ML20006B167

Brief of appellants-intervenors Towns of Salisbury & Amesbury on Appeal of Partial Initial Decision on Spmc LBP-89-32.* Matter Should Be Remanded to Board & Further Hearings Held.W/Statement of Issues & Certificate of Svc

ML20006B167
Person / Time
Site:	Seabrook
Issue date:	01/24/1990
From:	Saint Andre B AMESBURY, MA, KOPELMAN & PAIGE, SALISBURY, MA
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#190-9739 LBP-89-32, OL, NUDOCS 9002010031
Download: ML20006B167 (32)

Text

i i

January 24(0lg@g l l

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g g g gg;3g  !

ATOMIC SAFETY LICENSING APPEAL BOARD WFICE OF SECRETARY Before Administrative Judges: EHvlCL i

DOCK [ifN G. Paul Bollwerk III, Chairman Howard A. Wilber {

Alan S. Rosenthal h Docket Nos. 50-443-OL PUBLIC SERVICE COMPANY OF NEW )

HAMPSHIRE, ET AL. 50-444-OL  !

(Off-site EP)

(Seabrook Station, Units 1 and 2)

) .

BRIEF OF APPELLANTS-INTERVENORS TOWNS OF SALISBURY AND AMESBURY ON APPEAL _OF THE PARTIAL INITIAL DECISION ON THE SPMC LBP-89-32 1

l D

Barbara J. Saint Andre Kopelman and Paige, P.C., ,

Town Counsel 77 Franklin Street Boston, MA 02110 (617)451-0750 i

g88" 1883i $8 h & '

)$03

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il TABLE OF CONTENTS

) STATEMENT OF THE CASE Pace i

i I.

THE LICENSING BOARD COMMITTED ERROR IN REJECTING  !

SEVERAL OFFERED CONTENTIONS . . . . . . . . . . . . . 2  !

TOS Contention No. 3 . . . . . . . . . . . . .- . . . 4 i

l TOS Contention No. 7 . . . . . . . . . . . . . . . . 5 TOS Contention No. 10 . . . . . . . . . . . . . . . . 7 TOS Contention No. 21 . . . . . . . . . . . . . . . .

) II.

10 i

THE LICENSING BOARD IMPROPERLY LIMITED THE SCOPE t

OF CERTAIN CONTENTIONS . . . . . . . . . . . . . . . 12 I III. i THE LICENSING BOARD ERRONEOUSLY REJECTED CERTAIN PROPOSED FINDINGS WITH REGARD TO THE ADEQUACY OF

} THE SPMC TRAFFIC MANAGEMENT PLAN . . . . . . . . . . 17 j

)

1

)'  :

)

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}-

TABLE OF AUTHORITIES I CASES:

Page Duke Power Coreany, (Catawba Nuclear Station, Units 1 and 2), ALAB-3 55, 4 NRC 394 (1976) . . . . . . . . . . . 17

)' General Public Utilities Nuclear Coro., (Three Mile Island Nuclear Station, Unit No.1) ALAB-881, 26 NRC 465 (1987) . . . . . . . . . . .. . . . . . . . . . . . 17 Philadelehia Electric Comeany, (Limerick Generating Station, Units 1 and 3), ALA B- 8 4 5, 24 NRC 220 (1986) . . 3 Philadelchia Electric Comoany, (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13 (1974) 3 Texas Utilities Electric Comeany, (Comanche Peak Steam Electric Station, Unit 1), A LAB-8 68 , 25 NRC 912

) (1987) . . . . . . . . . . . . . . . . . . 3, 4, 6, 13, 16

>=

)-

)

i

.i

,,,.,i..,. . . . . .

b TABLE OF AUTHORITIES

) CASES: g Duke Power comoany, (Catawba Nuclear Station, Units 1 and 2), ALAB- 3 55, 4 NRC 394 (1976) . . . . . . . . . . . 17 B General Public Utilities Nuclear Coro., (Three Mile Island Nuclear Station, Unit No.1) ALAB-8 81, 26 NRC 465 (1987) . . . . . . . . . . . . . . . . . . . . . . . 17 Philadalchia Electric comeany, (Limerick Generating Station, Units 1 and 3), ALAB- 8 4 5, 24 NRC 220 (1986) . . 3 Philadelchia Electric Comeany, (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13 (1974) 3 Texas Utilities Electric Comeany, (Comanche Peak Steam 9 Electric Station, Unit 1), ALAB-868, 25 NRC 912 (1987) . 3 9

9 e ,

11 9

9

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'i e

i EEGULATIONS f hl

!t Pace  ;

10 CFR $2.714(b) . . . . . . .. . . . . . 2; 4, 7, G, 9, 13, 15 10 CFR $50.47(a)(1) . . . . . . . . . . . . . . . . . . 5, 13, 20 10 CFR $50.47(b)(1) . . . . . . . . . . . . . . . . . . . . 5, 13 10 CFR 550.47 (b) (8) . . . . . . . . , , . , , . . . . .5, 11, 13 7

.- . t MISCELLANEOUS $

Pace  !

Criteria for Preparation and Evaluation of Radiologien1 Response Plans and Preparedness in Support of Nuclear Power Plants, NUREG-0654, FEMA Rep.1, Rev.1, Supp.1 . . . . . . . . . . . . . . . . .11

)

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i STATEMENT OF ISSUPS I.

Whether the Licensing Board erred in excluding Town of Salisbury contentions 3, 7, 10 and 21 under the criteria for admission of contentions under 10 CFR $2.714. Memorandum and Order - Part II (Ruling on Contentions on the Seabrook Plan for Massachusetts Communities), July 29, 1988, p.42, 44-45, 47, 52. (hereinafter " Memorandum - Part II").

II.

Whether the Licensing Board erred in interpreting 10 CFR 62.714 as limiting the scope of Town of Salisbury contention 6 and Town of Amesbury Contention 4, which challenged the adequacy of the SPMC traffic management plan on the grounds that it fails to supply adcquate personnel and equipment to control traffic at key intersections in each town that were not designated as TCP's, to only those specific intersections identified in the contentions and bar,es.

Memorandum - Part II, at 11, 14, and 44. Tr. p. 16243-5.

]

III. Whether the Licensing Board erred in rejecting certain proposed findings of fact submitted by the Town of D

Salisbury, where the record fairly sustains those findings.

Eghlic service company of New Hamoshire, (Seabrook Station, Units 1 and 2), LBP-39-32, 30 NRC (Nov. 9, 1989),

Findings of Fact paragraph 3.68; Cor.clusions paragraphs h

1 3.131 and 3.132; Town of Salisbury Proposed Findings 3.12, 3.14, 3.15, and 3.1,13.

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UNITED STATES Oi' AMERICA

) NUCLEAR REGULATORY CC.TMISSION ATOMIC SAFETY LICENSING APPEAL BOARD Before Administrative Judges:

G. Paul Pollwerk III, Chairman (3

Howard A. Wilber Alan S. Rosenthal U

In the Matter of Cocket Nos. 50-443-OL PUBLIC SERVICE COMPANY OF NEW 50-444-OL HAMPSHIRE, ET AL.

(Off-site EP)

(Seabrook Station, Units 1 and 2)

()

BRIEF OF APPELLANTS-INTERVENORS TOWNS OF SALISBURY AND AMESBURY ON APPEAL OF THE PARTIAL INITIAL DECISION ON THE SPMC LBP-89-32 C)

STATEMENT OF THE CASE This is an appeal from the Partial Initial Decision issued  !

by the Licensing Board on November 9, 1989, with respect to the

'O Seabrook Plan for Massachusetts Communities ("SPMC") and the FEMA Graded Exercise. Public Service Comeany of New Hamoshi g t i (Seabrook Station, Units 1 and 2), LPB-89-32, 30 NRC (Nov.

O 9,

1989) (hereinafter cited as "PID" to paragraphs). The Towns l

I of Amesbury ar.d Salisbury, as Intervenors before the Licensing Board, entered appeals on or about November 22, 1989.

O Amesbury filed six contentions with the Licensing Board j challenging the adequacy of the SPMC, while Salisbury filed twenty-three.

On July 22 and 29, 1988, the Licensing Board lO l

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entered a Memorandum and Order in two parts which ruled on the admissibility of contentions filed by Amesbury, salisbury and the g other Intervenors. Memorandum and Order - Parts I and II, (Ruling on Contentions on the Seabrook Plan for Massachusetts Communities) (heroinafter cited as " Memorandum -'Part_1" or g " Memorandum - Part II"). Part I dealt with contentions filed by the Massachusetts Attorney General's office (hereinafter " MAG l

Contentions"), the Seacoast Anti-Pollution League and New England Coalition on Nuclear Pollution. Part II ruled on contentions filed by the various intervenor towns. Due to the large number of admitted contentions by numerous intervenors, many of which g raised similar issues, the a'dmitted contentions of the various 1

intervanors were consolidated into Joint Intervenor Contentions

] ("JI" Contentions) and litigated before the Licensing Board in

, that form.

This brief addresses three categories of errors by the Licensing Boardt 1. erroneous rejection of contentions; 2.

erroneous limitation of certain contentions that were admitted; I 3. erroneous rejection of proposed findings of fact.

I. THE LICENSING BOARD COMMITTED ERROR IN REJECTING SEVERAL OFFERED CONTENTIONS.

9 An intervenor's contention must set forth "the basis for each contention...with reasonable specificity." 10 C.F.R.

$2.714(b). It is well settled that the purposes of this requirement are to ensure, at the pleading stage, that the agency's adjudicatory process is not invoked for impermissible 9 2 1

9

7" purponcs, such a.

attacks on statutory requirements or challenges to Commission regulations, and that the issue at hand is appropriate for litigation in the particular proceeding. Additionally, the requirement' TT- " help [s)-assure that'other parties are sufficiently put on notice so that they will know at least generally what they will have to defend against or oppose."

i Texas Utilities Electric Company, (comanche Peak Steam Electric -

Station, Unit 1),-ALAB-868, 25 NRC 912, 930 (1987); Philadelphia

[)

Electric Comoany, (Limerick Generating Station, Units 1 and 2),

ALAB-845, 24 NRC 220, 230 (1986). "Like modern notice pleading in the federal courts, the purpose of the bases requirement is to l 13 -

provide only general notice of the intervenors' claim. As the applicants are well aware, they may fill any gaps in their w^' knowledge of the intervonors' case through discovery against the

intervenors." Id. at 933. The requirement of reasonable specificity does not require an intervenor to detail at the pleading stage the evidence it will offer in support of the contention. Philadelchia Electric Comoany, (Peach Bottom Atomic  !

Power Station, Units 2 and 3) ALAB-216, 8 AEC 13, 20 (1974).

"Section 2.714 should not be read and construed as establishing G'~.

secretive and complex technicalities such as in some other areas i of the law are associated with special pleading requirements for which some practitioners have an almost superstitious reverence." >

Id. Moreover, the Licensing Board is not to rule on the merits of the contention at this stage. Comanche Peak, 25 NRC at 931.

In this case, the Licensing Board appeared to construe 3

52.714 as establishing the type of secretive and complex technicalities the Appeal Board warned against in the Peach Bottom case. It rejected numerous contentions offered by the

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e Town of salisbury (hereinafter sometimes cited as "TOS") on the grounds they were " speculative", " vague", or lacked sufficient I j; #

= basis. While the Town is not appealing the denial of all i

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rejected contentions, when the contentions detailed below are examined in light of the purposes of the. pleading requirement, 1 l

rather than overly technical requirements, it is clear that they l should have been admitted. By failing to admit these contentions, the Licensing Board' deprived the Town of Salisbury

• of an. opportunity for a hearing on these issues.

TOS Contention No. 3

' The SPMC fails to provide assurances that adequate measures can and will be taken to protect the public in ,

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the Town of Salisbury as it fails to establish any .

reasonable basis from which it may be assumed that the offsite response organization will be sufficiently.

equipped and replenished to continue 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 within the Town of Salisbury.

The Board rejected this contention as vague and lacking a basis. Memorandum - Part II at 42. However, the contention is i

i certainly clear enough to provide notice to the parties of what is to be litigated. Comanche Peak, 25 NRC at 930. It questions whether the SPMC provides for the-Offsite Response Organization

("OR0") to be sufficiently equipped and replenished as necessary for 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />. operation. It could probably be said of any contention or basis that it could be more specific. However,

. 52.714(b). requires only reasonable specificity. The other

' parties, through discovery, would have been able to ascertain the 1

Levidence which the Town intended to offer in support of the contention.

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The second prerequisite is that the contention not ba an improper invocation of the hearing process,-such as a challenge to an NRC regulation.

This.Was not a basis for the rejection of-this contention.- In any event, it is clearly a proper subject for litigation. It is a direct challenge to whether the SFMC ,

provides reasonable assurances that adequate protective measures can and will be taken in a radiological emergency. 10 C.F.R. 5 50. 4 7 (a) (1) . Specifically, 10 C.F.R.,

5 50. 4 7 (b) (1) and (8) j.

v require the plan to' demonstrate that the ORO has sufficient staff r and. equipment to augment and maintain the emergency response.

This contention challenges the adequacy of the SPMC in meeting those criteria.

iO The basis also meets the third test, that the issue is appropriate for this particular proceeding. Section 2.1.1 of the '

O SPMC provides that evacuation-specific positions will have only one shift of available. personnel, with an additional twenty percent as back-up. It further states that additional personnel for certain positions, including-traffic guides, will be lC requested from Yankee Atomic Electric Company. However, there is I

no indication how'many such personnel are available, for how long, and what training, if any, they have received. Nor is O

.there support for the use of only twenty percent available back-

- ups . - In short, there is no adequate assurance of long term availability of personnel.

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TOS CONTENTION 7 1

The SPMC fails to provide assurances that adequate measures can and will be taken to protect the public in O 5

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the Town of Salisbury because the Utility's plan fails

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to compensate for emergency personnel vehicle parking at transfer points and other traffic sensitive areas in the town where any parked vehicles would impede evacuating traffic and cauce critical delay in evacuating populated areas of the town.

~The Licensing Board rejected this on the grounds that such parking is not likely to be done in a manner that will impede evacuation, and the contention contcined no basis for believing otherwise. Memorandum - Part II, at 45. In effect, the l Licensing Board reached the merits of the contention at the pleading stage, which is clearly improper. Comanche Peak, 25 !!RC at 931. Rather than determining if it raised a litigable issue, the Licensing Board made a finding of fact, without benefit of a hearing, that the parked vehicles would not impede the evacuation. This is beyond its authority at the contention stage. Moreover, the Licensing Board is once again requiring the intervenor to detail its evidence prior to the hearing. This contention provided sufficient notice of what was to be

' litigated, which was the parking of ORO vehicles at the Salisbury transfer point and traffic control points ("TCP"). It'further alleged that these vehicles would impede traffic, thereby causing-

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delays in the evacuation of traffic. This is clearly'a litigable I issue, since it challenges whether the traffic management plan-is adequate and implementable. Regardless of the Licensing Board's view of the merits of this contention, the Town of Salisbury had

[b 'the right to present its evidence on this issue.

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TQS_RONTENTION NO. 10 i The SPMC falls to provide assurances that adequate qu measures can and will be taken to protect the public in Ji the Town of Salisbury because the Utility's plan fails to provide traffic control at critical points on Route 110 in Salisbury where eastbound emergency traffic is likely to_be'obstructcd by westbound traffic entering from side streets and attempting to travel against the planned flow of traffic.

1 This contention was' rejected by the Board for two reasons:

the alleged critical points were not identified, and the ,

allegations of-drivers not following traffic control

)I recommendations was deemed to be a previously litigated human behavior issue. Memorandum - Part_ll, at 47. The first grounds for rejection was deemed to be a common one used against

) intervenors by the Licensing Board in this case. The Board ruled a number of times that a contention or basis must identify each and every street or intersection at which an intervenor claimed

}l additional traffic control is needed, or those intersections were outside the scope at the contention. How this served the purpose for reasonable specificity was never cogently explained by the-Licensing Board, however, which seemed to impose a higher burden with respect to these types of contentions than it ordinarily would under $2.714 (b) .

} JUDGE SMITH: Oka Now, that's going back to what our practice was,y.to admit these contentions from the towns when they allece a carticular' intersection or narticular eroblem known to them better than anybody L. else in the whole world, to limit the basis in the contention to the examoles they aave.

) We did that over and over.and over again with respect to every town, and that's what'we did this time, and our rulings were consistent all the way through.

What do you believe that that phrase identified in the basis statement meana?

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r MS.-SAINT ANDRE: I believe, Your Honor, that that refers to the fact that you were excluding the very end of that bases which' talks about-the fact, "The SPMC,

.however, provides only two traffic guides to manage

.1 L this entire area which would be wholly inadequate given anticipated vehicles."

traffic volume, including emergency JUDGE SMITH: No, ye consistently on-the towns recuired them to identify the carticular traffic

,C ; oroblem that thev were alleoina was a oroblem. And we 3 did not allow, in aeneral, unsoecified alleaations to i be admitted because in this instance we held the towns ,

to a carticular within standard their town, of knowledae and that's of the conditions what we did. I'm sure that other of your colleagues from the towns can recall

Y} it has happened to them in their contentions, and-wa did it in every instances, and that's what I think ec did now in this case.

<3 JUDGE SMITH:

is not persuasive.

Well, in this case what you'tell me My memory is, and my memory of the practice is that what was admitted here'was the.

bottlenecks, choke points and needs identified in the basis statement and nothing else. It was not a i.

example. .We did not accent exemolary tvoes contentions iC- on traffic choke coints and bottlenecks in the towns or other oroblems, because we held them to a thorouah l

Rnowledae of the oroblems that existed in their town.

Tr. 16243-5.-

(emphasis added).

Thus, the Licensing. Board seened to single out certain f

contentions by the intervenor towns and hold them to a higher L

standard of specificity than the " reasonable specificity" of.

. 52.714(b). The Licensing Board's assertion that the towns are c0 1 more familiar with their streets, and therefore must provide more

' detail and specificity in their contentions, finds no support in 52.714(b) or prior decisions.

lC The standard under 62.714 (b) remains the same.for all contentions. The Board unjustly deprived the Town of Salisbury, with regard to this contention,

'Of e 9

m i of'the opportunity to litigate one of the most important issue to ,

the town .the adequacy of the traffic management plan.- Had the

(/ Town of Salisbury known, through regulation, prior Nuclear ,

Regulatory Commission ("NRC") rulings or caselaw, that its contentions in this regard were required to meet a higher standard, it could, indeed, have provided these details. i Instead, it rightfully relied on $2.714(b) and NRC interpretations of that rule, and provided sufficient notice of what At sought to have litigated - the need for more TCP's along Route 110 in Salisbury - and properly left for discovery the specific. intersections and other details of its case. This same .

1 s

ruling was used over and over again by the Licensing Board to '

exclude crocial contentions and evidence offered by the intervenors on numerous defects in the SPMC's traffic management plan. The Board's ruling went far beyond the three_ purposes of the reasonable specificity requirement.

The second ground offered by the Licensing Board to reject this contention was that it concerned a previously litigated issue, driver' behavior. However, as the Licensing Board itself later acknowledged, the only driver behavior issue previously litigated was that of aberrant behavior (e.g. panic, assaults on emergency personnel). Tr. 16169-16171, 16252-16253. By contrast, evidence of normal driver behavior when faced with a '

traffic -jam of any type, not necessarily one caused by an emergency evacuation, was admitted by the Licensing Board at the

, hearing. Tr. 16169. This included evidence that drivers would 9

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use'available' travel = lanes, even on the wrong side of the road, i i

E.g., Beevers Dir.-ff. 17217 at.7-8. Since this contention ,

alleges only that westbound traffic will be entering from side &

streets and attempting to travel against the planned flow of traffic, it is not the type of driver behavior issue which is

• within the scope of the previously litigated issue, by the Licensing Board's own interpretation. Accordingly, the i contention'should have been admitted.

'; TOS CONTENTION NO. 21 The SPMC fails to provide assurances that adequate ,

measures can and will be taken to protect the public in the Town of Salisbury because the Utility's plan fails

'to provide' adequate measures to protect the public in

) the event of a snow storm emergency as it fails to identify necessary resources for expedited snow removal and additional buses necessary to compensate for snow bound passenger cars.

The Licensing Board rejected this as the " ubiquitous snow

} removal contention" on the same grounds as it rejected MAG Contention 30: that it' lacked a sufficient basis, and that it is inconsistent with the best efforts presumption. Memorandum -

) Part'II-, at 52.

TOS Contention 21 is somewhat different from MAG Contention 30, however, as it alleges that the SPMC fails to identify necessary resources for expedited snow removal and that additional buses will be necessary to compensate for snow bound i

passenger cars.

This is another example of the Licensing Board addressing 7 the merits of the contention in ruling on its admissibility. The Board, in ruling on MAG Contention 30, inferred that the basis for the contention must be that evacuation would interfere with

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snow removal, but continued that there was no basis for assuming an' evacuation would be ordered if unremoved snow makes that

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r impractical.

(This ignores, of course, the possibility that adverse weather could strike after an evacuation has been commenced.) In this reasoning, the Licensing Board essentially speculated as to what evidence would be offered to support the contention, then ruled, on the merits, that a snow storm would not adversely effect an evacuation. Instead of. stepping into the intervenor's shoes, trying its case for it, and ruling against it, the Board should have admitted the contention, allowed the Town of Salisbury to introduce its own evidence, then ruled on

.the evidence before it.

-This contention satisfies the three-prong test. It addresses a litigable issue, .whether adequate emergency equipment is available to support and maintain the emergency response. 10 {

CFR 550.47 (b) (8) . Moreover, the Criteria for Preparation and Evaluation of Radiological' Response Plans and Preparedness in l Support of Nuclear Power Plants, NUREG-0654', FEMA-Rep-1, .Rev. 1, Supp. 1, Criteria I,J.10.k., requirec the plan to identify and provide means for dealing wit potential impediments to evacuation routes, including seasonal impassability.of roads.

' It is also sufficient.to put the parties on notice of what is to be litigated.

Moreover, this contention does not violate the best efforts presumption. Rather, even if best efforts are assumed, a wholesale evacuation of the population does not usually take -

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place during snow removal efforts.

If anything, there usually tends to be less traffic during snow storms, as many people choose not to drive under adverse conditions. The contention focuses on the lack of provision for expedited snow removal under the usual circumstances of an evacuatesn, where two factors are present which are not ordinarily encountered by town snow removal personnel during a storm: i a mtssive increase in traffic which {

would undoubtedly block snow removal equipment, and the need to expedite that large volume of traffic out of the-town.

Finally, Sal'isbury's contention raises an issue not raised under MAG Contention 30 and not addressed by the Licensing Board in.its ruling: i whether additional buses would be needed to l compensate for snow bound passenger cars. This contention clearly meets the three prong test for admissibility. It does

'): not invoke the process for an improper purpose, since it t l

challenges the adequacy of the SPMC's provisions for transit-dependent persons. It also provides sufficient notice of what is to be litigated, and is appropriate for litigation in this case.

Accordingly,.TOS Contention 21 should have been admitted. i II. 1 THE LICENSING BOARD IMPROPERLY LIMITED THE SCOPE OF j CERTAIN CONTENTIONS.

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Town of Salisbury contention 6 and Town of Amesbury l Contention 4 challenged the adequacy of the SPMC traffic management plan on the grounds that it fails to supply adequate T

personnel and equipment to control traffic at key intersections t

in the towns which are not designated as TCP's. Although the '

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Licensing Board admitted the contentions, it ruled that they were

limited to those intersection identified in the contentions or supporting bases.

Memorandum - Part II, at 11, 14, and 44. As a result, it also excluded evidence offered by the Town of Amesbury regarding numerous intersections in the Town which required

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traffic control personnel. Tr. at 16243-5.

.O All of these rulings were erroneous.

The Board premised its rulings on the requirement for v reasonable specificity under 10 CFR 62.714 (b) . As noted in part I of this brief, the purposes of the specificity requirement are three fold. The first is to ensure that the agency's adjudicatory process is not invoked for an impermissible purpose, such as attacks-on Commission regulations. Another is to assure that the issue is appropriate for litigation at the particular L

proceeding. Comanche Peak, 25 NRC at 930. The. Licensing Board O

recognized that both of these two criteria were met in admitting l

these two contentions, albeit in.a limited form. The third $

f LO-requirement, which is the crucial one here, is to put the other-parties on' notice so that they will know at least generally what they will have to defend against. Id.

Amesbury's Contention 4 provided:

The SPMC fails to provide for adequate personnel or l

' resources to implement the SPMC, including a comprehensive traffic management plan, fails to provide for appropriate means of relocation for the public, and otherwise fails to provide reasonable assurance that

!QL adequate protective measures can and will be taken in the event of a radiological emergency at Seabrook Station in violation of 10 CFR 550.47(a) (1),

50. 47 (b) (1) , 50. 47 (b) (8) , 50. 4 7 (b) (10) , NUREG-0654 II.A and II.J.10.

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Th3 Town listed numerous bases to support this contention, each of which_the Licensing Board reviewed and ruled on.as if it were e a separate = contention.

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Two of the bases offered in support'of Amesbury Contention 4 were 4.B.(2),

The Town of Amesbury will in fact require substantially more than 16 traffic guides to staff anticipated and significant traffic choke points....

Q and 4.J.,

The Traffic Management Plan for the Town of Amesbury is inaccurate or incomplete and fails to depict certain anticipated bottlenecks and choke points

{} at key intersections in the town. For example, the routing. map at Amesbury Center, Appendix J, p. A-3, TCP  !

i

-No.-B-AM-01, omits the intersection with Friend Street, i

' although up to.1/6 of Amesbury's resident population  ;

could be expected, during an emergency, to access onto Friend Street, which.is adjacent to the Amesbury High et School end-Cashman Elementary School. No traffic  ;

control is provided under the SPMC for these likely congested areas, even though the SPMC itself I l

' contemplates that parents will be returning to schools a

-to pick up their children. SPMC Plan, p. 3.1-6. 1 Similarly, the Amesbury Transfer area. where evacuation j c1

" buses will be entering and exiting, is located '

approximately.1.4 mile from Amesbury Center. The SPMC, however, provides only two traffic guides to manage this entire area, which would'be wholly inadequate  !

given anticipated traffic volume, including emergency vehicles.

?> "

'In its Memorandum - Part II, at 11 the Licensing Board rejected i basis-4.B(2) as too vague, and as to 4.J., the Licensing Board  !

j ruled:

cv

i Basis 4.J. We agree with the Staff and admit the  ;

portion of Basis 4.J. which concerns the Traffic '

Management Plan for the Town of Amesbury to the extent that it relies on bottlenecks, chokepoints, and the need for additional traffic management identified in f) . the basis statement. Id. at 14.

j At the hearing, Amesbury offered testimony from its Police Chief, Michael A. Cronin, with regard to twenty-two intersections l

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!Os in the Town which were not designated as TCP's, yet which would i

become choke points or bottlenecks in the event of an evacuation y due to a radiological emergency at Seabrook Station. Amesbury Exhibit 1, pp.12-16. The Board, however, limited the Police n

- Chief's testimony to two intersections, i.e., Friend Street / Main O^ Street and Friend Street / Highland Street. It ruled that the contention, as it pertained to basis 4.J., had been admitted only

- as to the two specific intersections mentioned in 4.J., and that g the reference in 4.B. and 4.J. to " bottlenecks and chokepoints at key intersections" lacked the " reasonable specificity" required by 10 C.F.R. 52.714(b). Tr. at 16243-5.

O- The Board made a similar ruling with respect to Salisbury contention 6, which provided:

The SPMC fails to provide assurances that adequate measures can and will be taken to protect the public in O- the Town of Salisbury because the Utility's plan fails to provide for the dispatch oc sufficient numbers of traffic guides and supplies along major evacuation routes and at major intersections in the Town of Salisbury particularly at the Salisbury Transfer Point and at points on Beach Road where traffic becomes O! restricted to fewer travel lanes, which failure would promote disorder and delay in evacuation of the beach

-areas of the town.

The Licensing Board found the contention to be too vague, and therefore admitted it only in a revorded fashion:

The SPMC assigns too few traffic guides and insufficient equipment to the Salisbury Transfer Point and to those points along Beach Road where travel land reductions occur.

.O ' Memorandum - Part II, at 44. In limiting both of these contentions, the Licensing Board erred and deprived the Towns of their right to a hearing.

O 15 O

g

. . I The Licensing Board apparently believed that, unless each

. intersection-at issue was specifically identified at the y contention' stage, the other parties "will not know at least

' generally what they will have to defend against." comanche Peak, l 25 NRC at 930. However, the key word in this test is "cenerally". The intervenor is not required to detail all of the l l

facts which support the contention. In both cases, the 1

contention contained sufficient specificity for the other parties to know generally what was to be litigated. .Under Amesbury hk '

Contention 4, it was to be the failure of the SPMC to depict and provide traffic control for anticipated bottlenecks and chokepoints in the Town. Under Salisbury Contention 6, it was.to be the failure to provide sufficient traffic guides and supplies  :

along major evacuation routes and at major intersections in the '

Town. In both cases, sufficient notice was given, and the other

-[) -

parties could obtain further details via discovery. Comanche Peak, 25 NRC at 933. (In fact, Amesbury provided all this t

information to applicants during discovery.)

h ~~

For these reasons, and the reasons. set forth in'Part I of this brief with regard to l

TOS Contention 10, these two contentions should have been t

admitted as is. The failure of the Board to allow Amesbury and

' Salisbury to litigate these issues deprived them of their right to a-hearing.

i r .

16

ID;.

L III.

THE LICENSING BOARD ERRONEOUSLY REJECTED CERTAIN PROPOSED FINDINGS WITH REGARD TO THE ADEQUACY OF f

THE SPMC TRAFFIC MANAGEMENT PLAN.

lO 7

. This Appeal Board has substantially more discretion to review and overturn the Licensing Board's findings of fact than a court exercising judicial review. Duke Power Comoany, (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 394, 403 (1976).

The Appeal Board is not required to accede to a licensing board's findings of fact even if they are supported by substantial evidence or are not clearly erroneous. Id. In reviewing factual findings of a licensing board, the Appeal Board may substitute its judgment for that of the fact finder if the record fairly O sustains such a different result. General Public Utilities.

Nuclear Coro., (Three Mile Island Nuclear Station, Unit No. 1),

ALAB-881, 26 N.R.C. 465, 473 (1987).

In:this case, o; the Licensing Board made virtually n2 findings with regard to much of the evidence presented on behalf of the =

TownLof Salisbury. Rather, it sil.iply ignored unrebutted 10 testimony as to the deficiencies in the SPMC traffic management plan for the town.

Specifically, the Board's findings with regard to' TCP-B-SA-06, the intersection of Routes 1, 1A and 110 at Salisbury Square, .

O through which traffic evacuating from Salisbury Beach will pass, ignored unrebutted-testimony. This was one of only two TCP's, among the many that were assailed by the intervenors, which was O

discussed at any length in the Board's decision. PID, paragraphs 3.41-3.57.

However, while discussing the testimony of Dr. Adler, Q 17

. C)

C'  ;

a witness for the Massachusetts Attorney General, and Mr.

Lieberman, who testified on behalf of the applicants, the i

y. Licensing Board virtually ignored the testimony of Salisbury's Acting Police Chief Frank Beevers, despite the fact the Board found that Chief Beevers has over 30 years experience as a police

.y v officer in the Town of Salisbury, and that he was competent to testify as to traffic conditions and patterns in the Town of '

Salisbury. PID, paragraphs 3.12 and 3.14. Yet the Board, without one word of explanation, rejected Town of Salisbury's proposed findings of fact paragraphs 3.1.2, 3.1.4, 3.1.5, and 3.1.13, all of which dealt with traffic conditions and patterns

%)

in Salisbury, and all of which were supported by Chief Beevers' testimony.

In particular, Salisbury's Proposed Finding of Fact 3.1.4 O described- the ~1or; traffic jams which occur on summer weekend days on Route 1A, the access to Salisbury Beach. These traffic jams are from two to five miles of bumper-to-bumper traffic and O'-

can last for four-to five hours. Similarly, proposed Finding 3.1.5 details the causes-of this-back-up, and indicates that the usual bumper-to-bumper traffic jam becomes considerably worsened when all the persons at the beach leave at once, as when a rain 0:

storm hits suddenly. This can result in three to four hours of gridlock, on-top of the usual delay. These proposed findings were based on testimony from Chief Beevers based upon his Q'

personal observations. Beevers, Dir, ff. Tr. 17217 at 5-9; Tr.

17230. They were not contradicted by other testimony, yet were totally ignored by the Licensing Board. Obviously, the current

'O.

18 O

QE traffic conditions are not only relevant, but a crucial element in designing and evaluating an emergency evacuation plan and

}j. Evacuation Time Estimates ("ETE"). The Licensing Board erred in not allowing proposed Findings 3.1.4 and 3.1.5. Since the record as a whole fairly supports them, this Appeal Board should allow y these Findings.

Based upon this unrebutted testimony, Town of Salisbury proposed Findings 3.1.2 found that the SPMC plan is inadequate, c)- since it fails to provide adequate personnel to evacuate the '

Salisbury Beach area. The number of Traffic Guides provided for

-is -inadequate to maintain two-way traffic, remove obstructions, 1Q

, and ccntrol conflict points. Beevers Dir. ff. Tr. 17217 at 10.

Proposed Finding 3.1.13 provides that the failure of the SPMC to t identify sufficient TCP's and adequately design and staff those it does identify, will lead to traffic queues rather than expedited traffic. Moreover, normal driver behavior in the face L

of such delays will lead to drivers driving over traffic control

- cones, using available travel lanes, and using cut throughs to attempt to escape the traffic jam. Beevers Dir. ff. 17217 at 7-8; O'Connor Dir. ff. Tr. 16458 at 14-19; Tr. 16321; 16330-2; 17264-6; 17282; 17285.

1 All of the facts underlying proposed Findings 3.1.2 and 3.1.13 were essentially undisputed. Chief Beevers' testimony that a wholesale exodus from Salisbury Beach causes up to four hours of traffic gridlock, plus up to five hours of bumper to bumper traffic, when coupled with the additional traffic impact O 19 O.

l.

C..

of local residents also trying to leave, leads to the inescapable-conclusion that the SPMC does not and cannot evacuate the

) Salisbury Beach area itself in less than ten hours.- Additional time will be needed for this traffic to exit the Emergency Planning. Zone ("EPZ"). Thus, despite all of Mr. Lieberman's computers, the cold hard facts are that the ETE of ten hours for the last person to clear the ten mile EPZ boundary, which was found-by the Licensing Board in Findings paragraph 3.68, is l

y unrealistic. The SPMC does not~ provide reasonable assurances that adequate protective measures can and will be taken in the j event of a radiological emergency. 10 CFR 9 50. 47 (a) (1) . Since the proposed Findings are fairly supported by the record, the i Appeal Board should so find. i CONCLUSION For the foregoing reasons, this Appeal Board should find i

[

that the traffic management plan in the SPMC is' inadequate and  !

l 1

that the SPMC therefore fails to provide reasonable assurances i i

that adequate protective measures can and will be taken in the I I'

event of a-radiological emergency at Seabrook Station. In addition, it should find the Licensing Board improperly excluded

, i b l (Y l I

O 20 4

i

r and-limited contentions, as discussed'herein, and reverse and remand this matter to the Board with instructions to admit those

- contentions in their entirety and hold further hearings.

Respectfully submitted j Intervenors Town of y Salisbury and Town of Amesbury, l r'

I i

"BarbaraJ/an(aintAndre Kopelman d Paige, P.C.,

Town Counsel 77 Franklin Street )

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Boston, MA 02110 l (617)451-0750 a

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a 1 00CKETED USHRC am t

'90 JAN 26 A9:38 ,

OFFICE OF SECf>[;y((- F C.00KL1WG!.

i:itANCH ,

CERTIFICATE OF SERVICE '

O? I, Barbara J. Saint Andre, do hereby certify that on January 24, 1990, I served a copy of the foregoing Brief of Appellants-w Intervenors Towns of Salisbury and Amesbury on Appeal of the V

Partial Initial Decision on the SPMC LBP-89-32 by mailing it, }

postage prepaid, to-the parties on the attached service list and by express mail to those marked with an asterisk.

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f, 8arbara J. Saint Andre- ,

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b 'Ivan Smith,.--Esq., Chairman ej' LAtomic Safety;& Licensing Board '

(Off-site).

'U.S; Nuclear Regulatory Commission p.s , Washington,-D.C. 20555*

Administrative Judge Richard F. Cole

' Atomic Safety & Licensing Board

'(Off-site) _.

U.S. Nuclear' Regulatory Commission 3

Washington, D.C. 20555*

Robert R. Pierce,--Esq. '

Legal Counsel -

Atomic Safety & Licensing Board Panel (Off-site):

U.S. Nuclear Regulatory Commission k Washington,.D.C. 20555*

l

]' ' Adjudicatory File-  ;

Atomic Safety and Licensing Board Panel 1U.S. Nuclear Regulatory Commission Washington, D.C. 20555*

, Office of-the Secretary ATTENTION: ; Docketing andLService Section U.S.-Nuclear Regulatory Commission Washington, D.C. 205556 f PhilipiAhrens,J Esq.

= Assistant = Attorney' General

Office of the Attorney General State House =

Station 6

' Augusta,-ME 04333.

Mitzi1A. Young,-Esqi

'Edwin'J'. Reis,.Esq -

iOffice_of General' Counsel

-U.S. Nuclear Regulatory ~ Commission-

' Washington,1D.C.: 20555*

Thomas.Dignan, Esq.

Ropes &' Gray-

'One International Place Boston, MA 02110-2624*

f Robert A. Backus, Esq.

Backus, Meyer:& Solomon lil Lowell Street Manchester, NH 03105 I

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. -Ms. Jane Doughty-Seacoast-Anti-Pollution League 35 Market 1 street-(Portsmouth,.:NH 03801 I

LHI Joseph ~Flynn, Esq.

Office of' General Counsel Federal Emergency Mgmt. Agency 500 C Street, S.W.

Washington,_D.C. 20472 I4 Ashod N. Ainirian, - Esq. -

145 South Main Street P.O. Box.38-Bradford,oMA'018352 Richard. Donovan D:

' Federal:EmergencyLManagement Agency

,; Federal Regional Center.

130 228th Street, S.W.

Bothell", Washington. 98021-9796 B

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. Senator Gordon J. Humphrey One Eagle Square,; Suite.507

Concord, NH 03301

.(Attn: Herb Boynton)

John Traficonte,'Esq.

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Department of the Attorney General one-Ashburton Place

-Boston,-MA 02108 LDiane-Curran,1Esq.

Harmon Curran & Tousley

2001 S Street, N.W., Suite 430

9.  ; Washington,.D.C.- 20009-1125 William-S' Lord RTown~ Hall

Friend-Street

-Amesbury, MA 01913

~ Senator Gordon J. Humphrey

'U.S. Senate

Washington,vD.C. 20510 a '(Attn

- Tom Burack)

$1 George D. Disbee, Esq..

1. ~ Assistant' Attorney General Office of the-Attorney General 25: Capital Street-Concord, NH 03301 B,

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LJudithIM.-Mizner,.Esq.

, 79 State 1 Street y JNewburyport, MA 01950 '

y -R.~ Scott Hill-Whilton, Esq.

eLagoulis,JHill-Whilton & Rotondi

~79 State Street Newburyport,,MAl01950 Administrative Judge =Kenneth A. McCollom

.1107 West Knapp Street' I -Stillwater, OK 74075*

Kenneth M. Carr, Chairman.

.U;S.zNuclear Regulatory Commission

$ Washington, D.C. 20555*

, James?R.LCurtiss, Commissioner

'U.S. Nuclear = Regulatory-Commission Washington,-:D.C. 20555*

Thomas.M.' Roberts, Comission'er

, U.S. Nuclear: Regulatory = Commission b

e Washington,oD.C. 20555*:

-Kenneth C. Rogers, Commissioner JU.S. Nuclear Regulatory Commission

's Washington,iD.C.'20555*-

> G. PaulJBollwerk, III',, Chairman

-Atomic'Safetyfand Licensing? Appeal Board U.S. Nuclear: Regulatory Commission

Washington,JD.C.L20555*

LAdministrative Judge Alan-SL Rosenthal; .

I LAtomic?Safetyiand; Licensing Appeal Board U.S.;NuclearERegulatory Commission

Washington, D.C.~20555*'

Administrative Judge Howard A.'Wilbur

. Atomic Safety andELicensing(Appeal Board D

U.S. Nuclear Regulatory Commission

Washington, D.C.,20555*

Mr. Jack Delan

-Federal Emergency Management Agency sRegion3I

> J.W.'McCormack Post Office &

CourthouseJBuilding,' Room 442 Boston,-MA 02109

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l George I'verson, Director M

-(N.H.. of fice of.' Emergency ' Management 4" i State. House '. Of fice - Park.- South -

107:. Pleasant ~-Street -

-Concord, NH 03301-Q: .

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