ML19332F867

Commonwealth of Ma Atty General Comments on Immediate Effectiveness Issue.* Immediate Effectiveness of ASLB 891109 Order Authorizing Issuance of OL Should Be Stayed in Public Interest.Certificate of Svc Encl

ML19332F867
Person / Time
Site:	Seabrook
Issue date:	12/01/1989
From:	Greer L MASSACHUSETTS, COMMONWEALTH OF
To:	NRC COMMISSION (OCM)
References
CON-#489-9567 ALAB-924, OL, NUDOCS 8912190229
Download: ML19332F867 (47)

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UNITED STATES OF JutERICA NUCLEAR REGUT.ATORY CONNISSION Before the commissiont Kenneth M. Carr, Chairman >

Thomas M. Roberts, Commissioner Kenneth C. Rogers, Commissioner i James R. Curtiss, Commissioner .

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In the Matter of ) Docket Nos. 50-443-OL

) 50-444-OL PUBLIC SERVICE COMPANY

) (Emergency Planning Issues)  !

OF NEW ID.MPSHIRE, IT E. )

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(Seabrook Station, Units 1 and 2) ) December 1, 1989

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MASSACNUSETTS ATTORNF.Y GENERAL'S COMMENTS

[ ON THE IMMEDIATF EFFECTIVENESS ISSUE INTRODUCTION I t

The Massachusetts Attorney General (" Mass AG") submits the i comments provided below for the Commission to consider in making .

t its' decision on whether the order of the Atomic Safety and i

Licensing Board dated November 9, 1989 authorizing the issuance of an operating license should be immediately effective or, whether it should be stayed because it is in the public interest t

! to do so. These comments are made pursuant to 10 C.F.R. 52.764(f)(2)(ii). In filing these comments with the Commission i the Mass AG is cognizant of the guidance in that section that i

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i such comments are to be "brief". Mass AG has attempted to comply with that instruction. In doing so however, the Mass AG believes it is appropriate to inform the Commission that it is his position that a full enumeration of the reasons why'it is in the -

public interest to stay the effectiveness of the Licensing .

Board's order, cannot be soundly accomplished in "brief" comments. The litigation that has surrounded the issuance of an operating license for the Seabrook Nuclear Power-Plant has gone on for over 18 years. To pretend that the comments below are a succinct compilation of the public interest factors that weight against the immediate effectiveness of the Licensing Board's-order would be uncandid. It is the position of this office that the licensing proceeding thus far has been permeated with l decisions and rulings that have been incorrectly resolved by the L Licensing Board. A full accounting of those incorrect rulings ,

would render the instruction in 10 C.F.R. 5 2. 764 (f) (2) (ii) to be "brief" null. With that understanding, the' comments below are provided for the Commission's consideration.

COMMENTS ON ALAB-924 On November 7,1989, the Atomic Safety and Licensing Board

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) issued a decision (ALAB-924) affirming inpart, and reversing and l

remanding in part, a portion of the Partial Initial Decision of the Atomic Safety and Licensing Board dated December 30, 1988, LBP-88-32, 28 NRC 667 (1988). In ALAB-924 the Appeal Board 1

L agreed with the Intervenors that the Partial Initial Decision on the NHRERP ("PID NMRERP") was in error in four specific areas 2-

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4 concerning letters of agreement for teachers, the special needs ,

survey, special facility ETEs and implementing procedures for sheltering. '

The impact of that reversal is discussed extensively in

'Intervenors' Supplemental Motion and Memorandum in Support of November 13 Motion to Revoke the November 9 License Authorization. Those arguments will not be repeated here but are incorporated by reference.

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ALAB-924 addressed other issues part from the ruling that L reversed the PID NMRERP. The Mass AG does not take acception to the Appeal Board's ruling on many of those issues. However,

l. there are certain portions of ALAB-924 that this office believes to be in error.

i Those issues are identified in the Intervenors'

. Petition for Review of ALAB-924. The reasons that the Intervenors believe the rulings were erroneous are also sketched out in that petition. In the interest of economy and brevity instead of reiterating those arguments here, they are incorporated by reference.

COMMENTS ON THE CERTIFIED OUESTION The Mass AG's views on the question that the Appeal Board certified to the commission have already been presented to the Commission in his brief on the certified question. Those views will not be repeated here, but are incorporated by reference.

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4 COMMENTS ON THE ONSITE EXERCISE CONTENTIONS on September 27, 1989 the Applicants conducted an exercise of the Seabrook'Staticn Radiological Emergency Plan (SSRERP). An exercise-testing an applicants' on-site emergency plan within one year prior to the issuance of a full-power license is required by 10 CFR Part 50, Appendix E, IV.F.1 where an offsite exercise has been conducted more than one year prior to the issuance of such a license. "The purpose of the one year exercise requirement is to assure that adequate emergency response capability exists at the time of licensing." NRC Staff Resnonse To Aeolicants' Aeolication For An Exenotion From 10 CFR Part 50 E IV F.1. (Onsite Exericise Qne Year Before Full- Power License), page 8.

The standard against which such an exercise must be judged is 1 whether the exercise demonstrated that the SSRERP can be implemented so that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency. 10 C.F.R. 5 50.47(a) (1) . Such an oa-site exercise must be designed so that major portions of the emergency response capabilities can be evaluated. 10 C.F.R. 50.47 (b) (14 ) .

The exercise that was conducted on September 27, 1989 was so t

truncated in its scenario that major portions of the SSRERP were not demonstrated. The September 27 exercise was so abbreviated, it did not adequately test the Applicants' on-site emergency plan as required by 10 C.F.R. Part 50, Appendix E, SIV.F. 1.

In response to that abbreviated exercise, the Intervenors filed scope contentions challenging the inadequacies of the prelicensing exercise. A decision on those contentions, or at least the admissibility of those contentions, is required prior

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a to the' issuance of an operating license because by regulation such a decision is material to a licensing decision, since a successful on-site exercise is required by 10 C.F.R. Part 50, Appendix E, IV.F) within one year prior to the issuance of an operating license, a decision as to the adequacy of that exercise and exurcise performances is irrefutably material to a licensing decision.

By failing to render a decision on the onsite exercisa contentions prior to the order authorizing an operating license, the Licensing Board committed a reversible error since it failed to take account of a material issue in making its licensing decision.

COMMENTS ON THE LOW POWER CONTENTION -

Following events during low power testing at Seabrook Station on June 22, 1989, Intervenors filed contentions alleging, that Applicants' plant operators and management personnel are not adequately trained or qualified, and lack adequate managerial and administrative procedures and controls, to properly operate the facility, at any level of power. As a result of those events, the NRC suspended Applicants' low power license and ultimately imposed a fine.

The Licensing Board rejected all low power testing contentions and denied Intervenors' request for hearing.

Although the Licensing Board found that portions of Intervenors' contentions " meet the threashold test for alleging ' fundamental flaws' as required by ALAB-903", LBP-89-28 p. 24, and were timely

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filed, Id. at 27, the Licensing Board rejected the contentions .1

fer failure to meet the. Commission's reopen the record standard.

Id. at 25-44. 10 C.F.R. 52.734. ,

-In so ruling, the Licensing Board acted in disregard of the mandate of the DC Circuit Court of Appeals that application of I the reopen the record standard to burden, and bar, Intervenors' rights conferred under $289a to a hearing on issues material to licensing violates the Atomic Energy J.ct and would be presumed to be " bad faith on the part of the Commission". San Luis obismo ,

Mothers For Peace v. NRC, 751 F.2d-1287, 1317 (DC Cir. 1984).

The Licensing Board did not dispute Intervenors' assertion that "the issues proferred in the contention are material and relevant to the grant of a full-power license". Indeed, by '

-constructively suspending Applicants' license to operate, based upon events during low power testing,-the NRC staff has made-resolution of these issues material to full power licensing.

Nevertheless, the Licensing Board rejected the contentions on a basis that is to be " presumed to be bad faith on a part of the Commission." The Intervenors have appealed that decision of the .

Licensing Board.

since on its face the Licensing Board applied a prohibited standard in rejecting the low power contention, there is a substantial likelihood, that the Board will be reversed on the pending appeal of that decision. That reversal will lead to a consideration of the merits of the contention. It is obviously in the public interest to resolve all issues material to a licensing decision before that decision is made. Until an

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, h I-(t ikpartial consideration of the merits of that contention occurs, 8

t no operating-license should issue.

ccMxzwTs oN THE_ IRS CONTENTION The SPMC contemplates the use of the Emergency Broadcast System ("EBS") as the primary means for notifying the public -in '

the event of a radiological emergency at Seabrook Station. In a letter dated October 20, 1989 John F. Bassett, manager of .

'WCCM(AM)/WCGY(FM) ("WCGY"), repudiated WCGY's prior agreement to participate with New Hampshire Yankee (wNNY") in emergency planning and to activate the EBS in the event of an emergency et Seabrook Station. Without the cooperation of PCGY, the

' Applicants will not be able to activata the EBS servicing the Seabrook Emergency Planning Zone ("EP2") in Massachusetts.

Without the activation of the EBS, the Applicants will not be able to provide notification to the public in the event of an emergency in accordance with the SPMC and as required by applicable law and regulations.

In. response to the withdrawal of the EBS and WCGY, the Intervenors filed a late-filed contention challenging the

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adequacy of the SPMC's provisiens for notification of the public in the event of a radiological emergency. In support of their motion for the admission of the late-filed contention and to reopen the record, the Intervenors submitted affidavits of Robert Boulay, Director of the Massachusetts Civil Defense Agency, and A. Anthony Kelsey, Vice President and General Counsel of the Arbitron Company.

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1 Mr. Boulay's affidavit demonstrated that the import of WCGY's ,

non-cooperation is that NHY will not ce able to contact and i

activate the Ens as called for in the SPMC, nor is there any assurance that an EBS activation can be accomplished by the government of Massachucetts within the 15 minute requirement of

• NUREG 0654.A! Mr. Xelsey's affidavit demonstrates that the one

radio station that has a current LOA with New Hampshire Yankee is listened to by a very small percehtage of the population over age 12 in the county containing the Massachusetts EP2.2/ Based upon this he concluded that relatively few people would hear an

. emergency asssage transmitted only over that station.

The lack of a mechanism by which to provide notifiestion of a radiological emergency to the populace of the EPZ poses a signiticant safety issue that should be resolved prior to the issuance of any operating license.

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1/ .The NRC. Staff are apparently under the false impression that since statewide downstream EBS activation can be accomplished within eight minutes from a transmistf.on by WROR, the Massachusetts primary relay station, that activation would L

meet the NUREG-0654 criterion. The NRC Staff overlooks the L fact that that eight minute downstream activation of the EBS i

L would take place after the EBS message is provided to WROR.

According to Mr. Boulay there is no assurance that WROR or WCGY could be provided the EBS massage within 15 minutes. The eight l-minute downstream activation of the EBS would take place after the elapse of time that would be required to put out a message over WROR.

2/ At any given time between 6am and midnight less than one-half of one percent of the 121 population listens to the station.

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'1 COidiEWIE ON THE PARTIAL INITIAL DECISION OF THE SEARROOK PLAN

'FOR MABBACHUSETTS ColOfUNITIES AND THE 1988 FEMA GRADED EXERCISE In issuing its decision on the Seabrook Plan'for ,

Massachusetts Communities ("SPMC") the Atomic Safety and j Licensing Board made the gross and lawless error of directing the

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issuance of an operating license despite the fact that the Atomic Safety and Licensing Appeal Board had reversed and remanded i i

portions of the Licensing Board's decision finding the New Hampshire Radiological-Emergency Response Plan ("NERERP")

adequate. To order the issuance of an operating license for a ,

nuclear power plant in the face of the decision by the Appeal Board that the Licensing Board's ruling on the adequacy of that

plan was.in error is obviously a grave matter that effects the l

public interest. It means that an operating license may

! potentially issue where there is no adequate emergency plan for the populace in the emergency planning zone ("EPZ") surrounding I the plant. An analysis demonstrating the likelihood that that l

l - matter was incorrectly decided below has been set forth in other filings that are already before the commission including Intervenors Supplemental Motion and Memorandum in support of

! November 13 Motion To Revoke or Vacate the November 9 License Authorization. Rather than merely summarizing and repeating the reasoning set forth in those filings, they are incorporated in these comments by reference.

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Apart from that monumenta1y erroneous order, the Licensing Board in its Partial Initial Decision on the SPMC and the 1988 FEMA Graded Exercise ("PID") made numerous other erroneous rulings-pertaining to the SPMC and FEMA Graded Exercise. Each of the errors described below pertain directly to the issue of whether there is an emergency plan for the Massachusetts communities that will provide reasonable assurance of adequate protective measures in the event of a radiological caergency. It has been observed that there are additional risks of accidents attendant to the first few months.of operation of a nuclear power facility. CLI-89-08 p.9 (5/18/89). Given those additional risks,

.the public interest mandates that a full power operating license not issue while serious questions exist on the-correctness of the Licensing Board's decision. The additional risk of accident that exists during the start up phase of a nuclear power plant poses an unacceptable danger that a faulty radiological emergency plan will be called into use before there can be an unbiased review on the merits of the adequacy of that plan.

The following errors in the PID belle the Licensing Board's findings that there is reasonable assurance that adequate protectivs measures can and will be taken in the event of a radiological emergency at Seabrook Station, and demonstrate the likelihood that the decision to authorize the issuance of an operating license has been incorrectly resolved below:

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The Licensing Board is in error in finding a " regional" ,

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1 for evacuation time estimates ("ETEs") to be adequate for the purposes of emergency planning. The SPMC and 1 NHRERP provide for separate protective action recommendations to be made for New Hampshire and Massachusetts communities.

Furthermore, the entities that make the PARS under the NHRERP and SPMC are distinct. Yet, despite the fact that PAR decision makers for Massachusetts communities will be making protective action decisions separate and apart from their New Hampshire counterparts, there are no separate ETEs for the Massachusetts communities upon which the Massachusetts decision makers can predicate their decision. That means that Massachusetts protective action decision makers will be making the  ;

recommendations on the basis of data that is not tailored to th r parameters of the decisions they must make.

The Licensing Board attempts to justify the lack of a separate ETE study by observing the NUREG-0654 calls for ,

integrated emergency planning between continuous political jurisdictions.2/ The Licensing Board ignores the fact that cited -

l criteria only calls for integrated emergency planning and does not '

call for integrated protective action decision making. Nevertheles s, from that starting point the Licensing Board leaps to the conclu sion that:

l A/ PID at 2.23, p. 45.

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PID 52.23 at p. 45.

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" Individual ETEs for each of the Massachusetts communities would not enhance what must nrove to be a- '

coordinated effort to protect citizens of the whole of

• the EPE." (Emphasis added.)

There is no record-basis for the Licensing Board's assumption '

that a coordinated effort in PAR decision making will come to s

pass.

Indeed, the. provisions of the NHRIRP and the SPMC are L. such that separate protective action decisions are made under .

each plan. The Licensing Board in its perenially optimistic \

approach to emergency planning may hope that coordinated protective actiot; dscision making takes place during an emergency, but there is nothing in the record to indicate that .

there is any assurance that it will take place. The ultimate i result of that circumstance is that the Massachusetts protective action decision makers are left with ETEs that divide the entire six towns in Massachusetts into just two ETE j regions. The ETE data for those two regions is so abbreviated '

and limited in scope that there is no reasonable assurance the t evacuation times that those ETEs project will bear any relation to the actual evacuation scenarios that will develop during a radiological emergency.

The Licensing Board found that the SPMC procedures allow for staffing of traffic control posts ("TCPs") and access control posts ("ACPs") prior to the onset of congestion (other than, beach closure) for all but very fastbreaking accidents.E/

n/ PID 3.73 at p. 153.

4m That finding appears to be inconsistent with the Board finding that it will take from between one and a half hours to three and three quarters hours to staff those positions. Even some of the-more critical TCPs cannot be staffed for two hours and forty-five minutes.2/- The Licensing Board itself acknowledged that under.fastbreaking accidents it is possible -

that some evacuation routes will experience congestion prior to the time that traffic guides can arrive at TCPs.II The SPMC's procedures do provide for notifying the traffic guides to start reporting to the staging area only when a site area i

emergency has been declared. The Board's finding overlooks the validity that for almost any evacuation scenario that proceed i

1 from a site area emergency to a general emergency within a 1

couple of hours,-it is predictable that heavy congestion will-already exist by the time that traffic guides reach the TCPs.

s Since the role of traffic guides is.to facilitate the traffic flow. The lack of prompt TCP staffing will mean that 1 many critical junctures on evacuation routes will have not had the advantage of traffic guides to speed the flow during a substantial portion of the evacuation. Because the ETEs are premised on having those TCP staffed, that creates the risk that the ETE upon which a decision to evacuate is premised will 2/ PID 3.67 at p. 150.

g/ PID 3.73 at p. 153.

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-, i be flawed. Because the SPMC's staffing procedures do not provide for traffic guide mobilization until a site ~ area emergency.they contribute substantially to the resulting delay in the establishment of TCPs. -

The procedures of the SPMC call for traffic guides to

work 12 hour1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> shifts without being relieved. The Licensing.

Board received evidence that traffic guides have an attention  !

span of approximately four hours. Yet-the Licensing Board ignored the implication of that evidence that traffic guides will be unable to maintain their post for twelve hours.2/-

Instead, the Licensing Board chose to assume that traffic i

guides will somehow be relieved from their positions within  :

twelve hours despite the fact that the plan has no provision for that relief. The Licensing Board instead chose to assume that local and state police will come to the assistance of traffic guides during an evacuation. The Board seems to assume that local and state police will have nothing else to be doing during an evacuation. There is nothing in the record to indicate how many state and local officials might be available to aid the traffic guides, nor is there any indication in the record that those who are available will not be called upon to L

perform other services. The Licensing Board made a finding that there is no reason to believe that traffic guides will go i unaided for a twelve hour period.1S/ Yet there is conversely no record support for the Licensing Board's assumption that they will be aided.

2/ PID 3.81 at p. 156.

12/ PID 384 at 157. -14~

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The Licensing Board made a similar mistake with respect to its finding that state and local police can be I

relied upon to identify road impediments that block evacuation- l routes during the first hours of an evacuation. There does not l

appear to be record support for that presumption. Again, it is another instance of the Licensing Board exercising wishful

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thinking to make up for lack of provisions in the SPMC. '

The Licensing Board acknowledged that under the provisions +

of the SPMC complete and timely mobilization of traffic guides is impossible where there is a fast breaking accident.11/

The Licensing Board erroneously relies upon Lena Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1) ,

LBP-85-12, 21 NRC 644 (1985) as exoneration for this failure to provide timely staffing. At best, that case provides such l-exemption only in a limited number of scenarios where there l-1 cannot even be an activation of the EOC or staging area prior to an evacuation. In the SPMC where those facilities are activated at the alert stage, there may be a wide range of i;

scenarios under which the activation of those facilities will be complete, but traffic guides will not be at their posts.

It is obviously true that an evacuation could ultimately be accomplished without traffic guides. However, the risk that it posed by the lack of guides is greatest where there is a L

short/ fast release such that sheltering might be a viable protective action option. If a protective action decision to l

l 11/ PID 3.107 at p. 167.

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evacuate is made based upon a relatively short ETE, and that short ETE is faulty because it assumes the presence of traffic guides, close savings has.not been accomplished.

4 The Licensing Board erred in its finding that one shift staffing was adequate for evacuation of specific E

personnel. Under the SPMC dosametry record keepers, route guides, and drivers of evacuation vehicles, and road crews are u

.i staffed for only one shift. That provision of the SPMC is in I l

L direct contravention of NUREG-0654, Acterion II A4 which calls  !

for principal response organizations to be capable of l continuous (24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />) operations for a protracted period. The

i. excuse the Applicants have submitted for having provided only one shift for evacuation specific personnel, is that such personnel will be needed only during the period of an evacuation. While it may be under some radiological plans, evacuations only extend for short periods of time, that is not the case under the SPMC. Under the SPMC, the Applicants own ETEs in some cases extend to the range of nine hours, and many are 6-7 hour range. Although the Board acknowledges that in i any emergency where it takes longer than three hours to move i from a alert or site area emergency to a general emergency, evacuation personnel may be on shift for longer than 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />, the Board attempts to discount that fact by saying that the stress level of activity would not start immediately and peak I

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activity typically would occur initially and then fall off.12/

The Licensing Board provides no record authority for its conclusion that the stress level of activity would not start immediately and peak activity would occur initially and then fall off. Indeed, the Board's conclusion on this matter- '

appears to be somewhat counterintuitive. It would seem that someone who was called up to function as a route guide, vehicle driver, or road crew in an area known to be undergoing a potential radiation release would-suffer some initial stress.

Furthermore, the Licensing Board's hypothesis that peak activity would typically occur initially and then fall off appears to be equally unpremised. In an accident scenario under which there is a time delay of three or four hours between a site _ area emergency and a general alert stage, the evacuation personnel would initially be sitting around with little to do for a number of hours and then called upon to engage in peak activity. The exception that the Licensing Board would read into the regulatory requirement of twenty-four hour protected operation shifts does not jibe with the limited instances under which FEMA would permit staffing of only one

_ shift, i.e., when the personnel positions would .in fact be on duty for less than twelve hours.

i 12/ PID 5.13 at pp. 195-196.

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t The Licensing Board's finding that traffic guides receive adequate training is at best internally inconsistent.12/ The Licensing Board premises its finding on p

'the basis that an adequate training program has been developed for traffic guides.1A/ According to the PID, traffic guides are required to attend six training modules comprised of .

approximately ten hours of instruction.1EI Purthermore, ORO personnel after having been initially qualified and trained, '

receive supplemental training in response to changes in the emergency plan or implementing procedures, performance evaluations such as drill or exercises, and requests or recommendations for additional training.15/ The fact that the Board conveniently ignores is that only the first shift of-  ;

traffic guides receive.such training. The SPMC relies upon personnel from the Yankee Atomic Mutual Assistance Plan to provide second shift staffing for traffic guide positions. The second shift personnel' undergo none of the training provided for in the SPMC. Instead, the second shift personnel receive at best cursory instruction in the brief time ll/ PID 5.30-5.41.

11/ PID 5.37-5.39, p. 205.

11/ PID 5.39 at p. 205.

11/ PID 5.24 at p. 199.

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that elapses from when they report to the staging area until the point at which they are dispatched into the field.12/

Yet those second shift traffic guides are called upon to provide the exact same duties and assume the exact same responsibilities as the first shift guides who have undergone ten hours of training, plus supplemental training.

It is nonsensical for the Licensing Board to find the training of traffic guides to be adequate when only one shift of traffic guides undergoes training. Yet, that is exactly ,

what the Licensing Board has done in its decision on the SPMC.

The Licensing Board's attempt to buttress its finding with the observation that "the task involved is simply not all that.

difficult"1E/ is at best a weak attempt to justify its unfounded holding. On its face, it is entirely improbable l

because it serves no purpose to have ten hours of training for ,

tasks that are " simply not all that difficult." The Applicants obviously think ten hours are needed to train traffic guides since that it what they provide for. It is dubious that the Applicants would provide for ten hours of training for a task that could be learned in a matter of minutes.

The Licensing Board finding that route guides are not needed to accompany vans, stationwagons, wneelchair vans, or ambulance drivers to their destination in the EPZ is in sharp constrast to the provision of route guides to accompany buses.

12/ PID 5.10 at pp. 193-194.

11/ PID 5.40 at p. 206.

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I Like the bus companies providing services under the SPMC, the companies providing drivers of the vans, stationwagons, wheel  !

chair vans and ambulances are all also located outside the EPZ. There is no' reason to believe the drivers of' vans, stationwagons, wheel chair vans and ambulances were better able to find their way around in the EPZ than non-local drivers of 1 buses. The Licensing Board attempted to justify the lack of route guides to company van, station wagons, wheel chair vans and ambulances by postolating that the emergency responsibilities of those vehicles are distinct from buses since those vehicles are not required to follow a predetermined route. That distinction does not withstand scrutiny. While it is true that buses assigned to transit routes must follow

. predetermined routes, the vast majority of buses are assigned to go to specified assigned destinations in the same way that vans, station wagons, wheel chair vans and ambulances are, u

l only sixty-six (66) of the three hundred and sixty-eight (368) 1.

buses called for under the SPMC are assigned to transit routes. Yet the SPMC, recognizes the need for route guides to accompany the other three hundred odd. buses which are assigned to specified destinations. The need for route guides to accompany vans, station wagons, and wheel chair vans to their assigned destinations is if anything far greater than for route -

guides to accompany buses, since the smaller vehicles are assigned to pickup transit dependent persons at their private residences. Private residences are more likely to be on out of the way side streets than the large facilities such as schools,

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7 hospitals, and special facilities that the buses are assigned to.

The Licensing Board's decision does not coherently account -

for the lack of route guides-for vehicles that are not  !

buses.AA/

Licensing Board's finding that the SPMC contains a full range of protective action decision making criteria is unfounded.AE/ While the Licensing Board notes that there is a sheltering option for the permanent population of the b ,

1 Massachusetts EPZ, the Board neglects to mention that such an option does not exist for the beach population in Massachusetts EPZ. Although the Licensing Board has reconginzed that tens of thousands of persons attend the Massachusetts beaches during .

the summer, the Licensing Board ignores the fact that there is no range of protective actions for this significant segment of the population. The only protactive action criterion that the SPMC contains for the Massachusetts beachos is the evacuation of the population cither at an 6arly beach cloaing during a site area emergency, or at the time of an general emergency.

The SPMC permits only one protective action with the reepect to the beach populhtion. That provision does not meet the

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regulator;* requirement that a radiological emergency plan contain a range of protective actions.

J 13/ PID S.43 pg 206-207.

22/ PID 6.23 at 221.

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4 The Licensing Board also erred in finding that the SPMC is adequate with respect to the generation of protective actions reccomendations.AA/ The criteria on which PARS for the SPMC are based are flawed. For the reasons previously noted, the provision of data with respect to the SPMC's ETEs is i inadequate. Furthermore, the assumptions underlying the dose reduction factor (DRF) for the SPMC are also fallacious.

The Board found that the SPMC contains a 0.9 DRF for sheltering.22/' That DRF is premised on the DRF of the housing stock that is most commonly found in the beach areas of the EPZ. That housing stock is largely comprised of wooden structures with no basement.11/ Typically such housing is only inhabited during the summer months,.and there is nothing in the record to indicate that the housing stock inhabited by the general population by the Massachusetts EPZ is comparable.

Yet, since the sheltering option in only available under the SPMC to the general non-beach population, the DRF for the beach housing stock largely irrelevant. Neither the SPMC, nor the record, reflects what the DRF for the general housing stock is.

11/ PID 6.30 at 223.

2.2/ PID 6.25 at 221.

22f PID 6.26 at pg. 222.

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.c When protective action decision makers are called upon to assess the merits of sheltering as opposed to an evacuation option, they will be making their decision based upon inaccurate data. Without having accurate data upon which to premise their decision, there is no assurance.that the protective action decision makers will be able to make appropriate protective action raccomendations.

The Licensing Board fallaciously attempts to side step

[ the range and overload problems noted in the Emergency Radio i Network with the ill conceived justification that there will be little need for emergency response field workers to-communicate laterally by the ERN.AAI Although the Licensing Board appears to attempt to hedge its bets by finding that the ERN h permits communications in both lateral and verticle modes during an emergency resonse,AEI the Licensing Board has no better answer to the communications difficulties that were l-E experienced during the FEMA Graded Exercise on the ERN other than to hypothosize that the need for such communciations are minimal.

During the graded exercise, FEMA noted the limited range of L '

j: the ERN and found that several bus yards were so far from the 21/ PID 2.21 at pg. 245 - 246; PID 7.28 pg. 248; PID 7.36 at 250.

11/ PID 7.42 at 252.

1

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L staging area, that some emergency field workers were out of radio contact for up to two hours.A$/

Nothing has been done to correct the range problem noted by FEMA.

An effective communications network is the life l blood that feeds information to an emergency response organization. Such a communications network is key to a coordinated and effective response by such an organization.

Nevertheless, despite the demonstrated range and design efficencies of the ERN, the Licensing Board has chosen to find it to be adequate on the basis of the papably false conclusion that the system will seldom need to be used. Because the New Hampshire Yankee off Site Response organization ("0RO") will be unable to communicate on the ERN to its emergency response i field workers, it will be unable to effectively coordinate an adequate response to radiological emergency at Seabrook Station.

The Licensing Board erred in finding the SPMC's "special needs survey" to be adequate because it both ignores the unrebutted testimony of an expert in the field and is internally inconsistent. In order to meet the regulatory requirement that a radiological emergency plan make provisions for all segments of the population, the Applicants amployed a .

special needs survey to identify the resident special needs population in the Massachusetts EPZ, Under the SPMC, persons who are identified through that survey are to be provided assistance in the form of transportation in the event of an 25/ FEMA exercise report, September 1, 1988, page 207.

1 1

j evacuation. Guy Daines, an uncontroverted expert in the area, criticised that study as a means for providing assistance to the population.

-Mr. Daines' unrebutted testimony indicated 1 that a planning basis of between 4.3 and 5% of the population '

is valid when determining the number of special needs individuals who will need assistance. Mr.-Deines premised that calculation on many years of experience working in the field and personal experience in effectuating evacuations in Pinellas County, Florida. <

The Applicants' survey identified a fraction of that percentage of the population.22/

While Mr. Daines acknowledged the difficulty of developing a special needs survey that will identify the special needs persons who will need assistance in the event of an emergency, the thrust of his testimony is that one takes that limitation of surveys into account and plans accordingly.

The compensatory planning measure advocated by Mr. Daines was to set aside a separate pool of personnel and vehicular 1 resources.to provide assistance to the special needs-population who are not identified prior to an emergency. Despite the fact that Mr. Daines testimony is unrebutted, the Licensing Board

.took no account of Mr. Daines testimony in endorsing the Appliegpts' claim that all special populations in the Massachusetts EP'Z are listed in their special needs survey. AA/ Based upon that special needs survey and the .

resources set aside in response to that survey, the Licensing 22/ PID 8.7, 16 17, at pp. 284-285, 23/ PID 8.18 at p. 285.

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Board found the SPMc's provisions for the resident special needs population to be adequate.-

The Licensing Board's decisien is inconsistent even within i

the parameters it establishes for itself. The Licensing Board !

stated that to defeat the apparent identification of all  ;

special populations within the EP2, the Intervenors would have to identify a-special population that had been missed in its entirety.2AI Yet, when the Intervenors did precisely that by 3

showing that the Applicant's survey failed to identify any L

non-institutionalized emotionally or mentally disturbed persons l

in the entire Massachusetts EPZ as needing assistance, the Licensing Board still' expressed satisfaction with the Applicants' planning efforts in this area.2SI l

e Although the Licensing Board noted some concern that

.the survey failed to identify any members of that handicapped group, its reaction to that concern was simply to express the hope that the Applicants would renew their efforts to identify the resident special needs population. The failure of the SPMC' to provide for adequate emergency planning on this issue cannot be compensated for by a mere expression of confidence that the 11/ PID 8.19 at 285-286.

l 12/ PID 8.21 at p. 287.

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. Applicants will in the future try to improve their performance.AA/

It is noteworthy that PID Findir.g 8.24 appears to be a candid expression of the Licensing Board's adoption of a best effort standard for emergency planning. In that finding the Licensing Board states:

"We also are confident that Ann 11 cants will_A2 i averythina reasonably nossible on an ongoing basis to keep Appendix M current and will include organizations that-feed, care or advocate for the non-institutionalized mentally or emotionally '

disturbed (if they exist in the area) in their ongoing efforts.

The Commission's emeroency niannina rules reauire no more."

Despite the fact that the Licensing Board recognizes that the SpMC list of facilities for special needs populations is incomplete, the Licensing Board held that was of no consequence since in the Licensing Board's view the Applicants l

were doing the best they could to identify special facilities.  !

i In part, the Licensing Board blames the inability of the t i

Applicants to identify special facilities on the non-cooperation of state and local governments in emergency  ;

planning.AA/ The Licensing Board totally ignores the fact that the overwhelming majority of special facilities are in l fact private institutions that are not controlled by state and i local governments. The Licensing Board's decision on this l

L H

issue is premised on a double standard for utility plans as -

opposed to i

11/ PID 8.24, at pp. 288-289.

12f PID 8.22-23, at p. 288.

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governmental emergency response plans. Underlying the '

Licensing Board's finding of adequacy is the assumption that a governmental emergency plan would be able to identify special '

i facilities. However, because the government resources are not available to the Applicants in developing a utility plan, the Applicants should not be required to make the same kind of comprehensive list of special facilities. There is nothing in the regulatory basis sanctioning the development of utility plans that permits this kind of double standard. '

The Licensing Board could not ignore the irrefutable fact that the SPMC does not contain provisions for contacting over one-third of the special facilities for the majority of the time. The SPMC provisions for providing assistance to special facilities consists of having one special population liaison per town who is assigned to call the special facilities and arrange for transportation for those facilities in the event of an evacuation. The elderly housing projects in the Massachusetts'EPZ contain over half of the residents of special facilities and comprise over one-third of the facilities. The elderly housing projects do not have telephones that are manned on a 24-hour basis. At best they are manned on a 9-5 Monday-Friday basis.12/

12/ .PID 8.28-29 at pp. 291-292. The Licensing Board is wrong in implying that the determination that special facility .

i contact points were not manned on a 24-hour basis resulted from the FEMA June exercise. During the FEMA June exercise the SPMC's notification procedure that was found wanting was inability of liaisons to complete their assigned calls.

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Rather'than finding the inability to contact the special facilities'to be a flaw in the SPMC, the Licensing Board simply accepted the Applicants representation that they are '

re-evaluating the data on those facilities and will revise the notification procedure to ensure that it is " appropriate" for the circumstances.AS/' Once again the Licensing Board appears. '

to be engaged in speculativa optimism that future changes in the SPMC will compensate for the present deficiencies in it.  !

The Licensing Board engaged in the same kind of optimistic speculation with respect to the Intervenors observation that the special population liaisons have over t'hree times as many calls to make as the school liaisons and the Applicants have calculated that it will take between 60-90 minutes to complete the list of school calls. The observation

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1 that special population liaisons have three times as many calls i to make as school liaisons is based upon the fact that there

~

are three times as many listings under special facilities in -

Appendix M as there are for schools. The reference to Appendix M-was cited in the Mass AG's proposed findings. In response to the resulting computational calculation it'will take 3-4 1/2 hours for the special poplation liaisons to complete even one

-round of calls, the Licensing Board simply directed the Applicants to modify the SPMC to ensure that notification of special' facilities be accomplished in a similar time frame to the notification of schools. The Licensing Board did not make 11/ PID 8.28 at p. 291.

that modification a condition for licensure, and did not even set a timeframe within which this modification had to be ,

accomplished. The total absence of any provision to ensure that special population liaisons can complete their calls within an hour to an hour and a half and the lack of any time framework within which to accomplish that goal, does not appear to even meet the Licensing Board's own limited evaluation criteria for reviewing an emergency plan. The Licensing Board has described ite task as being "rst to ausess what is, but ,

g rather to datermina what needs to be and whether there is reasonable casurance that what is necessary can be acquired or peiformed in a timely manner."1E/ There can be no assurance that appropriate revisions in the SPMC will be made in a >

" timely manner" when the Licensing Board has left the matter up to the " broad discretion" of the NRC staff to frame time limits for the changes in the SPMC.15/

In controvention of a FEMA Guidance Memorandum M-S1, the SPMC does not provide for ambulances to transport the contaminated injured. Instead, the SPMC relegates any response calling for the use of an ambulance to transport any contaminated injured person to an Ad h2g basis.22/

Regardless of the fact that the SPMC makes no provisions for ambulances to transport the contaminated injured, the Licensing 21/ PID 9.71 at p. 398.

11/ PID 13.6 at p. 568.

12/ PID B.58 at p. 307.

F o i t

Board still found reasonable assurance that sufficient number and types of vehicles will be available to meet the needs of the contaminated injured during a radiological emergency.AA/

In many respects the Licensing Board's erroneous finding on this matter is a paragiga of the Licensing Board's approach to its review of the SPMC. In its finding on this issue the  !

Licensing Board has in essence found that the Applicants' complete lack of a provision is still adequate in the eyes of the Licensing Board.

The Licensing Beard erroneously found that nursing homes and other special facilities would have adequate staff to '

effectuate an evacuation despite the recognition that nursing homes operate at reduced staffing levels at night and the Applicants' admission that they had no information as to whether the nursing homes in the Massachusetts EPZ had procedures for calling in additional staff.AAI In making its finding on this matter the Board relied on the testimony of an Applicant witness that he knew that some nursing homes in other parts of the country had such call in procedures. Such vague testimony concerning nursing homes in other parts of the country is not substantial evidence on which to base a decision ,

concerning the nursing homes in the Massachusetts EPZ. The Licensing Board attempted to buttress its finding by the assertion that if nursing homes needed 21/ PID B.61 at pp. 309-310.

12/ PID B.69 at pp. 312-313.

_~_ __ _ __ __ _ _ ____ __ __ _ _ _____ .

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I additional personnel to assist in an emergency, such perscnnel could be summoned from the ORO. Elsewhere in its decision the I l

Licensing Board put similar reliance on the availability of ORO <

personnel to assist special populations.AE/

The ORO has no personnel set aside to provide such l assistance. The SPMC looks to surplus route guides and desemetry record keepers to provide such assistance. Yet, even -

assuming that each and every route guide responded to an emergency and no dosemetry record keepers were needed to actually perform their assigned tasks, there would be only approximately 90 ORO personnel (33 surplus route guides and 48 '

dosenetry record keepers) to lend such assistance. Any such assistance, however, would have to be provided on an Ad h2G basic. There are no procedures in place by which to l' aplement such assistance. There are no vehicles allocated by which to transport the ORO personnel to the special facilities or t special needs persons needing assistance. The only evidence in record on this matter is the representation by the Applicants '

that the SPMC does provide for a phone number by which to request assistance.

In a real world radiological emergency however, the availability of one person to answer one phone is not going to provide any meaningful assistance to special facilities and the resident special needs persons in the Massachuetts EpZ. The SPMC's lack of personnel to assist special facilities and resident special needs population in a AS/ PID B.30 at pp. 292-293; 8.51 at p. 304.

radiological energency presents a genuine safety concern and a substantial reason as to why it is not in the public interest  !

to have the operating license be immediately effective.

In the PID the Licensing Board repeats the same error '

it made in its decision on the NKRERP concerning teachers as service providers. In Public service connany of New Hamnshire, et al. (Seabrook Station. Unita 1 and 21 ALAB 924, the Appeal '

Board found that the Licensing Board had erred in approving the NHRERp's reliance on school teachers as service providers without have record support for the assumption that teachers  !

would be engaged in activities they are usually called upon to '

perform. The Licensing Board made the ider,tical mistake in the PID with respect to Masst.chusettu' te&chers.AAI The only ,

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difference between the Licensing Board's decisicn on the SPMC '

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and the NHRERP this respect to chis issue is that in the PID, the Licensing Board compounds its error by making the same L

l mistake with respect to the staff of special facilities who are l called upon under the SPMC to continue to care for residents of special facilities.

1 The Licensing Board erred in finding the Westborough facility to be a suitable congregate care facility for the ,

special needs population. The use of the Westborough facility l for the special needs population is not entitled to a presumption of adequacy since FEMA never reviewed the use of ,

11/ PID B.73 at pp. 314-315; 8.76 at p. 316; 8.129-131 at pp.

342-343.

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e that facility to house special needs persons.AA/ The Licensing Board's finding that the Westborough facility is suitable for special needs population is not supported by the record since there is no indication that there are even handicapped accessible bathrooms in those buildings.A2/

The Licensing Board was wrong in assigning to the NRC staff review of procedures to ensure the reunification of school children with their parents. A review of such procedures calls for an exercise of judgment as to their adequacy. An exercise of judgment is more than a mere ministerial act. Such a task cannot be proper 1*/ relegated to post-license implementation.

The Licensing Board's finding that the Holy Cross host scheel f acility is adequate is without f oundation. FEMA never reviewed the use of Holy Cross as a host school facility, and therefore, the use of that facility is not entitled to the presumption of adequacy. While the Licensing Board apparently concludes that the use of Holy Cross as the host school facility is adequate, the Licensing Board does not provide any underlying reasons to support that holding. The Intervenors challenged the use of that facility on the grounds that: 1) it did not provide fo)r personnel to care for the children; 2) the l

12/ FEMA's finding as to the adequacy of the Shriners Auditorium in Wilmington as adequate for the special needs population is severely undermined by the fact that FEMA found that f acility to be adequate even though the Applicants subsequently admitted it could only house approximately half the special needs population.

A2/ PID 8.19 at p. 338.

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material resources that the children would need during their

stay at the facility such as food, diapers, cribs, ect.; and

3) there is no assurance that the facility would only be used t for a brief period of time.

Although the Licensing Board attempted to deal with two of the concerns raised by the Intervenors, the staffing and having no provisions for reuniting children which would result in the facility being operational indefinitely, the Licensing Board did not in any way address the other concerns raised.

There are still no arrangements to provide food or other material resources that small children will need, and there still is no assurance that the facility will reme,in open only for a short time until parents are able to collect the children. It should be noted that the school host facility is

, located approximately half way across the state from the Massachusetts EPZ. The ETEs for the Seabrook Plant are in some cases as long as nine hours. Given those long ETEs, plus the additional delays that will result from going through the monitoring and decontamination process at the reception centers, plus the drive half way across the state, even parents with cars may not be able to retrieve their children from the school host facility for many hours after that site is activated. The Licensing Board's ruling with respect to the school host facility fails to address any of those issues.

Other than the Licensing Board's highly dubious assertion that the host facility will be staffed by teachers, there is no reason at all to believe that its adequate.

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The Licensing Board's ruling as to the adequacy of j host hospitals for evacuees from the Massachusetts EPZ i hospitals is inconsistent with its finding on the adequacy of transpertation resources. In calculating how many host hospitals are needed to house evacuees from the Massachusetts EPZ hospitals, the Applicants have based their calculation on

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average daily census rather than what the facility's maximum census is at any time during the course of the year. N That I

needs assessment is inconsistent with t.he Board's finding at l PID 8.36 that its SPMC assumes 100% of the capacity of the hospitals will need transportation out of the EPZ. The I Applicants have made this calculation without having any data j on for what proportion of the year the average daily census is succeeded. The Licensing Soard has approved a planning basis where the Applicants are essentially rolling the dice that on the day an emergency occurs the hospitals will not be at maximum capacity. The Licensing Board tends to justify this cavalier planning basis by relying on the ill conceived assumption that only 119 persons at the ten Massachusetts nursing homes would require hospitalization rather than residence at the Shriners Auditorium. That premise is fallacious because it assumes that only people who need

" continuous medical care" need hospitalization. It assumes that all the other residents of nursing homes will be able to be accommodated on Red Cross cots at the Shriners Auditorium.

That assumption is palpably false since not only are the i.4/ PID B.135 at 344.

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Applicants not providing any staffing other than Red Cross >

volunteers to care for the nursing home population at Shrinors Auditorium, or the Westboro Facility, but they are not providing any of the material resources that would normally be .

required by a significant portion of the nursing home  ;

population such as bed rails and sanitary supplies.

• The Licensing Board erred in finding that there were enough ambulances available to meet the SPMC need for such vehicles. The only testimony introduced on this issue was that of two investigators from the Massachusetts Attorney General's office. Those investigators interviewed the ambulance companies with whom there were letters of agreement to provide services to the SPMC. Their unrebutted testimony established that of the 89 ambulances relied on as being available under I

letters of agreement, in fact only 60 ambulances would be available. Despite the fact that the Applicant's own assessment calls for the provision of 86 ambulances, the Licensing Board held that the gap of 26 ambulances between the number of ambulances that would be available (60) and those that were needed (86) was not sufficiently significant to warrant a finding that there is no reasonable assurance of transportation needs will not be satisfied.AE/ As a last ditch attempt to buttress its finding, the Licensing Board noted that other ambulances are available either in the EPZ or Massachusetts that could be called upon on an ad h2s basis.

The Licensing Board's penchant for ad has responses to 11/ PID at p. 375-376

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1 compensate for lack of provisions in the SPMC negates the whole purpose for emergency planning.

The only testimony offcred on the issue of the availability of busses to respond to radiological emergencies under the SPMC was the testimony of the two investigators from the Mass AG's office. Their testimony established that if a I radiological emergency were to occur during school hours, bus companies with a contract capacity of 393 busses would be  ?

unavailable to respond due to prior commitments. That would i leave the Applicants with approximately 237 busses to meet an assessed need of 367 busses.ASI The Licensing Board attempts to salvage this flaw in the SPMC by arguing that to the extent *

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that school busses are unavailable because they are already transporting school children the need for busses is less.52/ ,

What this analysis fails to recognize is that the busses that are unavailable because they are transporting school children, are not transporting children who reside in the EPZ. None of the bus companies that have Letters of Agreement with New Hampshire Yankee provide-services to schools in the EPZ. The fact that those busses from outside the EPZ are carrying non-EPZ school children does not in any way lessen the need to have busses available to transport school children from the EPZ.

11/ PID 9.35 at p. 377.

12/ PID 3.67 at 378-379.

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• Purthermore, the unrebutted testimony on the matter established that McGreggor-smith, the largest single source of '

busses claimed by the Applicants, is no longer participating as a vehicle provider to the SPMC.AI/ The Applicants rely on '

McGreggor-Smith to provide 120 busses. Without those 120 t

buses, the Applicants claimed availability of 530 busses is reduced to 410. That results in a surplus availability of busses of only 43 buses over the assessed need. Given the uncontroverted testimony that a significant number of the remaining busses will be unavailable due to prior commitment '

during school hours, that margin of error is not sufficient to assure that there will be an adequate number of buses to f service the SPMC.

The Licensing Board's order authorizing the issuance of a full-power operating license for Seabrook Station in the absence of the acquisition of, or Letters of Agreement

• providing for the provision of, bedbusses to transport the bedridden from the Massachusetts EPZ poses a clear and serious danger to the safety of the special needs population in the -

EPZ. As described above, the SPMC does not have an adequate number of ambulances to transport even those persons whom the Applicants have assessed needing ambulances. The SPMC relies on the availability of at least 31 bedbuses to transport the bedridden who are not assigned to ambulances under the SPMC's planning basis. The SPMC relies on the use of 31 evacuation 11/ PID 9.33 at 379.

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bedbuses with a capacity of ten persons per bus to implement an evacuation from the Massachusetts EPZ. Those buses simply do not exist at this time. It is at best grossly irresponsible to '

i authorize the issuance of a license when the overwhelming '

majority of the identified bedridden in the Massachusetts EPZ '

will not have resources available to transport them.12/ >

The SPMC adopts as a planning basis the assumption that 20% of the peak population in the EPZ will report to a reception center for monitoring and decontamination in the event of a radiological emergency.EE/ The Intervenors challenged the adequacy of the planning basis under JI-46. In ,

a ruling dated January 26, 1989, the Licensing Board barred the

Intervenors from litigating that contention based upon the holding that that issue had been litigated and decided in the l licensing proceeding for NHRERP that was decided in LBP-88-32, 28 NRC (1988). In the January 26, 1989 ruling, the Licensing '

i Board held that because the issue had been litigated and decided in a New Hampshire proceeding, it was res judicata with respect to litigation on the SPMC.

12/ PID 9.43 at 381. It should be noted that the SPMC relies upon bedbuses to transport approximately 310 bedridden persons from the Massachusetts EPZ. In contrast, the SPMC relies upon ambulances to transport only approximately 170 persons. The difference in gross transportation provisions is due to the

fact that ambulances have an average transportation capacity of only two persons per ambulance as opposed to ten persons per bus for evacuation bedbuses.

12/ PID 9.49 at 384.

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0 That finding is in direct contravention with the Appeal Board's holding in ALAB-924. In that decision the Appeal Board found that the issue had never been raised cz litigated in the

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New Hampshire proceeding. The fundamentally inconsistency of the Licensing Board ruling on this issue in light of ALAB-924,

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1eads to the unavoidable conclusion that the Licensing Board will almost certainly be overturned on this ruling with respect to this issue. To allow the issuance of a operating license

when it is in part premised on a known error of law, undermines the foundations of license proceedings under the Atomic Energy Act. It is obviously in the public interest that this not occur.

Based upon its own internal logic, the Licensing Board concluded that non-EP3 resident day trippers and employees will use reception centers at a rate lower than that of theit EPZ resident counterparts.E1/ There is no factual record that substantiates that conclusion. Instead the conclusion is the brainchild of the Licensing Board's own speculations on the matter. Such speculations do not amount to substantial evidence on which a finding of adequacy can be based.

The Licensing Board wandered even further afield in speculations than merely concluding that fewer EPZ resident day trippers and employees would use the reception center than EPZ counterparts. on the basis of virtually no evidence at all, the Board concluded that non-EPZ day trippers will use 11/ PID 9.62 at 392-393.

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i reception centers at a rate of 75% of their EPE counterparts. I In making its finding on this matter the Licensing Board pulled the 75% figure out of thin air.IA/ With that as a premise, the Licensing Board went on to find that the capacities of reception centers is adequate to accomodate the number of -

persons who will go there. That finding is obviously flawed i since it is founded on completely non-existent data.

Although the Board found that parking areas at the ,

reception centers are presently used by Massachusetts Electric Company as storage areas, and went on to require that the -

Applicants either identify existing procedures to ensure the parking areas are cleared of all obstacles or develop such procedures, the Board did not require those procedures be developed prior to the issuance of an operating license. Thac means that if an operating license issues, end an accident occurs, there is currently no assurance that the parking lots of the reception centers will be cleared of obstacles in a timely manner to accomodate evacuees in the event of an emergency, i

There is no factual evidence in the record upon which to conclude that the American Red Cross ( ARC) will be able to respond in a timely and adequate manner to provide staffing for congregate care centers under the SPMC. The ARC has not 11/ PID 9.63 at 393-394.

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participated in emergency planning with New Hampshire Yankee

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with respect to the SPMC. Therefore, the ARC has not

identified resources necessary to staff those centers, nor has '

t it pre-identified personnel to be available to those centers. i Any response by the ARC will of necessity take place on an ad has basis under the SPMC. The record contains no indications

• as to how long it will take the ARC to effectuate such response. '

Because the record is without factual predicate upon which the Licensing Board could find that congregate care centers '

will be activated in a timely manner, the Licensing Board is reduced to attempting to justify its approval of the SPMC  ;

provisions for congregate care through a long and wondering ,

inferential argument that is ultimately predicated upon the historical reliability of the ARC and the presence of ARC chapters in Massachusetts.E2/ An inferential argument cannot '

amount to substantial evidence upon which to base a finding of .

adequacy.

CONCLUSION Because of the above cited concerns, it is in the public interest that the immediate effectiveness of the Licensing 11/ PID 9.142 through 9.155 at 433-443.

3 Boards' order authorizing the issuance of an operating license be stayed.

i Respectfully submitted, i COMMONWEALTH OF MASSACHUSETTS  ;

JAMES M. SHANNON ATTORNEY GENERAL

• b .

John Traficonte Chief, Nuclear Safety Unit '

Leslie Greer Assistant Attorney General Nuclear Safety Unit

• Department of the Attorney  !

General '

one Ashburton Place Boston, MA 02108-1698 .;

(617) 727-2200 December 1, 1989 DATED:

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UNITED STATES OF AMERICA

NUCLCAR REGULATORY COMMISSION Sefore the Commissiont *h 0 I ~4 C U Kenneth M. Carr, Chairman Thomas M. Roberts, Commissioner Kenneth C. Rogers, Commissioner James R. Curtiss, Commissioner

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In the Matter of ) Docket Nos. 50-443-OL i

) 50-444-OL '

PUBLIC SERVICE COMPANY ) (Emergency Planning Issues)

OF NEW RAMPSHIRE, EI AL. ) '

)

(Seabrook Station, Units 1 and 2) ) December 1, 1989

)

CERTIFICATE OF SERVICE I, Leslie B. Greer, hereby certify that on December 1, 1989, '

I made service of the within MASSACHUSETTS ATTORNEY GENERAL'S

• COMMENTS ON THE IMMEDIATE EFFECTIVENESS ISSUE by Federal Exprear as indicated by (*) and by first class mail to the fol2owing parties:

Ivan W. Smith, Chairman Kenneth A. McCollom '

Atonic Safety & Licensing Board 1107 W. Knapp St.

U.S. Nuclear Regulatory CommisWion Stillwater, OK 74075 East West Towers Building 4350 East West Highway

. Bethesda, MD 20814 Dr. Richard F. Cole Robert R. Pierce, Esq.

Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East West Towers Building East West Towers Building +

4350 East West Highway 4350 East West Highway '

Bethesda, MD 20814 Bethesda, MD 20814

• Docketing and Service

• Thomas G. Dignan, Jr.

U.S. Nuclear Regulatory Commission Ropes & Gray Washington, DC 20555 One International Place Boston, MA 02110

• Marjorie Nordlinger, Esq. Paul McEachern, Esq.

U.S. Nuclear Regulatory Commission Office of the General Counsel Shaines & McEachern 11555 Rockville Pike, 15th Floor 25 Maplewood Avenue Rockville, MD P.O. Box 360 20852 Portsmouth, NN 03801 H. Joseph Flynn, Esq.

Assistant General Counsel Atomic Safety & Licensing Appeal Board Office of General Counsel U.S. Nuclear Regulatory Commission Federal Energency Management Washington, DC Agency 20555 500 C Street, S.W.

Washington, DC 20472 Robert A. Backus, Esq. Atomic Safety & Licensing Board Backus, Meyer & Solomon 116 Lowell Street U.S. Nuclear Regulatory Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03106 Jane Doughty Dianne Curran, Esq.

Seacoast Anti-Pollution League Harmon, Curran & Towsley Five Market Street Suite 430 Portsmouth, NH 03801 2001 S Street, N.W.

Washington, DC 20008 Barbara St. Andre, Esq. Judith Mitner, Esq.

Kopelman & Paige, P.C. 79 State Street 77 Franklin-Streat Second Floor

[ Boston, MA 02110 Newburyport. MA l- 01950 1

Charles P. Graham, Esq. R. Scott Hill-Whilton, Esq.

Murphy & Graham 33 Low Street Lacoulis, Hill-Whilton & Rotondi Nehburyport, MA 01950 79 State Street Newburyport., MA 01950 Ashod N. Amirian, Esq. Senator Gordon J. Humphrey 145 South Main Street U.S. Senate P.O. Box 38 Washington, DC 20510 '

Bradford, MA 01835 (Attn Tom Burack)

Senator Gordon J. Humphrey John P. Arnold, Attorney General One Eagle Square, Suite 507 Concord, NH 03301 Office of the Attorney General 25 Capitol Street (Attn: Herb Boynton) Concord, NH 03301 Phillip Ahrens, Esq. William S. Lord Assistant Attorney General Board of Selectmen Department of the Attorney General Town Hall - Friend Street Augusta, ME 04333 Amesbury, MA l 01913 G. Paul Bollwerk, III, Chairman Alan S. Rosenthal I

I Atomic Safety & Licensing Atomic Safety & Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Consission ,;

East West Towere Building East West Towers Building 4350 East West Highway 4350 East West Highway i Bethesda, MD 20814 Bethesda, MD 20814 Howard A. Wilber *Kenneth M. Carr Atomic Safety & Licensing Chairman Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission ,

East West Towers Buildiny 11555 Rockville Pike i Rockville, MD 20852 4350 East West Highway Bethesda, MD 20814

• Thomas M. Roberts, Commissioner *Kenneth C. Rogers, Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852 Rockville, MD 20852

• James R. Curtiss, Commissioner U.S. Nuclear Regulatory Commission '

11555 Rockville Pike Rockville, MD 20852 Respectfully submitted, JAMES M. SKANNON #

ATTORNEY GENERAL 4 . ut h .'. ' ~):

John Traficonte l

Assistant Attorney General Chief, Nuclear Safety Unit Leslie B. Greer -

Assistant Attorney General

• Department of the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200 l

Dated: December 1, 1989

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