justify a finding of rea-l sonable assurance of adequate public protection. I 154. The Board finds that the original FEMA testimony is credible and lends substantial support to the position of the Intervenors in this proceeding.

Conclusion 155. Based upon all the foregoing, this Board rules that the record does not suppo t a finding of reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency. Since such a finding is required pursuant to 10 CFR 5 50.47 (a) (1) , no operating license can issue at this time.

Respectfully submitted, A

J Ellyn R. eiss HARMON &p'EISS W

2001 S Street, N.W.

Suite 430 Washington, D.C. 20009 l

COUNSEL FOR NEW ENGLAND COALI-TION ON NUCLEAR POLLUTION Dated: August 12, 1988

____________.___.___________________m.____.AM __

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. d. N .s M M;_ mwr '% @ k d D M d h; hguip aus I)cc. I .Mministration of Jimnry (larter,1979 YTC$idellt's Collillli5sinil 011 the '""'c'sc encrer and to desclop encrev re-dCCidCRI at IbfCC Mk!C I5I3Hg soun s in our s ountn are d7 hso basic answers for whit h we are sockine llut we RemerAs Janosoicing Arrions in Respon;r to the Comminion's Report. December 7.1979 sannot shut the door on nuclear power go7 $, 9;geg s,gge,_

The purpose of this brief statement this The recent esents in Iran hase shown af ternocn is to outline to you and to the m the clear. staik dancers that euessise public. both in this < ountry and in other dependence on imimrted oil holds for our nations of the world, my own assessment Nation. We must make escry effort to of the Kemeny report reconunendations lead this country to encre3 security. Esery  :

on the Three .\ life Island accident. And I domestic energy source, including nuclear l uould like to add. of course. n the presen. power is critical if we are to be free as a g -j tation some thoughts and ictions of m3 country from our present merdependence

~D ow n. on unstable and uncertain sources of high.

4 I hase ictieued the rep. rt of the Com. priced forcien oil.  ;

miuion. w hich I establish' I to im estigate We do not hase the luxur3 of abandon.

the aicident at the Tim . le Island nu. ine nuilcar Imwer or imposine a lengthy

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c!ca r pow er plant. Tlic Conuniuion. moratonum on its further use. A nuclear 4

headed by Dr. John Kernen. . found s cr) pouciplant can dkplace :DK0 barrek of 8 i esious shortcomina in the u. s that luth oil per das, or touchly 1:1 million barreb

- . the Gmcinment and the utih*y industn of oil per 3 car. We niust take es cry pos.

i sceulaic and manaec nuilcar power. ib!c tcp to increase the safets of nucicar The steps that I am takine todas will p< user pioduc tion. ! .urce fully with the help to assure that nuilcar pouciplant, leucr and the spirit and the intent of the

.uc operated safelv. Safets, as it aiwas, Kemeny conninnioni ict orumendations, has been and uill remain. i my top piini. '""'c of u hich arc within in) ow n power to  !

it v, implcment. ethers of w hich reh on the Nu.

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' As lie said before, in this countrv ' lear liceulatory Commission. or the nuclear power is an enercy smuce of last NitC. or the utility industr3 itself.

resoit. Ih this ! meant that as we reach To cet the Gmernmenti own house in j'.

our coah on ionsenation. on the direct order. I will take sescral step . First. I

. . use of coal. on des clolunent of solar power w Ul send to the Conciess a icoreanization and u nthetic fuck, and enhanced produi. plan to strencthen the role of the Chair.

tion of American oil and natural gas-as man of the NRC. to clarify auienment of ,

we reach tho-e coals. then we can mini, authority and responsibility. and prmide mire our rehance on nuclear power. tha penon with the power to act on a

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.\! ant of our foicien allies must plac e daih basis as a chief executhe officer with

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much ereater iclianic than we do on nu. authority to put needed safety require-clear power. because thev do not hase the snents in pla, e and to implement better s ast natural resources that ch e us so mam in os eduit s. Ti.e Chairman must be able Tlternatises. We inust cet on with the job to select key personnel and to act on be.

cf des elopine alter nath e encrev resom ces, half of the Commksion durine any emer.

and ue must ako pau, in orde to do this. Fe"C F- ,

the legislation that I hase proposed to Second. I intend to appoint a new the Congress in makine an effor t.at eser3 Chairman of the Nuclear Regulatory lesel of societv. to comene enerey. To Commission. someone from outside that 2202 s

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ildrninistration of fir tmy Carter,1979 ne< . 1 2:ency. in he spirit of the Kemer.v com- of nuclear equipment. There i no sub-  :

'i' mission's recommendation. In the incan- stitute for tec hnis alh qualified and s om-

me. Ib asked Commissioner .\hearn- mitted people u nrking on the constrm -

now on the NRC. to sene as the Chair- non. the opesaion. and the in pn tion ot *

'"' man. Str. .\hearne will stress safety and nus icar poweiplants.

the prompt implernentatbn of the needed penonal ie ponsibilitt enust be stieswd.

4 un Some one perum must always be dese.c

. reforms. *

"" In addition, I will establish an inde- naied as in , hange. both at the coiporaic pendent advisory cornmittee to help keep b sel and also at the powerplant site. The h me and the public of the United States in- industry one it to the .\metican people formed of the pioerns of the NRC and to suenethen its ionnninnent to safets. '

• the industry in achiesine and in making I call on the utii. tin to imp!cment the ilcar the recommendations that nucleat followine chances. Fiist. huildine on the ice .

imer will be saier. steps aheadv taken. the industn mut f I" Third, I'm transferring responsibility to o eaniee itwlf to dnelop enham ed stand.

the l'ederal Emereency Afanacement aids for safe de iun. operation. .u.d ron-Agency, the FDIA. to head up all od'- tinction of plants. Second. the nuclear

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(('"r gg site emereeney activities and to complete indu u3 must woik together to dnelop a thoreuch review of emereency plans in and to maintain in operation a compic- i 11 the States of our country with operat- hen h e uainine. cxamination. and nalu-th ing nuclear reactors by June 1980. ation pme r.u n fm oper .u oi s and im 3,

fourth. I hase dirn ted the Nuclea upen i-on Thi uainine piner.un mu t g Regulatory Conunission and the other pa s mu in unh the NR(- tinou h a.

y auencies of the Gosernment to aa eleiate i nedit.uinn of the i ainine pioenun r x our proviain to place a ie ident Federal c iabli hed.1 hnd. .onuol soonn in nu.

,y impertor at men scarto site. i! car pou ciplant- mu t he modeiniecd.

l'ifth, I'm askine all televant (.m ein- stand.u di<ed. . uni implihed a mu h as P ment acencin to implement siitu.dl> all po uhic io peinut henn mionned dn i.  ;

(( of the other reconnnendation of the :omnakine .unone iceular oper a ting ,

Nnnen) c nunini n hehn e thne w en' houn and. of om w. dmine emetenn ic-  ;

in g

U in ali. .\ detailed fa(t sheet k beine I i h.dlence our utilits i ompa nies to  ; ,

inued to We pMn mot a inme esu ndal Nnd nn3 cHon to inqnme the safets of t g in g

brietine wiH be ghen to the press thi- nuclear powei.  ;

3g afternoon. l'inalh. I would like to diu n > how we .

y With clear !-adership and impimed manaec thh uan ition per iod durine .

3 orcanization. the exet ut h e bram h of whis h the Kemem in onnnendations are ,

h G sermnent and the NRC will be bet- irine unph meutnl. l'here aic a numbei J ter able to act quickly on the nusial h- of n<w nuilcar plant now awaitine otwn <

sues of improsed trainine and standaids. atine liiena or i on ton : ion pennit . Un-I h

e safety procedures, ar.d the other Kemem der law, the Nm ! car Reculatoi3 Conuni -

j. comn.iuion r ecommendatiom. Ilut ie- sion is an independent acency. I. item- (

sponsibility to make nuclear power sat < r ii,e di . i ion ir t with the Nuilcar Rreu. t doe not stop with the i edeial Gmern- laten Conunis ion, and. as the Kemeo3  ;

ment. In fact. the priinary, daub3 day ionoundan noted. it h.n the anihoiity to 6 E

reymnsibility for safety ie ts with utility pnxecd with liicmine the c plant on a rompant management and with supplien case.by-case b.ri . w hich mas le n ed as I

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Administration of Jimmy Carter,1979 Dec. 7 circumstances surrounding a plant or its Department of State .\i Ro -

application tht tate. .Vominetion ol Deane R. llinton To Ba an /k.

The NitC has indicated, however, tnat A nistanz Secretary. Decem6er 7,1979 '

it will pan,e in issuing any new licenses and construction permits in order to de- The President today announced that he

""I i sote its fuli etter, tion to putting its own will nominate Deane R. Hinton, of P3' f house in order and tightening up safety Chicago. Ill.. to be an Assistant Secretan '"'

', icquir emen:s. I endorse this ag,proach of State. He would replace Julius L Kati du ubich the NRC has adopted, but I urge resigned, and his area of responsibility '""

j would 'x economic and business a:Tain.

the NltC to comp!ete its work as quickly as possible and in no esent later than 6 Ilinton has been United States !<epre. [$ ,

mont!n from todas. Once ucie imtituted sentathe to the European Conununities "ith the r.uik of Ambassador Extraordi.

the necessait iefonns to assute safets. g we must tesume the liceming ptoceL nan and Plenipotentiary, since 1975. s lie was born Afarch 12,1923, in SIN ,o proruptly so that the new plants we need I is ,

to reduce our dependence on foreiun' oil 9".d*

1. nnciutv AI"" of Ile recchined Chicago an lie 1943. A.ll. from the sened cer

+

i ran be built anJ operated. in the 1.. S. .\imy from 1913 to lob..

. 03' The steps I'm annoimcing today w.d l ho i . .

. I im. ton inmed the 1 orcien h.ervice in helpin emnre that om safet. has the safet} 1916 and was posted in Damascus. Mom. \n of nuch ai pla nt- Nudear power doc' basa. Paris. and at the State Department han base a futme ;n the United States. It i lie was Chief of Oserseas Desetopment of tin an option that we inu i keep open. I will .nul the I'mam e Section at USEC m th:

inin unh the utilities and their suppliers. liruweb from 19Mi to 1961. Ile attended trie the Nuclear l(equiatoi) Conunioion. the the National Mr College in 1961-62 thc esecnth e dep.utinents and agencies of the l'iom 1962 to 1961. Hinton was Chirt ou

' l'ederal Gmcin:nent. and also the State of the Cominodity Programinine Dhi.

sion at the llureau of Economic Affair- ,

.md local emermnents to aume that the lorn Uni to 1967. he was Diiector of nt i futuic h a safc one. the (% e of Atlantic Political.Etonomu ag And now Dr. I' rank Press. Stn Eizenstat. AfTan, s m. the llureau of European Af* l'n and John Deutch will be clad to answer t a n s. 1. tom 1967 to 1971. he was Direi-me

'g * -..

30ur questions about these det mons and - ' D sb W mwh #,

about nuilcai powet and the futme of for cronomic atla.ns m Guatemala, then the }

y qu-it in Oilt ( ounth. I. r a ilk .,

} m 5.mtiago.

tio 3 soro Tbc Prendent spoke at 2:45 p m in g. rom 1971 to 1973. Hinton was de. ior -

Ro .m 450 of the O'd Executhe Omce Bmid. tailed to the u.ln.te llouse as Depun ing. ,

l' Ner nt h e Director of the Council on l Tollowine the President's remarks. Frank Preu, Director of the Omcc of Sciente and Inteinational Economic Policy. lie w as . '

Technoloey Pohc3. Stuart E. Eirenitat. .bsht- Ambmador m du- liepubli[ of Zain-

)' ant to the President for Donr< tic .\ffairs and M da il

} I ', . ,'

{

Poh.v, ana Cnder Secretary of Entrey John senior adviwr to the Under Secretary of N1. Deutch hell a new s < enference on the an. cai nounceme nts State for Economic AfTairs.

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l CERTIFICATE OF SERVICE I certify that on August 12, 1988, copies of the fbrefoing :,ti An '-

findings were served overnight mail or first-class mali %hIATE. .*H -

parties to this proceeding, as designated on the attached 1 Tith'

~ lyn b Weiss 9

9

e

, SEABROOK SERVICE LIST e* . Offsite Licensing Board J.P. Nadeau Matthew T. Brock, Esq.

- Ivs3 W. Smith, Chairman

• Town of R}t Shaines & McEachern Atomic Safety and ucensing Doard 155 Washington Rcead P.O. Box 360 US Nuclear Regulatory Coinmission Rye, New llampshire 03870 Maplewood Annue Portsmouth, Nil 03801 Washington, D.C 20555 Senator Gordon J. llumphrey US Senate Sandra Gavutis Dr. Je rry liarbour' Washington,D.C 20510 RFD 1, Box 1154 Atome Safety and ucensing Dourd East Kens;ngton, Nil 03827 US Nuclear Regulatory Comminion (Attn. Tom Durack)

Washington, D.C 20555 George Dana Bisbee,1sq. Robert A. Backus, Esq.

Gustave unenberger* Geoffrey M. Iluntington, Esq. Backus, Meyer & Solomon Atomic Safety and ueensing Board Offke of ahe Attorney General 111 Ionell Street State llouse Annex Manchester, Nil 03105 US Nuclear Regulatory Commission Washington, D.C 20555 Concord, Nil 03301 Sherwin E. Turk, Esq.*

Atomic Safety and Ikensing Rkhard A. llampe, Esq. Office of General Counsel llampe and McNicholas U.S. Nuclear Regulatory Commission Board Panel US Nuclear Regulatory Commission 35 Pleasant Street Washington, D.C 20555 Washington,D.C 20535 Concord, Ni1 03301 I1. Joseph 11ynn, Esq.

Dc:Leting w.d Serdce Branch GaryW,llotmes Esq. Office of General Counsel .;

US Nuclear Regulatory Cornmission llotmes & Dlis FEMA i Washington,D.C 20535 47 Winnacunnent Road 500 C Street S.W.

Ilampton, N1103842 Washington,D.C 20472 Stanley W. Knowles Mrs. Anne E. Goodman Doird of Selectmen William Armstrong Civil Defense Director Board of Selectmen j P.O. Box 710 i North flampton, Nll 03826 10 Front Street 1315 New Market Road Exeter, Nil 03F33 Durham, Nll 038 t2 William S. tord, Selectman Tmm llati- Friend Street Calvin A.Canney R. Scott Ilill-Whilton 1 Amesbury,MA 01913 City Manager lagoulis, Oark, flill Whilton City Itall and McGuire 126 Daniel Street 79 State Street l Jane Doughty SAPL Portsmouth, Nil 03801 Newburyport,MA 01950 5 Market Street Portsmouth, Nil 03801 Edward A. Thomas ITAIA Carol S. Sneider, Esquire 442 J.W.McCormack (POCli)

• Overnight deliwry Assistant Attorney General Boston, MA 02109 1 Ashbartorr Place,19th floor Dc: ton,MA 02108 Charles P. Graham, Esq.

McKay, Murphy and Grahain Senator Gordon J,ilumphrey 100 Main Street 1 Eagle Square, Sie 507 Amesbury,MA 01913 Concord,NII 03301 Alfred V. Sargent, Chairman Michael Sanmsucsso. Chairman Board of Selectmen Docrd of Selectmen Town of Salisbury, MA 01950 Jemtli Street, RfD e 2 South llampton, Nili 03M2 Rep. Roberta C Pevear Drinkwater Road Judith IL Mizner, Euq. llampton Falls, Nil 0.'i848 Silvergtate, Gertner.et at RS DreaJ Street Phillip Ahrens, Esq.

Ik= ton. MA 02110 Assistont Attorney General State llouse, Station #6 Thomas G. Dignan. Esq

• Augusta, ME 08333 R.K. Gad II, Esq.

Rotes & Gray Allen Lampert 225 Frankhn Street Civil Defense Director Dceton,MA 02110 Town of Drentc=oad Exeter, N1103833 L - - -

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