ML20235G477
| ML20235G477 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 07/02/1987 |
| From: | Curran D HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20235G482 | List: |
| References | |
| CON-#387-3981 LBP-74-36, OL, NUDOCS 8707140268 | |
| Download: ML20235G477 (16) | |
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UNITED STATES NUCLEAR REGULATORY COMMISSION 00pp,f0 i ohnu BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
'87 JUL -9 P4 :20 y
In the Matter of )
) 'EU "t'
Public Service Company of )
i New Hampshire, et al. ) Docket Nos. 50-443 OL
) 50-444 OL OFFSITE EMERGENCY (Seabrook Station, Units 1 & 2) )
) PLANNING ISSUES
)
NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S OPPOSITION TO APPLICANTS' MOTION FOR
SUMMARY
DISPOSITION ON CONTENTION NHLP-4 The New England Coalition on Nuclear Pollution
("NECNP") opposes Applicants' Motion for Summary Disposition of NECNP's Contention NHLP-4. As demonstrated below, Applicants have not met their heavy burden of proving that they'are entitled to summary disposition on this issue.
NECNP's Contention NHLP-4 asserts that:
' Procedures to provide early notification and clear instruction to the populace within the plume exposure pathway EPZ, 10 CFR S 50.47 (b) (5) , are inadequate.
The admitted portion of the contention's basis challenges the New Hampshire RERP's provision for notification and instruction of people with special notification needs.
Standard for Summary Disposition The burden of proof with respect to summary disposition is upon the movant, and the record and affidavits supporting or opposing the motion must be viewed in the light most favorable to the party opposing the motion. See Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), LBP-74-36, 7 AEC 877 (1974). A contention will not be summarily dismissed where the 8707140P60 070702 PDR ADOCK 05000443 0 PDR -
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1 Licensing Board determines that there still exist controverted 1
-issues of material fact. Houston Lichtina and Power Co. (Allens i
Creek Nuclear Generating Station, Unit 1), LBP-81-34, 14 NRC 637, l l 640-41 (1981). The fact that the party opposing the motion fails l to submit evidence controverting the motion does not mean that the motion must be granted. The proponent of the motion must still meet his burden of proof to establish the absence of a gen-uine issue of material fact. Cleveland Electric Illuminating Co. 1 l
I et al. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-443, 6 NRC 741, 752 (1977).
Reculatory Requirements l I
NRC regulations at 10 CFR 5 50.47 (b) (5) require Applicants to demonstrate the establishment of "means to provide early noti-fication and clear instruction to the populace within the plume exposure pathway Emergency Planning Zone."' According to NUREG-0654, the " minimum acceptable design objectives" for the alerting I
and notification systen are: l a) Capacity for providing both an alert signal and an informational or instructional message to the popula-tion on an area wide basis throughout the 10 mile EPZ, within 15 minutes.
b) The initial notification system will assure direct coverage of essentially 100% of the population within 5 miles of the site.
c) Special arrangements will be made to assure 100% l coverage within 45 minutes of the population who may not have received the initial notification within the entire plume exposure EPZ.
NUREG-0654 at 3-3.
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Reasons Summary Disposition Should Be Denied Applicants have failed to provide sufficient grounds for i l
summary disposition of this contention. As discussed below, l
- Applicants' assertions regarding the State's plans for notifica- !
tion and alerting of people with special notification needs fail to support a finding that no factual issues remain in dispute; nor do they support a finding that, as a matter of law, there is reasonable assurance that the health and safety of hearing-impaired individuals can be protected in the event of a radiological emergency at Seabrook.
First, summary disposition must be denied because FEMA has not issued formal findings or taken a position in this summary disposition proceeding. Pursuant to NRC regulations at 10 CFR S 50.47(a)(2), the NRC must " base its findings" regarding the ade-quacy of offsite emergency planning "cn a review of the Federal Emergency Management Agency (" FEMA") findings and determinations as to whether State and local emergency response plans are ade-quate and whether there is reasonable assurance that they can be l
implemented." A FEMA finding is entitled to a " rebuttable presumption on questions of adequacy and implementation capabil-ity." Id. As a matter of law, the Board cannot grant any of Applicants' summary disposition motions unless and until it has heard the views of FEMA on these issues. Cincinnati Gas & Elec-tric Co. (Wm. H. Zimmer Nuclear Power Station, Unit No. 1) , ALAB-727, 17 NRC 760 (1983). Moreover, the parties must be given an opportunity to respond to FEMA. FEMA's position document, filed l
5 ,
1 June 5, 1987, contains no discussion of Contention NHLP-4. In the absence of a finding from FEMA, summary disposition on this contention is premature.
Moreover, to the extent that FEMA has spoken on this conten-tion, its finding has been negative. FEMA opposed Applicants' March 25, 1987, motion for summary disposition of Contention NHLP-4, on the ground that "it is not clear from the New 1
Hampshire Radiological Emergency Response Plan how hearing impaired individuals will receive further instructions once they I are alerted to an emergency by a visible signal from their tone alert radios." See " Affidavit of Edward A. Thomas in Opposition to Certain Motions for Summary Disposition," dated April 15, I
i 1987, par. 35 (filed in support of "NRC Staff's Answers to Motions for Summary Disposition of Off-Site Emergency Planning Contentions," filed April 15, 1987). That position is consistent i
1 i
with the views expressed by the Regional Assistance Committee in i its review of Revision 2 to the New Hampshire RERP. See RAC l Evaluation of State Response to RA'C Review of the State of New Hampshire Radiological Emergency Response Plan for Seabrook, Sec-tion I, page 24 of 134;Section II, page 8 of 30. Applicants' summary disposition pleadings fail to provide any description of the instructions that purportedly will be placed on each tone-alert radio; thus, it remains unclear how hearing impaired indi-viduals will learn whether they are to shelter or evacuate in a particular accident scenario, or how they would be instructed to seek assistance. In the absence of more detailed information l
l
regarding the RERP's plans for instruction of the hearing impaired, Applicants have failed to rebut FEMA's conclusion.
In addition to the material factual issues raised by FEMA, i there are numerous other factual disputes which operate to bar summary disposition on Contention NHLP-4. Applicants first claim that tone alert radios with visual alerting devices for notifica-tion of the hearing impaired were ordered and are available for distribution. Statement of Material Facts Not in Dispute, par.
- 1. At least one hearing-impaired resident of the Seabrook EPZ has received no tone alert radio or notice that she will receive one. See Affidavit from Clotilde M. Straus.1 The regulations require that the means for early notification of the public be
" established." 10 CFR 9 50.47 (b) (5) . While Applicants may have taken stens toward the establishment of means to provide early notification to the hearing-impaired, that does not constitute the " establishment" of such means, and therefore cannot serve as the basis for a grant of summary disposition in Applicants' favor. Moreover, Applicants imply that they consider the tone alert radios on order to be insufficient, by claiming that
" development of an additional alerting device, which will be com-patible to tone alert radios previously ordered, is currently underway." Statement of Material Facts Not In Dispute, par. 2.
1 The original of Ms. Straus' affidavit was filed on April 15, 1987, with NECNP's opposition to Applicants' first summary dis-position motion on contention NHLP-4. An additional copy of the Straus affidavit is attached for the Board's convenience.
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Tone-alert radios constitute an inadequate means of notify-ing hearing-impaired individuals of a radiological emergency at Seabrook. For the approximately eight hours in each day when people are sleeping, tone-alert radios may be ineffective to awaken them unless they also activate a bed-shaker. Sgg attached Affidavit of Cynthia Compton, par. 5. The tone alert radios may i
also be ineffective when people are outdoors or in a different room of their home than the tone alert radio. See Straus Affidavit, par. 4.
Moreover, it is not clear from Applicants' pleadings how many tone alert radios have been allotted to each hearing impaired household. In order to insure notification, radios should be placed in at least three rooms in each house: the bedroom, the kitchen, and the room in which reading or television-watching is done. See Affidavit of Cynthia Compton, par. 3. Applicants have also failed to specify the brightness of the alerting lights on the tone-alert radios. Depending on such variable factors as the color of walls and the color of the curtains in the hearing impaired individual's home, one small flashing light may be inadequate. Id., par. 4. Finally, the RERP does not state whether the tone-alert radios are battery-operated. Tone-alert radios should have an independent power
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source so that they can perform their alerting function during a power outage. Id., par. 6.
In an apparent effort to compensate for the RERP's lack of i adequate notification and instruction provision, encourage EPZ residents to assist their hearing impaired neighbors. Strome Affidavit, pars. 3 and 4. According to Mr. Strome, the Emergency Broadcast System will " urge persons in the evacuation area to check on neighbors with hearing impairments and assist them in understanding emergency instruction." par. 3. The text of the Emergency Public Information Calendar, and messages in telephone book advertisements and brochures, will be changed to " instruct neighbors of the hearing impaired to personally verify that their neighbors understand any emergency instructions issued." par. 4.
Applicants do not attest to any agreements made by EPZ resi-dents to assist their hearing-impaired neighbors during an emer-gency. Reliance on the charitable impulses of third parties to notify and instruct the hearing-impaired does not constitute
" direct coverage" of the population within five miles of the plant. See NUREG-0654 at 3-3. There are significant factors that are likely to prevent EPZ residents from giving prompt attention to their neighbors. First, they may be at work or not at home, and thus unavailable to help their neighbors. Second, the RERP puts neighbors of the hearing impaired in the position of emergency response workers. As such, they will find them-solves torn by the same role conflicts that characterized emer-gency worker behavior during the accident at Three Mile Island.
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I See attached Affidavit of Donald J. Zeigler, " Role Conflict Dur-ing Nuclear Emergencies: Addendum," dated June 24, 1987, at 2 (hereafter "Zeigler Affidavit").2 They may have conflicting fam- l ily obligations -- i.e. gathering of children from the neighbor-hood or schools, caring for elderly relatives -- that may delay or prevent them from attending to hearing-impaired neighbors.
While Applicants assume that these neighbors will immediately attend to their role as notification and instruction agents, nany
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will undoubtedly tend to their family responsibilities first. l Id. For some, this will result in delayed response, making it extremely unlikely that notification can be accomplished within either 15 minutes or 45 minutes of the accident. For others, t conflicting family and personal obligations will result in non-response, that is, abandonment of their roles as functionaries in l l
an emergency situation. Id. Thus, there is no reasonable assurance that NUREG-0654's strict guidance for prompt notifica-tion and instruction of the EPZ population would be met under the l RERP.
The EBS and EBS Calendar instructions to assist neighbors who may not have received notification or who may have difficulty understanding instructions are also likely to be ineffective 2 This affidavit amends Dr. Zeigler's affidavit of April 13, 1987, entitled " Role Conflict During Nuclear Emergencies," which was submitted in support of SAPL's Response to Applicants' Motions for Summary Disposition of Contentions 8A, 35, and 25,(filed April 15, 1987).
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because they contradict other advice given in the RERP's instruc- j tional materials. For instance, the instructional materials attached to the Strome affidavit state that EP7, residents will be i Lold to go indoors if they hear a siren. Strome Affidavit, Attachments "B" and "C." They may also be told to shelter by closing all windows and doors and remaining indoors. Id.,
Attachments "A" and "C." However, they are also urged to assist neighbors who may need assistance in understanding the emergency instructions, if they can do so without usina the telechone.
Id., Attachments "A", "B", and "C." The RERP thus gives neigh- t bors of the hearing impaired conflicting instructions -- i.e.,
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early in an emergency or when sheltering has been ordered, they i must stay indoors to protect themselves; on the other hand, they l should go outdoors to check on their hearing impaired neighbors.
These conflicting instructions are likely to undermine the reliability of the plan to use neighbors for notification and instruction of the hearing impaired. Zeigler Affidavit at 2.
i Finally, the reliability of the neighbor-notification-and- !
explanation system may be further impaired in rural areas, as l distance between neighbors increases. Adults with family responsibilities may perceive themselves to have no time to carry out their responsibilities to hearing impaired neighbors.
Zeigler Affidavit at 2.
l As discussed above, Applicants have failed to demonstrate that they have resolved the numerous inadequacies in the notifi-l cation and instruction system for the hearing impaired that have 1
been attested to by FEMA, Ms. Straus, Ms. Compton, and Dr.
Zeigler. Having failed to demonstrate that there exists no dis-pute as to material facts, Applicants are not entitled to summary disposition as a matter of law and their motion must be denied.
Res ectfully submitted,
% C-Diane Curran HARMON & WEISS 2001 "S" Street N.W. Suite 430 l Washington, D.C. 20009 (202) 328-3500 July 2, 1987 I certify that on July 2, 1987, copies of this pleading were served on the enclosed service 1 st by first-class mail or as
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( D-otherwise indicated.
M ane Curran l
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STATEMENT OF MATERIAL FACTS IN DISPUTE REGARDING CONTENTION NHLP-4
- 1) Applicants claim that tone alert radios with visual alerting devices for notification of the hearing impaired were ordered and are available for distribution in April, 1987.
Statement of Material Tacts Not in Dispute, par. 1. At least one t
hearing-impaired resident of the Seabrook EpZ has received no tone-alert radio or notice that she will receive one. Affidavit of Clotilde M. Straus.
- 2) Mcreover, these devices are inadequate to notify hearing-impaired individuals of a radiological emergency at Seabrook. For the approximately eight hours in each day when ,
people are sleeping, the tone-alert radios may be ineffective to awaken them unless they also activate a bed-shaker. Affidavit of Cynthia Compton, par. 5. The tone alert radios may also be inef-fective when people are outdoors or in a different room of their home than the tone alert radio. See Straus affidavit.
- 3) It is not clear from Applicants' pleadings how many tone alert radios have been allotted to each hearing impaired household. In order to insure notification, radios should be placed in at least three rooms in each house: the bedroom, the kitchen, and the room in which reading or television-watching is done. Compton Affidavit, par. 3.
- 4) Applicants have also failed to specify the brightness of the alerting lights on the tone-alert radios. Depending on such variable factors as the color of walls and the color of the curtains in the hearing impaired individual's home, one small
{ flashing light may be inadequate. Id., par. 4.
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- 5) The RERP does not state whether the tone-alert radios are battery-operated. Tone-alert radios should have an indepen-dent power source so that they can perform their alerting func-
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tion during a power outage. Id., par. 6.
- 6) Applicants claim that " labels will be affixed to all of these tone alert radios with instructions for the hearing impaired to follow if the tone-alert radio is activated." How-ever, Applicants fail to provide any description of the nature of the instructions, or sample instructions. It thus remains unclear how hearing impaired individuals will learn whether they are to shelter or evacuate in a particular accident scenario, or how they would be instructed to seek assistance. As stated in the RAC review of Revision 2 to the New Hampshire RERP, "Although tone-alert radios will be equipped with visual-alerting lights for the hearing impaired, it is not clear in the Plan how the hearing impaired will receive emergency instructions." RAC Evaluation of State Response to RAC Review of the State of New Hampshire Radiological Emergency Response Plan for Seabrook, Sec-tions I, page 24 of 134;Section II, page 8 of 30. Moreover, these instructions will be of no use to people who cannot read English.
- 7) Applicants state that " development of an additional l alerting device, which will be compatible to tone alert radios l previously ordered, is currently underway." Statement of Material Facts Not In Dispute, par. 2. Applicants do not say what this device is, how it works, or what it is for. The
1 .
l l 1 relevance of this vague statement to this summary judgment motion is not clear, and thus it gives no support to Applicants' motion.
If anything, the statement indicates that Applicants believe the 4
existing tone-alert radios are inadequate, and therefore must be supplemented. /
- 8) Paragraph 3 of Applicants' Statement of Material Facts Not in Dispute is a legal conclusion that contains no facts that support Applicants' summary judgment motion.
- 9) Paragraphs 4 and 5 of Applicants' Statement of Material Facts Not in Dispute assert that in emergency broadcasts and in instructional materials mailed to households in the EPZ, the State will urge EPZ residents to " check on" their hearing impaired neighbors and " personally verify that their neighbors understand any emergency instructions issued." Reliance on the charitable impulse of third parties to notify and instruct the hearing impaired does not constitute " direct coverage" of the population within five miles of the plant. See NUREG-0654 at 3-3.
- 10) The RERP assumes that neighbors of the hearing impaired will be available for assistance at any time during the day. However, these neighbors may be at work or away from home, and thus unavailable to help their hearing impaired neighbors.
- 11) The RERP puts neighbors of the hearing impaired in the position of emergency response workers. As such, they will find themselves torn by the same role conflicts that characterized emergency worker behavior during the accident at Three Mile
l.. ,
l Island. Eee attached Affidavit of Donald J. Zeigler, " Role Con-flict During Nuclear Emergencies: Addendum," dated June 24, j 1987, at 2 (hereafter "Zeigler Affidavit").1 They may have con- f flicting family obligations -- i.e. gathering of children from
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the neighborhood or schools, caring for elderly relatives -- that may delay or prevent them from attending to hearing impaired neighbors. While the RERP assumes that these neighbors will immediately attend to their role as notification and instruction agents, many will undoubtedly tend to their family responsibilities first. Id. For some, this will result in delayed response, making it extremely unlikely that notification can be accomplished within either 15 minutes or 45 minutes of the ,
I t accident. For others, conflicting family and personal obliga-tions will result in non-response, that is, abandonment of their roles as functionaries in an emergency situation. Id.
- 12) The EBS and EBS Calendar instructions to assist neigh-bors who may have difficulty understanding instructions are also likely to be ineffective because they contradict other advice given in the RERP's instructional materials. For instance, the q instructional materials attached to Applicants' witness Strome's l
i 1 This affidavit amends Dr. Zeigler's affidavit of April 13, 1987, entitled " Role Conflict During Nuclear Emergencies," which was submitted in support of SAPL's Response to Applicants' Motions for Summary Disposition of Contentions 8A, 15, and 25 (filed April 15, 1987).
i affidavit state that EPZ residents will be told to go indoors if I
they hear a siren. Strome Affidavit, Attachments "B" and "C."
They may also be told to shelter by closing all windows and doors
- and remaining indoors. Id., Attachments "A" and "C." However, they are also urged to assist neighbors who may need assistance f
! in understar. ding the emergency instructions, if they can do so l
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without usina the telephone. Id., Attachments "A", "B", and "C." l l
The RERP thus gives neighbors of the hearing impaired conflicting instructions -- i.e., early in an emergency or when sheltering j has been ordered, they must stay indoors to protect themselves; '
on the other hand, they should go outdoors to check on their hearing impaired neighbors. These conflicting instructions are likely to undermine the reliability of the plan to use neighbors for notification and instruction of the hearing impaired.
Zeigler Affidavit at 2.
- 13) The reliability of the neighbor-notification-and-explanation system may be further impaired in rural areas, as 1
distance between neighbors increases. Adults with family responsibilities may perceive themselves to have no time to carry out their responsibilities to hearing impaired neighbors.
Zeigler Affidavit at 2. j s
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i Affidavit, from Clotilde M. Straus
).: Clotilde M. Straus, being duly sworn deposes and states, 1 - I live at 4 Robin Lane , in Fortsmouth, Heu Hampshire, about one mile from the Tortsmouth Fire Station. I . . .
i have lived here for 34 years. , - ,
l< 2 - I have a hearing impairment which prevents me from l hearing sirens when I am in the house with the windows closed. I never hear the Fire Department's sirens in l [ the winter when the windows are closed, j 3 Although I had communicated to the Public Service Company my hearine imecirment, neither the State of New Hampshire nor the Public Service Company notified q
b me that : would be receivin. a tone alert radio or any I other special alertine eculpnent. ,
'. ! 4 - Even if I had e tone Ele t radio it uould not heln me '
when I at not in the romo where such radio uould be kept or when : or sleeping. ~n either cese : would
[ retain unaucre of s radiolo~ical alert frot Seabrook Str ion, i
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l AFFIDAVIT OF CYNTHIA COMPTON Cynthia Compton, being duly sworn, deposes and states:
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- 1) My name is Cynthia Compton. I am Coordinator for the Assistive Devices Center at Gallaudet University in Washington, f D.C. I hold an M.S. in the field of audiology and am an expert i i
! on devices and wireless systems for the hearing impaired. A c opy l
of my resume, summarizing my qualifications, is attached.
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- 2) I have reviewed those portions of the New Hampshire i Radiological Emergency Response Plan ("RERP"), Revision 2, which ostensibly provide for the notification of hearing impaired indi-viduals in the Seabrook emergency planning zone ("EPZ"), in the l event of a radiological accident at the Seabrook nuclear power plant. As discussed below, I have concluded that the RERP does not demonstrate that sufficient or proper equipment is in place to provide an adequate means for alerting the deaf and hearing impaired EPZ residents of an accident at the Seabrook nuclear power plant.
- 3) The RERP does not specify how many tone-alert radios will be distributed to each hearing impaired household. If the radio's flashing light is not in the same room with the hearing impaired person, that person will have no way of receiving the alerting message. In order to insure notification, radios should be pinced in at least three rooms in each house: the bedroom, i the kitchen, and the room in which reading or television-watching l ts done.
- 4) Moreover, the RERP does not specify how bright the flashing light will be. Depending on such variable factors as the color of walls and the color of the curtains in the hearing- ;
impaired individual's home, one small flashing light may be inadequate.
- 5) A tone-alert radio may be useless in waking a person with a severe hearing loss. The flashing light would not be visible to a cleeping person, and the tone would be inaudible.
In order for the radio to alert the sleeping person, it would have to be connected to the person's existing wake-up system, which might include a bed-shaker.
- 6) The RERP does not state whether the tone-alert radios are battery-operated. Tone-alert radios should have an indepen-dent power source so that they can perform their alerting func-tion during a power outage.
- 7) According to the af fidavit of Gary J. Ca tapano, dated June 11,1987, labels will be affixed to tone-alert radios with instructions for the hearing impaired to follow if the tone-alert radio is activated. $ 2. Pr e suma bly , those instructions would refer the hearing impaired SBSividuals to some source of informa-
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