ML20237L678
| ML20237L678 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 08/31/1987 |
| From: | Harbour J, Hoyt H, Linenberger G Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#387-4300 OL, NUDOCS 8709090028 | |
| Download: ML20237L678 (37) | |
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r ie-00(*E ril UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 87 SEP -1 All :00 ATOMIC' SAFETY AND LICENSING BOARD Before Administrative Judges:
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a-Helen F. Hoyt, Chairperson
' " I "..
Gustave A. Linenberger, Jr.
l Dr. Jerry Harbour l
SERVED SEP -11987 l.
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Docket Nos. 50-443-OL In the Matter of 50-444-0L PUDLIC SERVICE COMPANY
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(ASLBPNo. 82-471-02-OL) 0F NEW HAMPSHIRE, et al.
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(Offsite Emergency Planning)
(SeabrookStation, Units 1and2)
August 31, 1987
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i MEMORANDUM AND ORDER (Ruling on and Disposing of All Outstanding Motions for Sumary Disposition of Contentions)
Introduction On March 25, 1987 the Applicants in this proceeding submitted motions for summary disposition of all previously admitted contentions f
(thirty-three in number). Memorializing the results of conference call discussions with the parties on April 13 and April 14, 1987, the Board issued an order on April 15. 1987 stating that contentions involving l
three subject areas will be litigated. These subject areas are ETE (evacuation time estimates), sheltering, and decontamination facilities; seven specific contentions were so identified and documented in that order. On June 12,'1987 the Board issued an order (dated June 10,1987) ruling on Applicants' motions for sumary disposition of seven of the thirty-three previously admitted contentions. Meanwhile, on June 11, l
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>rA 1987 Applicants submitted additional motions for summary disposition of fourteen of the thirty-three contentions but provided no guidance of their intent as to the relative status of their two submittals. This overlap was unknown to the Applicants and to us because of the timing of the issuances. The result is that the summary disposition motions granted by our June 10, 1987 order, as modified by our order of July 24, 1987, serve to moot certain of Applicants' second round motions.
The NRC Staff submitted several resp 6nses (documented below) that in part supported Applicants' motions and in part opposed them. All of the thirty-three contentions were addressed by Staff's responses, which were accompanied by affidavits of a FEMA official. Staff and FEMA opposed the granting of summary disposition of nine of the contentions that, according to FEMA, involved information contained in a resources assessment study not properly before FEMA. Thus FEMA's review of these nine contentions is not complete. The Staff-FEMA positions with respect to supporting or opposing summary disposition of the other twenty-fou.
contentions were provided and are discussed below.
l Some interveners submitted responses opposing certain of Applicants' motions. These are discussed below in conjunction with the contentions to which they are applicable.
In addition to Applicants' motions, motions for sumary disposition were submitted by two other parties, namely, the Town of Hampton and the l
Attorney General of the Commonwealth of Massachusetts. These are l
addressed below; they are not analyzed since the issues that they l
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'k I j address have been found by the Board to be litigable for reasons discussed below, at pages 35-37.
This Memoranduin and Order addresses all sumary disposition motions not previously acted upen by the Board.
Immediately below is a tabular sumary indicating the sumary disposition status of all of the thirty-three previously admitted contentions, with an identification of applicable Board orders and page references to the present order.
Status Sumary of All Sumary Disposition Motions Contention Movant Sta tus Applicable Board Order NECNP:
NHLP-2 Appls. (A) Deny PresentOrder(PO),Pg.35 NHLP-4 A
Deny P0, pg. 4 NHLP-6 A
Deny P0, pg a RERP-2 A
Grant P0, pg. 32 RERP-8 A, Mass AG Deny 4/15/87; P0, pg. 34 Rye-2 A
Grant 6/10/87 SAPL-7 A
Deny 4/15/87, P0, pg. 34
-8
.A Deny P0, pg. 35
-Ba A
Deny P0, pg.
35
-15 A
Deny P0, pg. 18
-16 A, Mass AG Deny 4/15/87; P0, pg. 34
-18 A
Deny P0, pg. 22
-25 A
Deny P0, pg. 24
-31 A
Deny 4/15/87; P0, pg. 34
-33 A
Deny 4/15/87; P0, pg. 34
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}- f l A Deny-P0, pg. 27, 34
-37 A
Deny.
P0, pg. 35 3
.' TOH-III A
Deny 4/15/87;'P0,pg.134
-IV A, TOH Deny P0, pg. 29-i a
E VI A T0H Deny P0. pg. 35 l
-VIII A, Mass AG Deny-4/15/87; P0, pg' 34 l
l T0HF-2 A
Deny
~PO, pg. 35
-4 A
Deny 7/24/87 TOK-1 A
Deny P0, pg. 35 j
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-2 A
Grant 7/24/87
-4 A
Grant.
6/10/87-A Deny P0, pg. 13 1
-10
.A Grant 6/10/87-TOSH-1 A
Grant 6/10/87; P0, pg. 16 i
-2 A
Deny P0. pg.'35
-3 A
- Deny' P0,'pg. 16
-6 A
Grant 6/10/87;.P0, pg. 13' j
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-8 A
Deny P0, pg. 14, 35 l
'l NEWENGLANDC0ALITIONONNUCLEARPOWERCONTENTIONNHLPd il
Background
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This contention (hereinafter NECNP NHLP-4) reads as follows:
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Procedures to provide early notification and clear instruction to the ulace within the plume exposure pathway EPZ, 10 CFR 50.47(b
) are inadequate.
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Applicants first filed for partial sunnary disposition of this contention on May 20, 1986 with respect to the alleged inadequacy of l
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! I procedures for identifying persons with special needs.
Said motion was l
granted by the Board in its order of November 4,1986, leaving as the only basis for further consideration the following:
The local plans do not make adequate provision for notification of people with special notification needs. The plans must demonstrate capability to notify 100% of the people within 5 miles of the site. NUREG-0654 at 3-2.
The plans do nnt identify individuals with special notification needs, nor do they make specific provision for their notification. For example, the Hampton plan states that the Fire Chief maintains 1
a " confidential list" of people with special notification j
needs, but does not state how many people there are on the
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list. The plan lists a number of means by which they may be notified. However, in the absence of a description of the l
extent and nature of the need for special notification, there l
is no way to determine whether the town has adequate personnel or equipment to carry out the task.
On March 25, 1987 and again on June 11, 1987 Applicants filed motions i
for summary disposition of this contention. Each of these motions is l
accompanied by a listing of five material facts alleged not to be in dispute; and each motion is supported by affidavits of the following two 1
persons:
Gary J. Catapano, president of A11come, Inc., a company under i
contract to Applicants for supplying emergency planning f
communications services; and, j
Richard H. Strome, director of the New Hampshire Civil Defense Agency (NHCDA).
The professional qualifications of both affiants have been reviewed and found to be appropriate to the subject matter of their affidavits. The Strome affidavit has four attachments addressing emergency instructions 3
and a survey form for identifying special needs persons.
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The NRC' Staff (Staff) responded to Applicants' motions on April 15,
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1987 and on July 2, 1987. Staff's responses are supported by the I
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-affidavits of Edward A. Thomas of FEMA. Under date of June 4,1987 FEMA submitted an affidavit of E. A. Thomas in response to interrogatories of the-Attorney General of Massachusetts. Accompanying that response is an Appendix A entitled " Current FEM Position on Admitted Contentions on p'-
New Hampshire Plans for Seabrook" (hereinafter Appendix A). This FEMA response states that Appendix A represents FEMA's position on all o.
offsite contentions admitted for litigation. Anamendment(notin affidavit form) to Appendix A was filed by the Staff on July 10, 1987 that discusses two contentions missing from the June 4,1987 Appendix A submittal.
Under dates of April 15, and July 2,1987 NECNP filed responses to Applicants' March 25, 1987 motion. NECNP's responses are accompanied by statements of material facts alleged to be in dispute;-by the affidavit of a hearing-impaired resident of Portsmouth, N. H.; by excerpts from a 1987 NHCDA information brochure dated 1987, and by affidavits of Cynthia Compton and D. J. Zeigler.
Discussion The two summary disposition motions filed by Applicants regarding this contention differ in only one substantive' respect: the first motion (March 25,1987) states that tone alert radios having visual indication of alerting have been ordered and will be available for distribution in April 1987; the second motion (June 11,1987) states that such devices have been received and are available for distribution.
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Both motions permit the inference that such devices are considered by Applicants as less th.:n optimum solutions to the needs of hearing
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impaired persons, since both motions state that " Development of an additional notification and alerting device... is currently underway."
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Neither motion explains the objectives or characteristics of such an 1
additional device, nor the reason for.its development. Affiant Strome i
f explains that emergency instructions are being modified to encourage residents to provide assistance to hearing impaired persons and to
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persons whose English language comprehension might handicap them in an emergency.
i The Staff's responses oppose' Applicants' motions based upon the position of affiant Thomas who states that.
[1]t is not clear from the New Hampshire Radiological Emergency Response Plan how hearing impaired individuals will i
receive further instructions once they are alerted to an emergency by a visible signal from their tone-alert radios, j
i In the' Appendix A amendment notcd previously, which is not in the form
. of an affidavit, FEMA's Thomas states that
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[T]he local and State plans do not indicate procedures for 1
identifying and distributing tone-alert radios to new
.l businesses and residents.
The amendment also expresses the same concern noted above regarding
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hearing impaired persons who receive a visual signal from visual-alerting radio receivers.
q NECNP's opposition notes the unexplained improvement deriving from the ongoing development of an additional alerting device; and challenges tne inconsistency it notes in published information that on the one hand exhorts residents to stay indoors pending further advice and on the other hand recommends their assisting neighbors who have special needs.
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NECNP's affiant Ms. Clotilde M. Straws states that as of mid-April 1987 j
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she has not been advised that she is to receive a tone-alert radio. She 3
further states that her hearing impairment would render such a radio i
useless when she is in another room and when she is asleep. [TheBoard
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infers that a visus 1 alerting radio may also be inadequate under such f
circumstances.] Further, NECNP questions how persons not having a good j
understanding of the English language will be accommodated in the event
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of a Seabrook emergency.
Conclusion i
Having reviewed all of the materials referred to above, the Board now states its conclusion. We find that shortcomings and inadequacies identified by the Staff and by NECNP are nct dispositively elimincted by Applicants' motions; although conceivably affiant Strome's statement
'about an annual survey update could meet one of FEMA's objections.
In short, the Board concludes that there are material facts in dispute, that Applicants' motions do not prevail, and that NECNP's Contention NHLP-4 is to be litigated.
i NECNP CONTENTION NHLP-6 f
Backor9und This contention states as follows:
The local emergency response plans do not provide for an adequate range of protective actions,10 CFR 6 50.47(B)(10),
j because they contain inadequate means of relocation or other 1
protection for those with special needs, those without private i
transportation, school children, or persons etnfined to institutions or elsewhere for health or other reasons.
Moreover, the resources available to the towns for these purposes are inadequate to provide a reasonable assurance that tne public will be protected in the event of an accident.
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. The Applicants filed two motions for sumary disposition of this i
contention, the first on March 25, 1987 and the second on June 11, 1987.
These motions are virtually identical; each is accompanied by identical statements for nine material facts not in dispute and each is supported by an affidavit of R. H. Strome, previously identified. The two affidavits differ only in minor wording changes that have no substantive impact on content.
The Staff responded to Applicants' motions by submittals dated April 15, 1987 and July 2, 1987. Each response is supported by affidavit of E. A. Thomas of FEMA.
In addition to these affidavits, we also take cognizance of Appendix A to the June 4,1987 FEW, submittal identified above.
NECNP submitted two responses to Applicants' motions, the first dated April 15, 1987 and the second dated July 2,1987. The first is accompanied by a statement of nine material facts remaining in dispute.
l Although no affidavits accompany this response, the statement of facts refers to two affidavits previously submitted by two other parties. The second NECNP response is accompanied by a statement of fourteen material facts remaining in dispute. Also accompanying this second response are an excerpt from an information brochure published by the State of New Hampshire, and copies of the two affidavits referenced in the first response of NECNP. The affiants are Ms. Ann Hutchinson, a division manager of the Berry Transportation Company of North Hampton, New Hampshire; and Dr. D. J. Zeigler of the Department of Political Science and Geography, Old Dominion University, Norfolk, Virginia.
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Discussion
-Applicants' affiant Strome summarizes'the provisions of the New Hampshire Radiological Emergency Response Plan (NHRERP) for' the purpose of. showing that the NHRERP indeed addresses NECNP's concerns expres' sed
- in the subject contention. He emphasizes arrangements, agreement letters and procedural matters that are in place to satisfy the
' transportation needs of students and medically confined persons; with-citations to local plans and the NHRERP for particulars. The affid'avits I
support and confirm Applicants' statement of material facts not.in
~1 dispute.
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The two Staff responses identified above oppose the granting of j
Applicants summary disposition motions based upon the concern of affiant Thomas that drivers covered by union agreement letters may not have the 1
permission of their employers to leave _ their jobs to take on emergency duties.
In addition, the Appendix A compilation of FEMA's Thomas notes several areas, with respect to the subject contention, wherein more information is needed to enable FEMA to make a final assessment.
The two responses of NECNP also oppose sumary disposition of this l
1 contention, stating'that there are material facts in dispute. Many l
3 uncertainties are stated to exist regarding transportation and communications arrangements; potential logistics and behavioral problems l
j are identified; FEMA-noted deficiencies are cited. Affiant Hutchinson tells of the difficulties that the Berry Transportation Company anticipates in meeting that company's commitment to provide drivers to support an emergency response. The Zeigler affidavit presents a i
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7 dissertation on the subject of role conflict, which is outside'of the
- scope ' of. the. contention. The NECNP response of July 2,1987 also'makes i
' reference to a deposition (that 'we have reviewed) of an official of a Teamsters Union local organization from which the New Hampshire Civil h
. Defense Agency has an agreement letter about furnishin'g drivers. The.
comments of that individual (Mr. Laughton) raises Board concern about the significance that can be attached to the agreement' letter, j
j Conclusion
-The Board has reviewed all of the: materials discussed above.
.t Based upon that review,.we conclude that FEMA and NECNP have raised objectio'ns that: are not dispositively covered by Applicants' surunary disposition motions. Thus there remain issues of material-fact in -
' dispute.. Accordingly, Applicants' motions for summary disposition of NECNP' Contention-NHLP-6 are denied and the contention is to be litigated.
TOWN OF KENSINGTON REVISED CONTENTION 6 Background, This contention reads as follows:
The NHRERP, Revision 2 for the Town of Kensington (TOK) does not provide adequate arrangements for effectively using(3) assistance and resources'as required by 10 CFR 50.47(b) because there are not appropriate letters of agreement to identify support organizations and other facilities which are to provide assistance.
By'submittals dated March 25, 1987 and June 11, 1987 Applicants moved.for summary disposition of this contention. Each submittal is accompanied by a statement of six material facts alleged not be in i
m t;
. 1 dispute; and'each is supported by an affidavit of R. H. Strome, Director-i of the New Hampshire Civil Defense Agency'(NHCDA).
The NRC Staff.under dates of April 15, 1987 and July 2, 1987 responded to Applicants' March 1987 submittal.
Its responses are'
- supported by' affidavits of FEMA's E. A. Thomas, who also authored Appendix A, identified above and discussed here.
No other responses relative'to these matters have been received.
Discussion
' Applicants' two motions address transportation, driver and snow removal resources relevant to the implementation needs of TOK's emergency response activities. The two motions differ in one-respect:
in the former motion affiant Strome speaks to letter agreements being j
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obtained to permit driver mobilization by the union for certain driver I
needs; whereas, in the latter motion he states that letter agreements with several private trucking companies have been obtained and that l
additional ones are being sought. Regarding snow removal, affiant offers'his opinion that backup resources from the state exist should the commercial contractor fail to perform.
Said opinion is proffered in~
j both motions without supporting bases.
Lacking also from affiant's statements is any basis for assurance that priority conflicts for the availability of drivers and/or vehicles will not impede the implementation of TOK's emergency response needs. Regarding both motions, we note that the Strome affidavits support and confirm
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Applicants' statements of material facts not in dispute, h'
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.- In Staff's responses the affidavits of FEMA's Thomas opposes Applicants' motion based upon a lack of assurance that drivers'-
fl employers will give TOK's needs priority over drivers' job i
responsibilities. Appendix A offers nothing to counteract this concern; it notes that there is no evidence indicating an agreement between TOK and a commercial snow removal company but states that it appears that the State has adequate resources to remove evacuation impediments. ' FEMA states (Appendix A) that agreement letters with transportation companies l
are considered to be adequate. Appendix A further notes that FEMA's responses derive from a December 1986 review.
Conclusion Based upon our review of the materials before us, characterized above, we conclude that the concern regarding driver availability in the i
face of potentially conflicting priorities (should an event occur that would call for evacuation) remains an unresolved issue.
For this reason, we partially deny Applicants' motion and TOK Revised Contention 6 will be litigated as to this specific concern. With respect to the remaining issue embodied in TOK-6 we partially grant Applicants' motion.
TOWN OF SOUTH HAMPTON (TOSH) CONTENTION 6 Applicants' motion of March 25, 1987 for summary disposition of I
this contention was addressed in our Memorandum and Order dated June 10,
.i 1987 wherein the Board granted the motion and dismissed the contention.
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Hence Applicants' motion of June 11, 1987 regarding summary disposition
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of this contention is moot.
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- .. TOSHCONTp.ioNy E
' Background This contention reads as follows:
The RERP for South Hampton fails to' provide' reasonable
-assurance because, contrary'to NUREG-0654 J.10.d it fails to.
provide for protection of those persons whose ncbi'eity may be impaired due to such factors as institutional or other confinement.
In'our rulings of April 1 and April 29, 1986-the Board limited the scope of the contention to mobility impaired and transportation dependent persons.
Under date of March.25, 1987 and again June 11, 1987 Applicants filed motions for summary disposition of this contention. Both motions are accompanied by statements of six material facts alleged not to be in dispute. Each motion is supported by an affidavit of R. H. Strome, previously identified.
The Staff filed a response dated April 15, 1987 and a second response dated July 2, 1987.
Both are supported by two afTidavits of FEMA's E. A. Thomas. We also have before us and take cognizance of the Thomas Appendix A compilation'of June 4,1987, previously identified, and the amendment thereto submitted by the Staff under date' of July 10, 1987.-
There are no other responses to Applicants' motions before us.
Discussion Applicants' two motions are almost identical. One change appears ir, the statement of facts alleged not to be in dispute as well as in the Strome affidavit. Regarding bus and ambJ1ance transportation, the March 25 motion states that Volume 5 of the NHRERP-Rev. 2 contains letters of
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-.. agreement with (among others) the New Hampshire School Transportation r
Association (NHSTA). The corresponding parts of the June 11 motion 1
replace NHSTA with " individual transportation providers but do not alter the NHRERP-Rev. O citation. In both submittals affiant concludes with the opinion that ad quate transportation arrangements exist.
The Staff's April 15 response opposes'the granting of summary disposition of this contention. FEMA's Appendix A (Thomas affidavit) of June 4, 1987 is silent on this matter.
In its July 2, 1987 submittal regarding various summary disposition motions Staff provides a June 25, 1987 affidavit of affiant Thomas, giving FEMA's opposition to the contention based upon a lack of sufficient information upon which to render a conclusion. Affient further states that pending receipt of a properly submitted resource assessment study FEMA cannot complete its evaluation.
Staff's June 25, 1987 response also opposes summary I
disposition.
In its submittal of an amendment to Appendix A on July 10, 1987, the Staff provides a statement of FEMA's Thomas deferring judgment f
regarding the ability of the State to implement compensatory measures.
(From this we infer that the Staff itself, in its July 10, 1987 response, also opposts sumary disposition.)
Conclusion Based upon our review of all of the foregoing submittals, we conclude that AppMcants' affiant Strome does not meet the full thrust of TOSH's concern regarding special transportation needs. The discussion by Staff's FEMA affiant Thomas as to driver availability and insufficient information on which to base FEMA approval of Applicants' 1
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. motions shows that material facts remain in controversy. Accordingly, we deny Applicants' motion and TOSH Contention 8 will be litigated.
(See p. 35 below).
TOWN OF SOUTH HAMPTON (TOSH) CONTENTION 1 Applicants' motion of March 25, 1987 for summary disposition of this contention was addressed in our Memorandum and Order dated June 10, 1987 wherein the Board granted the motion and dismissed the contention.
Hence Applicants' motion of June 11, 1987 regarding summary disposition of this same contention is moot.
TOWN OF SOUTH HAMPTsN (TOSH) CONTENTION 3
Background
TOSH Contention 3 alleges that:
The RERP for South Hampton fails to provide reasonable assurance because, contrary to NUREG-0654 C.4, it contains no letter of agreement from transportation companies and Midway Excavators.
In our order of November 4, 1986 the Board denied a prior motion of Applicants for summary disposition of this contention to the extent of deficiencies noted by reviews of FEMA and the Regional Assistance Committee (RAC).
Applicants submitted motions dated March 25, 1987 and June 11, 1987 again seeking summary disposition. The former motion is accompanied by a statement of seven material facts not in dispute; the latter motion is accompanied by a statement of six material facts not in dispute. Each motion is supported by an affidavit of R. H. Strome, previously identified.
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The Staff responded to the motions by submittals dated April 15 1987 and July 2, 1987..Each response is supported by affidavits of FEMA's E. A. Thomas.
In addition to'the Thomas affidavits mentioned above, we also ~ take cognizance of Appendix A (previcusly identified) of FEMA's E. A. Thomas.
We are aware of no other responses to Applicants' motions.
Discussion In the supporting affidavits to each of Applicants' motions, affiant Strome expresses confidence that all transportation resource requirements can be met. He explains the various arrangements and agreements made or being made to meet such requirements, quantitatively compares.needs with availability and states that the New Hampshire State Department of Transportation has backup resources to plow snow in South Hampton. The principal differences betweer. the two affidavits are that the latter affidavit presents specific agreements obtained subsequent.to the former affidavit's submittal, and mentions efforts to assure that Teamsters Union driver personnel will actually be released by their employers if needed for emergency duty. This last item is characterized by the affiant as being underway rather than as an accomplished fact.
The Strome affidavits support and confirm Applicants' statements of material facts not in dispute.
Both of Staff's responses cited above oppose the granting of Applicants' inotions based on the reservations of affiant Thomas about possible driver unavailability owing to competing employer needs for said drivers.
FEMA's Appendix A expresses the same reservation; it i
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does, however, concur with Applicants that State backup snow removal resources appear to be adequate for TOSH's needs.
Conclusion Having reviewed all of the materials mentioned above, the Board finds that until it has been verified that the employers of drivers covered by agreement. letters are willing to make them available for emergency response assistance, there remains a material controversy about the workability of an emergency response plan that depends upon said drivers. We concur with affiant Thomas' concern. Hence, Applicants motion is partially denied and 10SH Contention 3 is to be litigated with respect to this specific matter. Applicants' motion is partially granted with respect to all other issues embodied in TOSH-3.
SEAC0AST ANTI-POLLUTION LEAGUE (SAPL) REDRAFTED CONTENTION 15
Background
This contention (hereinafter SAPL-15) reads as follows:
The letters of agreement that have been submitted by the N.H.
Civil Defense Agency in Volume 5 of the State plan fail to meet the requirements of 10 CFR $ 50.47(a)(1), 5 50.47(b)(1),
650.47(b)(3),550.47(b)(12),AppendixE.II.B.andNUREG-0654 II.A.3., II.C.4., and II.P.4 because they do not demonstrate that adequate arrangements for requesting and effectively using assistance resources have been made, that the emergency responsibilities of the various supporting organizations have been specif_ically established, that each principal response organization has staff to respond or to augment its initial response on a continuous basis, or that agreements are being reviewed and certified to be current on an annual basis as is required.
In its order of February 18, 1987 the Board admitted this contention with the following limitation:
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1 Letters of agreement limited to the provider of services, not recipients and not required of individuals collectively supplying a labor force or activity.
Applicants filed 'two motions for summary disposition of this contention, the first dated March 25, 1987 and the second dated June 11, 1987. The former is accompanied by a statement of eight material facts not in dispute and is supported by the affidavit of R. H. Strome, previously identified. The latter is accompanied by a statement of nine material facts not in dispute and is supported by a Strome affidavit.
l The Staff filed two responses relevant to the summary disposition of SAPL-15: the first was dated April 15, 1987, and the second was dated July 2, 1987.
Both motions were supported by affidavits of FEMA's E. A.
i Thomas, who also filed under ~date of June 4,1987 an affidavit accompanied by an Appendix A previously identified.
1 SAPL filed two responses opposing summary disposition of SAPL-15; both bear the same title " Seacoast Anti-Pollution League's Response to l
Applicants' Motion for Summary Disposition of SAPL Contention No.15".
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' The first is dated April 15, 1987; it is accompanied by a statement of five material facts in dispute and 's supported by affidavits of the 3
following persons: Ann Hutchinson, Nancy E. Hotchkiss, Donald J.
Zeigler, Herbert Moyer and Robert A. Backus. The second is dated July 2,1987; it is accompanied by a statement of seven material facts in dispute; it incorporates by reference the same affidavits filed with the first response and includes a deposition of David Laughton, an official of a Teamsters Union Local.
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.. Discussion Applicants' motions present nearly identical affidavits in which affiant Strome presents the status of letter agreements. He states that NHCDA has letter agreements with all special facilities identified in 1
l SAPL-15 as well as letters of agreements from their respective host facilities. He states that copies of letter agreements from host facilities are attached; the Board's copy of Applicants' second motion makes the same statement but the copies do not appear. Affiant explains that certain entities are governmental establishments from which agreement letters are not required. The availability of an adequate number of buses and drivers is documented and affiant states that agreement letters are being obtained from owners [the Board interprets this to mean employers of the drivers] to permit their mobilization by the union.
Included in the second Strome affidavit but not in the first is a statement that as of June 3,1987 agreement letters with several private trucking companies have been obtained making available fifty-three union member employees to the emergency driver pool. There is an ongoing effort to obtain similar agreements with additinnal companies.
[We see this as the only difference between the two affidavits.] An agreement letter with OMNE Partners II (regarding the availability of a transportation staging area) is stated to exist that will be updated if needed. The Strome affidavits support and confirm Applicants' statements of facts.
The Staff's two responses oppose the summary disposition of SAPL-15, based upon the affidavits of E. A. Thomas, of FEMA. The first
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1 Thomas-affidavit expresses concern that union drivers nominally made
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available by Teamster Union agreement may not have employer permission to leave their jobs to respond to an emergency.- The second affidavit reiterates this concern and adds that FEMA has not received certain agreement letters referenced in host plans as being available.
Affiant's comments just paraphrased are consistent with those appearing in FEMA's Appendix A, previously identified.
Both of SAPL's responses oppose summary disposition of SAPL-15 and both rely upon the same affidavits.
In addition, the second SAPL response includes the deposition of D. W. Laughton, secretary / treasurer of Teamsters Union Local 633.
In brief summary, the materials submitted in support of both SAPL's opposing responses make these points:
l Terms of existing agreement letters as well as the lack of l
some agreements contribute to a lack of assurance regarding 1.
the workability of emergency response plans; and, l
Role conflicts among personnel having emergency response duties can be expected to be more prevalent in a nuclear plant emergency than otherwise and can -be expected to compromise the efficacy of emergency response plans.
An additional point made by SAPL and not covered above is the concern that the availability of Omne Mall as a transportation staging area is in question because of a pending bankruptcy proceeding that invalidates 1
the agreement letter that established its availability. We do not recount further details of SAPL's submittals, since to do so is unnecessary to our ruling.
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_; L Concl'usion It appears that Staff (through its FEMA affiant) and SAPL have raised concerns not dispositively eliminated by Applicants.
Specifically, the. embrace the following:
.Empi i.omitments regarding the availability of drivers; Agreement letters cited in host plans but not received by FEMA; and, Availability of Omne Mall as a transportation staging area.
[The subject of role conflict is outside of the scope of the contention.) Hence, the Board concludes that there remain material issues in dispute and that Applicants have not prevailed in their motions for sumary disposition. These motions are denied and SAPL Contention 15 will be litigated as to the above three matters.
SEAC0AST ANTI-POLLUTION LEAGUE CONTENTION 18
Background
This contention (hereinafter SAPL-18) reads as follows:
NHRERP Rev. 2 significantly miscalculates the number of non auto owning population for the 17 New Hampshire local comunities. No buses are provided in the plans for the individuals not accounted for due to the miscalculations.
Therefore, these plans fail to meet the requirements of 10 CFR 50.47(a)(1),50.47(b)(8),NUREG-0654II.J.10.gand NUREG-0654-App. 4, p. 4-3.
Applicants submitted two identical motions for sumary disposition of this contention.
Both are titled " Applicants' Motion for Sumary Disposition of Seacoast Anti-Pollution League Contention 18".
The first motion was dated March 25, 1987; the second was dated June 11, 1987.
Both motions are accompanied by identical statements of seven material I
,.. facts not in dispute and both are supported by identical affidavits of R. H. Strome, who has been previously identified.
The Staff filed two responses relevant to the suninary disposition of SAPL-18: the first was dated April 15, 1987, and the second was dated
' July 2, 1987. Both motions are supported by affidavits of FEMA's E. A.
Thomas, who also filed under date of June 4,1987 an affidavit accompanied by an Appendix A, previously identified SAPL filed two responses to Applicants' motions, the first dated April 15,1987-and the second dated July 2, 1987. Both contain statements of facts said to remain in dispute. The first response is supported by the affidavit of A. E. Luloff, which affidavit is referenced in the second response.
Discussion Applicants' affiant explains that the needs of persens requiring transportation assistance have been idertified and summarizes the manner in which these needs are to.be met. He states that all of the seventeen l
New Hampshire towns within the EPZ have been included. Discrepancies between local plan needs and Appendix I of the State plan are explained and errors found will be corrected. Affiant Strome concludes by stating his opinion that:
[T]he New Hampshire State and local RERPs identify and provide for the availability of transportation resources that i
amply exceed the capacity required for persons who need l
l transportation assistance at the time of an emergency.
i The Strome affidavits support and confirm Applicants' statements of material facts not in dispute.
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^.m The Staff's two responses'noted above, based upon the inputs of affiant. Thomas, set forth-the Staff's opposition to Applicants' motions.
l
. Affiant states that discrepanc es have been noted between the New i
Hampshire Civil Defense Agency's special needs survey and a Ltelephone survey conducted by KLD Associates in connection with its ETE study.
Additional information has been requested to resolve this discrepancy.
[Because this representation appears in both of Staff's submittals. the-Board infers 1that the matter is as yet unresolved.] The Thomas affidavits are consistent with FEMA's Appendix A position.
Both of SAPL's responses oppose Applicants' motions. An analysis of these responses is unnecessary to our conclusion.
Conclusion-Whereas Applicants' motions appear to satisfy the concerns expressed.by the contention, the discrepancy noted by FEMA's Thomas, as far as we can discern from the materials before us, remains unresolved.
Hence, we conclude that summary disposition is premature. Applicants' motions for summary disposition are denied and SAPL Contention 18 is to be litigated to the extent necessary to resolve the FEMA-noted discrepancy.
SEAC0AST ANTI-POLLUTION LEAGUE CONTENTION 25
Background
This contention (hereinafter SAPL-25) reads as follows:
The New hampshire State and Local Rules and Emergency Response Plans do not reasonably assure that the public health and safety will adequately be protected because the provisions for protecting those persons whose mobility may be impaired due to such factors as institutional of other confinement are I
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l i
4 patently lacking, therefore the plans do not meet the requirements of 10 CFR 50.47(a)(1), 50.47(b)(8) and NUREG II-J.10.d.
Applicants have submitted two motions for summary disposition of this contention: the first is dated March 25, 1987 and the second is dated June 11, 1987. Each is accompanied by a statement of thirteen material facts not in dispute and each is supported by the affidavit of.
R. H. Strome, who has been identified previously.
The Staff filed two responses relevant to the sumary disposition-of SAPL-25: the first was dated April 15, 1987, and the second was dated July 2, 1987. Both motions were supported by affidavits of FEMA's E. A.
Thomas, who also filed under date of June 4,1987 an affidavit accompanied by an Appendix A titled " Current FEMA Position on Admitted Contentions on New Hampshire Plans for Seabrook".
SAPL filed two responses to Applicants' motions, the first dated April 15, 1987 and the second dated July 2, 1987.
Both contain statements of facts said to remain in dispute. The first response is supported by the affidavits of Ann Hutchinson and D. J, Zeigler, both of which are referenced in the second response. Both responses contain a copy of a letter (not in affidavit form) from an officer of O'Brien Ambulance, Inc.
Discussion The second of Applicants' two motions contains a few revisions and some updated information; otherwise, the two motions are quite similar.
In both motions affiant Strome sets forth the manner in which special needs have been identified, and describes the facilities, manpower and
. transportation resources available to accommodate the needs. He also indicates, where appropriate, that agreement letters of commitment have been obtained for these resources. One such agreement letter from the owner of three host facilities located in Manchester, N. H. is said to be attached to the Strome affidavits; the Board's copies of these affidavits lack these attachments.
The Staff's two responses noted above oppose the granting of summary disposition of SAPL-25, based npen the inputs of affiant Thomas.
Both of the Thomas affidavits state that FEMA's opposition derives from the fact that an agreement letter from Clipper Home Affiliates has not yet been submitted to FEMA.
In the Appendix A FEMA submittal, identified earlier, concerns are also expressed about the protection of certain Exeter Hospital patients and FEMA states the need for additional information. A lack of certain agreement letters is also noted by FEMA.
Both of SAPL's responses oppose Applicants' motions.
Both responses challenge the adequacy of letter agreements regarding transportation resource availability, reception center availability and medical facilities. The accuracy of the special needs survey is questioned and the impact of role conflict is mentioned.
[ Role conflict is outside of the scope of the contention.] The affidavits of Ann Hutchinson and D. J. Zeigler are referenced. Whereas the O'Brien letter is cited for the proposition that ambulance service is not as represented in the NHRERP, Applicants' affiant Strome makes the statement that absent the O'Brien resource there are adequate backup Ambulance services to fulfill emergency needs.
l V p Conclusion The affidavits of Applicants' affiant support and confirm the
. statements of material facts not in dispute but several of the l
deficiencies noted by FEMA and SAPL cannot be definitively resolved by the Bosrd ~ Lacking evidence of a resolution of these deficiencies, we findLthat material issues remain in dispute. tience. Applicants' motions for sunnary disposition are partially denied and SAPL-25 will be
- litigated to the extent necessary-to resolve the various deficiencies remaining.
SEAC0AST ANTI-POLLUTION LEAGUE (SAPL) CONTENTION 34
Background
SAPL-34 reads as follows:
The New Hampshire State and local plans de not meet the requirement that there be maps showing the population distribution around the facility as required at NUREG-0654 J.10.b and Appendix 4.
Therefere, there is no reasonable assurance that adequate measures can and will be [taken]
pursuant to 10 CFR 50.47(a)(1) and 50.47(b)(10).
Applicants moved for summary disposition of this contention on March 25, 1987. Their motion is accompanied by a statement of ten material facts not in dispute and is supported by an affidavit of E. B.
Lieoerman, Vice President of KLD Associates, Inc., a firm under contract for the development of the Seabrook Station Evacuation Time Study (Volume 6 of the New Hampshire Radiological Emergency Response Plan (NHRERP)). Affiant was responsible for that effort; his professional qualifications, appended to his affidavit, have been reviewed and found to be adequate for the subject matter discussed.
1 -
'- 1 The Staff responded to this motion on April 15, 1987. Staff's 1
c respense'is supported by the affidavit of FEMA's Thomas, who also
- authored FEMA's Appendix A (previously. identified), filed on June 4,
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- 1987.
On April 15, 1987 SAPL Interveners responded.to Applicants' motion.
j That response is accompanied by a statement.of six material facts said i
to be in dispute, and supported by the affidavit of A. E. Luloff,
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Associate Professor of Rural Sociology at the University of New Hampshire, whose professional-qualifications have been reviewed and found to be appropriate.
Also on April 15, 1987 the Attorney General of the Commonwealth of T
Massachusetts responded to Applicants' motion. His response is accompanied by a statement of four material facts said to be in dispute.
- and is supported by an affidavit of A. E. Luloff, itentified above.
Discussion
[
We do not analyze each of the above identified submittals for the reasons next discussed. Although the body of SAPL-34 speaks to the lack of appropriate population ~ distribution maps, it is evident from supporting bases of the contention that SAPL challenges the accuracy of population data used by KLD to prepare the Seabrook Evacuation Time Study, also referred to by the acronym ETE.
In his Appendix A, FEMA's Thomas identifies (pg. 77) SAPL-34 as one of several contentions that challenges the ETE. The Attorney General (Massachusetts) also notes this, cites the Board's position taken in the April 13, 1987 conference 1
q call, noted in our Introduction above, and requests that the Board classify SAPL-34 as an ETE contention to be litigated.
Conclusion Having reviewed this matter, the Board concludes th.at SAPL-34 qualifies as an ETE contention that should have been identified as such in our order of April 15, 1987. Accordingly, the motion for summary I
disposition of this contention is denied and SAPL-34 is to be litigated.
TOWN OF HAMPTON (T0H) REVISED CONTENTION IV
Background
a Revised Contention IV (hereinafter T0H-4) states:
Revision 2 fails to provide for adequate emergency equipment, fails to demonstrate that adequate protective responses can be implemented in the event of radiological emergency, and fails
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to correct deficiencies in emergency response capabilities I
J apparent firom the emergency exercise.
(10)(14).
l This contention and its bases were submitted by TOH on October 31, 1986 l
l and admitted by us in our order of February 18, 1987. The underlying j
1 i
rationale for our ruling admitting the contention was summari::ed in our orders of May 18, 1987 and July 16, 1987.. Those discussions of certain of T0H's bases do not impact what follows.
On March 25, 1987 Applicants' moved for summary disposition of this I
contention. The motion is accompanied by a statement of twenty-four material facts not in dispute, and is supported by the affidavits of R.
i 1
H. Strome and E. B, Lieberman, both of whose employment affiliations and professional qualifications have been noted above.
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.The. Staff responded to Applicants' motion on April 15, 1987 and again'on July 2, 1987. These responses were based upon'the supporting affidavits' of FEMA's Thomas, who also authored FEMA's Appendix A (previously identified and considered here) submitted on June 4,1987..
The Attorney General of the Comanwealth of Massachusetts (Mass.
AG) responded to Applicants' motion on April 15, 1987. The response is.
1 accompanied by a statement of three material facts in dispute, and is supported by the same Luloff affidavit c.ited above in support of the Mass AG's response to SAPL-34.
The Town of Hampton responded to Applicants' motion of April 15, 1987. The response is accompanied by a statement of twelve material facts in dispute, and is supported by affidavits of Ann Hutchinson, Albert tuloff, T. J. Adler, Glen French, Herbert Moyer, D. J. Zeigler, and Dona R. Janetos. Said affidavits (some of which are identified previously in this order) are accepted for the purpose for which they are submitted.
Discussion Applicants' affiants Strome and Liebennan address matters l
supportive of the Applicants' statement of facts not in dispute by describing transportation resources, law enforcemelit resources (for
' j i
traffic control), and traffic pattern expectations, all of which are j
said to meet the needs of the State plan and of TOH. Affiant Strome identifies aspects of these matters that are yet to be finalized and are I
to be dealt with in the future.
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. Staff's affiant Thomas cites unresolved issues involving persennel resources that form the basis for Staff's opposition (in both of its responses) to Applicants' motion.
In FEMA's Appendix A submittal, Thomas provides a more detailed assessment of matters requiring better resolution and clarification before FEMA can have complete assurance of the adequacy of evacuation transportation resources and procedures. Mass AG's affiant tuloff primarily addresses other contentions and challenges i
the methodology and results of KLD's ETE study, providing his reasons for said challenge. He briefly addresses T0H-IV cnd concludes that a realistic assessment of emergency transportation needs and resources has not been made.
TOH's response alsr
<ooses Applicants' motion.
It challenges the adequacy of the methodology o' determining transportation needs and resources, in part based upon allegedly flawed population numbers and transportation dependent needs, and in part based upon an allegedly flawed determination of available vehicles and drivers. T0H further asserts that a state of emergency, especially one involving radiological threats, distorts behavorial responses to an extent that people Cannot be relied upon to perform in a preplanned manner. This, says T0H, will seriously compromise the effectiveness of emergency response plans.
Although some of T0H's assertions are conclusional, to a large extent its allegations refer to and are based upon information contained in the supporting affidavits proffered by T0H.
. Conclusion The Board hcs reviewed all of the materials mentioned above and concludes from the responses opposing Applicants' motion that there are some concerns expressed that have not been dispositively allayed by l
l Applicents and other concerns that we cannot resolve from the materials before us. Thus, there remain material facts in dispute. Accordingly, Applicants' motion is partially denied and Contention T0H-4 is to be litigated to the extent necessary to resolve residual concerns.
NEW ENGLAND C0ALITION ON NUCLEAR POWER CONTENTION RERP-2
Background
This contention (hereinafter NECNP RERP-2) states as follows:
The New Hampshire RERP violates 10 CFR 50.47(b)(3) as implemented by NUREG-0654 at II.C.1.b. in that the State has not yet specifically identified all areas in which it requires federal assistance or the extent of its needs; nor has it made arrangements to obtain that assistance; nor has it stated tha expected time of arrival of Federal ossistance at the Seabrook site or EPZ.
In our order of April 1,1986 the Board admitted this contention to the extent to which it addresses required federal assistance to the State.
Subsequently, Applic6nts moved for sumary disposition which we denied in part in our order of November 1,1986. That partial denial left for resciution the need for placing a -signed copy of the Memorandum of Understanding (MOU) with the Coast Guard, inserting the correct Coast Guard telephone number, and placing specific measures in the NHRERP that provide for shell fish examination, which New Hampshire has identified as an area where federal assistance is required.
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' Applicants on March 25, 1987 again moved for summary disposition of l
this contention..This motion is accompanied by a statement of two material facts not in dispute and is supported by the affidavit of A.
M.-
F
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Callendrello, who is Manager of Emergency Planning for New Hampshire i
')
Yankee. Affiant's professional qualifications, appended to his a
affidavit, are appropriate.
j h'
The NRC Staff (Staff) has proffered two responses to Applicants' motion, the first ' dated April 15, 1987 and the second dated July 2, 1987., Both responses are supported by the affidavits of FEMA's Thomas, who also authored FEMA's Appendix A (previously identified and considered here) submitted on June 4, 1987.
' No other resp 6nses to Applicants' motion are before us.
1
-Discussion
' Applicants' affiant Callendrello covers all matters extant within the scope of the contention consistent with the limitations noted above.
He states that the State of New Hampshire now requires Federal assistance in emergency situations only with respect to boating activities and air traffic restrictions:
for the former there is an MOU'
'with the U.S. Coast Guard containing verified correct telephone numbers for contact (a copy of this MOV is appended to the affidavit); for the latter an agreement with the Federal Aviation Administration is in the NHRERP. The State now has the capability to analyze and control shellfish. Callendrello further states that procedural modifications necessary to implement shellfish control are being developed for incorporation into the NHRERP.
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The Staff, based upon the inputs of its affiant Thomas of FEMA,-
1 supports the granting of Applicants' sumary disposition motion. The FEMA Appendix A submittal likewise supports this position.
Conclusion Our review of the materials described-above leads us to conclude that there are no material facts remaining in dispute. Applicants' motion for sumary disposition is granted and Contention NECNP RERP-2 is dismissed.
Motions for Summary Disposition Not Previously Addressed There extcs a residuum of previously admitted contentions for I
which motions for sumary disposition have been submitted but not so far addressed individually. We turn now to these.
As noted in the Introduction above, the Board's order of April 15, 1987 established three subject categories for which contentions falling
.within these categories are to be litigated. The categories and the affected contentions are_now identified, consistent with that order:
SAPL-31, T0H-III; as discussed above, SAPL-34 is now ETE added to this category.
NECNP RERP-8, SAPL-16, T0H-VIII.
Sheltering SAPL-7, SAPL-33.
Decontamination Facilities As the result of these actions, all motions for summary disposition of the above enumerated contentions, including those submitted by Mass AG and T0H, are denied and said contentions are to be litigated.
1 Staff's April 15, 1987 response to Applicants' motions opposed the j
i granting of summary disposition with respect to several contentions j
l i
e
-. baseii upon the inputs of Staff's affiant Thomas of FEMA. Amongst those opposed are nine contentions for which FEMA's Thomas takes an identical posi'. ion, namely, that FEMA has not completed its review owing to the fact that each such contention involves personnel resource assessments prerared by Applicants but not properly submitted to FEMA. On July 6, 1987 the Board wrote to Mr. Thomas (copies to the service list) inquiring about the status of this situation. We have not seen a response to this inquiry. Hence, personnel resource availability remains an issue in controversy; Applicants' motions for sumary disposition of these contentions are denied and absent good cause for further consideration by us the contentions are to be litigated. The contentions so impacted are identified as follows:
NECNP NHLP-2; SAPL-8, -8a, -37; TOK-1; T0H-VI; TOHF-2; TOSH-2, -8.
The foregoing two paragraphs identify contentions within two categories that are to be litigated. This result constitutes a Board decision denying Applicants' motions for sumary disposition of the identified contentions. As noted in the Introduction, two other parties moved for sumary disposition of certain of these same contentions.
These motions are now briefly addressed.
The Town of Hampton (T03) on March 25, 1987 and again on June 11, 1987 moved for summary disposition of an issue not identified as a contention but stated identically in both motions to be as follows:
The NHRERP Revision 2 fails to demonstrate that adequate personnel have been assigned, identified, or are available, to implement protective responses for the l
l l
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n, Eg -
l 1
L Hampton students and for those with.pecial needs and l
thereby fails to provide reasonable assurance that L
adequate measures can and will be taken for these people in the event of a radiological cme.*
l violation of 10 CFR.50.47(a)(1)(b)(gency at Seabrook, in t
1), NUREG-0654 FEMA REP 1 Revision 1 at pages 31-33.
We note that the wording of tr,is issue corresponds to none of the' admitted T0H contentions listed in the appendix to our order of May 18, 1987.
In both of its motions TCH states that there is no ganuine issue of material fact to be litigated and that it is entitled to summary disposition. The above worded issue seems most closely to resemble TOH Contention VI which the Board has determined above to involve personnel resources and for which FEMA's review is not complete, thus leaving material issues in controversy. T0H's motions are denied and TOH VI is to be litigated.
The Commonwealth of Massachusetts by its Attorney General (Mass AG) filed a motion for partial sumary disposition of T0H (VIII) and SAPL 16 on March 25, 1987. On June 11, 1987 Mass AG filed a similar motion for partial sumary disposition addressing the same two contentions plus a third contention, namely, NECNP RERP-8. Both motions identify certain facts that are stated not to be in dispute and request the Board to grant the motions and enter a finding in favor of the Interveners. As has been observed above, all three of these contentions involve issues of sheltering; all three of these contentions are identified in our order of April 15, 1987 l
_... - _ = _ _.
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s wherein it was ' ruled that they are to be litigated. The two
. motions of Mass AG are denied.
FOR THE' AT IC SAFETY. AND /
LIC SING BOARD
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1 bf;y
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Df
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HelenF.Hoyt,Chairperg.
Administrative Judge 446/
db4 rry Hpfbour, Ph.D..
Administrative Judge w
yave A. Linenberg*, Jr.
Administrative Judge Dated at Bethesda, Maryland this 31st day of August,'1987.
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