ML20235N338
| ML20235N338 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 02/24/1989 |
| From: | Backus R BACKUS, MEYER & SOLOMON, SEACOAST ANTI-POLLUTION LEAGUE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#189-8089 ALAB-905, LBP-88-32, OL, NUDOCS 8903010170 | |
| Download: ML20235N338 (41) | |
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'89 FEB 27 P2 :10 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OF51n ATOMIC SAFETY AND LICENSING APPEAL BOARD b.[j
- Before Administrative Judges:
Alan S. Rosenthal, Chairman Thomas S. Moore Howard A. Wilber DocketNo.50-443-OL[%-Ob In the Matter of
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(Offsite EP)
PUBLIC SERVICE COMPANY,
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OF NEW HAMPSHIRE, et al.
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February 24, 1989 I-
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(Seabrook Station, Unit' 1
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BRIEF OF SEACOAST. ANTI-POLLUTION LEAGUE IN SUPPORT OF REVERSAL OF LBP-88-32 IN LIGHT OF ALAB-905
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Robert A. Backus, Esquire
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BACKUS, MEYER & SOLOMON 116 Lowell Street P.O. Box 516 Manchester,.NH 03105 Attorneys for Seacoast
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Anti-Pollution League
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gj!3iDERM8%h 3)so3 1
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T-I TABLE OF CONTENTS Pace I.
INTRODUCTION' 1
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II.
LEGAL BACKGROUND OF THE RECEPTION CENTER ISSUE AT SEABROOK 3
i III. FACTUAL BACKGROUND OF ThE
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RECEPTION CENTER ISSUE AT SEABROOK 6
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IV.
THE LACK OF EVIDENCE IN SUPPORT OF j
THE 20 PERCENT' PLANNING BASIS FOR RECEPTION CENTERS 12
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I V.
CONCLUSION-22
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TABLE OF AUTHORITIES CASES:
PAGE R
,'ALAB-905J Cited throughout
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-REGULATIONS 50 Egd. ERS.-42085.'(Nov. 3, 1987)'
16.
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NRC REGULATORY GUIDANCE NUREG-0654/ FEMA-REP--l. (Rev. 1) 1, 2
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(ii) i
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D I
g UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD c)
Before Administrative Judges:
Alan S. Rosenthal, Chairman Thomas S. Moore Howard A. Wilber
)
)
In the Matter of
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Docket No. 50-443-OL
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(Offsite EP)
PUBLIC SERVICE COMPANY
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()
OF NEW HAMPSHIRE, et al.
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February 24, 1989
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(Seabrook Station, Unit 1
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BRIEF OF SEACOAST ANTI-POLLUTION LEAGUE IN SUPPORT C)
OF REVERSAL OF LBP-88-32 IN LIGb':1 OF ALAB-905 I.
INTRODUCTION A critical issue in radiological emergency planning is the
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adequacy of facilities to handle those persons within the approximate ten-mile p1tme exposure emergency planning zone who may be ordered to evacuate in the event of a nuclear disaster.
These facilities include so-called " reception" centers where evacuees can go to be registered, monitored to determine if they have been subjected to radioactive contamination and, if necessary, decontaminated.
The explication of the requirements for these facilities is found in the NRC and FEMA basic planning document, NUREG-0654/ FEMA-REP-1 (Rev. 1).
As stated in ALAB-905:
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1 Included within this guidance is the provision in Criteria II.J.12 for radiological monitoring of EPZ evacuees:
Each organization shall describe the means for registering and monitoring i
s of evacuees at relocation centers in host areas.
The personnel and equipment
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available should be capable of monitoring within about a 12-hour period all residents and transients in the plume exposure EPZ arriving at relocation
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centers.
(ALAR-905. Slip Opinion pp. 13-14)
As pointed out in ALAB-905, NUREG-0654 does not itself establish the number of evacuees for which planning is required;
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instead, it calls for adequate personnel and equipment to deal with "all" of the individuals who can reasonably be expected to require services.
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In both the shoreham and Seabrook proceedings, the adequacy of the reception centers was put in issue by interveners.
In both the Seabrook and Shoreham proceedings, the lices.se proponents, applicants and NRC staff, chose to rely on a FEMA document, an internal memorandum known as the Krimm Memorandum promulgated December 24, 1985, to establish the planning basis for the number
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of evacuees for which the facilities were to be staffed and 1
equipped.
App. Dir. No.
4, post R. 4740 at 3-4, R. 4767-68, also FEMA Direct, post R. 5091, p. 59, (Global p. 80).
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That Memorandum contained an assumption that the planning basis for the reception centers should be a minimum of 20 percent of the EPZ population.
In both the Shoreham and Seabrook
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proceedings, the Krimm Memorandum was marked into evidence, and )
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provided the basis for judging the adequacy of the reception
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centers, as to staffing and equipment, to perform their necessary roles.
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In ALAB-905, the Appeal Board held th,at the 20 percent assumption in the Krimm Memorandum lacked sufficient basis to support the Licensing Board's finding on the adequacy of the
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reception center for Shoreham.
However, in the Seabrook Partial Initial Decision
("P.I.D.")
i despite the issuance of ALAB-905 one month earlier, the Licensing S
Board held that it could find the New Hampshire Radiological Emergency Response Plan ("NHRERP") adequate as to reception l
centers on the basis of the Krimm Memorandum and that, indeed, the
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20 percent assumption of the Krimm Memorandum would be accorded the status of a " rebuttable presumption" because it came from FEMA.
(See pp. 91-97 of the P.I.D.,
attached hereto as Attachment 3~
A).
ALAB-905 makes it beyond peradventure clear that this decision is totally and egregiously erroneous.
It must be, and
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will be, reversed.
II.
LEGAL BACKGROUND OF THE RECEPTION CENTER ISSUE AT SEABROOK On February 21, 1986, SAPL timely filed its contentions on
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the then current NHRERP.
SAPL Contention 3 squarely put in issue the adequacy of the reception centers, citing, among other things, NUREG-0654 at II.J.12.
In its contention basis, SAPL noted:
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I No estimates are given of the numbers of evacuees who can be registered and monitored within any given time frame at
'these facilities.
Therefore, there is no reasonable assurance that all evacuees who should be registered and l
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monitored within 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> will in fact I
be thus protected.
On April 29, 1986, the Licensing Board, then chaired by Judge Helen Hoyt, ruled:
The Board finds no regulatory requirement for relocation centers to be able to provide for all evacuees who leave the EPZ.
Indeed, there is no requirement that one go to a center.
What positive results could be expected in providing for estimates of how many may go to these centers is wholly without merit.
The requirement is that the centers will be established, staffed, and equipped whether one or
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all evacuees choose to use them.
SAPL Contention 3 is reiected.
(Slip Opinion, p. 82)1 However, in the same order, the Licensing Board admitted SAPL 1.
Contention 7, which also dealt, in part, with decontamination.
In later ruling on a motion for summary disposition of that contention, the Board, though granting the motion in part, left
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open the following matter for litigation:
With regard to the adequacy of personnel and equipment (including that for collection and storage of radioactively contaminated water) to accomplish the monitoring and decontamination
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of the numbers of emergency workerc and general public expected at the decontamination centers 1/ SAPL, of course, would have appealed this order dismissing
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Contention 3 as blatantly erroneous, if not nonsensical.
- However, as set forth infra, this issue was subsequently admitted by Board rulings on two other SAPL contentions. )
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i located at the host community reception centers.
The Licensing Board finds that there are unresolved issues of material fact.
(Slip Opinion, p. 26, November 4, 1986)
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Thus, despite the Licensing Board's order rejecting SAPL Contention 3, the Board's further ruling on SAPL Contention 7 clearly did resuscitate the adequacy of personnel and equipment
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for monitoring and decontamination of general public evacuees as a licensing issue.
In addition, on 13cvember 26, 1986, as a result of the service
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of a new revision of the NHRERP, known as "Rev.
2",
SAPL filed additional contentions, including SAPL Contention 33.
This contention stated:
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Contrary to the requirements of 10 CFR 550.47 (a) (1), S5 0. 47 (b) (8),
S5 0. 47 (b) (9 ), S 50. 47 (b) (10) and NUREG-0654 II.J.12, there is no showing that the NHRERP Rev. 2 provides adequately for the registration and monitoring of y~
evacuees at reception centers within about a 12-hour period.
In its basis, SAPL stated as follows:
The NHRERP Rev. 2 has reduced the number of host communities from six communities down
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to four communities in eliminating Nashua and Durham.
This has had the resultant effect of lessening the base of municipal resources that can be drawn upon to assist the evacuating population and has reduced
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the likelihood, which was not great before, that all evacuees seeking assistance would indeed be assisted within the time frame set forth in NUREG-0654 as reasonable, i.e.,
about a 12-hour period.
The rate at which evacuees can be processed through the remaining
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reception and decontamination facilities has not in any fashion been established in )
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the: plans.- Therefore, reasonable assurance a
has not been-demonstrated-that any significant Lj y
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-fraction of thefsummer'mid-week. population.
-of;142,929 estimated =in.these plans _for>the New' Hampshire portion of the.EPZ could be p'
assured the requisite' assistance in-the specified time frame.~
This contention was admitted by the' Board's. Memorandum'and 9
Order of February 18, 1987, the' reasoning not'then provided, but-set ~forth11n the Board's Memorandum and. Order of May 18, 1987, in-which1the' Board'noted:
. that this contention overlaps SAPL y
Revised Contention 7, as. admitted, supra.
(Slip Opinion, p. 45, Memorandum and Order of May 18, 1987)
Thus,-there'is no' doubt that the issue of the adequacy of the; L
y NHRERP in regard to. reception centers was timely raised:and, albeit'after inconsistent rulings, admitted as an-issue in this' proceeding.
The P.I.D._ acknowledges this.
(See P.I.D. 5.1, p. -
p.
67,.and 5.62, p. 92-93.)
Accordingly, the Applicants had the burden of proving that there were adequate resources'to staff the four reception centers,
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and that they had appropriately planned for the number of evacuees that.would require services.
III.
FACTUAL BACKGROUND OF THE RECEPTION CENTER ISSUE AT SEABROOK
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As at Shoreham, the Seabrook applicants based their position that staffing.and facilities were adequate at the reception centers on the Krimm Memorandum's 20 percent assumption.
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(. P.I.D.
5.9, p. 70, 5.98, p. 117).,
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To this, they claimed there were two conservatism added.
The first was that they had prepared to assume that all transit-i dependent persons would go to the reception centers.
(However,
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the Applicants also took the position that this amounted to a very small number of people, approximately 2 percent of the evacuating population.)
(App. Exh.
5, Volume 6 at p. 2-1; Tr. at 4936,
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4940).
Second, the Applicants stated that they were using the Manchester reception center staffing requirements as the basis for all reception centers.
Manchester, because it was to host
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evacuees from six towns plus evacuees from Hampton Beach, was expected to have a somewhat higher load, based upon the 20 percent assumption, than the other reception centers.
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However, despite these claimed conservatism which were said to amount to a capability to actually service about 25 percent of the EPZ population.
(P.I.D.
5.9, p. 70), it is undisputed that no X,
survey or other specific analysis of the likely number of evacuees who would elect to go to the reception centers was undertaken.
(See P.I.D. 5.19-21, pp. 74-75).2
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It is also undisputed that the staffing to meet the Applicants' 20 percent planning basis, with the two claimed
" conservatism" added, was very marginal.
For example, the
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2/ It should be noted that there are also reasons to believe the 20 percent assumption was based on numbers that were too low; 4
i.e.,
not at all conservative..First, the numbers were based on the Applicants' claimed beach population e*stimates, which were underestimated, as the Board conceded.
(P.I.D. 9.94, pp. 270-71)
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Second, it failed to take into account the stranded daytrippers at Hampton Beach, a matter the Licensing Board found to be "of no moment."
(P.I.D. 5.69 and 5.70, pp.99-100). )
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Department of Public Health Services (DPHS) was supposed to provide " personnel to staff the 24 decontamination-administrative positions in the four host communities.
Currently, 18
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individuals are identified to fill these positions."
(P.I.D.
5.33, p. 80).
Dr. William T.
Wallace testified that originally 48 such individuals were sought, but the number needed was reduced
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from 48 to 24 by a decision to staff just one 12-hour shift.
(TE. 3417, 3443)
The evidence revealed a struggle on the part of state
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officials not only to fill the DPHS administrative positions, but also difficulties encountered by another agency, the Department of Health and Human Services.(DHHS), to fulfill staffing requirements
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for registering and providing other services to evacuees arriving q
at the reception centers.
A survey by that state agency of its employees was initiated to determine the numbers that might be
>x available to fulfill emergency roles.
The survey was conducted under the auspices of Applicants' witness William Colburn, Coordinator of Emergency Services, Division of Human Services. He
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conceded that the survey results indicated that some 28.1 percent of the state employees surveyed in regard to carrying out tasks in a nuclear emergency would refuse to do so.
(SAPL Exh. 5; Tr.
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4784-85).
Indeed, some 42.8 would be unwilling to respond to any emergency, " including" one at Seabrook.
(P.I.D. 5.80, p. 107).
According to the NHRERP, some 428 individuals are needed to
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carry out registration functions at the four primary centers over 3-
D O
a 12-hour period.
(P.I.D. 5.27, p. 77)
At the time of the testimony, there were only 95 people in the DHHS emergency service units (ESU's) specifically trained to fulfill these functions.
l O
(T t.
at 4788, 4822)
However, according to Applicants' witness l
L Colburn, there were some 471 additional personnel available in division offices outside of Concord who could be called upon to O
staff the four reception centers.
(P.I.D. 5.27, p. 78 and Tr.
4800-4801)
The Licensing Board in making its finding noted that these additional personnel were not being trained for tasks under O
the NHRERP.
(P.I.D. 5.87, p. 111).
The Board expressed its concerns and recommendations as follows:
Notwithstanding Colburn's confidence that sufficient numbers of DHHS workers would be O
available to respond to an emergency at Seabrook, the Board believes that SAPL's concerns regarding the availability of DHHS volunteers have merit.
The Board finds that further efforts should be made by State officials to develop a list of workers who, Os in fact, may reliably be called upon to staff the reception centers regardless of the time of day.
The Board also notes that the FEMA witnesses indicated that call list rosters for local personnel should be made available.
FEMA Dir., ff. Tr. 5091, at 80.
O The Board finds that similar rosters should be prepared for the DHHS workers who are depended upon for reception center duty.
(P.I.D. 5.82, p. 108)
According to the Applicants' expert witness on human behavior, Dr. Dennis Mileti, training of emergency workers in their roles is a key factor to avoid role abandonment in the event of a nuclear emergency.
(See testimony of Dennis Mileti at App. Dir. No.J7, post TI. 5622 at pp. 117-118 and SAPL P.F.
_9_
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O O
7.1.21)
Dr. Mileti's view of the importance of emergency workers understanding their roles in emergency was adopted by the Licensing Board (P.I.D. 1.13, p. 7).
O Mr. Colburn conceded that the 471 additional people at division offices were not only not being trained, but were not a guaranteed figure.
(Tr. 4803, P.I.D.
5.61, p. 107).
O Under the NHRERP, the actual function of monitoring general public evacuees and emergency workers is to be performed by firefighters from the host communities.
(App. Dir. No.
4, post O
Tr. 4740 at 18-20)
Applicants estimate that a total of 66 firefighters are needed at primary reception centers and an additional 20 are needed at secondary reception centers, yielding O
a total estimated need of 344 firefighters to deal just with the 20 percent of evacuees Applicants are anticipating under the NHRERP (Id. and Tr. at 4900).
No second shift staffing has been Os planned.
(Lt. at 4879-4880)
Salem, Dover and Rochester do not have enough firefighters to staff both the primary and secondary centers.
Further, Salem and Dover do not have enough firefighters O
to staff just the primary centers alone even assuming every single firefighter were to report for duty.
Applicants' testimony claims that mutual aid firefighters will make up shortfalls through no O
reference at all to those personnel appears in the Rev. 2 plan (App. Dir. No.
4, post Tr. 4740 at 20, II. at 4901-4903)
Another egregious problem with the level of monitoring and O
decontamination services is that the NHRERP makes absolutely no O
)E provisions for special facility evacuees who are to be transported i
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'to host facilities receive these services (Tr. 4942-4943).
The j
P.I.D. notes that these special facility evacuees are to be
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monitored and decontaminated at their host facilities (P.I.D.
5.19, p. 75).
The P.I.D. acknowledges that the amended staffing plans for the decontamination centers eliminated the'" Healthcare Facility" category of monitors (P.I.D. 5.77, p. 105) but the P.I.D. makes the inadequate suggestion that perhaps an additional four monitors in Dover and Manchester might fix the problem.
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(P.I.D. 5.78 and Order 10.4 (c))
The Board has neglected to think about the fact that special facility evacuees may present special
- problems for monitors due to physical impairments and the fact
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host facilities for special facilities are scattered all over, some not'even located in the host communities-and at some distance away from them. (See, for example, App. Exh.
5, Volume 21A, Portsmouth Hospital Plan at C-2 and C-4 and Volume 26A, Goodwins of 'xeter Plan at C-2.)
E In short, there is no doubt that the adequacy of reception
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centers and other monitoring and decontamination services being based upon the 20 percent figure of the Krimm Memorandum which was held wanting in ALAB-905.
There is equally no doubt that the
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i ability to meet even that 20 percent planning basis under the NHRERP was in no manner adequate.
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.IV.iTHE LACK.0F EVIDENCE IN SUPPORT OF THE 20 PERCENT PLANNING BASIS'FOR-RECEPTION CENTERS 1
Undisputed facts supporting the need for'a reversal of the I
P.I.D. as regards reception services for evacuees are that:
- (1)' SAPL challenged the adequacy of the reception centers in;
'its Contentions 3, 7-and 33.
)f (2)
Applicants and staff chose to defend the adequacy of the reception centers on the basis of the Krimm Memorandum's guidance that a 20 percent. planning basis was appropriate; and
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(3).ALAB-905 found the planning basis of the Krimm 1
Memorandum' insufficiently supported by' FEMA and required that the numbers to-be planned for reception center services should.be
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-det'rmined on a reasoned site-specific basis.
e However, in the Seabrook proceeding, as at Shoreham, the interveners did more than raise the issue and trust the Licensing:
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Board to require the Applicants to meet their burden of proof.
Interveners, SAPL and Mass. AG, produced evidence that directly challenged the 20 percent assumption.
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SAPL produced a witness, Dr. Donald L. Herzberg, the Director.
of the Division of Nuclear Medicine at the Dartmouth-Hitchcock Medical Center in Hanover, New Hampshire.
Dr. Herzberg had actual' I
experience in carrying out radiation accident drills both at i
Dartmouth-Hitchcock Medical Center and at the University of i
Arkansas for Medical Sciences in Little Rock, Arkansas, a hospital
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which was the primary care hospital for the nuclear unit Arkansas I.
Dr. Herzberg also testified, without challenge, that he worked ):
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'O daily with radiation, and was licensed as a designated user of radioisotopes.
In his direct testimony, Dr. Herzberg testified that, " Based O
upon my experience with small decontamination exercises it is my opinion that the vast majority of evacuees will come to be checked."
(Herzberg Supplemental Testimony, post Tr. 5012, p.
2, 1
9 Question 5)3 In addition to Dr. Herzberg, there was also evidence from a Massachusetts Attorney General's witness, Dr.
Albert Luloff, a sociologist, testimony which was not mentioned by o
the Board.
Dr, Luloff had done a " beach blanket" survey at Hampton Beach, which included the following question:
As you were leaving the beach area suppose that you learned that you might have been exposed to a O
radiation leak and that you were told by radio to report immediately to a specified monitoring and decontamination center loca'ted in N. H. about 20 miles away.
Would you report to such a center?
(Corrected Testimony of Dr. Albert E.
Luloff, post Tran.
<).
8203, Attachment 4, Forms A and B, Question 12)
The results indicated that some 88.6 percent of all respondents answered this question:
"yes" (Id., Attachment 4.2, O
P. 6).
Thus, in the record of tl.e Seabrook proceeding, there was clearly evidence that supported a challenge to the 20 percent O
3/ It shoulo be noted that the NHRERP public information materials, including a calendar said to have been mailed to all O
EPZ residents, contains a "where to go" section which advises that there is a reception center for each town or city within the EPZ.
(See Attachment B) O
planning assumption contained in the Krimm Memorandum and relied on by the Applicants and the Licensing Board.
The Licensing Board did not ignore the potential impact of
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ALAB-905 on the reception center issue for Seabrook.
It acknowledged "that all evacuees are given an opportunity to be monitored under the plan."
(P.I.D. 5.63, p. 93)
It then said:
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Notwithstanding the apparent contradictory holding on facially similar facts by the Appeal Board in Lono Island Lichtino Power (Shoreham Nuclear Power Station, Unit 1),
ALAB-905, 28 NRC (November 29, 1988),
we believe that continued reliance upon the
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FEMA-based 20 percent guidance of the Seabrook EPZ is appropriate.
In this circumstance, we find that the 20
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percent planning basis used by the NHRERP Rev. 2 is both reasonable and adequately supported in the record.
(P.I.D.,
5.65, pp. 94-95; 5.66,
- p. 97)
This was error so manifest as to betray intellectual
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dishonesty on the part of the Licensing Board, if not an outright insubordinate refusal to recognize the directly applicable holding of a higher tribunal.
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It is interesting to note that not even the original losing party on ALAB-905, the Long Island Lighting Company, could accept this consistent holding of another licensing board regarding the
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Seabrook plant.
The attorneys for LILCO, in urging the Commission to provide expedited review of ALAB-905, in hopes of reversing it, had this to say:
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T i
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The Seabrook Board ' distinguished' the ' facially r.imilar facts' of Shoreham.
(Seabrook, Slip C:p. at 9 4 )
The explanation of the distinction is attached (pages 94-97 of the Seabrook Decision).
The distinction, if LILCO understands it, is
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that there was a challenge in Shoreham to whether the FEMA guidance applied to the site-specific characteristics of the Shoreham site, whereas no such challenge was mounted in the Seabrook proceeding.
This distinction will simply not hold up.
The
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Appeal Board in ALAB-905 did not quarrel with whether the FEMA guidance applied to the Shoreham site.
It rejected the FEMA generic guidance itself, in part because it did not take into account site-specific features of any site.
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The Seabrook decision reaches the correct result.
It is the effort of a competent licensing board to reach the right result in the face of a seriously incorrect Appeal Board decision The Seabrook Board's distinction is unsustainable, but it is ALAB-905 that is the problem.
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Applicants' Motion that Commission Expedite Review of ALAB-905 and Consider New Information In Decidino Whether to Review It, pp. 3 and 4.
(Attachment C).
SAPL is forced to agree in part with the LILCO attorneys
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insofar as they have concluded that the Licensing Board's Seabrook decision is flatly inconsistent with ALAB-905.
Accordingly, we will now illustrate the total inadequacy of the Seabrook Licensing Board's purported distinction.
What the Licensing Board did, in all too typical fashion, j
amounted to nothing more than another attempt to " blame the
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victim" by criticizing SAPL's handling of the reception center issue.
Thus, the Licensing Board, in its obvious haste to reach a i
predetermined pro-licensing tesult, did the following:
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It decried SAPL's witness of having'" limited value as an expert" and then called him a "non expert", and i
<l (2)
It criticized SAPL for not undertaking more extensive-L cross-examination of FEMA's witnesses in an attempt to' explore the basis for its 20 percent guidance.
(P.I.D.
5.65, p. 96).
A close reading of Dr. Herzberg's qualifications and
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testimony, and the Licensing Board's discussion of his testimony, reveals the shallowness, indeed, the outright dishonesty, of the Board's decision.
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First, the Board criticized Dr. Herzberg for not knowing "of the plans or planning standards developed with respect to other nuclear facilities."
(P.I.D. 5.63, p. 93)
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Such knowledge was obviously not essential to Dr. Herzberg's testimony, and it was also irrelevant in light of the holding in ALAB-905 that a reasoned basis for estimation related to site
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characteristics was required for determining the number of evacuees who would seek out reception center services at a particular plant.
It also flies in the face of the NRC's recent
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rule change stating in the " Statement of Considerations" that the issue of plan adequacy is not to be determined by comparison to any other plan.
52 Fed. Rea. 42085 (Nov. 3, 1987).
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Second, the Board noted, for some reason, that Dr. Herzberg "did not review all parts of NHRERP Rev.
2."
LI2.)
What J
relevance this would have to Dr. Herzberg's testimony, in light of
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the fact that the NHRERP consists of some 31 volumes of material, )
most totally unrelated to the issue of reception centers, was never made clear.
(The Board never mentions how few of the Applicants' witnesses could claim to have read all of the 31
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volumes of the NHRERP.)
Dr. Herzberg did review relevant sections of the NHRERP. (Tr. at 5063).
Third, the Board criticized Dr. Herzberg for not attaching a
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specific quantified estimate to his opinion that the "vaat majority" of evacuees would go to reception centers for monitoring.
This is a novel requirement and one that would cast
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the burden of proof on SAPL rather than on the licensing proponents to establish the planning standard for determining adequacy.
(The Board, in fact, criticized SAPL in another area
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for demanding a certain number in suggesting the planned for numbers of evacuees were too low.
It said:
. we do not believe that the Commission's emergency planning standards require the level of mathematical precision SAPL that appears to demand."
(P.I.D.
5.70, p. 100).
Clearly this is another example of the Board's application of a double standard depending on which
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party's interests were at stake.
Fourth, in the apparent hope that a shotgun blast discrediting Dr. Herzberg would suffice when no single clear basis
)
for doing so existed, the Board denigrated Dr. Herzberg's qualifications as a witness with the following:
. we find that Dr. Herzberg is no expert at all in the area of large scale emergency planning or the prediction of populace response in the
)
case of an emergency."
(P.I.D. 5.64, p. 94)
This pronouncement ignored the fact that Dr. Herzberg was limiting his testimony to the area of his training and experience, (which included radiation
)
accident exercises), the attitude of the public toward radioactivity, and the general desirability, as a public policy matter, to know whether or not people fleeing from a nuclear
)
accident are indeed subject to radioactive contamination.
In effect, the Board itself struck Dr. Herzberg's testimony, on its view of his qualifications, although, the Applicants, having
)
cross-examined Dr.
Herzberg on his qualifications, never made a motion to strike.
1 Dr. Herzberg on cross-examination by Applicants' counsel,
)
defended his qualifications as follows:
One of the things I think that my area of expertise does -- is important, is that
)
in addition to my education and experience in terms of working with radioactivity, I work with people who are somewhat against I
their will, since they are 111, exposed l
to radiation, and I work with them rather l
intimately as their treating or. diagnosing
)
physician.
And I think what I feel a particular area of expertise in is knowing how these people relate to radioactivity, not just as biological phenomenon, but their whole way that they deal with this idea. (Tr. 5028)
)
And later in response to questions from Judge Smith, Dr. Herzberg 1 D
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'addedL.theifo11owing:
bR Well, what"I'm getting at is, is that there 4
-is a-lot of. experience:that people have.
+
.with disasters ofjone form or another.
J, There.is-very littlezexperience that people
+
have with radiation-disasters..
1 N
So.I would say that if there were someone who'had'a lot'of1 experience with disastrous releases:of' radioactivity, those: people-would' clearly be more expert-in their testimony.than I am,"and I don't have any F
argument with that.:
But my. point.is,.is that we're really. kind of short on people like that, and what it seems to melthat I have.to offer in the area,.of expertise: is whether or not it's
}
exactly,like the circumstances.we are lookingfat. :I do have.a relatively broad experience in working with people.who are being subjected to exposure or;to radioactivity.
And I talk to them at
}7 some. length, and.I see"the'-- new somewhat
~
to-the 1970s and-'80s, but:the terror in.
their faces when they are confronted with the fact that radioactivity is going to o
be in-their bodies.
And, no, I'm not the perfect --
Judge Smith:
You're talking _about observations in patients.
Herzberg:
Many, yes, over some 15 years.
b Judge Smith:
All right.
Herzberg:
And so I don't see myself as.the perfect expert witness, but I do think I have valuable observations that do relate to the question of a radiation disaster.
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Judge Smith:
All right.
With that explanat' ion and-limitation, your objection is. overruled.
t
^
(It. 5057-58).
Fifth, and finally, the Board suggests Dr. Herzberg did not p
actually challenge the FEMA.20 percent planning basis,.but merely
" questioned" it.
No fair ~ reading of Dr. Herzberg's testimony by the Board, or anyone else, could result in such a conclusion.
)-
Dr.
Herzberg, in his supplemental direct testimony, clearly did state his opinion that the " vast majority" of evacuees would seek.
services.
(Supra at p. 13)
)
And on cross-examination, Dr. Herzberg further testified as follows:
Q.
Is it your-position that the New Hampshire
)
Radiological Emergency Response Plan, does not address this subject [ adequate identification of a
those persons who may be contaminated]?
A.
(Herzberg)
It does not address the number of
. people who will be potentially exposed, is my 31 understanding of it.'
In view of the goal, as I understand it, of the program to check and potentially decontaminate 20% of the population.
l Q.
You think the. plan ought to be fashioned
)-
or drawn by, in some fashion so that it will reach 100% of the population in an emergency protection zone?
A.
(Herzberg)
I am only saying that if you want to find out if somebody is contaminated, you have
).
to check them.
I don't think that I can go beyond that.
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(Herzberg).
I think thatisomebody,JI thin that whoever is' responsible for'the1 plan, owes.
its.to the public1 o see that:they are checked, t
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whether'or not.they have=been contaminated;when to there has be'en airelease of radioactivity, that is'
'large enough to raise that suspicion.that people are-contaminated.
~
H Q.
.And this is one; deficiency ofLthe plans, that l
).
11t:does not make.it mandatory forreverybody'within
-the EPZ to.be examined.-
^
A..
(Herzberg)~ -I did not say;it_should.be mandatory.:
ILdon'tLknow-how you.would do that1 kind of thing.
But I think the pub _ic certainly should'have, vigorous--a p
vigorous attempt should be'made to' convince the
- public thatJthey;need-to arrive at a" detection and-decontamination center in the event'of~a' serious' radioactivity / release.
10..'Is it the ' lack of a publicity' campaign'that you.
{
-were complaining of?
A.
(Herzberg)
'No.
Q... No. -
A.
(Herzberg)
Simply reading through the
)
p'roposals it seems to me as if the numbers thati are being prepared for are' inadequate.
(It. 5025-5026)
As already discussed, SAPL contends that no witness was 1
needed:to. justify reversal of the P.I.D.
on the basis of its
. explicit reliance on the 20 percent planning assumption in the Krimm Memorandum, in light of ALAB-905.
For the Licensing' Board to' fail to acknowledge the obvious impact of this decision on the adequacy of the New Hampshire plans, when those plans as to reception centers were' based on the 20 percent assumption, is
" simply astounding.
For it to do so in the face of SAPL's )
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.a direct challenge of that planning standard through a-competent i
j 4
witness is. incomprehensible, indefensible and. unconscionable.
Lastly,'it is noteworthy that despite'ALAB-905, the Licensing
[w Board treated the Krimm Memorhndum not merely as a FEMA position, but gave it the status.of a " rebuttable presumption."
Nowhere else in its 290 page P.I.D. does the Board describe
),
FEMA's positions in this way.
To the contrary, elsewhere the Board, when crediting a FEMA position,,is careful to note that I
FEMA's position "is supported by the preponderance of.the
).
reliable, probative and substantial' evidence."
(P.I.D. 8.95, p.
225-26) l l
Evidently, to the Licensing Board, an Appeal Board decision l
l
)'
invalidating a FEMA position not only is ineffective, but it results in the invalidated' position having such an enhanced status that it does not need, like other FEMA positions, to be supported I
);
by reliable, probative and substantial evidence but prevails as a
" rebuttable presumption."
By so ruling, the Licensing Board not only fails to apply ALAB-905, but in fact, turns it upside down.
)
V. CONCLUSION Under ALAB-905, now the final decision of the Commission on this matter, the Licensing Board P.I.D. must be reversed as to the
)
adequacy of relocation centers.
In ALAB-905, not only did the Appeal Board strike down the FEMA 20 percent guidance as unsupported, and direct that a
)
reasoned site specific basis for estimation needed to be developed )
)
i b
for particular facilities, but it went even further, and in language that clearly would have application to the Seabrook site, stated as follows:
)
it seems to us, among other things, the demographic and meteorological characteristics of a particular EPZ might have considerable influence upon the percentage of the persons within the EPZ that would, in the event of an accident, seek monitoring
)
either on instruction or on their own initiative.
For example, some EPZ's doubtless could have a population that is concentrated close to or in a prevalent downwind direction from the reactor.
It seems fair to assume for plannina purposes that the percentaae of such an EPZ
)'
population that would seek monitorina would sianificantiv exceed that of the population of an EPZ in which most persons were located at areater distances from the reactor and upwind.
(ALAB-905, Slip Opinion, p. 21, emphasis added).
As this Appeal Board will be aware from its prior familiarity with this case, this language is fully applicable to the Seabrook site with its large summertime beach populations within about two miles of the reactor, and with the prevailing, albeit complex, meteorology being such that the preponderance of evacuees could be expected to be located downwind of the reactor.
Summary reversal of the P.I.D. on this issue is required.
Respectfully submitted, Seacoast Anti-Pollution League By its Attorneys,
)
BACKUS, MEYER & SOLOMON
/'-
Byi -
</
/ obert A.
Backus, Esquire R
)
116 Lowell Street P.O.
Box 516 Manchester, NH 03105 (603) 668-7272 )
7-- -
.y a:
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, DATED:
February 7 Y,1989 I hereby_ cert'ify tl5at copies of the within br'ief.have been
. forwarded this:date by first-class mail, postage prepaid:to the parties on the attached' service list.
). -
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/
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Juf5)d'Y. iihekus, Esquire
)
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1
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J.
J
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":'sz
}i ATTACINENT A.
J
' {
5.59.
As focused by its proposed findings, SAPL's principal attack on the adequacy of NHREP? Rev.-2 is in the area of staffing.
Specifically, through its evidence and proposed findings, SAPL asserts that the number,
){
availability and. training of decontamination and reception center staff under the plan are insufficient to provide a reasonable assurance of adequate emergency services to h
anticipated evacuee ar' rivals.
5.60.
In SAPL's view,.the number of staff provided for in'the plan is inadequate because they are based on T
evacuee load figures that are too low, and because they are insufficient to permit operation of the decontamination and reception centers beyond 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />.
SAPL's staffing critique
)
has two alternative parts.
First, it faults the use of a 20 percent of total evacuees formula as a planning basis.
Dr. Herzberg testified that most individuals in.the area of
)
potential radiation expuure will have no way of knowing whether or not they have been contaminated.
Based on his experience in observing human reaction to information about
)
radiation, Dr. Herzberg stated his belief that the vast majority of evacuees would report to reception centers to be checked.
Herzberg Supplemental, ff. Tr. 5012, at 2.
)
5.61.
Second, SAPL asserts that Applicants failed to properly determine the number of expected evacuee arrivals even using the 20 percent planning basis.
SAPL argues that
)'
July 18, 1987, the date on which the aerial photographs of
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the beach areas used'in part'to determine the peak summer
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t-population were taken,'was not a peak day for beach-attendance.(Fallon et al. Rebuttal,fff. Tr. 8608,Dat 3);
that' Applicant's vehicle counts' based on the July 18 photographs were too low and should be increased by 52%,
(High, et al. Dir., ff. Tr.'6849, at 5); and that the staffing plan provides for only a 12-hour period of
)~
operation in contradiction to the requirement of NUREG-0654 that principal response organizations be capable of operation for a 24-hour period.
Focusing on the Manchester-
)-
center,.SAPL further argues that the4 center's capacity is inadequate because its evacuee load does not include any portion of the transient transit-dependent ~ (daytripper)
)
population that might make use of the Manchester center (Tr. 4935-36), yet the Hampton Beach evacuees, a principal source of daytrippers, are among those directed to go to the
)
Manchester reception center (Applicants' Exhibit 5, Public Information Calendar at 4).
5.62.
SAPL's attack, founded entirely on the
)-
testimony of Dr. Herzberg, on the plan's assumed host community evacuee load appears to question the fundamental planning basis underlying the plan's provisions on
)'
decontamination and reception centers.
In its proposed findings, SAPL points to the testimony of Dr. Herzberg for the proposition that the " vast majority" of evacuees would
)
report to reception centers to be checked for radiation.
)
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SAP'L~- PF 5 '.1. 8. - : Based on.this statement, SAPL urges the Board to conclude that the 20 percent planning basis used by the NHRERP Rev.'2 is unreasonable in that "all evacuees must-be afforded a reasonable opportunity to be monitored..."
. Isl. ' at 5. 3'. 2.
- 5. 63..
ht the outset,'the Board notes that all evacuees are given.an opportunity be be monitored under the plan.
They need only go to the appropriate, host community facility.
The critical question for emergency. planners is.
o estimating the number of evacuees that will,-in the case of an' actual emergency, take advantage of that opportunity.
Similarly, the sole question before us at this juncture'is whether the estiinate of the number used in the NHRERP Rev.-- 2
)
is reasonable.
As noted at 5.9 suora, Applicantsuse of
.the 20 percent formula was based on general recommendations developed by FEMA, the expert Federal agency on emergency
).
planning.
Dr. Herzberg's observation, based on his experience-in nuclear medicine and perhaps six small decontamination exercises at medical facilities involving y
less then 20 people (Tr. 5019-23), was that a " vast majority" of evacuees would seek monitoring.
Herzberg p
Supplemental, ff. Tr. 5011, at 2.
In arriving at this view for the Seabrook EPZ, however, Dr. Herzberg did not review or even know of the plans or planning standards developed y
with respect to other nuclear facilities (Tr. 5063 and 5065), did not review all parts of NHRERP Rev. 2
)
v
- s.,
a.,
.s b:b. J.~I.f-- R T e 7,.
v m,4; i
-194 -
(Tr. 5062-63), and could not quantify'his proposed " vast majority" approach (Tr. 5025).- Moreover, Dr. Herzberg testified that his only. experience with implementing a nuclear power reactor emergency plan was as a participant
)
in, rather than planner or evaluator.of, a medical facility's portion of a 1978 or 1979 emergency drill in the Midwest.
Tr. 5019-5022.
)-
5.64.
Notwithstanding his expertise in the areas of diagnostic radiology and nuclear medicine, Dr. Herzberg g
himself acknowledged that'he was not "the perfect expert witness."
Tr. 5058.
Indeed, ba' sed on his limited experience with radiation emergency plans, we find that Dr.
Herzberg is no expert at all JLn the area of large scale emergency planning or the prediction of populace response in the case cf an emergency.
Thus his observations about the possible response of evacuees in the face of an emergency at Seabrook, while genuinely held and forcefully expressed, are but. speculations entitled to'little, if.any, weight.
SAPL has offered no other evidence warranting the rejection'of the FEMA-based planning standard used by the NHRERP Rev. 2 in favor of Herzberg's proposed " vast. majority" standard.
s 5.65.
Notwithstanding the apparent contradictory
)-
holding on facially similar fact's by the Appeal Board in Lona Island Lichtino company (Shoreham Nuclear Power Station, Unit 1), ALAB-905, 28 NRC __ (November 29, 1,988),
we believe that continued reliance upon the FEMA-based 20
)
i
,,. w : n.
O' 95 -
percent guidance of the Seabrook EPZ is appropriate.
In k)
Shoreham, the Appeal Board was faced with a direct and l
i specific challenge to the FEMA analysis underlying its l
guidance and the application of that guidance to the i)
Shoreham EPZ.
In support of that challenge, the interveners i
in the Shoreham proceeding sought unsuccessfully to learn l
from FEMA's witnesses the basis for FEMA's guidance.
O Finding the testimony of the parties unresponsive to the interveners' specific concerns, the Appeal Board turned to the FEMA guidance document itself to determine whether, on O
its face, it offers sufficient support for the application of the FEMA guidance to the Shoreham EPZ.
Concluding that it did not, the Appeal Board remanded the issue back to the O
Licensing Board for further analysis.
However, SAPL fails to mount a similar challenge in this proceeding.
Other than advancing a wholly unsupported alternative formula, SAPL has O
failed to offer and we are unable to identify any competent evidence in the record supporting its ultimate position that the 20 percent planning basis is inappropriate for the EPZ O
surrounding the Seabrook facility.
The testimony of Dr. Herzberg certainly offers SAPL no refuge on this score.
For in addition to his limited value as an expert, a close O
reading of his testimony reveals that he did not assert that the 20 percent planning standard was based on a flawed analytical basis but rather, simply expressed an interest in
'O learning about the empirical basis for the 20 percent O
. ~.
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)- standard.
Herzberg Supplemental, ff. Tr. 5011, at 2.-
Such 1
interest,' standing alone, does not amount to competent evidence questioning the use of.the 20 percent planning basis.
Nor, in our view, does the impression of a non-expert that "the numbers that are being prepared for are inadequate" (Tr. 5026) rise to that level.
The absence of-any basis in the record to question the 20 percent planning
)
basis used by the NHRERP Rev. 2 is all the more remarkable since, notwithstanding the avowed " interest" of its only witnesses, SAPL made no attempt to explore with FEMA the
)
basis for its 20 percent guidance despite an opportunity to I
do so.
See, Tr. 5089-5140.
5'. 6 6.
From the above, it becomes clear that SAPL's
)
purported challenge to the NHRERP Rev. 2 evacuee load estimates is at best indirect.
That is, rather than probe and question the analytical basis supporting FEMA's
)
recommended general 20 percent standard or,the plan's use of that standard for the'Seabrook EPZ, as was the case with respect to Shoreham in'ALAB-905, SAPL simply proffers a
)
vague " vast majority" alternative.
Having rejected SAPL's alternative as unworthy of consideration and in light of Dr. Herzberg's failure to raise any questions specifically
)
regarding the 20 percent standard, the planning basis used by the NHRERP Rev. 2 to estimate host community evacuee loads is in fact unchallenged by any competent evidence in
)-
the record.
Under the Commission's regulations, a FEMA i
~
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m finding constitutes a rebuttable presumption. -10 C.F.R.
50.47 (a) (2).
In~ practice, this has been' construed to mean that in the absence of contrary evidence, the FEMA finding carries the day.
Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-698, 16 NRC 1290, 1298 (1982),'aff'c LBP-81-59, 14 NRC 1211,'1460-66~~(1981);
.Lona Island Lichtina Co. (Shoreham Nuclear Power Station),
b LBP-88-2, 27 NRC 85 - (1985) ; Carolina Power & Licht Co.
1
-(Shearon Harris Nuclear Power Piant)' LBP-86-11, 23 NRC 294, 365 (1986).
Here,, witnesses for FEMA testified that it was'
)
FEMA's position that " provisions for monitoring must address e
at least 20% of the total EPZ population."
Thomas jd al.,
ff. Tr. 5091, at 80; Tr. 5093-94.
Those same witnesses
)
testified that, inter alia, "the State Plan contained adequate provisions for the registration and monitoring of d
evacuees..."
Id.
Logically, FEMA's finding as to the
)
adequacy of the registration and monitoring provisions of NHRERP Rev. 2 is implicitly based on a subsidiary conclusion that FEMA's generally recommended minimum 20 percent
)
planning basis was appropriately applied to the Seabrook EPZ.
In this circumstance, we find that the 20 percent planning basis used by the NHRERP Rev. 2 is both reasonable
)
and adequately supported in the~ record.
-5.67.
SAPL's argument that the decontamination and reception centers for evacuees must be capable of operation for a 24-hour period is similarly without merit. NUREG-0654, J
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pg, would be needed for official business.
Petients in Hospitals and
- 8. Kinds of Nursmg Homes N.
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v g-p c, Hospital and nursing home patients would Whenever somet) 1 be taken to medical or nursing facilities happens at a nuc beyond the 10-mile zone. They would receive is put into one of 4
the care they needed.
these terms:
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During an emergency, you could learn Unusual event.
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'.,d where a patient would be taken by calling place. No release the New Hampshire Office of Emergency pected. Federal, s l 4.o Management rumor control number, would be told. Se; i
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1(800)851-5154.
would respond to
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s., h j Keep the car radio tuned to an EBS otation.
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i gency facilities w
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Ii c nditi ns would Drive out of the area along one of the routes shown on page 6,7, or 8. Other routes may be b
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t r would give rei suggested on the radio because of conditions
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/j press. Ifit were s-brook beaches cot M
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at the time. Follow the EBS instructions.
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not have to do an
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Where to Go j, e
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Si e area emeig 7 - %;
town in the Emergency Planning Zone. The
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reception centers are listed on page 4. You s-k leased. Federal, s would go to your reception center for these w uld be told. All
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services:
s would be operatir 1
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would be ready tc
- Registration and information g
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. A place to meet family members who had
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would be sounded evacuated separately e; / crm u beaches would be
+ A message center for leaving and receiving be told to shelter.
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brief messages evacuated as a pr
. Referral to a public mass care center where radio to learn wh. !
you could stay O
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+ Monitoring for radiation exposure and General eme gen O
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decontamination, if necessary. (Listen to an The Handicapped classed as the most EBS station for instructions.)
Handicapped people who had returned the ter could go well b<
sp cial needs card in this calendar or eral, state, and loc Most people would stay with friends or answe a
mpsh, me Emm M enmpncy faa, relatives. If you did not have a place to stay, gene.v Management special needs survey operation. Emerge people at the reception center would refer you s yaar w uld be notified by emergency ready to help the p
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to a nearby public mass care center. You could workers. If help were still needed, they sounded. Beaches i
["eTe would be taken to the reception centers for pared to take actio P
u 8 e1 C os r d Sa t
r speci l id. Anyone who had not already evacuating. School would be at the center to help you.
asked the New Hampshire Office of Emer-ated as a precautic gency Management for emergency assis-of the general publ !
J G. Evacuation Plans for tance could get help by calling their town ready to shelter lis Special Groups Emergency Werations Center. (See page 1 stored feed and wa for a list of Emergency Operations Center learn what to do.
i Schoolchildren phone numbersJ l
In some cases, schools would be closed or Ifyou are handicapped. please /ill out and dismissed early, before any need for evacua' 3
return the card in this calendar, ifyou haec i
tion. In other cases, evacuatmn could be l
not sent in a card this vcar. The information
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will be kept confidential and used for
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' issue is materia
- to 25 percent operation, however, then ALAB-905 may be the only re-maining obstacleito a 25 percent license.. Accordingly,' LILCO respectfully requests g
that the Commission expedite its review of ALAB-905.
H. FEMA'20 Percent GWdance y;
LILCO also requests that the Commission consider t'wo recent Seabrook rulings
.in deciding whether to review ALAB-905. Neither Seabrook ruling was available when LILCO filed its Petition for Review, and for this reason the Commission should grant LILCO's motion. See Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-115,6
).
AEC '257 (1973).
The short of the matter is that LILCO has not been allowed to rely.on FEMA's
);
guidance while the Seabrook applicants have.
ALAB-905 was-handed down on November 29, 1988. The ' Appeal Board, reversing the Licensing Board, ruled that
~
LILCO could not rely on FEMA's guidance calling for a minimum planning basis of'20
).
percent of the EPZ population.
One month later, on December 30, 1988, the Seabrook Licensing Board issued its -
PartialInitial Decision on the New Hampshire Radiological Emergency Response Plan.
).
Public Service Company of New Hampshire (Seabrook Station,, Units 1 and 2), ASLBP No. 82-471-02-OL,28 NRC (Dec. 30,1988). The Seabrook Licensing Board conclud-ed, as a matter of evidentiary presumption, that FEMA's guidance calling for a mini-'.
1 mum planning basis of 20 percent of the EPZ population is both adequate and appropri-ately applied to the Seabrook EPZ. Seabrook, slip op. at 6. The same FEM A guidance was at issue in both Seabrook and Shoreham.
)
The Seabrook Board " distinguished" the'"f acially similar f acts" of Shoreham.
Seabrook, slip op. at 94. The explanation of the distinction is attached (pages 94-97 of the Seabrook decision). The distinction, if LILCO understands it, is that there was a I
challenge in Shoreham to whether the FEM A guidance applied to the site-specific char-acteristics of the Shoreham site, whereas no such challenge was mounted in the Scabrook proceeding, y
l
y.
Tnis distinction simply will not hold up. The Appeal Board in ALAB-905 did not
)
)
quarrel with whether the FEMA guidance applied to the Shoreham site. It rejected the FEM A. generic guidance itself, in part because it did not take into account site-specific features of any site.
)
The Seabrcok decision reaches the correct result. It is the effort of a competent licensing board to reach the right result in the face of a seriously incorrect Appeal Board decision. The Seabrook Board's distinction is unsustainable, but it is ALAB-905
)
that is the problem.
i The Seabrook decision strengthens LILCO's argument that the Commission should review, and reverse, ALAB-905. It is flagramly unfair to deny Shoreham a license be-
)
cause the FEMA guidance is inadequate while granting Seabrook approval a month later based on the same FEMA guidance. Two licensing boards, having heard evidence on the issue, have now accepted FEM A's 20 percent guidance. The Appeal Board's refusal to
)
accept the evidence should be reversed.
LILCO believes that the issue of whether FEMA's 20 percent guidance is sup-portable has been adequately briefed. The briefs filed with the Appeal Board discuss
)
the evidence supporting the guidance, and the proposed findings filed with the Licens-ing Board provide a mere thorough review of the evidentiary record. LILCO therefore submits that the Commission can (and should) reverse ALAB-905 in short order.
ID. The Realism Rule In addition to the part of ALAB-905 rejecting FEMA's 20 percent guidance, LILCO has challenged the part dealing with the availability of the Bellmore reception
)
center. This part of the decision, Ll'.CO contends, misinterpreted the Commission's
" realism" rule,10 C.F.R. 50.47(c)(1) (1988).
The Appeal Board's interpretation of the realism rule in ALA3-905 does not af-
)'
feet Shoreham only; it affects Seabrook as well. In a Memorandum and Order issued December 15, 1988, the Seabrook Licensing Board ruled on the General Exercise i
)
n.
- '. * !. Ij '
' - ~, %
CERTIFICATE OF SERVICE
'89 FEg 27 P2 :07 I hereby certify that. this Certificate of Service supptuedes thphj eer ti ficate appended to the wi thin brlef. Copi es o f t he w*ttfi ef pkie f have been forwarded this date by Federal Express to those indicated by an asterisk on the enclosed service list and forwarded 'by first-class mail, postage prepaid to all otherj a les on the-list.
/ '
/
7
/.-
/
Dated:
February 24, 1989
~
obed A.
Backus, Esq.
l l
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i
= - _ _ _ _
q, Alin S. Ronni.h:1, Chrman N
'Suzenna'Breinsth Paul McF charn, E:qu1ra
-Atomic Safety and Licensing State Rep. Town of Hampton Shaines & McEachern Appeal Panel Falls 25 Maplewood Avenue USNRC Drinkwater Road P.O. Box 360 Washington, DC 20555 Hampton Falls, Nh 03844 Portsmouth, NH 03801 1
I Howard A. Wilber N
Docke'ing & Serv. Sec.
Y t
Edward Thomas Atomic Safety and Licensing Office of the Secretary FEMA Appeal Board USNRC 442 J. W. McCormack (POCH:
USNRC Washington, DC 20555 Boston, MA 02109 Washington, DC 20555 Office of Selectman N
Town of Hampton Falls
, S. Moore Thomas Dignan,.Esquir y Hampton Falls, NH 03844 Atomic Safety and Licensing Ropes & Gray p
p USNRC Boston, MA 02110 Washington, DC 20472 Phillip Ahrens, Esquire Joseph Flynn, Asst. Gn. Cnsl. T Jane Doughty Asst. /. tty. General Fed. Emerg. Mgmt. Agey.
gApt State House, Sta. #6 500 C. St. So. West 5 Market Streer.
Augusta, ME 04333 Washington, DC 20472 Portsmouth, NH 03801 Richard A. Hampe, Esquire Sherwin E. Turk, Esquire M George Dana Bisbee, Esqu11 i
)
NH Civil Defense Agency Office of Exec. Legl. Dr.
Attorney General's Office Hampe & McNicholas USNRC State of New Hampshire 35 Pleasant Street Washington, DC 20555 Concord, NH 03301 Concord, NH 03301 Gary W. Homes, Esquire Carol Sneider, Esquire Sandra Gavutis Homes & Ellis Assistant Atty. General Town of Kensington 47 Winnacunnet Road One Ashburton Place Box 1154 Hampton, NH 03842 19th Floor East Kingston, NH 03827 Boston, MA 02108 Judith H. Mizner, Esquire Charles P. Graham, Esquirc Diane Curran, Esquire 79' State Street McKay, Murphy and Graham Harmon, Curran & Tousley Newburyport','MA 01950-100 Main Street 20001 S Street NW Amesbury, MA 01913 Suite 430 Washington, DC 20
William S. Lord, Selectman Town Hall Friend Street Amesbury, MA 01913 l
l Senator Gordon J. Humphrey US Senate Washington, DC 20510 Attn: Janet Coit Atomic Safety and Licensing Appeal Board Panel USNRC Washington, DC 20555 Mr. Robert Harrison Pres. & Chief Exec. Officer PSCO P.O. Box 330
' Manchester, NH 03105 Atomic Safety and Licensing Board Panel USNRC Washington, DC 20555 J.P. Nadeau Town of Rye 155 Washington. Road Rye, NH 03870 Mr. Angie Machiros, Chrman
' Town of Newbury Town Hal' 25 High Road Newbury, MA 01951