ML20246N157
| ML20246N157 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 08/31/1989 |
| From: | Flynn H, Mcpheters L Federal Emergency Management Agency |
| To: | |
| Shared Package | |
| ML20246N069 | List: |
| References | |
| OL, NUDOCS 8909080051 | |
| Download: ML20246N157 (34) | |
Text
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BEFORE THE A'ICMIC SAFFTY AND LTCDTSDJG BOA m
JUDGE IVAN W. SMITH,- GAIRMAN JUDGE RICHARD F..COIE, JUDGE KEtREIH A. McCULIfM In the Matter of
).
Public Service Co. of New Hampshire,
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et. al.f
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Docket No. 50-443-OL -
50-444-OL
-(Seabrook Station, Units 1 & 2)
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Offsite Emergency s)
Planning Issues
)
_)
PPOIOSED FINDINGS OF FACT AND CONC 2.USIONS OF THE FEDERAL EMERGENCY MANAGEMENT AGENCY -
DTTRotDCTION.
'Ihe Federal Emergency Management Agency (FEMA) has sou leave to respond to Section 1 of the Proposed Firdings of Fact and Conclusions of Iaw filed by the Massachusetts Attorney Gener l (M a
ass
{
AG). 'Ibe format of FEMA's Proposed Findilgs fellows as closely a s
possible the forfat used Py the has AG.
The headings ard sectien lAriers of tiu Mass AG's Proposed Findings have been prese rved. In these Propawd Firdirgs, FDM irts not at+apted to separate l egal cex:lusions frpm assatiens cf fact, no that the reader could more asily deNnrine staat part of the Mass AG's pleading was addresse YDR's.
Where IDn has fourd it necessary to develop a point in more than one paragraph, we have inserted numbers at the beginnin g of these Paragraphs.
'Ihese numbers do not correspond to the numbering system 8909080051 890832 DR ADOCK 05000443 PDR
):
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t
.g..,
.. e g
y used by; the Mass AG..In every other respect, we have attem L
t
.the parallels'as close a d as clear as possible..
g FD%'S ROIE ' '(Mass AG Prwosed Findims,- op. ' 10-13.
- (Maa AG P.F. 1.16. )
1.
In arguing that FD %$s review of a utility-sponsored plan'is outside its authority aM not entitled to a rebuttable presumptio h,
the Massachusetts Attorney General [hereafter, " Mass AG"] a ppears to misuMerstand both FDR's role and-the nature of the Presumption'. See' Massachusetts Attorney General Proposed
[hereafter, " Mass AG P.F. "] 1.16. A.1 and 2.
2.
We note that, according to previous rulings, the FD R rebuttable p W ien does'two things:
a.
to FDG' findings; aMIt establishes the weight to be given i i
b.
party challenging the findings in those hearin
. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Uni
- 1) 14 NRC 1211 (1981). See also, Iom Islard_lightina Co.
(Shoreham Nuclear Pcxcer Station, Unit '1), AIA3-903, 28 NRC 499 j
, Slip Opinion at 12, (Ncreember 10, 1988);
Soutierp&lif,culifLEdison Op (San Onofre i
'.)
Nuclear Generating Station, Units 2 and 3), IEP-82-39 2
b
, 15 1RC 3163 (1962).
J". FD%is role in licensing hearings is to advise IEC.
10 CPR 50.47 (a) (2).
A FDR finding e> presses expert opinion in much the same sense as employed by Rule 702 of the Federal Rules of Evidence 1
p_ee e
2 I
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v.
Iorn Island Idahtira Co. (Shoreham Nuclear Power Station, Unit 1), IBP-
[
83-61,18 NRC 700 (1983). The rebuttable presumption is a prm M oml i
rule within the authority of the Camission to regulate the conduct of its hearings.
4.
The Mass AG correctly points out that the Comission considers FBG's advice on the adequacy of utility-sponsored offsite plans, but that NRC (i.e., the Commission) makes the overall judgment on the adequacy of the plan.
(Mass AG P.F. 1.16.A.2).
However, this.
rule applies equally to FD%'s review of plans sponsored by State and
' local government.t.
5.
In reviewing the Seabrrack Plan for Massachusetts communities (SPMC), FDR acted entirely consistently with the review of State-sponsored plans it has been conducting since 1980. The 1985 MOU made no distinction between reviews of one type of plan or the other, except to recognize that a request for review of e. utility-sponsored plan would came to Fa% through IEC rather than directly from a State. See 44 CFR 350.3(f). IEC's own rule (10 CFR 50.47(b)), even before amadment by 10 CFR 50.47(c)(1), cor.1templated that there might be emergency response plans sponsored ty appli;: ants rather than by State I
governmr.ts.
Sg, Ipro Island Lichtira Co. (Shmiata Nuclear Pawar Statico, Unit 1) " NRC 741 (CLT-83-13,1983).
6.
The Mass AG tr:rpes that, to the extent that 10 SR 50.47(c)(1) authorizes FD% to review utility-rpor:rcred plans,13G.
lacked that authority before the effective date of the rula change.
The clear purpose of the rule change was to promulgate the realism assumptions and to make it clear 5.tlat circumstances justified the 3
r.
submission of a utility-sponsored plan. The purpose was not to confer additional authority on 1E %.
That agency is not mentioned at all in Section 50.47(c) (1).
7.
'Ihe date on which FEIG promulgated 44 CFR Part 352, cited by the Interveners, is equally irrelevant. FH R could not confer on itself authority which.it did not have independently. The authority to review utility-sponsored plans is that cited in the rule; it is not created by the rule itself. That authority is also the basis for IUREG-0654/FD%-REP-1, Rev.1, Supp.1, which was published as an interim guide before the June 1988 exercise.
8.
The Board finds that FE% had authority to review the SR4C and that the Commission intended the review to create a rebuttable presumption in the hearing before us.
(Mass 1G P.F.1.16.B.1) 1.
The Commonwealth of Massachusetts has made it clear throughout these hearings that it does not intend to participate in the creation, evaluation, or testing of emergency response plans specific to the Seabrook Nuclear Pcuer Plant. The six communities within the Massachusetts por* ion of the Saat., rook plume exposure EFZ hue also br11cated theic unwil]ingness to prticipete in any radiological eme"9 enc / respanse riaming.
2.
Because of the non-participation of the Ccrrenwealth ard the l
l Wssachusctta EPZ comdtics, FD% was not able to (a) observe the capability of these governments to inplement the SR4C during the graded exercise conducted in June 1988, (b) verify the physical resources 4
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s stich these governments might make available to implement the SR4C, (c) l Verify the personnel which these governments might make available to implement the SR4C, or (d) assess the level of training that governmental responders have had in the implementation of the SR4C.
3.
The scenario used in the June 1988 Seabrook exercise had the SR4C being implemented by NHY OPC in Mode 2, that is, with no assistance provided by the Commonwealth or the Massachusetts EPZ communities.
(The delegation of necessary legal authority was simulated.)
Tr. 18422, 22384-88. Therefore the direct observation of the FDR evaluators pertained only to the implementation of the SR4C in Mode 2.
However, FDR's finding of December 14, 1988, that the exercise demonstrated that the SR4C was generally capable of being implemented was not limited to implementation in Mode 2.
Tr. 18432, 18442, 18444-48, 18459-61, 18471-72, 22389.
4.
The Interveners have argued that the extension of FDR's findirg to Mode 1 or Mode 2-partial has no reasonable basis because it relies on the realism assumptions of 10 CFR 50.47(c)(1) and IURD3-0654/FDR-REP-1, Rev.1, Supp.1, rather than on enpirical evidence.
We reject that aryInent.
5.
11'RD3 S654/FR% REP-1, Rev.1, Supp. 2 e q.bys three assumptims, based on 10 CFR 50.47 (c)(1), nannly:
1 1.
In an actual radiological emergency, State and local governments that have declined to participate in energency planning will a.
Dcercise their best efforts to protect the health and safety of the public; b.
Cooperate with the utility and follow the utility offsite plan; and 5
p 4
c.
Have the resources n e m yy to inplement those portions of the utility offsite plan where State and local response is n e m 7y.
'Ibe case of Massachusetts v. NRC, 856 F.2d 378, 383 (1st Cir.1988),
established the validity of the first two of these three assumptions.
The Interveners have pressed the issues of Wether the Commonwealth will have sufficient resources and familiarity with the SH4C to respcud effectively in the event of an actual radiological emergency.
5.
On the question of available resources, FDR made the point that having the June 1988 exercise conducted in Mode 2 of the SH4C (as a " stand-alone" plan), resulted in the most stringent test of the Applicants' resources. Tr. 18439-45.
FH% was also satisfied that, since the SH4C could be implemented with the Applicant's resources alone, it could certainly be imple n ted with the conbined resources of the Applicants and the Commonwealth. Id.
6.
The SH4C designates liaison personnel whose role is to explain to tha non-participating governments how to hnplement their portion of the plan. FD% furcher eployed t% rwsumptica that the non-participating State and heal governments will act to patect the public health ard safetyr ard in so dning, would listen to the liaisons' explanation of the plan and would follcw the plan. Tr.
18471-72. In the ev.uise, FD% evaluatal the capacity of liaism to explain the plan at multiple IcVels, and found the capacity to be adequate. Tr. 18473, App. Dc. 43F, p. 268.
7.
The conclusions TH% drew from its observation of the June 1988 exercise, when combined with the realism assumptions, support the 6
1
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4 ultimate conclusion that there is reasonable assurance that the Snic l
can be implemented by the Commonwealth and the Massachusetts EPZ communities in Mode 1 or Mode 2-partial or any variation thereof.
(Mass AG P.F.1.18) 1.
'Ihe Mass AG has suggested that FD% utilized a '*best-efforts" standard in reviewing the SH4C (Mass AG P.F.
1.18 and 1.18.A.).
2.
'Ihe Mass AG's argunent is a distortion of the record, as is demonstrated by examination of those portions of Mr. Donovan's
' testimony cited by the Mass AG concerning the adequacy of the survey utilized by the SH4C to identify the special needs population. Tr.
18093-18119.
3.
Mr. Ebnovan testified that FER has defined specific standards for conducting a survey to identify those persons in the EPZ that would require special assistance, referred to as "special populations." Tr, 18094. In FD % documents FD R-REP-11 and Guidance i
Memoran am 24 (Mass AG Ex. 71), khich set forth guidanw for public ed';&. ion rateriMs and fo~ plaming for rpecial pqnlaticns, it is stated that an ennual : ail survey with a nail-back return card is an apprcpriato means to identify these people needing special r.ssirteny or special notification and to buiM a data base of srxcial pop 21ations. Tr. 18095, 18225. See also Tr. 18703-04.
4.
Mr. Donovan testified that he reviewed the New Hampshire Yankee public information calendar that was mailed out to all residents in the Massachusetts portion of the Seabrook plume EPZ. The calendar contained a postage-paid mailback survey questionnaire ca.ui 7
5
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-that completely addressed the issues in FD% guidance regarding special-q populations.. He therefore determined that the SPMC's mail-back survey -
is an adequate means'for identifying special populations in the
~
Massachusetts EPZ and thus meets the planning requirements of the NRC ard FD% set forth in NUREG-0654/FDR-REP-1,' Rev. - 1.
Tr. 18096.
l
'5.
Mr. Donovan further testified that he reviewed additional -
efforts by NHY ORD, beyond that required by FD R guidance,-to develop a data base of special population needs in the M m ehn etts EPZ,.
including telephone verifications of responses received in.the mail survey and contacts with organizations of special populations. Tr.
18101.
- 6. ' As FD% counsel stated on the record, in evaluating the adequacy of an off-site radiological emergency response plan, FD % does not utilize a standard requiring that a particular level of dose savings or safety must he achieved. Tr. 18873-74. Rather, FD %
applies the standards in NUREG-0654/FD%-REP 1., Rev.1, (and Supp.1),
an vpproach consistent with the Commission's ruling in Ic'ce Is1ard Lichtincr Co (Eboreham Pacicar Pcwer Stathn, Unit.1) CLI-PG-13, 24 NRC a
l 22, 30 (1986), that emergency plannirq requircrate do not require that an adequate plan achieve a pre-set minimum radiation doce savings or a
-minimum evacuation time for the pluma exposure pathway energenefy 1
f.
planning zone in the event of a serious accident; rather they attempt to achieve reasonable and feasible dose savings under the circumstances. FD R's approach is also consistent with the statement y
1:
awaying NRC's proposed rule change (10 CFR 50.47 (c)(1), 52 Fed.
Reg. 6980, March 6,194/) that offsite energency response plans in 8
E_-
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general were not to be judged by any other specific quantitative stardard. Contrary to the opinion advanced by the Massachusetts Attorney General (Mass AG P.F.1.18.A.), this view was reiterated, not rejected by the Co::enission with the publication of the final rule -
change at 52 Fed. Reg. 42,078 (November 3,1987).
7.
m% properly evaluated the provisions of the SPMC for identifying special population needs against the specific standards set forth in IUREG-0654/FH%-REP-1, Rev.1, Supp.1, m%-REP-11, and Guidance Memorandum 24.
FH%'s finding that NHY ORO met and exceeded the applicable standards in its efforts to identify the Massachusetts special population needs is fully supported by the record.
(Mass IG P.F. 1.18.B, 1.18.B.1, ard 1.18.B.2) 1.
'Ibe Mass AG contends that we should not credit FB%'s judgment regardisg the adequacy of off-si'm emargency plannirg ard preparedness at the Seabrook site and shoa'A not accord it a rebuttable presu:aption on the groands that FDR lacks a consistent or uniform approach in making its judgants (Mass AG P.F.1.18.B.1 end 1.18.P.2).
Having c:cmined the record, we find that FDR has appropriate standards for judging the adequacy of emergency planning and preparedness ard properly applied these standards in its assessment of the Seabrook site.
2.
FH % has published guidance linked to the planning standards set forth in IUREG-0654/FB%-REP-1, Rev.1 and Supp.1. FDR's Guidance Memoranda (GMs) describe the purpose for certain planning I
standards ard evaluation criteria and offer methods by which planners 9
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I
.,1 may meet the standards addressed by the GMs. The particular methods N
set'forth in the Guidance Memoranda are not mudated by NRC or FEMA, however, and a planning organization may choose to achieve the same purpose.by a different approach. Tr. 18819-21. Egg Iorn Island 1
- Liahtinct Co. (Shoreham Nuclear Power Station, Unit 1), AIAB-900, 28 NRC 2]75 (1989). - Mr. Donovan specifically testified that' he, as m%'s representative, utilized the stancards set forth in the FE2% Guidance Memoranda in his evaluation. Tr. 11817.
3.
'Ibe FINA GMs EX-1 and EX-3 (Mass AG DC.l 92), as amended March 7,1988 ~ (Mass AG Dc. 93), also set forth standards for the conchict of off-site emergency preparedness exercises and the criteria for judging the impact of inad elacies in an organization's performance in an exercise.
4.
Mr. Donovan explained that classification of an exercise inadequacy as a deficiency or an ABCA Js initially made by tha ma rwrim that evaluated the exerdse,, Tr. 21M2. In cross--examination t
by the Pass AG, he articulated the decision-nchina pmoess utilized in clasasifyirg the 19118 Seabrock exercise inadequacies. 'Ihe aw"mit of the inadeqcato performance is rede in the. cortext of (1) the exercise c6jective at iesco, (2) tha plan, (3) the extent of play of the exercise, (4) the scenario, and (5) the actual demonstrated performance. Tr. 21987-88.
5.
GM EX-1 defines exercise deficiencies and defines their impact as follows:
y
... demonstrated and observed inadequacies that would cause a finding that offsite emergency preparedness was not adequate to provide reasonable assurance that appropriate protective neasures can be taken to protect the health and safety of the 10
{
i
public living in the vicinity of a nuclear power facility in the event of a radiological emergency. Because of the potential impact of deficiencies on emergency preparedness, they are required to be promptly corrected through ~
appropriate remedial actions including renedial exercises,-
drills or other actions.
In contrast, in G4 EX-1 FDR defines areas requiring corrective actions (ARCAs) as:
... demonstrated and observed inadequacies of State and local government performance, and although their correction is required during the next scheduled biennial exercise, they are not considered, by themselves, to adversely irrpact public health and safety.
Tr. 21985-87.
- 6. - Mr. Donovan illustrated FDm's decision-making process with two examples M exercise inadequacies that were classified as ARCAs and not deficiencies: - (1) difficulties in communication that occurred at the Rockingham County Sheriff's office (Tr. 21909-21995; Ex. 43f, p.
148); and (2) failure of ambulance personnel to wrap a simulated contaminated person being transported in an ambulance (Tr. 21998-22007; Dc. 43f, pp,186-87.
7.
As to the com:mnications issue, Mr. Donovan explained that at the exercise several of the Rockinfam Sheriff's deputies assigned to wn-participating vuuunities had poor radio reception because of weak batteries. In evaluating the impact of this exercise event, he took into account that the State of New Hampshire had 500 to 600 players in the exercise and that the vast majority of communications occurred without difficulty as called for by the plan. Tr. 21991. He noted also, even in those locations where communications difficulties occurred on account of the weak batteries, that the problems occurred only at certain times ard that at other times the communications were 11 i
adequate. Tr. 21993. In taldng all these circumstances into account, m% reached the determination that the particular exercise event did not substantially affect the demonstration of the objective of adequate communication among response organizations and also did not impact the ability of the State of New Hampshire to protect the public health and safety, and therefore was properly classified as an ARCA and not a deficiency. Tr. 21993-95.
8.
Likewise, Mr. Donovan explained m %'s decision-making process in regard to the failure of ambulance personnel to follow proper s ucMure by not wrapping a simulated contaminated individual while transporting him in an ambulance. Tr. 21998-22007. He stated that the purpose of covering a contaminated individual prior to transporting him is to confine contamination. The failure to cover the patient in this instarce did not affect his health and safety nor the pdolic's health and safety, but simply creatM the possibility that the ambulance could have becone contaminated. Since the ambulance wculd have been monitored uprn arrival at the hospital, any contamination could have been discovered and the vehic.le decontaminated prior to being put back into service. Tr. 21999. m% thus determined that the public health and safety was not affected by this exercise inadequacy, and that it was properly classified as an ARCA. Tr. 21999.
9.
In support of his claims of lack of uniformity in m %'s approach to its exercise evaluation process, the Mass AG cites the so-called "Barry Report."
Mass AG Dc. 99. However the report cited by the Attorney General for this ppition was prepared by an outside consultant and never adopted by m%, and the contractor did not 1
1 12
e 4
w lete the work specified by the contract. Declaration of Ve:;non E.
1 ler, Bc. 99. Ecuever, the rR> "#rdations contained in the Barry report were evaluated in the contat of m%'s Radiological Drrgency Preparedness Prtgram priorities, and m% concluded that the issues indicated were almady under review ard a reinforcement of planned supcua enhancements. 'Ihe review initiated before the issuance of the Barry report resulted in, areng other things, a training prugcun for exercise evaluators and prunulgation of the m% Bcercise Evaluation Methodology (ED1) and Guidance Memorandum EX-3, which were used in m %'S evaluation of the June 1988 exercise. Jd.
- 10. We note that m G's agency policy provides that draft exercise reports and rm erded determinations are submitted by the m% mgions to m% headquarters for review prior to issuance as final reports. Tr, 22C39. Mr. Donovan, as a m% regional official, does not have personal knculedge of tra interactions of all the ether m%
regional officials with m% headgaarters, and therefore was not in a position to kncu Wether m% headg1arters Fas ever redified the reccrrerdation of a m% region for the classification of an exercise inadequacy as a deficiency or an ARCA. Tr. 22044-45. In our view, Mr.
1 1
Danovan's lack of knowledge of these interactions is irrelevant.
- 11. We find that m% has adequate stardards and procedures for l
evaluating radiological emergency preparedness in its Guidance Memoranda and its process of headquarters review of initial reports a;'
ram wrded determinations submitted by the regions. Tr. 22039.
- 12. We therefore find that there is no basis arising out of m%'s evaluative process in general or as applied to the Seabrook site 13
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not to accord a rebuttable presumption to FD%'s evaluation of L
radiological emergency preparedness at Seabrook.
(Mass AG P.F.1.18.B.2) 1.
'lhe Board accepts FD%'s finding that weregate care centers in the Massachusetts portion of the EPZ will be adequately f
staffed.
2.
The Commission has niled that it is not necessary to confirm with forral letters of agreement the willingness or capability of the ARC to respond in a radiological emergency. The requirements of law and their charter and their history of responding in natural disasters provides ample assurance that the ARC will respond and will do so in an effective nanner.
3.
FDR explicitly noted in its Plan Review (App. Dc. 43C, p. 6) that it relied on the advice of the NRC staff that the presumption that the ARC will effectively prepare and staff congregate care centers is reasonably based on the Cmm4mion ruling in Iona Island Lichtina Co.
(Shoreham Nuclear Power Station, Unit 1), 25 KRC 884, EB8 (CLI-87-5, 1987),. and the expressed willingness of the ARC to respond in an emergency. 'Ihis reliance was reasonable.
4.
'Ihe Mass AG have argued that Mr. Donovan's change of position on the adegaacy of congregate care center staffing is evidence that FD% did not apply a consistent or neaningful standard.
(Mass AG P.F. 1.18.B.2.)
The Board interprets the evolution of Mr.
Donovan's views on this issue as proof of his thoroughness and critical analysis. He raised an appropriate concern about documenting the ARC's 14 J
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capacities and pressed his concern until it had been established that no further inquiry was remy.
(Mass M P.F.1.18.B.3) 1.
In continuing to pursue his attack on the legitimacy of FD%'s evaluative process as " var [ying] in application from case to case, and even from instance to instance " (Mass AG P.F.1.18.B.3), the Mass AG claims that FDR witness Richard Donovan " admitted that the standarus applied by him to the June,1988 D:ercise were different than those applied by FD% to the February 1986 New Harpshire D:ercise" (id.).
2.
The Mass AG's citation to the record again is misleading and distorted. Mr. Donovan testified that in 1989 FD R promulgated an exercise evaluation methodology (ED4), different from the methodology that was utilized by FD% at the time of the 1986 e>:ercise and, in that sense, the evaluation standards were different for the two e>:ercises.
Tr. 22249. The new FD% exercise evaluation methodology used in the June 1988 exercise called for evaluation by e>:ercise objective rather than by response organization and facility as was the case in 1986.
Tr. 22248-50. It also called for the collection of a great deal of specific information about the exercise. Jd. Far from being an arbitrary standard applied from instance to instance, FDR's new objective-based EEM was designed to facilitate headquarters review of draft exercise scrstis and consistent procedures throughout the FD%
regions, the very things that the Mass AG purports to find lacking in FD%'s wa, of doing business.
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3.
Mr. Danovan did not participate in the evaluation of the 1986 exercise and therefore was not in a position to fem an opinion of Wether he would have reached the sane -)vdgnents regardirg exercise inadegaacies that were reached in 1986. Moreover, the IEERP had been extensively revised frm 1986 to 1988 and the exercise rcenarios were different. Tr. 22321-23. Where deficiencies had been noted in the 1986 exercise, he took those ratters as a given and designed the 1988 exercise scenario to Itgaire the testing of each of the matters that had resulted in deficiencies in 1986 exercise. Jd.
4.
We find that FDWs determinations in regard to the 1988 exercise were directly related to the exercise evaluation methodology emplcrfed, the extent of play of the exercise, the exercise rcenario, and the plans exercised.
16 IL_ ___
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(Mass JG P.F.1.18.B.3) 4 i
1.
The Mass AG urges us not to credit Mr. Dr a/an's and m %'s judgment on account of the treatment in ma's exercise reprt (7pp.
Dr. 43f) of EBS ressages broadcast regarding the evacuation of the Amesbury and Salisbury schools, and offers this as an example of m%'s allegedly varying standards of judgment. (Mass AG P.F. No. 1.18.B. ).
An examination of the record demonstrates that the inference sougat by the Mass As cannot be supported and that m%'s exercise of judgment on this issue was reasonable and appropriate.
2.
Mr. Do c an explained the context in which the EBS nessages challenged by the Mass AG Were broadcast as a portion of the exercise scenario designed to test the ability of IEl CIO to implement its utility-only plan in a worst-case situation with no assistance from the commonwealth cf W w chusetts. Earlier in the exerrise day, the ma control Cell simulating Massachusetts efficials had refused to approve a request by IMI OIO to approve a precautionary evacuation or deferred dismissal of schools. Tr. 22468. A General Drergency was declared at the Seabrook Nuclear Pcwer Plant at 1:32 p.m. (App. D:. 43f, p. 82).
At 2:04 p.m., the Massacflusetts Governor, situlated by the ma Control Cell, ra= > -rded evacuation of the Joesbury and Salisbtiry co runities (Jpp. Dc. 43f, p. 52, 77). Mr. Donovan stated that the IWI OTO decision-rakers had assumed that because the evacuation re-ndation occurred shortly before the regular school dismissal tire and because the regular school buses would be waiting at the schools to pick up the children and transport them to their hores, that the lessachusetts officials would permit the school buses to be used to e/acuate the 1
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school. children to the reception centers. Tr. 22469. However, Mr.
Donovan instructed the FD% Control cell simulating the lessachusetts officials to deny authorization to use the school buses to evacuate the school children and thereby require NHY ORO to mobilize its own bus resources to effect the evacuation of the Amesbury and Salisbury schools. Tr. 22469-70.
3.
In this context, within ten minutes the IEY ORO drafted and broadcast EBS Message #3 which stated that the Ibssachusetts Governor rec.uauded the evacuation of Amesbury and Salisbury, and later on in the message stated that parents with children at school in Salisbury and Amesbury are " advised they are safely raintained at school, where
.they will be kept until they can be safely moved." (Tr. 22469; App.
Ex. 43f, pp. 82-83).
4.
Mr. Donovan disagreed with the suggestion of the Pass AG in cross-examination that the message was inaccurate or that the message staterl that sclwl children were being evacuated and sheltered at the same tine. Although he testified that he thought that the language of the message " lacked clarity" and might be confusing to some members of the public, he emphasized that "a discerning parent would hava heard that the children are 9'ing to be e acuated and that they are being kept at school until they can be evacuated." Tr. 22467-68.
5.
Mr. Donovan testified that he was at the EOC khen this exercise message was approved for broadcast. Tr. 22464. In order to further test the capabilities of the NHY ORD in regard to dissemination of public information, he then directed that simulated me.ubers of the public call into the Joint Telephone Information Center stating they 18
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.were confused by the message and asking for clarification whether the schools were being evacuated or sheltered. Tr. 22466.
6.
Following release of EBS Message #3, the M ORD conducted a-H; press briefing at which the message was discussed with members of the press and it was pointed out that M ORD was in the process of getting 1
buses to the~ schools to effect the evacuation of the children.
Tr.-
{
t 22476,.22495-96.
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In the subseq. lent EBS Message #4, broadcast at 3:32 p.m., it.
was specifically stated that all schools within'the evacuation areas are being moved to designated reception ~ areas and that sdral children i.
being held at school will be kept until they could be safely moved (App. Ex. 43f, pp. 84-85). In response to cross-examination, Mr.
Ibncvan testified that because the message specifically stated that the -
school children were being moved to reception centers, he did not find.
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the same problem of lack of clarity that he found with the previous EBs j
Message #3. Tr. 22480.
a 8.
FD% determined that the lack of clarity in EBS Message #3 l
should be classified as an ARCA rather than a deficiency, in the l
context of the total system that provided information to the pilie.
FB% took into account the discussion of the provirions for j
2 transporting the school children that took place at the press i
i conference simultaneous with the broadcast of the message, as well as i
i the accurate information conveyed by the Joint Telephone Information l
Center to callers who requested clarification, and the fact that the message itself did accurately state that the children were being held in school until M ORO could get the resources there to evacuate them.
19
+
Tr. 22476-77. Considering all these circumstances, FD% reached the judgment that the public would have been accurately inforned of the status of the schools and that therefore the public health and safety was not adversely affected, making an ARCA the appropriate classification of the exercise inadequacy. Tr. 22477.
9.
We find that the implementation in the exercise of the rumor control system was an effective counterbalance to the minimal potential confusion caused by luff ORO EBS message #3.
10.
Colitrary to the contention of the Mass AG, we find Mr.
Donovan's explanation of FD%'S reasoning and decision-making process regarding the school EBS messages to be convincing and supported by the recold.
(Mass AG P.F.1.18.C.1. (A) and (B))
1.
The Mass AG urges us to decline to credit FD%'s judgment because FD% purportedly did not follow its cran objective guidance in approving the SH4C's provision for monitoring of the Massachusetts EPZ population (Mass AG P.F.1.18 C.1. (A) and (B)).
2.
We accept as res iudicata the FD G standard that an off-site energency preparedness plan must establish the capacity to monitor for radiological contamination 20% of the population of the plume EPZ within twelve hours, 3.
The Mass AG claims that FD% accepted on " trust" the figure for the pernanent and transient population of the Massachusetts EPZ utilized by the SH4C as a planning basis (Mass AG P.F.1.18.C.1. (A).
An examination of the record demonstrates otherwise.
20
___________________________a
s?
e
- 4., Mr. Donovan testified that he' verified the SB4C's figumi for.
the'pemanent Massachusetts EPZ population by comparing it with census 3
data. Tr. 18602. He verified the SR4C's figure for the transient' population of.the Massachusetts EPZ by reviewing the, methodology of the population estimates for the entire Seabrook EPZ" contained in the.EIE-Study that is part of the New Hampshire plan, and which was utilized in -
the SR4C. ~ Id. Based on this review and verification process,'he found' the approach utilized by the SPMC to estimate the population, as well
.as the population figure itself, to be reasonable. Tr. 18603.
5.
We note that Ps%'s role in regard to the Seabrook site is not that of a planner but that of a reviewer of the plans of the response organizations.. We find that FEl%'s process for review and acceptance of the population figure utilized in the SB4C as a planning basis was -
reasonable and appropriate, and was not based on unquestioning trust as the Mass AG suggests.
6.
Ihe Mass AG also challenges FEl%'s approval of the SPMC's utilization'of a monitoring instrument capable of attaining a faster frisking rate than that specified in earlier FDP guidance (Mass AG P.F. 1.18.C.1. (B)). However, we find Mr. Donovan's explanation of FB%'s review process to be entirely satisfactory and further find that Mr. Donovan corrvincingly explained that the earlier FD% guidance was based on utilization of a nonitoring instrument different from that specif.ied in the SR4C and that therefore that guidance should not be applied to review of the SR4C.
7.
FDR guidance on monitoring rates (Mass AG Bc. 63), which sets an average rate of 90 seconds to monitor an evacuee, is based on 21
i.
-s
- the utilization of a particular type of civil defense monitorire instrument supplied by FD% to the states. Tr. 18604-5. The SR4C, however, utilizes a different instrument with a larrJer probe so that it
~
can be moved at a faster frisking rate, and therefore the plan specifies a faster monitoring rate as the planning basis for determining the number of monitors and monitorixJ stations neery to achieve the 20% monitoring capacity. Tr. 18605.
8.
Defore approving the monitoring rate specified by the SR4C, Mr. Donovan required NHY ORO to submit to him the vendor's technical documentation for the monitoring instnment and reviewed it regarding the sensitivity and efficacy of the larger probe. Tr. 18606. He then submitted the documentation to FD% headquarters in support of his recommendation of apprcval of the SR40's planning basis, m%
headquarters determined that the monitoring instrument utilized could be moved at a faster frisking rate than the FH%-supplied civil defense instruments stille maintaining adegaate sensitivity, and therefore concurred in Mr. Donovan's recommendation of approval of the productivity rate of monitors in the SR4C. We find that FDG thus i
reasonably determined that it was appropriate not to apply the earlier FD% guidance specifying an average monitoring rate of 90 seconds per evacuee because that guidance was based on the capacity of the smaller FD%-supplied civil defense instruments.
Tr. 18607.
8.
Mr. Donovan testified that he reviewed and found reasonable and adequate the specification in the SR4C that monitors will be provided periodic breaks by the rotation of other personnel at the
]
reception centers as monitors. Tr. 18643-45. He thus approved the 22
SH4C specification of an average monitoring rate of 70 seconds per evacuee, comprised of a 60 second frirking rate plus a very conservative estimate of ten seconds for an evacuee to move into and out of the monitoring station. Tr. 18656-62, 19187.
9.
m% t sted the implere.ntability of the monitoring rate specified in the SR4C in the June 1988 exercise, by providing for a
" pulse" test in which the monitors were required to monitor a continuous stream of simulated evacuees for 30 minutes. The exercise
-results demonstrated that NHY ORO achieved in actual performance the monitoring rate utilized as a planning basis. Tr. 18627-28, 10.
Based on review of the plan, verification of the technical capacity of the monitoring instrument, and' testing the implementability of the plan in the exercise, m% determined that the SPMC provides adequate resources to monitor 20% of the population of the Massachusetts EPZ within twelve hours. Tr. 18670-71.. We find that FEMA's process for reaching its determination regarding monitoring capacity was reasonable and appropriate, and reject the suggestion of the Mass AG that we should discredit mm or Mr. Donovan on this account.
(Mass AG P.F. 1.18.C.2) 1.
The Mass AG additionally urges us to discredit m %'s evaluative process on the basis that ma applies varying standards and failed to apply its own objective standards in not assigning a deficiency to New Hampshire's failure to provide 24-hour staffing at 23
E<,
i z.
9:
4 E
. res:pi. ion centers and ' staging' areas at the June 1988 exercise'. ' (Mass U
- AG P.F. 1.18.C.2).
- 2. ' As Mr. Donovan explained, the m% exercise process is a test -
of the implementability ;.f the offsite' emergency plans of the response organizations. At_ the' time of the 1988 exercise,' m% had ' identified -
- the lack of 24-hour staffing as a planning inadequacy and obtained the '
agreement of the State of New Hampshire to amend its plan to provide
'for 24-hour staffing at these locations. Tr. 22015-16; App.- Ex. 43f,
- p. 200, 'However, because at the time of the exercise the New Eampshire plan did not call for 24-hour staffing at the reception centers and staging areas, the Extent of Play agreemento did not call for New Hampshire to demormkate 24-hour staffing at those locations. Tr.
22022. 'On the other hand, FEt% did require New Harpshire to detsokate the process it would utilize to effect a shift change of supervisors at these locations and to seek assistance'through the New England Campact to reque.st additional personnel. The Extent of Play _
called for New Ecmpshire to demonstrate 24-hour staffing and shift
' changes at other locations, including the EOC, and the State successfully demonstrated such capabilities. App. Ex. 43f, pp.198-99.
Under the circumstances, m% found that New Havhire had satisfactorily darcrokated its ability to maintain staffirg on a continuous 24-hour basis.
Id.
3.
Mr. Danovan satisfactorily and convincingly explained mR's reasons for its finding of adequacy of New Hampshire's capability to maintain staffing on a 24-hour basis.
I 24 Q-_-____-__--______---_-_____---------------------------------
1 8
4.
We have also considered the contention of the Pass AG that Mr.
Donovan was inconsistent in his evaluations of the 24-hour staffirg capacity of the State of New Hampshire at the 1988 Seabrook Exercise ard the State of Ortgon at the 1987 biennial exercise for the Trojan Nuclear Power Plant. Mr. Donovan explained that the Oregon plans in place at the time of the 1987 exercise for Trojan provided for 24-hour staffing, and that the Extent of Play required a canplete demonstration of a shift change, but Oregon failed to demonstrate a. complete shift change.at its EOC.
Tr. 22018. FHG therefore assigned an exercise deficiency.
Id.
These facts satisfactorily distinguish the 1987 Trojan exercise from the 1988 Seabrook exercise.
(Mass AG P.F.1.19) 1.
The Board declines to find that FH %'s evaluation of the SH4C is any less reliable because of the technical assistance it provided to the Applicants in the development of the SH4C.
2.
The Mass AG implicitly makes two separate arguments: first that FH%'s objectivity is u.mpuuised because it is in some sense reviewing its own work; second that there is a conflict of interest.
The argument suggests that, having made suggestions to the Applicants on features that the SH4C ought to include, FD% later shaded its opinions to make its earlier advice seem sound. However, the same FD R process of providirg technical assistance on emergency response plans it later evaluates also applies to plans developed by State and local governments.
25
'O
'9, 3.
FD%'s role is to encourage the fomulation of the most prudent ard thorough radiological energency response plans that can reasonably be achieved for the various comercial nuclear pcwer plants i
'in the United States. It acccrplishes this by providing technical review and advice to State and' local governments as well as to utility i
campanies while plans are being developed, and by evaluating plans against the planning standards and criteria of IUREG-0654/mR-REP-1, Rev. 1 (and Supp. 1, stere it applies). The boundary between these two modes of operation is not rigid and precise since such planning is a continual process 'and evaluation is itself a fom of technical assistance.
4.
These roles of technical reviewer, evaluator, and expert witness do not conflict with one another. They are facets of one larger task, namely the fostering of prudent and thorough radiological emergency response plans. RAC review of emergency response plans is a further check on the objectivity of m %'s review.
5.
The Board rejects the Mass AG's concern.that m R's evaluations were designed to validate its earlier technical assistance to the Applicants. 'Ihe Board finds that ma has not spuuised its objectivity nor had any conflict of interest by providing technical assistance to the Applicants or by evaluating the work product which was influenced, one hopes, by this technical assistance.
(Mass 1G P.F.1.19) 1.
The Mass AG urges the Board to give no weight to m %'s findings, as a sanction for the discarding of evaluators' forms after 26
O 6,
the publication of FD %'s Exercise Report but before the - s cu ent of discovery on the exercise contentions. (Mass AG P.F. 1.19).
If we were convinced that Mr. Donovan individually or TH R as an institution had acted in bad faith to hide unfavorable facts or to frustrate the development of the Interveners' case, exclusion of FD%'s evidence might be an appropriate sanction.
2.
We find that Mr. Donovan did not act in bad faith. He consulted with FD% counsel before discarding the docunents in question and was told that it was not improper for him to do so.
Tr.
21902. FD % did not have specific guidelines on the retention of evaluator forms. Tr. 21901, 21954, 22234-36; Adler Declaration, Mass AG 99, p. 3; see also Tr. 22234-36. We note that not only did Mr.
Donovan carefully consider the advice he was given, but was quite open and candid in disclosing his plans and seeking advice in the first place. He followed his normal practice of discarding the evaluator forms and draft reports, which he no longer needed after the' final report was issued and which he had no space to store in his office.
Tr. 21947-50. It can hardly be considered bad faith to act in a consistent ranner when his practice of discarding evaluator forms was already well known to his superiors. Tr. 21890-93.
3.
When cross-examined on this issue, he convincingly explained that the individual evaluators' records were not the primary check on the accuracy of FDG's exercise report. He devised and used in the June 1988 exercise a comprehensive ranagement system that ensured that tentative findings, fram their earliest drafts, were subjected to close scrutiny by the team leaders who worked on the same 27 1
at 4
< i
. fui y,* > ~
V6 exercise objective for endl responding organization. Tr. 21829-46,
-l 21853-84. The; thoroughness of this review process was what Mr. Donovan :
q :m primarily relied upon as'a check on accuracy..
I 4.
We also.fird that FDR did not act in bad faith in failing to l
insist on the preservation of the documents. ' By its acquiescence in i
Mr. Donovan's decision, FD% effectively sanctioned the decision and the reasons for it.- Our acceptance of Mr. Donovan's explanation for
- his actions applies to FD% as well. Moreover, we find that the i
discarding of the documents did not unduly prejudice the Interveners' j
i ability. to.' evelop their case (Iom Island Licthtim Co. (Shoreham
.{
d Nuclear Power Station, Unit 1),19 NRC 1333, (AIAB-773, 1984)).
5.
'Ihe Interveners were able to pursue meaningful. discovery from FDR through the 'means of depositions, interrogatories, requests for production of documents, and requests for admissions. The Mass AG had i
- ample opportunity.to check the accuracy of the facts reported in the final Dcercise Report. They were permitted to observe the exercise and the players' logs wera made available to them in the Applicants' discovery room. 'Ite Interveners' principal complaint seems to be that s
.they were frustrated in trying to check whether the judgments reflected ii in the final Bcercine Report reflected the views of FD%'s evaluators.
I In his testimony, Mr. Donovan emphasized that it was not the role of i
irdividual evaluators to judge whether exercise objectives were met but 1
i j
rather to report events and observations on which a collective judgment i
could be made. Tr. 21852-55. In any event, FDR did make individual evaluators available to be deposed, as requested by the Interveners, and the Interveners did depose several of them. Tr. 17551.
1 28 I
i l
C______:__.-__-__--_.-_---------------
/
cs 6.
'Ihe Board finds that the Interveners were afforded adequate opportunity for discovery and that Mr. Donovan ard FB% acted reasonably and in good faith.
Respectfully submitted,
" Ak 4. _ -
HfJ'OS%YML tkd&) Me.PW Ima nueca Menercas Counsel for the Federal Daergency Management Agency 500 C Street, S.W.
Washington, D.C. 20472 Telephone (202) 646-4105 29
~
August 31,{l'89'E
]Nu UNITED STATES OF AMERICA agg SEP -1 All :50 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD Of7i.,
DUCE f f..,
JUDGE IVAN W. SMITH, CHAIRMMJ JUDGE RICHARD F.~
COLE JUDGE KENNETH A. McCOLLOM
)
In the Matter of
)
)
Public Service Co. of New Hampshire,
)
Docket No. 50-443-OL et al.
)
50-444-OL
)
Offsite Emergency (Seabrook Station, Units 1 & 2)
)
Planning Issues
)
)
CERTIFICATE OF SERVICE I hereby certify that I served copies of the foregoing MOTION OF THE FEDERAL EMERGENCY MANAGEMENT AGENCY FOR LEAVE TO FILE PROPOSED FINDINGS and' the PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW OF THE FEDERAL EMERGENCY MANAGEMENT AGENCY on the persons listed below by hand delivery in the case of the. members of the Atomic Safety and Licensing Board and counsel for the Board and by Federal Express service in each other case, on this 31st' day of Auguct, 1989.
i Ivan W. Smith, Esq., Chairman Atomic Safety and Licensing Board Nuclear Regulatory Commission Bethesda, Maryland 20555 Dr. Richard F. Cole Administrative Judge Atomic Safety and Licensing Board Nuclear Regulatory Commission Bethesda, Maryland 20555 m.____._m_
g..
N m
Dr. Kenneth A. McCollom
~ Administrative Judge Atomic Safety and Licensing Board Nuclear Regulatory Commission Bethesda, Maryland 20555 Robert R. Pierce,-Esq.
~
Atomic Safety and Licensing Board Panel U.S. Nuclear _ Regulatory Commission Washington, D.C. 20555-
. Docketing and Service Section Office of the Secretary Nuclear Regulatory Commission Bethesda, Maryland 20535 Atomic Safety and Licensing Appeal Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Thomas G. Dignan, Jr., Esq.
Ropes & Gray 225 Franklin' Street-Boston, MA 02110 John Traficonte,'Esq.
Assistant Attorney General Office of the Attorney General One Ashburton Place, 19th Floor Boston, MA 02108 D2 anne Curran, Esq.
Harmon, Curran & Tousley 2001 S Street, N.W.
Suite 430 Washington, D.C. 20009 Robert A. Backus, Esq.
Backus, Meyer & Solomon 116 Lowell Street Manchester, NH 03106 Paul McEachern, Esq.
Shaines & McEachern Post Office Box 360 Portsmouth, NH 03801 -_=___2__x_
n 1
t
. Barbara St. Andre, Esq.
Kopelman & Paige 77 Franklin Street Boston, MA 02110 R. Scott Hill-Whilton', Esq.
Lagoulie, Clark, Hill-Whilton
& McGuire 79 State Street Newburyport, MA 01950 '
- Ashod N. Amirian, Esq.
' Town Counsel for Merrimac 376 Main Street' Haverhil, MA 08130' Gary W. Holmes, Esq.
Holmes & Ellis 47 Winnacunnet Read' Hampton, NH 03842 J.P. Nadeau, Esq.
Selectmen's Representative Board of Selectmen 10 Central Road' Rye, NH03870 Charles P. Graham, Esq.
Murphy and Graham 33 Low Street Newburyport, MA 01950 Richard A.'Hampe, Esq.
Hampe and McNichols 35 Pleasant Street Concord, NH 03301 Philip Ahrens Assistant Attorney General
. Office of the Attorney General State House Station, #6 Augusta, ME 04333 Geoffrey Huntington Assistant Attorney General 25-Capitol Street Concord NH 03301-6397 Sherwin E. Turk, Esq.
Office of General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555,
y pig ' -qi,
l Jane Doughty Seacoast Anti-Pollution League
-5 Market Street =
-Portsmouth, NH 03801 William S. Lord.
Board of Selectmen Town Hall - Friend Street l
Amesbury, MA 01913 p
Sandra Gavutis, Chairman Board of Selectmen RFD 1, Box 1154 Route 107 Kensington, NH 03827f Allen Lampert Civil Defense Director Town of Brentwood-20 Franklin Street Exeter,.NH 03833 Angie Machiros, Chairman' Board of Selectmen 25 High Road' Newbury, MA 01950 Jerard A. Croteau, Constable 82 Beach Road P.O. Box 5501 Salisbury, MA 01950 Michael Santosuosso, Chairman
. Board of Selectmen South Hampton, NH 01913 Calvin A. Canney, City Manager City Hall 126 Daniel Street Portsmouth, NH 03801 Mr. Robert Carrigg, Chairman Board of Selectmen Town Office Atlantic Avenue
' North Hampton, NH 03862 William Armstrong Civil Defense Director Town of Exeter 10 Front Street Exeter, NH 03833 1 _ _ - _ - _ _ _ - _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _. _ _ _ _ _ -
~
Mrs. Anne E,' Goodman, Chairman Board of Selectmen 13-15 Newmarket Road Durham,'NH 03824 Brentwood Board of Selectmen RFD Dalton Road Brentwood, NH 03833 Richard R. Donovan Federal Emergency Management Agency Federal Regional Center 130 228th Street, S.W.
Bothell, Washington 98021-9796 Senator Gordon J. Humphrey U.S. Senate 531 Hart Senate Office Building Washington, D.C. 20510 Dated: August 31, 1989
~~
HVJOSFg/lFLYNN[lCounsel Assistant Genera Federal Emergency Management Agency. _ _ _ _ _ _ _ _ _ _