ML19351A703

Applicant Response to Intervenors Immediate Effectiveness Review Comments,Stay Requests & Suppl to Intervenors Motion to Vacate Portions of LBP-89-32 Authorizing Issuance of Seabrook Ol.* Requests for Stays Should Be Denied

ML19351A703
Person / Time
Site:	Seabrook
Issue date:	12/08/1989
From:	Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	NRC COMMISSION (OCM)
Shared Package
ML19351A704	List: ML19351A703 ML19351A705
References
CON-#489-9594 LBP-89-32, OL, NUDOCS 8912270051
Download: ML19351A703 (131)

Text

i I ""

December 8, 1989 l

l I UNITED STATES OF AMERICA before the

'{

B NUCLEAR REGUIATORY COMMISSION i

I In the Matter of f PUBLIC SERVICE COMPANY Docket Nos. 50-443-OL OF NEW MAMPSHIRE, 3.t al. 50-444-OL '

W (Seabrook Station. Units 1 (Offsite Emergency

-and 2) Planning and Safety Issues)

APPLICANTS' RESPONSE TO INTERVENORS' IMMEDIATE

' EFFECTIVENESS REVIEW COMMENTS, STAY REQUESTS AND SUPPLEMENT  ;

t.

I TO INTERVENORS' MOTION TO VACATE THOSE PORTIONS OF LBP-89-32 AUTHORISING ISSUANCE OF A SEABROOK OPERATING LICENSE i

I I Thomas G. Dignan, Jr.

George H. Lewald I Jeffrey P. Trout Jay Bradford Smith Geoffrey C. Cook s

! I William L. Parker Ropes & Gray One International Place I Boston, MA 02110-2624 (617) 951-7000 counsel for Applicants I 8912270051 091208 PDR ADOCK 05000443 l I 0

PDR yD3

.. __ . _ . ~

i E TABLE OF CONTENTS TABLE OF AUTHORITIES . . . .. . . . . . . . . . . . . . . . 11 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . I ;

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 9 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . 9 I. THERE MAS BEEN NO DEMONSTRATION OF ERROR WHICH PERMITS OR REQUIRES THE WITHHOLDING OF AN OPERATING LICENSE AUTHORIZING FULL POWER i OPERATION . . . . . . . . . . . . . . . . . . 10 A. The Issuance of ALAB-924 Does Not i Preclude the Issuance of an Operating License Authorizing Tull Power Operation . . . . . . . . . . . . . . . . 10

1. Introduction . . . . . . . . . . . . 10

2. Even Assuming That the Appeal Board Was Correct in Reversing and 1 Remanding Any or All of the Four Matters, Its Action Does Not I Require Denial of the Issuance of a Full Power Operating License as a Matter of Law . . . . . . . . . . . 11

3. Nont, of the Shortfalls Pointed out

in ALAB-924 Are Presently

Significant . . . . . . . . . . . . 16 l B. There is No Likelihood that Substantial l Error Will be Found as to Any Other l

Matter Addressed in the PID or in ALAB-924 . . . . . . . . . . . . . . . . . . . 32

, 1. Introduction . . . . . . . . . . . . 32 C. There Was No Error in the Licensing Board's Decision (LBP-89-28) Denying Admission of Proffered Contentions With

' ltu Respect to the Low Power Testing Activities . . . . . . . . . . . . . . . 35 D. The Licensing Board Did Not Err in Concluding That the Onsite Exercise Contentions Should not be Admitted for

! Litigation . . . . . . . . . . . . . . . 39 l

-i-I I . . _ -. - - - --

I 1. Introduction . . . . . . . . . . . . 39 I 2. Tne requirements of 10 CFR $

must be, and have not been, satisfied . . . . . . . . . .

2.',.4

, . . 43

3. The "Five Factors" Test Weighs Against Admission of the 4 Contentions . . . . . . . . . . . . 44

4. The Intervenors Have Failed to Plead how The Alleged Insufficient Scope Resulted in a Situation Where i a Fundamental Flaw Could Avoid Detection . . . . . . . . . . . . . 46

5. The Fundamental Legal Theory of MAG 48 is Flawed . . . . . . . . . . . . .

E. There is no Merit to the Other Post Ii Hearing Attempts to Reopen the Evidentiary Record for New Contentions . 57 T. There has Been No Demonstration That Significant Reversible Error Has Been Committed in PID II . . . . . . . . . . . 65

1. The Licensing Board Committed No Error in its Resolution of the Contentions concerning the SPMC . . 65

2. The Licensing Board Committed No Error in its Resolution of the I Contentions Concerning the Graded Exercise . . . . . . . . .

. . . . . 84 The Decision has all the Indicia of I 3.

Regularity . . . . . . . . . . . . . 86 I II. THE REQUISITE SHOWING FOR A STAY OF EFFECTIVENESS OF PID II AND ITS AUTHORIZATION OF THE ISSUANCE OF A FULL POWER LICENSE HAS NOT BEEN MADE . . . . . . . . . . . . . . . . 87 I A. The Case has not Been Made for a Stay Under 10 CFR S 2.788 . . . . . . . . . . 87

1. Whether the moving party has made a strong showing that it is likely to prevail on the merits? . . . . . . . 87 i

t

2. Whether the Party will be Irreparably Injured Unless a Stay l 1s Granted . . . . . . . . . . . . . 89 i

3. Whether the Granting of a Stay Would Harm Other Parties? . . . . . 92

4. Where the Public Interest Lies . . . 92  ;

B. No Case has been made for a Stay of t I Immediate Effectiveness Under 10 CFR i 2.764 (f)(2)(1) . . . . . . . . . . . . 93

1. Introduction . . . . . . . . . . . . 93

2. The gravity of the substantive issue (s) . . . . . . . . . . . . . . 93

3. The likelihood that (they have) been resolved incorrectly below . . 94

4. The degree to which correct

, resolution of the issue (s) would be .

3 prejudiced by operation pending ,

g review . . . . . . . . . . . . . . . 94 l

5. Other Public Interest Factors . . . 94 ,

8 III. THE PETITION FOR REVIEW FILED WITH THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, I BEING PATENTLY PREMATURE AND THEREFORE INEFFECTIVE TO INVOKE THAT COURT'S SUBJECT MATTER JURISDICTION, FAILS TO OUST THE COMMISSION OF ITS POWER TO COMPLETE THE MATTERS BEFORE IT .. . . . . . . . . . . . . 95 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 101 LI i .

I ll -lii-1 I

I TABLE OF AUTEORITIES  :

Cases Cuomo v. E , 772 F.2d 972 (D.C. Cir. 1985) . . . . . . . . . 90 New Enaland Coalition v. E , 582 F.2d 87 (1st Cir. 1978) . . . . . . . . . . . . . . . . . . 99, 100 I Ohio Citizens For Resoonsible Enerav. Inc. v. Nuclear Reaulatory CommissiQD, 803 F.2d 258 (6th Cir. 1986),

cert. denied, 481 U.S. 1016 (1987) . . . . . . . . . . . 98 Ovstershe11 Alliance v. E , 800 F.2d 1201 (D.c. cir. 198e) . . . . . . . . . . . . . . . . . . . . 9e I San Luis Obisco Mothers for Peace v. E , 751 F.2d 1287 (D.C. Cir. 1984) . . . . . . . . . . . . . . . . 37, 38, 43 I Sierra Club v. E , 825 F.2d 1356, 1362-63 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . 97, 100 Union of Concerned Scientists v. E , 735 F.2d 1437

!I (D.C. Cir. 1984) . . . . . . . . . . . . . . . . 37, 38, 43 I

United States v. Benmar Transoortation & Leasina Coro.,

444 U.S. 4 (1979) . . . . . . . . . . . . . . . . . 95, 96 I

Vermont Yankee Nuclear Power Coro. v. E , 435 U.S. 519 80 t

I (1978) . . . . . . . . . . . . . . . . . . . . . . . . .

Western Union Telearaoh Co. v. T_QC, 773 F.2d 374 (D.C. Cir. 1985) . . . . . . . . . . . . . . . . . . . . 97 l

Alabama Power Comoany (Joseph M. Farley Nuclear l l5 Plant, Units 1 and 2), CLI-81-27, 14 NRC 795 87 (1981) . . . . . . . . . . . . . . . . . . . . . . . .

Carolina Power & Licht Co. (Shearon Harris Nuclear Power Plant), ALAB-852, 24 NRC 532 (1986) . . . . . 17, 86

[

I commonwealth Edison comoany (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241 (1986) . . . . . . . . . . . . . . . . . 38, 44, 45, 62, 63 Florida Power & Licht ComeADy (St. Lucie Plant, Unit Nos. 1 and 2), CLI-77-15, 5 NRC 1324 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . 12 I -iv-I

i l  !

)

I Florida Power & Licht Co. (St. Lucie Nuclear Power Plant, Unit 2) , ALAB-4 04, 5 NRC 1185 (1977) . . . . . . 92

General Public Utilities Nuclear Corocration (Three Mile Island Nuclear Station, Unit 2), ALAB-914, i 29 NRC 357 (1989) . . . . . . . . . . . . . . . . . . . 89

In the Matter of Offshore Power Systems, ALAB-686, 16 NRC 454, aff'd on other grounds,16 NRC 1691 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . 100 ,

Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit 1), LBP-84-26, 20 NRC 53 (1984) . . . . . 22 Lena Island Lichtina Co. (shoreham Nuclear Power '

Station), DIRECTORS' FINDINGS ON EMERGENCY PLANNING CONTENTIONS (April 17, 1989) . . . . . . . 80, S1 Lonn Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-832, 23 NRC 135 (1986),

aff 'd, CLI-87-12, 26 NRC 383 (1987) . . . . . . . . . . 30 Lena Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-900, 28 NRC 275 (1988) 46, 49, 53, 57 Lena Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-903, 28 NRC 499 (1988) . . . 45, 47 Lena Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-905, 28 NRC 515 (1988) 34, 77, 78, 80 Lena Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-911, 29 NRC 247 (1989) . . . . . 65 I Louisiana Power and Licht Comoany (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . 86 Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-84-17, 20 NRC 801 (1984) . . . . . 89 Mississioni Power and Licht Co. (Grand Gulf Nuclear l Station, Units 1 and 2) , ALAB-704, 16 NRC 1725 l (1982) . . . . . . . . . . . . . . . . . . . . . . . 45, 63

- Philadelohia Electric Co. (Limerick Generating Station, Units 1 and 2), CLI-85-13, 22 NRC 1 l (1985) . . . . . . . . . . . . . . . . . . . . . . . 93, 94 Philadelphia Electric Co. (Limerick Genreating Station, Units 1 and 2), CLI-85-15, 22 NRC 134 (1985) . . . . . . . . . . . . . . . . . . . . . . . 15, 102

-v-I I _ - -_ _ _ - -

I I Philadelchia Electric Co. (Linerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681 (1985) . . . . . . . . . . . . . . . . . . . . . , . 14, 30 Public Service comoany of Indiana (Marble Hill Generating Station), ALAB-493, 8 NRC 253 (1978) . . 95, 96

I Public Service Comoany of Indiana (Marble Hill Nuclear generating Station, Units 1 and 2),

ALAB-4 37, 6 NRC 630 (1977) . . . . . . . . . . . . . . . 92 Public Service Comoany of New Hamoshire (Seabrook l

! Station, Units 1 and 2), CLI-77-8, 5 NRC 503 )

(1977), aff'd sub nom. , New Encland Coalition

I l

on Nuclear Pollution v. HEC, 582 F.2d 87 (1st Cir. 1978) . . . . . . . . . . . . . . . . . . . . 12

)

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Public Service Comoany of New Haneshire (Seabrook Station, Units 1 and 2), CLI-89-8, 29 NRC 399 i

(1989) . . . . . . . . . . . . . . . . . . . . . . . . . 89 Public Service Company of New Hamoshire (Seabrook l Station, Units 1 and 2), CLI-89-19, 30 NRC (Sept. 15, 1989) . . . . . . . . . . . . . . . . . . 51, 57 Public Service Comoany of New Haroshiro (Seabrook

[ Station, Units 1 and 2). ALAB-918, 29 NRC 473 l (1989) . . . . . . . . . . . . . 38, 39, 45, 47, 62, 63, 85 Public Service comoany of New Hamoshire (Seabrook

, Station, Units 1 and 2), ALAB-922, 30 NRC (Oct. 11, 1989) . . . . . . . . . . . . . . . . . . . 3, 88 ll

,W Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-924, 30 NRC (Nov. 7, 1989) . . . . . . . . . . . . . . . . . . . passim i3 Public Service Company of New Hamoshire (Seabrook B Station, Units 1 and 2), Appeal Board Order

(Unpublished) (Nov. 17, 1989) . . . . . . . . . . . . . . 7 i Public Service comoany of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-88-32, 28 NRC 667 (1988) . . . . . . . . . . . . . . . . . . . . . . . Dassim Public Service Coreany of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-89-3, 29 NRC 51 aff 'd, ALAB-915, 29 NRC 427 (1989) . . . . . . . . . 38, 46 Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-89-17, 29 HRC 519 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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I I Public Service Company of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-89-28, 30 NRC (Oct. 12, 1989) . . . . . . . . . . . .3, 7, 8, 35, 36, 38 I 1

Public Service comoany of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-89-32, 30 NRC (Nov. 9, 1989) Dassim I

i Public Service comoany of New Hampshire (Seabrook Station, Units 1 and 2), LBP-89-33, 30 NRC (Nov. 20, 1989) . . . . . . . . . . . . . . . . . . Dassim  ;

Public Service Comoany of New Hamoshire (Seabrook I Station, Units 1 and 2), LBP-89-36, 30 NRC (Nov. 28, 1989) . . . . . . . . . . . . . . . . . . .

South Carolina Electric and Gas Comohny (Virgil C.

. 17 I Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881 (1981) . . . . . . . . . . . . . . . . . . . . . . . 44, 62 I Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-83-10, 17 NRC 528 (1983) . . . . . . . . . . . . . . . . . . . 26 U.S.E.R.D.A. (Clinch River Breeder Reactor Plant),

CLI-76-13, 4 NRC 67 (1976) . . . . . . . . . . . . . . . 12 I Vircinia Electrie & Power Co. (North Anna Station, Units 1 and 2), AI.AB-2 8 9, 2 NRC 395 (1975) . . . . . . . 62 Westinchouse Electric Core. (Exports to the Philippines),

I CLI-80-14, 11 NRC 631 (1980) . . . . . . . . . . . . . . 89 I Statutes 28 U.S.C. $ 2342 . . . . . . . . . . . . . . . . . . . . . . 97 42 U.S.C. 5 2239(b) . . . . . . . . . . . . . . . . . . . . . 97 I

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I Regrulations 10 CFR $ 2.714 (a) (1) . . . . . . . . . . . . . . 38, 44, 62, 64 10 CFR $ 2.734(d) . . . . . . . . . . . . . . . . . . 38, 62, 64 10 CFR $ 2.760(a) . . . . . . . . . . . . . . . . . . . .99-101 I 10 CFR $ 2.764(b) . . . . . . . . . . . . . . . . . . . . . . 43 1 10 CFR E 2.764(f)(2) . . . . . . . . . . . . . . . . . . . . 98 10 CFR $ 2.764 (f) (2) (i) . . . . . . . . . . . . . . . . . . . 93 10 CFR $ 2.764 (f) (2) (iii) . . . . . . . . . . . . . . . . . . 98 10 CFR I 2.704 (c) . . . . . . . . . . . . . . . . . . . . . . 86 10 CFR $ 2.734 . . . . . . . . . . . . . . . . . 37, 38, 40, 43 10 CFR $ 2.734(a) . . . . . . . . i . . . . . . . . . . . 43, 62 10 CFR $ 2.764 . . . . . . . . . . . . . . . . . . . . . 6, 8, 9 10 CFR $ 2.788 . . . . . . . . . . . . . . . . . . . . . 87, 98 10 CFR $ 50.47(a) (1) . . . . . . . . . . . . . . . . . . . . 13 10 CFR i 50.47 (b) (5) . . . . . . . . . . . . . . . . . . . . 62 10 CFR i 50.47(c) . . . . . . . . . . . . . . . . . . . . 17, 81 10 CFR $ 50.47 (c) (1) . . . . . . . . . 10, 12-15, 18, 20, 88, 89 10 CFR Part 50, App. E . . . . . . . . . . . . . . . . . . . 52 10 CFR Part 50, App. E $ IV.F . . . . . . . . . . . . . . . . 54 10 CFR Part 50, App. E $ IV.F.1 . . . . . . 42, 48, 49, 51-56, 85 l

l 10 CFR Part 50, App. E i IV.F.1.B . . . . . . . . . . . . . . 51 48 Fed. Reg. 33307 (July 21, 1983) . . . . . . . . . . . 54, 55 49 Fed. Reg. 27733 (July 6, 1984) . . . . . . . . . . . . . . 54 52 Fed. Reg. 16823 (May 6, 1987) . . . . . . . . . . . . 55, 56 52 Fed. Reg. 42078 (Nov. 3, 1987) . . . . . . . . . . . . . . 23 I -viii-I I . -. . - - - _ - _

t I  ;

I December 8, 1989 UNITED STATES OF AMERICA before the NUCLEAR REGULATORY COMMISSION I

In the Matter of PUBLIC SERVICE COMPANY Docket Nos. 50-443-OL OF NEW HAMPSHIRE, 31 Al. 50-444-OL (Seabrook Station, Units 1 (Offsite Emergency and 2) Planning and Safety Issues)

I APPLICANT 8' RESPONSE TO INTERVENOR8' IMMEDIATE EFFECTIVENESS REVIEW COMMENTS, STAY REQUESTS AND SUPPLEMENT I TO INTERVENORS' MOTION TO VACATE THOSE PORTIONS OF LBP-89-32 AUTHORISING ISSUANCE OF A SEABROOK OPERATING LICENSE

. STATEMENT OF TEI.,_QARE On December 30, 1988, the Atomic Safety and Licensing Board (Licensing Board) issued a Partial Initial Decision which, in substance, held that the State of New Hampshire's Radiological Emergency Response Plan (NHRERP) provided reasonable assurance that adequate protective measures can and will be taken in the New Hampshire portion of the emergency planning zone (EPZ) surrounding Seabrook Nuclear Power Station (Seabrook).' Appeals of the PID were taken to the Atomic Safety and Licensing Appeal I

I i Public Service Company of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-88-32, 28 NRC 667 (1988) (hereafter referred to as "PID" and cited to 28 NRC).

I I

I i Board (Appeal Board) by several intervenors including The  ;

l Attorney General of The Commonwealth of Massachusetts (MAG), New j England Coalition on Nuclear Pollution (NECNP), Seacoast Anti-Pollution League (SAPL), and the Town of Hampton, New Hampshire I (TOH). Thereafter, the Licensing Board proceeded to hold evidentiary hearings with respect to admitted contentions concerning the Seabrook Plan for Massachusetts Communities (SPMC), a utility sponsored radiological emergency response plan for that portion of the EPZ located in The Commonwealth of Massachusetts, and on the FEMA Graded Exercise of both NHRERP and SPMC held in June of 1988. i During the pendency of these hearings, a separate hearing with respect to the Public Alert and Notification System (PANS) for the Massachusetts portion of the EPZ was conducted by a separate Atomic Safety and Licensing Board (the PANS Board),

which Board issued its Final Initial Decision with respect to PANS on June 23, 1989.2 After the close of the SPMC and Exercise hearing, while the matter was 3.u]2 iudice the Licensing Board, several Intervenors filed an assortment of motionn seeking to obtain further evidentiary hearings on (1) events which cccurred on June 22, I 1989, during the performance of a natural circulation test in the l

I lI 2Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-89-17, 29 NRC 519 (1989) (hereafter referred I to as " PANS ID" and cited to 29 NRC).

I I _ . .

I t course of low power testing of Seabrook,3 (2) the scope of the September 27, 1989 exercise of the Seabrook onsite emergency i plan,' and (3) the continued viability of the plans for alert and notification of the public in the Massachusetts portion of the I

EPZ.5 On October 11, 1989, the Appeal Board, which has the appeals '

taken from the PID ank judice, certified a question to the Commission arising out of those appeals,' which question has been fully briefed and is now gyk iudice the Commission.

On October 12, 1989, the Licensing Board issued a decision ,

denying the motion for a hearing with respect to the events which

^

occurred on June 22, 1989, during low power testing of Seabrook.7 I

3 Egg Intervenors' Motion to Admit Contention, or in the

.I Alternative. to Recoen the Record. and Recuest for Hearina (July 21, 1989); Intervenors' Motion for Leave to Add Bases to Low Power Testina Contention Filed on July 21, 1989 and to Admit I Further Contentions Arisino From Low Power testina Events or, in the Alternative. to Reocen the Record and Second Recuest for Hearina (Aug. 28, 1989).

' Egg Intervenors' Motion to Admit Contentions on the Sectember 27, 1989 Emeroency Plan Exercise (Sept. 28, 1989);

Intervenors' Second Motion to Admit Contentions on the September I 27, 1989 Emercency Plan Exercise (Oct. 13, 1989).

$$ gg Intervenors' Motion to Admit a Late Filed Contention

, and Recoen the Record on the SPMC Based Uoon Withdrawal of the Massachusetts E.B.S. Network and WCGY (Oct. 30, 1989), withdrawn, Nov. 8, 1989, refiled, Nov. 9, 1989.

'Public Service Company of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-922, 30 NRC (Oct. 11, 1989) (hereafter referred to as "ALAB-922" and cited to the slip opinion) .

7Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-89-28, 30 NRC (Oct. 12, 1989) (hereafter

) referred to as "LBP-89-28" and cited to the slip opinion). l

'I

i on or about october 19, 1989, the Licensing Board made public its view that it would be in a position to issue its Initial Decision with respect to the SPMC and graded exercise issues sometime near the middle of November.8 on November 7, 1989, the Appeal Board issued a decision dealing with the PID.

The decision affirmed the Licensing Board's findings and rulings made therein except for four specific matters as to which it stated, "we reverse and remand for further action consistent with this opinion."' The matters remanded were:

1. The Licensing Board's determination that lett,ers of

agreement (LOAs) were not required for school personnel with respect to their duties relating to the evacuation of school children.

2. The Licensing Board's grant of partial summary disposition with respect to SAPL contentions 18 and 25 as they challenged the adequacy of a March 1986 special needs survey conducted by the State of New Hampshire.

3. The Licensing Board's findings that SAPL's concerns regarding evacuation times for special facility advanced life support (ALS) patients were adequately reflected in NHRERP's evacuation time assumptions.

I 8 1r. 28320.

I 'Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2) , ALAB-924, 30 NRC (Nov. 7, 1989) (hereafter referred to as "ALAB-924" and cited to the slip opinion).

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4. The Licensing Board's conclusion that no further implementing detail was necessary with respect to the shelter protective action for the " beach population."'O on November 9, 1989, the Licensing Board issued its Partial Initial Decision with respect to the SPMC and FEMA Graded Exercise issues and authorized the issuance of a full power l

operating license for Seabrook."

In doing so, the Licensing Board stated that it did not view ALAB-924 or the pendency of "several motions to submit new contentions" as precluding the immediate issuance of a full power operating license.12 This latter reference was to the then-proffered motions with respect to the continued viability of the public alert and notification system in the Massachusetts portion of the EPZ and the onsite emergency plan exercise. The Licensing Board promised that it would issue a subsequent memorandum explaining these views.

On November 13, 1989, certain of the Intervenors filed with the Appeal Board a motion seeking an " order immediately vacating and revoking that portion of (PID II) which authorized the issuance of a full power license for Seabrook Station . . . or in the alternative . . . (to) stay the effectiveness of that I '0 ALAB-924 at 70. Petitions for Review of this decision have been filed by both sides. Eg.g Acclicants' Petition for Review of ALAB-924 (Nov-. 10, 1989); Intervenors' Pg.t;1t. ion for I Review of ALAB-924 (dated Nov. 21, 1989, but not served until Nov. 22, 1989).

"Public Service Comoany of New Hampshire (Seabrook Station, I Units 1 and 2), LBP-89-32, 30 NRC (Nov. 9, 1989) (hereafter referred to as "PID II" and cited to the slip opinion).

12 PID II at 569 & n.87.

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'I i portion" pending its review (hereafter referred to as the " Motion i to Vacate").'3 The next day, the Appeal Board issued an Order setting a schedule for dealing with the Motion to Vacate, I including times for the Intervenors to supplement their motion after the Licensing Board issued its contemplated explanatory memorandum, and for the Staff and Applicants to respond thereto.

On November 16, the Commission issued an order by which it (1) ,

announced that the Motion to Vacate would be decided by the Commission, (2) directed that all stay motions pertaining to PID II be addressed to the Commission as opposed to the Appeal Board, +

and (3) set a schedule which adopted the Appeal Board approach to the Motion to Vacate, and thus placed the filing of further stay ,

motions directed at PID II and comments on PID II pursuant to 10 l CFR 5 2.764 on the same track.

On November 17, 1989, the Intervenors filed yet another >

g motion with the Licensing Board seeking to obtain the admission ig of additional new contentions for litigation, in this case with

respect to an application for an amendment to the Seabrook operating License.i' They also filed a motion with the Appeal  :

I 13Intervenors' Motion to Vacate Those Portions of LBP-89-32 iI Authorizina Issuance of a Seabrook Operatina License (Nov. 13, 1989).

l'Eggt Intervenors' Motion to Recoen the Record and Admit

! Late-Filed Contention Recardina Proposed Amendment of Seabrook Operatina License Aeolication (Nov. 17, 1989). In addition, a l

petition to intervene in this matter as a separate proceeding was I subsequently also filed. Egg NECNP's SAPL's and Massachusetts Attorney General's Obiection to Proposed no Sionificant Hazards

- Determination and Recuest for a Hearina on ProDosed Amendment to l Seabrook's Low Power Ooeratina License (Nov. 21, 1989).

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Board to extend their time to file a motion for a stay of LBP-89-20 issued back on October 12, 1989,15 which motion has been referred by the Appeal Board to this Commission.'6 on that same date the Intervenors sought reconsideration of the Commission's November 16, 1989 Order.'?

On November 20, 1989, the Licensing Board issued its 18 Memorandum Supplementing LBP-89-32 wherein the Licensing Board first explained its reasoning as to why ALAB-924 did not preclude issuance of PID II or authorization of a full power operating license, and then went on to articulate the basis for its conclusion that neither the onsite exercise contention motions nor the pending motions as to the continued viability of the plans for alert and notification of the public in the Massachusetts portion of the EPZ precluded the action it had taken, and promised a fuller exposition of its reasoning in this latter respect.#0 In the course of its discussion, the Licensing l

I Doard took note of the then just-filed motion to reopen on the ,

l I 15Intervenors' Motion for Extension of Time to File an l

Aeolication for a Stay of LBP-89-28 (Nov. 17, 1989).

I

Public Service Company of New Hamoshire (Seabrook Station, Units 1 and 2), Appeal Board Order (Unpublished) (Nov. 17, 1989).

17Intervenors' Motion for Reconsideration of Commission's l November 16 Order (Nov. 17, 1989).

18Public Service Company of New Hamoshire (Seabrook Station,  !

i Units 1 and 2), LBP-89-33, 30 NRC (Nov. 20, 1989) (hereafter referred to as "LBP-89-33" and cited to the slip opinion).

LBP-89-33 at 1-33.

20 LBP-89-33 at 33-41. -

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> 1

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heels of an operating license amendment application,21 and requested Commission guidance on the question of whether the

{

repeated efforts to obtain admission of late filed contentions should be permitted to indefinitely delay the issuance of a full power license "despite Applicants' fairly won victory," ,

especially in light of the very real specter of an " endless loop of litigation."tr ,

Or, November 22, 1989, the Intervenors filed yet another motion seeking a hearing on yet another late-filed issue in connection with the continued viability of the plans for alert and notification of the public in the Massachusetts portion of the EPZ.83 Also on November 22, 1989, in response to Intervenor requests, the Commission reset the schedule for contemplated filings to require that the contemplated supplement to the Motion to Vacate, the Intervenor comments pursuant to 10 CFR $ 2.764, and any motions to stay PID II or LBP-89-28 all be filed on or before December 1, 1989, and that the Applicants and Staff file their responses to such filings on or before December 8, 1989.

The Intervenors have now made the filings contemplated by the Commission, and Applicants response follows.

21 LBP-89-33 at 37, n.24.

2r I LBP-89-33 at 37. As of that date, Intervenors had filed six motions seeking admission of new contentions, three of which were filed just in the month preceding LBP-89-32.

I 23Intervenors' Motion to Add an Additional Basis to the Late Filed Attached Contention to the Motion of November 9. 1989 (Nov. 22, 1989). Corrections to this latest effort were filed on November 27, 1989.

~8-I lI -

j

I ,

ARGUMENT +

t INTRODUCTION The filings made by Intervenors include a supplement to the  !

Notion to Vacate, comments pursuant to 10 CFR $ 2.764,25 and applications for stays of PID II. The fundamental thrust of i each of the filings is to seek from this commission, on one theory or another, an order which, at the very least, will operate to delay the insediate effectiveness of PID II and, thus, the issuance of a full power operating license for Seabrook.

This responsive pleading constitutes an integrated reply to all of these filings. Herein the Applicants address each of the 1 various assertions of error which has allegedly occurred below and argue that no error in fact or law has occurred. In addition, Applicants further argue that, even assuming arauendo I'Intervenors' Sueolemental Motion and Memorandum in Suenort of %vember 13 Motion to Revoke and Vaccte the November 9 License Authorization (Dec. 1, 1989) (hereafter referred to as "Intervenors' Supplemental Motion" and cited "Supp. lig . ") .

25 Comments of the Seacoast Anti-Pollution Leacue Oooosina Immediate Effectiveness of Licensina Board Decisions LBP-88-32.

89-32 and 89-33 (hereafter referred to as "SAPL Comments" and cited "SAPL G,gm."); Massachusetts Attorney General's comments on

! the Immediate Ef fectiveness Issue (hereinaf ter referred to as

" MAG Comments" and cited as " MAG Com."); Comments of the Town of l

Hamoton Oooosina Immediate Effectiveness of Licensina Board Decisions LPBfsicl-88-32, 89-32, and 89-33 (Dec. 1. 1989). J 26Intervenors' Aeolication for a Stay of LBP-89-32 l (hereafter referred to as " Stay Application" and cited "Stav App."); New Encland Coalition on Nuclear Pollution's Recuest for l

Stav of Immediate Effectiveness of LBP-89-32 Pendina Resolution

! Ef Outstandina Licensina IssuqE (hereinafter referred to as "NECNP Stay Application" and cited "NECNP Stav Acc.").

I -_

I  :

that any or all of the assertions of error have merit, a full power license for Seabrook can and should issue under applicable  !

principles of law.

I 1. TERRE EAS BREN NO DEMONSTRATION OF ERROR WEICE PERNITS OR REQUIRES TEE WITEBOLDING OF AN OPERATING LICENSE AUTEORISING FULL POWER OPERATION. t A. The Issuance of ALAB-924 Does Not I Preclude the Issuance of an Operating License Authorising Full Power operation.

I 1. Introduction As noted earlier, ALAB-924 ordered the remand of four discrete matters to the Licensing Board for further action: (1) school teacher LOAs, (2) the 1986 special needs survey, (3) ALS patient loading times, and (4) beach shelter implementing detail.I? In the argument set forth below we demonstrate first, that the existence of a remand of the nature set out in ALAB-924 does not par gg preclude issuance of an operating license authorizing full power operation; second, that under 10 CFR 5 50.47(c)(1) the license may still issue even if the Appeal Board were correct in ordering the remand of each of the matters; and, third, that the Appeal Board erred as a matter of law or fact in each of its holdings requiring a remand.

I I

27 Supra pp. 4-5.

I I . - . - _ _ _ __ - -_ _ - -_

1 5

I i I 2. Even Assuming That the Appeal l Board was correct in Reversing I

and Romanding Any or All of the Four Matters, Its Action Does Not Require Denial of the Issuance of a Full Power i operating License as a Matter of Law.

The Intervenors argue that the mere existence of AIAB-924,  ;

without more, requires a stay of immediate effectiveness.I8 To -

begin with, this argument ignores the f act that in AIAB-924, before the " reverse and remand" portion of its order, the Appeal Board also made the following order I ". . . with respect to intervenor claims on those portions of the Licensing Bosrd's December 30, 1988 partial initial decision.

LBP-88-32, 28 NRC 667, and related rulings regarding ' Letters of Agreement,'

' Transportation Availability and support Services,' ' Decontamination and Reception Centers,' and ' Sheltering of Beach Population' the Board's initial decision and related rulings are affirmed except insofar as the Board (

particulars)."ghenfollowsthefour In short, all of the findings, presumably including the general

" reasonable assurance" finding made with respect to each section of the PID, were affirmed by the Appeal Board.

Intervenors argue that a Licensing Board is required to obey the mandate of an Appeal Board.30 This is true; the rub is that I 28 S.gpp. lig. at 3-69; Stav App. at 2-3 ; EAP.L som, at 15-27 ;

NECNP Stav App. at 3-8.

29 AIAB-924 at 70 (emphasis in original).

30 Supp. Mg. at 6.

I

i 4

I  !

the Appeal Board did not hand down the mandate that the Intervanors wish it had. Intervenors also argue that the (

Commission has no jurisdiction to address their Motion to l Vacate.3' But this argument ignores a venerable line of authority that the Commission has the power to take immediate jurisdiction over, and review at any time any matter before any of its adjudicatory tribunals.32 It also ignores the fact that, given the avalanche of motions for reconsideration, stays, review, reopening, etc. churned out by the Intervenors over the last few weeks and months -- many of which issues already are, and all of which may ultimately be, before the Commission --

considerations of judicial efficiency (as well as of fundamental fairness to Applicants) dictate that the Commission step in to  ;

sort out the procedural morass created by the Intervenors.

Finally, the arguments misapprehend the effect and applicability of 10 CFR $ 50.47(c) (1) which provides, in material part, as follows:

I " Failure to meet the applicable standards set forth in paragraph (b) of this section may result in the Commission declining to I issue the operating license; however, the applicant will have an opportunity to demonstrate to the satisfaction of the Commission that deficiencies in the olans are 3'S.ppp. lig. at 6-8.

32 0.S.E.R.D.A. (Clinch River Breeder Reactor plant), CLI-76-13, 4 NRC 67, 74-76 (1976); Florida Power & Licht Comoany (St.

I Lucie Plant, Unit Nos. 1 and 2), CLI-77-15, 5 NRC 1324, 1325 (1977); Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI 77-8, 5 NRC 503, 516, 517 (1977),

aff8d AMk nom., New Encland Coalition on Nuclear Pollution v.

I URC, 582 F.2d 87 (1st Cir. 1978).

1 I .-_

not sionificant for the olant in nuestion, i that adequate interim compensating actions have been or will be taken promptly, or that  ;

I there are other compelling reasons to permit plant operations." (Emphases supplied).

In short, the regulation makes clear that a failure to satisfy all the planning standards of the regulations only "may" result in a refusal to issue an operating licenser further, the regulation spells out that if whatever deficiencies are perceived i to exist are not "significant" the license can and will issue.

Intervenors argue that 10 CTR 5 50.47(c)(1) has no ef fect on I the reasonable assurance finding required by 10 CFR 5 50.47 (a) (1) .33 The short answer to this is that i 50.47 (c) (1) ls the " rule of reason" for emergency planning and does etfeet the reasonable assurance standard by saying that reasonable assurance can still exist even assuming there are flaws in the plan as long as those flaws t.re not " fundamental flaws."

Intervenors also argue that no reasonable assurance can be found because of the existence of AIAB-924." The short answer to this is that AIAB-924 af firmed the reasonable assurance findings as set forth above.35 33 1ups. }ig. at 63-70.

"Eups. tig. at 66-69.

35 Intervenors attempt to argue, Eupja, lig. at 67-68, that the j I Appeal Board in ALAB-924 decided the significance of the remanded l issues for purposes of 50.47 (c) (1) . This argument collapses, l however, in the face of the Appeal Board's subsequent Order I inviting the Licensing Board to comment on exactly that issue.

Egg Public Service Comoany of New Hampshire (Seabrook Station, Units 1 and 2), Appeal Board Order (unpublished) at 2 (Nov. 14, i 1989).

8

i I

Intervenors appear to argue that, even assuming the relevance and significance of 10 CFR $ 50.47(c)(1), it was error j i for the Licensing Board to authorize full power operation on the i basis of this regulation absent an application for relief j thereunder by the Applicants, a hearing thereon, and a decision 1 based upon the record of that hearing." But hearings have already been had in Concord, New Hampshire for some 51 days.

Moreover, there is no requirement that adjudicatory boards of ,

this agency await an applicants' application for relief under 10 I CFR i 50.47(c)(1) before deciding that shortcomings in the plan detected on appeal are not significant and thus need not forbid plant operation. In fact, the applicable precedent is to the contrary. In Philadelchia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681 (1985), the Appeal I, Board remanded for further hearings on the question of whether an additional and closer hospital should be contracted with to treat contaminated injured persons, on the issue of whether the  ;

operating license had to be suspended during the remanded s hearings, the Appeal Board stated:

"One matter remains -- the effect of our decision here on the full-power operating license recently issued by the Commission to PEco.

See CLI-85-15, 22 NRC (August 8, 1985).

Although we have concluded that PEco's onsite emergency plan is inadequate in one respect, I the Commission's emergency planning regulations contemplate such an eventuality.

Under 10 C.F.R. 5 50.47 (c) (1) , failure to I satisfy the emergency planning standards in section 50.47(b) "may result in the "Rupp. tLo. at 70.

~~

I l 1

hr  !

l  !

I commission

's) declining to issue an opera' ting l (icense" unless one of three factors is demonstrated:

' deficiencies in the plans are not significant for the plant in question, that adequate interim i compensating actions have been or will be taken promptly, or that there are other compelling reasons to permit plant operation.'

"We need not loor beyond the first alternative criterion. In our view, the deficiency in I, PEco's emergency plan identified hare is not so significant as to warrant license suspension. Primary medical arrangements for I contaminated and injured onsite personnel have been made and found adequate. All that is lacking cre backup arrangements with an I additional hospital closer to the site than HUP for those contaminated persons whose traumatic injuries require immediate medical attention. Moreover, the deficiency is not a permanent one. Although we prescribe no schedule, we trust that the Licensing Board and the parties (particularly, PECo) will act  :

as expeditiously as possible in response to I our remand, and that complete and adequate backup medical arrangements will be in place soon. In these circumstances license I suspension is not warranted."p In short, the Licensing Board acted properly, and in full accord with agency precedent, in going forward with an analysis of the ,

significance of the remanded issues. It may be suggested that Limerick is to be distinguished from the case at bar because in that case the operating license of concern had already issued.

However, that is a distinction without difference. Whether 10 CFR $ 50.47 (c) (1) is going to permit operation despite the 37 1 22 NRC at 715-16. Thus, Intervenors' claim, at Supj2 lig .

23, that "[n)ot a single case is cited" of post-licensing hearings on issues deemed not to be significant is, at best, I misleading.

1 I . _ -- -

a existence of perceived shortcomings in the emergency plan does not turn on the issue of whether the operating license has or has j not previously issued. Indeed, the literal language of the I

i regulation ("declisting to issue") appears specifically to  ;

contemplate its operation in the situation where the operating l license has not yet issued.

i

3. None of the Shortfalls Pointed I, out in ALAB-924 Are Presently significant.

I a. Teacher ICAs The Licensing Board has fully explained its view as to why the lack of LOAs with teachers, assuming arguendo that they axe required as a matter of law, is not significant in the Seabrook -

setting." Basically, the Licensing Board found that whether or not LOAs exist will have little effect upon whether or not teachers will in fact stand by the children until they are safely transported to reception centers. It also found that the evidence reveals a long history of teachers never abandoning children committed to their care in emergencies and on this basis the Licensing Board was of a conviction to find that sufficient school personnel would accompany the children in case of an emergency. Prescinding from this well-founded basis for the Licensing Board's conclucion, the uncontradicted testimony of State officials is that the participation of the teachers, while helpful, was not " key to the process." II. 3388-89. Clearly, "LBP-89-33 at 7-12.

I

i i

even assuming the conclusion is that ICAs are necessary for teachers, it cannot be said that their absence is significant as I that term is used in 10 CTR $ 50.47(c).

b. 1986 special Needs survey.

The Licensing Board has given a detailed explanation as to why it believes the concerns of the Appeal Board with respect to the effect of granting pertial surorary disposition of SAPL's Contentions 18 and 25 are not significant.3' Basically, it ic the Licensing Board's position that even if one engaged in the .

inquiry contemplated by litigation of the contentions, the most t one could expect to do is to " fine tune" the survey." This, in 3'LBP-89-33 at 16-22. Applicants advised the Licensing Board, ApplLgants' Advice to the Licensino Board with Respect to I LDP-89-33 (Nov. 22, 1989), that its explanation was factually erroneous in its assumption that all sirens in New Hampshire had been audibly tested, which meant that subsequent surveys had I mooted a concern that the hearing impaired might have to speculate as to their need of assistance. The Licensing Board has withdrawn that assertion, noting that the error in context is harmless because there is no regulatory requirement that sirens

' I he audibly tested before a license is authorized. Public Servico Comoany of New Hamoshira (Ceabrook Station, Units 1 and 2), LBP-89-36, 30 NRC ___ (Nov. 28, 1989), 313 also Carolina Power &

Lietht Co. (ShH ron Harris Nuclear Power Plant), ALAB-852, 24 NRC 532, 546 (1986). Thus, as a matter of law, SAPL would have been precluded from obtaining a finding to the effect that a special needs survey held prior to licensing was invalid for lack of i there having been a siren test. In addition, the SAPL contentions at issue did not raise the issue of " hearing impaired," being confined to the issue of the " mobility impaired." The contention which raised the " hearing impaired" issue was NECNP's Contention NHLP-4. NECNP withdrew Contention NHLP-4. h. 8853 and Sticulation, Post R. 8853.

"SAPL argues, SAPL C92 at 22-23, that the Licensing Board has ignored the fact that if the survey was not adequate, people will be missed and then the responders will not know where they

,i are and so even if there is enough transportation, it will be

.I I - - . _ _. . -

p. . - _. .- . _ _ . . - c-1.

I 5

turn, would simply mean that there would not be any significant increase in the special needs population identified. And only a I. significant increase would jeopardize the Licensing Board's finding that the NHRERP procedures and transportation resources i available are adequate to satisfy the transportation needs of the special-needs population, given the large number of reserve vehicles available. In addition, the Licensing Board points out that, in light of the conservatism built in, the problem of insufficient resources has possible significance only in the case I of summer transients, a matter of concern some eight months hence.42 We respectfully suggest that the foregoing disposes of any concern that a special-needs survey deficiency, if any, created by the failure to have allowed litigat *.un of a portion of the two contentions involved is significant for Seabrook, or requires final resolution prior to license issuance.'3 useless to those undiscovered. This ignores the fact that pre-emergency information is available telling people where to call if they need assistance.

I LBP-89-33 at 20.

I MAG argues that the Licensing Board could 42 1d. at 19-20.

not rely upon this surplus of vehicles in finding the alleged problem not to be significant for purposes of 10 CFR l-I 5 50.47(c)(1), because the Appeal Board refused to conclude that the surplus entirely mooted the issue. S.yps. EQ. at 40-42, 48; As.g Alag id. at 25-26. This argument ignores the fact that, in AIAB-92 4 , the Appeal Board simply was not looking at the question of i 50.47 (c) (1) significance, and hence did not preempt the Licensing Board's findings in LBP-89-33 on this score. Sag note

35 supra.

'3 Sig, g a , Southern California Edison Co. (San Onofro Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC 346, j 374 and n.47 (1983), aff'd g_ub u D9oE. Carstens v. HBC, 742 F.2d 1546 (D.C.Cir. 1984) p_tri. denied, 471 U.S. 1136 (1985).

Li - - - -

l I  !

l o. ALS Patients Loading Time  !

The Licensing Board has explained at some length why the

• Appeal Board concern with respect to ALS patient loading time is -

not significant." What is clear is that there is an ETE I analysis in NHRERP for these persons which includes a 40-ninute

. loading time,45 of which the Appeal Board was not previously aware, and that there is additional conservatism built into that ,

loading time estimate because the special facilities will be ,

notified of a possible need to evacuate at an " alert" emergency action level (EAL) . This latter means that preparations can begin before ambulances are even dispatched (an event which does

not occur until the actual order to evacuate is given).

Moreover, it is important to note that ALS patients are only located in the EPZ hospitals, not in nursing homes," and that the two New Hampshire EPZ hospitals, Exeter and Portsmouth, are <

i

!I "LBP-89-33 at 24-29.

45 SAPL states that a witness testified that in her opinion I one could not move ALS patients out of their beds before the ambulances arrived. EAP_L fam, at 24-25. The 40-minute loading time covers that problem, if it exists, i "Tr. 4295. SAPL too, in its discussion of this issue on appeal, implicitly acknowledged the undisputed fact that there were no ALS patients to be evacuated from special facilities I other than hospitals. S_qg Seacoast Anti-Pollution Leacue's Brief on Aeneal of the Partial Initial Decision on the NHRERP LBP 22, at 41 (March 21, 1989) ("The Board also discounts intervenor testimony as to the time it would take to load hosoital n.9tients onto the smergency vehicles") (emphasis added). '

i I

I' located 7.and l11 miles from' the reactor, respectively.'7 Thus

MAG's hullabaloo about " increased evacuation times for special facilities close-in to the reactor ss is much ado about' literally

n'othing. Finally, the perceived inconsistency between-local plan I

L' language and the ETEs does'not apply to ALS patients. Thus, the ,

perceived shortfall does not exist and therefore cannot be significant within the meaning of 10 CFR S 50.47 (c) (1) .

!I l d. Beach Shelter i

Implementing Detail.

l The Licensing Board has explained its reasoning as to why i i .

the Appeal Board's concern as to implementing detail for the i general sheltering of the beach population is not significant at this juncture. Basically, it'is the Licensing Board's position i that the issue is not of concern until the summer months and .

therefore of'no significance in the immediate future.50 In i

addition, however, the Licensing Board notes that one of the  !

record bases for the concern (inconsistent positions taken at various times by FEMA) has been resolved between FEMA and the State.M In addition, as set forth later herein, the Licensing i Board discussion which, of necessity, is circumspect,

' '7

( App. Ex. 5, Vol. 1 at Table 2.6-3.

f= 4a SUDD. M2. at 49.

! LBP-89-33 at 31-33.

{ 50 M. at 31, 33.

" M. at 33 & n.18.

r l l  !

1 demonstrates clearly'that the Appeal Board simply erred as a matter of fact in its analysis of this issue.

I 4.- In Addition to Not Addressing significant Matters, the i Romand Rulings in Each case Were Erroneous as a Matter of Fact or Law.

a. Teacher LOAs On May 21, 1986, the Licensing Board ruled that no LOAs were required for teachers.52 on May 18, 1987, the Licensing Board -

ruled that "(s]eparate letters of agreement are not required for recipients of services (as opposed to providers) nor in the case 1

of providers for individuals who collectively supply a labor force or activity."53 In the LOA section of the PID the

Licensing Board specifically referenced these two prior

- decisions, which appear dispositive of the issue of whether LOAs were required for teachers.54 Presumably, LOAs were not required for teachers-first, because they were service recipients, and second, because, to the extent teachers are service providers, they are " individuals who collectively supply a labor force or

I l

52 Memorandum and Order (Rulina on Late-Filed Contentions of Seacoast Anti-Pollution Leacue) (Unpublished) (May 21, 1986) at 7-8.

i JE. 53 Memorandum and order (Providina Basis for and Revision to i 5 Board's Rulinas on Contentions on Revision 2 of

, NHRERP) (UnDublished) at 37 (May 18, 1987).

54 PID at 673.

I 1

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activity."55 However, the Appeal Board did not let the matter .

rest there. It turned to a-later section of the PID dealing with I human behavicr issues, ag_t LOAs. There'the Licensing Board, in rejecting the concept that teachers would abandon children,

simply stated that, while emergency planners viewed teachers as

. recipients of services, 1.g., members of the public, it would not rest a decision as to human behavior solely on these grounds because, "we believe that, to the extent that the teachers would be expected to accompany pupils in an evacuation rather than

}

I leaving in their own transportation, the teachers should be regarded as service providers."5' As the Licensing Board has now made clear, the Appeal Board placed much too much emphasis on this statement and ignored the

{

i context in which it was made.57 The statement was not made in denigration of the previous LOA rulings, and had nothing to do i

with LOAs. It was "a gratuitous dotting of the "i" in the

! ' interest of accuracy,"58 1.g., it was made to indicate that the ll Licensing Board was treating teachers as part of the group which

'was to be analyzed for " role abandonment" human behavior as Lg 55 It seems that the usual practice of FEMA and NRC has been 1

not to require LOAs from teachers or other school personnel. S.en Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit 1), LBP-84-26, 20 NRC 53, 70, 80, 112 (1984).

56 PID at 730.

57 LBP-89-33 at 9-10.

5s LBP-89-33 at 10.

I i

I _ _ _ - . _. - - _

I opposed to " predicted response" human behavior on the part of the general public.

Having overemphasized the significance of this statement, the Appeal Board, on the basis of this statement, then proceeded to make the following analysis (which was not suggested in any Intervenor brief): the Licensing Board's prior rulings were correct; teachers did not need to sign LOAs so long as all they were expected to do was to bring the children to the bus, but as soon as they left the grounds on a bus with the children they I became " providers" necessitating an LOA because nothing in the ,

record disclosed whether or not school personnel usually would or would not be expected to accompany the children in other types of emergencies. In fact, as the Licensing Board has pointed out,"

the record shows that New Hampshire state officials do believe that New Hampshire teachers would perform their duties (including riding the buses) in other emergencies and that the teachers

'themselves are aware that they are expected to accompany the children on buses."

I "LBP-89-33 at 7-8.

"Tr. 3387-89, 4014. It is true that the teachers testified I that they would, in fact, not perform this duty and that they would abandon the children. An LOA is not going to change that attitude assuming it is, in fact, extant, and will control the l 3g actions of these teachers in a real emergency. Of course, the Licensing Board correctly rejected the concept that these, or any other teachers, would in fact carry out the threat of child l

abandonment. LBP-89-33 at 8-9, 11; g_ee e also Notice of Final Eud.g , 52 Fed. Reg. 42078, 42085 (Nov. 3, 1987).

I l3 _ - . - -

E' 1

- Furthermore, as the Licensing Board also points out in its 1

explanation,'F-individual: teachers are part of a labor force, and the Appeal' Board did nothing to disturb the ruling that individual members of labor groups need not sign LOAs. The

.I Appeal Board, we respectfully submit, erred as a matter of law and fact with respect to the teacher LOAs matter.

4 NECDA's 1986 Special

Is-b.

Needs Survey.

In order to canvas the number and types of "special needs" l persons resident in the New Hampshire portion of the EPZ,.the

! State of New Hampshire did a mail card survey.62 The survey was 1- mailed out, using utility billing lists, and also circulated.by other means, in addition, other informational announcements were made encouraging people to send in the response card'if they had IW 'a family member who had special needs. The State further

committed to conducting the survey annually."

On the strength of these efforts, Applicants moved for partial' summary disposition of all Intervernors' contentions to

the extent they asserted that there do not exist adequate

! procedures for identifying persons with special needs." In 4..

! LBP-89-33 at 10, 62 Egg ADDlicants' Motion for Partial Summary Disposition of South Hamoton Contention No. 8. NECNP Contention NHLP-4 and SAPL M Contentions 18 and 25 (May 20, 1986), at Attach. "A".

' l "M., cassim.

"M.

at 1-3.

!I LE

I response to that-motion, SAPL filed an affidavit'5 which made three points: (1) the utility list did not reach everybody (this is why the State made other distribution as well); (2) that seasonal residents may not have been in the area when the survey-was done (this is why the survey was to be done annually and announcements and other distributions were used); and (3) the affiant would have asked differently worded questions and used different motivational language. Undoubtedly, ten experts in the

poll and survey field would come up with ten different approaches as to what questions to ask and how to induce people to respond.

j But, as the Licensing Board has perceived," the real question is whether the survey, while perhaps not perfect, was performed in a manner that would give reasonable assurance of

. accomplishing its intended purpose. We submit the Commission can decide for itself that it was. The Appeal Board on review,

however, looked no further than the face of the pleadings to find, as SAPL asserted, that there were issues of material fact concerning the effectiveness of the survey instrument. Neither SAPL nor the Appeal Board looked to the Commission's substantive law to identify what facts were material to summary disposition in order to determine whether there was a genuine issue to be heard. Rather, the Appeal Board seemed to feel that if any witness suggests a better way to conduct a survey, a full blown

I '5 Affidavit of Frederick H. Anderson Jr., (June 6, 1986).

66 "

LBP-89-33 at 18-19.

I .- . -

=;

I I

trial' must ' occur even 'if the survey performed 'was aidequate.'7 The Licensing.. Board, acting on the premise that the Commission's '

. emergency planning regulations do not demand mathematical -

certainty in these matters, granted summary disposition. The-  !

Licensing Board-correctly felt that to force the State to accommodate a number of " experts" in their pet views of how such

. survey questions should be worded and to go beyond reasonable distribution approaches and frequencies used would be in the nature of an " extraordinary measure."6s And the Licensing Board

.lI W correctly read this commission's decision in Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and

,B.

3), CLI-83-10, 17 NRC 528, 533 (1983) as holding that states were not required to undertake extraordinary measures solely to plan for nuclear accidents.

In addition', although the Appeal Board gave it no importance, the Staff was correct in pointing out that the survey in fact was testified to and relied upon and open to cross-examination, and indeed rebuttal in the course of the i-I

'7 As the Appeal Board conceded, ALAB-924 at 16 n.40, SAPL did not identify on appeal what the material issues were that it supposedly raised. In their latest filings Intervenors once

,E again are resoundingly silent as to just exactly what those

'W material issues raised in response to Applicants' summary

disposition motion were. Eg.g SAPL Com. at 21-23; Eypp. Mo. at I '40-48.

68 LBP-89-33 at 19.

ALAB-924 at 17-19.

I '

I

o y I_p hearing.70 Thus, any alleged error in granting summary disposition was, at best, factually da minimis and harmless as a

-matter of law.

c. ALS Patients Loading T1..s.

In ALAB-924, the Appeal Board held that there must be further analysis as to the assumption regarding the times for preparing and loading ALS patients for evacuation at special facilities. The Appeal Bo.rd reached this conclusion on the  !

I_ belief that no such ETE analysis for ALS patients had been made i 1

for NHRERP, and that testimony given by an Intervenor witness l that it would take twenty-eight minutes to one hour to move an I advance life support patient from a bed to a stretcher was unaccounted for. The Appeal Board also found in the special 4

facility plans incorporated in the local NHRERP emergency plans a  ;

statement, included in the concept of operations section, which says: "As evacuation vehicles arrive, assemble residents l

. . ."7' The Appeal Board read that statement as meaning

" assembly only begins when the evacuation vehicles arrive,"72 and thought it to be inconsistent with the Licensing Board's finding i 1- No. 4.40 that nursing home patients are at the loading point when 70 NRC Staff's Brief in Response to Intervenors' Acceals From I the Licensina Board's Partial Initial Decision on the New Hampshire Radioloaical Emercency Response Plan (LBP-88-32) at 22 (June 5, 1983).

7'See citations in ALAB-924 n.69.

72 ALAB-924 at 26.

I

4 t i i

transportation arrives." Apparently under the mistaken belief 1

I that all special facilities and not just Exeter and Portsmouth hospitals accommodated ALS patients,7' the Appeal Board concluded that a further look must be had at special facility evacuation time assumptions in order to account for the witness' 28 minutes to an hour in deriving accurate ETEs for this class of special

. facility population."

The fact is, as the Licensing Board points out,7' a special facility ETE study for'the NHRERP has been done, which did assume a 40-minute loading time for persons (such as those on advanced life support) who are evacuated in ambulances.7I The Appeal Board simply must have missed this in its analysis. Moreover, as the Licensing Board also points out,I8 the inconsistency between the local plans and the ETEs that concerned the Appeal Board does "PID at 699. [

7' Sag supra at rate 46.

"AIAB-924 at 26 and 27, 7'LBP-89-33 at 25.

77 It has been suggested that App. Ex. 5, Vol. 6, p. 11-26.

" loading time" includes only the time necessary to move passengers from the loading dock into the vehicle. Intervenors' I Answer in Oooosition to ADD 11 cants' Petition for Review of ALAB-121 at 7 (Nov. 22, 1989). This assertion is based on a reference to Tr. 4301. S.gg 14. at n.7. However, that transcript reference I is to testimony concerning statements at App. Ex. 5, Vol. 6, p.

11-21, not p. 11-21 At page 11-21 the discussion is of the special needs persons who are ambulatory, as is clear from a L

l. comparison of the second paragraph on page 11-21 with the last

paragraph on page 11-22 of App. Ex. 5, Vol. 6. The 40-minute l- " loading time" is different and applicable to ALS patients.

78 LBP-89-33 at 27-28.

I

p '% 4 Lt

,, f

~

not apply to ALS patients in any event. In addition,.while,_as seen above, the ETEs for special facilities have been analyzed, t special facility ETEs play no role in the actual execution of the l

plan because the evacuation _ times for the general public which controllPAR decision making are of such duration that the ETEs l

for special facilities will not serve to lengthen the overall times."

Finally, even if one assumes that by lengthening the loading time sufficiently one could obtain an ETE for a given special ,

facility that exceeded the general population ETE by an amount sufficient to affect protective action decision making, this would be of no moment. The reason for this is that, in this context, the only alternative to evacuation is shelter and this is the action the special facility would be taking prior to the time when the transportation arrives and the patients are loaded.

Thus the population in question would already be benefiting by

-g, any dose savings inherent in the use of the only alternative until the evacuation commenced. In such circumstances the trip out of the EPZ-would be in post-evacuation uncongested conditions at normal speeds.

There is absolutely no warrant in law, logic, or fact for further exploration of ETEs for special facilities.

5 I- "Eg.g App. Ex. 5, Vol. 4, Appendix F, at p. F-2 and Figures 1A, 1B, 3, 4A and 5. This reveals that only the general population ETEs are utilized in the PAR decision-making process.

I-I

v

6. Beach Shelter u Implementing Detail.  :

The Appeal Board ruled that two of its prior decisions" required that the same implementing detail be put in the plan for-1 those cases where general sheltering is ordered for the beach population as was contained in the plan for the temporary cheltering of beach transients without transportation when l 4 lcvacuation is ordered. The Appeal Board could see no difference h

between temporary. sheltering and general. sheltering as far as need for implementing detail.

As the Licensing Board has pointed out,81 there is a significant difference. The transit-dependent group needs pre-1 L identified sheltering only when an evacuation is ordered and is

'~

taking place. Transients awaiting evacuation must be sent to designated shelters along the bus route or they will not be picked,up." In the general shelter situation, the transit-

-dependent transients, along with everyone else, are to " shelter in place." This is the shelter concept adopted throughout the State of New Hampshire in emergencies and does not contemplate or

! require designated shelters.83 This is the method of choice of "Lona Island Lichtina Co. (Shoreham Nuclear Power Station.

Unit 1) , ALAB-832, 23 NRC 135 (1986), aff'd, CLI-87-12, 26 NRC 383 (1987) and Philadelohia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681 (1985), review declined, CLI-86-5, 23 NRC 125 (1986).

81 LBP-89-33 at 32.

" Egg Applicants' Dir. No. 6, Post Tr. 10022 at 20-21.

" Applicants' Dir. No. 6, Post II. 10022 at 18-20.

l la J ,, g - -

-the New Hampshire experts, who fully articulated their view that l there'was no need for further detail on.the general shelter option beyond assuring themselves that the quantity of shelter was sufficient." That choice is rational and should not be disturbed. - As the Licensing - Board has pointed out,85 it left the

' issue of implementing detail to the State and FEMA to resolve,

~

cnd~ resolution has taken place." Thus, to the extent the Appeal ,

(

Board's remand was based upon a concern with respect to inconsistent positions espoused by FEMA,87 such inconsistency is no longer of any moment.

Finally,-the Licensing Board was not adopting a position that because an accident was unlikely, something need not be

-done, as was clearly the case in Limerick. What they adopted was the concept that even assumina the accident dogs occur, adoption of the sheltering alternative was highly unlikely. Indeed, to invoke the beach area general shelter option required the occurrence of an immediate general emergency" concurrent with weather conditions severe enough to make roads impassable (hardly l

a situation conducive to large beach crowds) or a planned l.

"II. 10579-93, 10693-95, 10698, 10711-12.

85 LBP-89-33 at 33.

" Letter Huntington to Judge Ivan W. Smith (October 13, 1988). That resolution makes evacuation the recommended L protective action within 2 miles in all circumstances except when impediments make evacuation impossible.

a7ALAB-924 at 63, n.182.

"At any lesser emergency action level the beaches would have been closed and cleared.

t

." gaseous puff release" occurring prior to the decision to cvacuate," because once evacuation commences there can be no change to a shelter PAR."

We respectfully suggest that the Appeal Board erred both as a matter of fact and law with respect to this issue.

B. There is No Likelihood that substantial Error Will be Found as to Any Other Matter Addressed in the PID or in ALAB-924.

1. Introduction..

Intervenors have argued that the Licensing Board has committed other substantial reversible errors in the portions of c the PID not yet reviewed by the Appeal Board, and that the Appeal l

Board committed substantial reversible errors in those portions of ALAB-924 where-it affirmed the Licensing Board. We address

~these matters seriatim immediately below.

a. NERERP Evacuation Time Estimates.

l SAPL notes that the " hotly contested issue" of evacuation

-time estimates (ETEs) generally is still before the Appeal L Board." - But all SAPL does thereafter is say that there was testimony (uncited) to the effect that the ETE would be longer "Sgg ALAB-924 at 48-51 & n.133.

"TI. 10417.

"SAPL Com. at 7.

l-l l'

1

Y

..,- i I

6

'than'that found by-the' Licensing Board." But we are given no reasons as to,why the Licensing Board erred'in rejecting that j testimony. . The Licensing Board's analysis of the ETE question

'wasilengthy and thorough." A mere statement that there was some 4

testimony at variance with the Licensing Board's conclusions is  ;

l not enough to raise a specter of substantial. error.

H b. Human Behavior. -

1 SAPL also alleges that error may have been committed by the )

Licensing Board with respect to the " human behavior" issue."

L .Again we'are unadvised as to the basis for SAPL's allegation.

SAPL does reference "a MAG Exhibit, FEMA REP. 3" and quotes language'in it that says the behavior of drivers in a Seabrook l

emergency "can only be guessed at thic time," which was 1981.

What SAPL does not tell the Commission is that the exhibit SAPL cites, which was MAG Exhibit 48, was D21 admitted for the truth of the matters contained, but rather for a limited purpose." In H cny event, the brief quote from the document hardly serves to "We assume the reference to the " Appeal Board" having found a certain range of'ETEs in the second full paragraph on page 7 of SAPL's Comments was intended to refer to the Licensing Board.

"PID at 776-804.

"SAPL Com, at 7. -

"The exhibit was admitted at II. 14256 for the limited purpose "to show that it was used by Mr. Thomas and used by TEMA

. . . how it was used and how it was understood and how it was employed," II. 13388, and that "(it] was a base point of departure . . . by which the agency could make reference to some concerns that it highlighted as early as 1981," II. 13389.

t

gE-cil; raise a substantial possibility of error in the Licensing Board's lengthy.and careful' treatment of this subject."

c. The Appeal Board's Affirmance of the Licensing Board's Resolution of the '

"20% Rule" With Respect to Monitoring and Decontamination.

In planning in the area of monitoring and decontamination the State of New Hampshire followed certain guidance expressed in the so-called Krimm memorandum, which states that the planning 1

etandard for monitoring and decontamination centers should be that the facilities should be capable of monitoring 20% of the ,

1 ovacuees in the EPZ within about 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />." The Licensing Board j upheld the use of this standard" and the Appeal Board affirmed."

In the SAPL Comments there is a discussion in which SAPL states 1

I "Even if one were to acquiesce in the Appeal Board's holding . .

., " and a footnote refers to the holding as " astonishing error",'" which leads one to believe that SAPL views the Appeal Board holding as providing fertile ground for appeal. If so, SAPL has a problem. SAPL has " acquiesced" in the Appeal Board i "PID at 728-50.

"The rule and its background are discussed at length in Lona Island Lichtina Co. (Shoreham Nuclear power Station, Unit 1), ALAB-905, 28 NRC 515 (1988).

"PID at 699-724.

"ALAB-924 at 27-44.

1"SAPL Cop, at 10.

holding, because in the Petition for Review filed by Intervenors with. respect to ALAB-924, no challenge was made to this aspect of the Appeal Board's decision."'

C. There Was No Error in the Licensing Board's Decision (LBP-89-24) Denying Admission of Proffered contentions With Respect to the Low Power Testing Activities.

On October 29, 1989, the Licensing Board issued a Memorandum ond Order denying Intervenors' motion to have contentions cdmitted for litigation with respect to events which occurred on ,

June 22, 1989 during low power testing w2 Intervenors claim that this decision constituted substantial error."3 The technical factual background leading up to the issuance of LBP-89-28 is-recited in detail in the decision.'" For purposer of this pleading it is sufficient to note that on June 22, 1989, an operator continued operation under L

L circumstances where the applicable test procedure required a L

l manual' trip of the reactor. In addition, communications 1

[

immediately after this event between the Applicants and NRC were of a nature that could be interpreted as demonstrating a lack of l cppreciation of the significance of the event on the part of

"'To the contrary, MAG expressly concedes that Intervenors did "not take acception [ sic) to the Appeal Board's ruling on many of (the] issues (in ALAB-924]." MAG Eqm. at 3.

22 LBP-89-28.

"3 Stav App. at 4 ; [LA_Q Com. at 5-7.

"*LBP-89-28 at 28-32.

35-1

- . . . , . _ . . , . , _ , . , . ,y_. .- .

-g b

Applicants. As a result of these occurrences, on June 23, 1989, NRC Region'I issued a Confirmatory Action Letter (CAL) confirming NRC's understanding that prior to any restart of the reactor,

' Applicants would conduct a complete review of the event,

-cstablish short term corrective actions, determine long term ,

corrective actions and schedule same, review the results of each of the foregoing with NRC staff and obtain concurrence of the Region I Administrator.'" On July 21, 1989 and again on August  ;

28, 1989, the Intervenors filed motions seeking to obtain litigation of several contentions to the effect that the' event of I l

June 22, 1989 revealed that the plant operators were inadequately trained and unqualified.'"

As noted by the Licensing Board,107 the motion sought a  !

hearing on three different theories. The first theory was that issuance of the CAL constituted a suspension of the low power 1 i L operating license, thus triggering a new " proceeding" which l conferred a hearing right agr gg under 9 189 of the Atomic Energy Act (AEA) even in the absence of meeting the procedural L

requirements for late filed contentions or reopening the record.

The second theory was that even if there is no suspension, since 1" Confirmatory Action Letter 89-11.

'"Intervenors' Motion to Admit Contention, or. in the Alternative, to ReoDen the Record. and Recuest for a Hearina (July 21, 1989); Intervenors ' Motion for Leave to Add Bases to Low Power Testina Contentions Filed on July 21, 1989 and to Admit Further Contentions Arisina from Low Power Testina Events or. in the Alternative. to ReoDen the Record and Second Reauest for Hearina (Aug. 28, 1989).

'07 LBP-89-28 at 3-4.

1 l

l

9 1

the Commission requires adequate operator training, nanagement,  ;

j procedures and performance before an operating license can issue, )

there is an absolute hearing right granted to intervenors on l

1 these matters under the doctrines announced in the decisions of the United States Court of Appeals for the District of Columbia Circuit in the ECE and Mothers for Peace decisions.'" Under this theory, the Intervenors argued that they did not have to meet the reopening of the record criteria. The third theory was that the Cvents of June 22,-1989 were relevant to the issuance of a full power license and that the record reopening criteria set out in 10 CFR $ 2.734 were met, and therefore a hearing should be granted. The Licensing Board correctly rejected all three

.th eor i es.

Before this Commission, the Intervenors do not seriously contend that, assuming it was necessary for them to comply with the record reopening criteria, the Licensing Board's ruling that they did not was erroneous. They also appear to have abandoned

-the assertion that the CAL commenced a new proceeding. However,

they do continue to press the other legal theory upon this Commission, arguing that the Licensing Board's application of the reopening standard was not just erroneous but "gives rise to a presumption of agency bad faith."'"

l

'" San Luis Obispo Mothers for Peace v. HEQ, 751 F.2d 1287 (D.C. Cir. 1984); Union of Concerned Scientists v. HEC, 735 F.2d 1437 (D.C. Cir. 1984).

'"Stav App. at 4; see also MAG E2E. at 5-6. -

l 1

[

)

-i The Licensing.. Board correctly rejected the theory that ECS Cnd Mothers for Peace mandated the grant of a hearing absent compliance with the reopening criteria of 10 CFR 5 2.734."0 .one basis proffered 1 for. Intervenors' theory is the extraordinary ,

proposition that the two cases had operated to invalidate a regulation adopted after they were decided. The second is the cqually fallacious proposition that successful completion of low power testing is a prerequisite to the issuance of a full power license. We-are unable to improve upon the Licensing Board's

. pithy and lucid rejection of both propositions."'

Finally, we note that, because the motion relates to a contention not previously in controversy, Intervenors must I catisfy the requirements for nontimely contentions.n2 Here the Licensing Board clearly found that the "five factors" test for late-filed contentions was not met."3 Such a finding will not be "0

LBP-89-28 at 13-25.

i "'LBP-89-28 at 14-16.

L .

U2 10 CFR $ 2.734(d) incorporating 10 CFR - 5 2.714 (a) (1) .

"3 It is true that the Licensing Board LBP-89-28 at 44-45.

did not declare in haec verba that the balancing test weighed against admission. However, at the cited pages the Licensing Board clearly (and correctly) held that the third and fifth factors weighed heavily against the Intervenors. The third factor is the most important of the five. Egg commonwealth Edison comoany (Braidwood Nuclear Power Station, Units 1 and 2),

CLI-86-8, 23 NRC 241, 246 (1986). The fifth factor also alone is capable of tipping the balance against admission in combination with the first. Public Service Company of New Hamnshire

-(Seabrook Station, Units 1 and 2), ALAB-918, 29 NRC 473, 484-85 (1989). Together with the third factor the result should be the came. Public Service Comnanv of New Hampshire (Seabrook Station, Units 1 and 2), LBP-89-3, 29 NRC 51, 59, aff'd, ALAB-915, 29 NRC 427 (1989).

i F

1 l- dist'urbed on appeal absent an abuse of discretion, a standard j l

_ which requires a showing that a reasonable mind could reach no l

L cther result than that contended for by the party seeking l reversal.1" The Intervenors have not even come close. l D. The Licensing Board Did Not Err in Concluding That the Onsite EEercise Contentions should not be Admitted for -

Litication.

1. Introduction The Intervenors claim error with respect to how the late filed onsite exercise-contentions were handled.us The procedural history of the so-called onsite exercise contentions is a perfect example of the unstructured way the Intervenors, and particularly MAG,-have conducted themselves in this entire litigation. MAG, on behalf of himself and SAPL and NECNP began by filing two motions seeking the admission into litigation of two contentions as to the scope of the onsite exercise conducted at Seabrook Nuclear Power Station on September 27, 1989. These motions were filed under the dates of September 28, 1989,"' and October 13, 1"Public Service Comoany of New Hampshire (Seabrook Station, l Units 1 and 2), ALAB-918, 29 NRC 473, 482 & nn. 25 & 26 (1989) and cases there cited.

M5 5mpp. Ho. at 80-82 ; }QLG .Q_qtm. at 4-5.

"'Intervenors' Motion to Admit Contentions on the Sectember

27. 1989 Emeraency Plan Exercise (Sept. 28, 1989) (alleging Contention JI-Onsite Ex-1 and certain bases therefore, hereafter cited and referred to as " Motion #1").

I

L 1989,"I'and answered by'the Applicants on October 11, 1989,"8 and October 20, 1989,"' respectively. In addition,-on October 16, i..

l 1989, MAG filed a motion to amend Motion #1 and Motion #2Eto add thereto-allegations purporting to meet the pleading-requirements 1

of 10 CFR 5 2'734 with respect to each of the motions."0 Applicants answered this motion substantively as part of its response set out in Answer #2."' Under date of October 18, 1989,' MAG filed, on behalf of himself, SAPL and NECNP,-a Motion for Summary Disposition of all the onsite exercise-scope l

i i

l "I Inte rvenors ' Second Motion to Admit Contentions on the September 27, 1989 Emeroency Plan Exercise (Oct. 13, 1989)

(alleging Contention Onsite Ex-2 and bases therefore and also 7 L cdditional bases.for Onsite Ex-1, hereafter referred to and cited as'" Motion #2").

"8Anolicants' Response to Intervenors' Motion to Admit

' Contentions on the September 27, 1989 Emercency Plan Exercise <

(Oct. 11, 1989)_ (hereaf ter referred to and cited as " Answer #1") .

m

"'Acolicants' Answer to Intervenors' Second Motion to Admit l gg.ntentions on the September 27, 1989 Emeraency Plan Exercise-(Oct.-20, 1989) (hereafter referred to and cited as " Answer #2").

120 Intervenors' Motion to Amend Intervenors' Motions of September 29. 1989 and October 13, 1989 to Admit Contentions-on

.the September 27. 1989 Onsite Zmeroency Plan Exercise (Oct. 16, 1989)- (hereafter referred to and cited as " Motion #3") .

121

&Dswer #2 at 5-9. In addition, a procedural response was also filed acknowledging that whether or not to allow the .

cmendment was a matter of Board discretion. Apolicants' Response to Intervenors' Motion to Amend Intervenors' Motions of September 29, 1989 and October 13, 1989 to Admit Contentions on the September 27. 1989 Onsite'Emeraency Plan Exercise (Oct. 20, 1989).

l p l

l t- )

t I

contentions raised in Motion #1 and Motion #2,122 accompanied by Cn extensive supporting memorandum.123 The basic thrust of the Intervenors' position as articulated in the motions and their memorandum is that, as a matter of law, the scope of the exercise in question was not broad enough. In particular, they claim six specific shortcomings in the exercise as follows:

1. There was insufficient exercise of the ability of the Applicants' personnel to formulate offsite protective action responses (PARS) which was due, according to the Intervenors, to the fact that the exercise scenario did not escalate to the point of an offsite release and a concomitant general emergency.124

2. "[H]o plume monitoring procedures or correlative accident assessment activities were tested even by mini-scenario . "125 This is otherwise articulated as:

9 122 Intervenors' Motion for Summary Discosition on Contentions JI-Onsite Ex-1 and JI-Onsite Ex-2 (Oct. 18, 1989) (hereafter cited and referred to as "SD Motion").

'UMemorandum of the Intervenors in Suonort of Their Motion l

for Summary Discosition of the Scone Contentions Filed in Resoonse to the September 27. 1989 Onsite Exercise (Oct. 18, 1989) (hereafter referred to as "Intervenors' Brief" and cited "lDt. EI.")*

124 1Dt. HI. at 34; Motion #1, Attach 1 at 3; Motion #2, Attach. A at 1-2.

125 1Dt. HI. at 34.

lv:

"The Applicants did not test their capacity to' locate a plume, track its course and measure its content."'i' 1 3. There was no exercise of the Seabrook Fire Department

- i

.in.its' capacity as a local support services agency or the Exeter Hospital as an offsite medical treatment  !

facility.'37

4. There was no testing of the monitoring or  !

decontamination of personnel evacuating the site at the l Seabrook Dog Track or the warehouse on Rte. 107.128

5. There was no demonstration of an actual shift change or l 1

demonstration of an ability to staff for 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.'" l

6. There was no exercise of the Vehicular Alert lj Notification System (VANS) in the Massachusetts portion }

of the Seabrook EPZ.'30 It is the position of the Intervenors that admission of the contentions and the allowance of the SD Motion depends only upon  ;

I the acceptance of the basic legal theory that NRC regulations recuire that each of the foregoing activities be conducted as j part of an exercise held in accordance with the third and fourth centences of 10 CFR 50, App. E 5 IV.F.1. According to the 126 1d. at 2, n.3.

i 127 1nt. R . at 34; Motion #1, Attach. A at 3.

1 12a lD1. R . at 34-35; Motion #1, Attach. A at 3.

'#1Dt. R . at 35; Motion #2, Attach. A at 3-4.

130 1Dt. R. at 35; liotion #2, Attach. A at 4-5.

i J

Intervenors, the SD' Motion (and Motions Nos. 1 and 2) " raise (and Cre intended to raise) (a) purely. legal question,"'3' and, thus, there is no need for the taking of any evidence in order to reach the moved-for result.

While the Licensing Board has yet to fully articulate its reasons'for doing so, it has reached the decision to deny all of the Intervenors motions.132 This decision is clearly correct as caen below.

2. The requirements of 10 CFR 5 2.734 must be, and have not been, satisfied.

In the original filings, the Intervenors took the position )

that the requirements of 10 CFR $ 2.734 need not be satisfied. j This stand was based upon the argument discussed in Section I.C.  !

ebove that the URS and Mothers for Peace decisions in effect c invalidated 10 CFR 5 2.734 insofar as exercise contentions are concerned. Although in Motion #3 they belatedly tried to argue that they had met the standard for reopening, before this Commission they abandon that argument and instead fall back on their plaint of " agency bad faith".133 That argument is erroneous for the reasons discussed earlier.

Moreover, even if the Licensing Board erred in applying the l requirements of 10 CFR S 2.734(a) and (b), the motions would fail L

'" Int. Sr. at 3.

132 LBP-89-33 at 40.

l I33 '

SMpj2 liq. at 80-82.

u

for at least three other reasons: insufficiency under the "five ,

' factors" test of 10 CFR $ 2.714 (a) (1) ; failure to allege a fundamental flaw in the exercised plan; and an underlying legal theory that is simply wrong.

.3. The "Five Factors" Test Weighs Against Admission of the Contentions.

The showing made before the. Licensing Board failed to demonstrate that the "five factors" balancing test'" for admission of a late filed contention weighed in favor of the Intervenors. Assuming that there exists good cause for the late filing on the theory that the contention.could not have been M filed before the exercise was held and certain documents were w

f

available, Land conceding that, as is almost always the case, the

@7;l > ,o

%li Llans Weighty "'second (protection of the movant's interests) and soe . . .

ph 4fout%h- (extent to which that interest is represented by existing y N, ..

portles) factors favor the Intervenors, the fact is that analysis fjg gin o . ; ,t ,

1. Nil /' o'f' thel thirdo(assistance -in development of a sound record) and. 1 JMY o .

fifth:,(04Lpy) f actors- reveals a balance which tips decidedly Q

e

+

a:

agalm(t Ladnicsion of the contentions.

g; o

,l.

b, ' Commission " case law establishes both the importance of the

$[t:.

F ' third factor in the evaluation of late-filed contentions and the necessity of the moving party to demonstrate that it has special 1"10 CFR S 2. 714 (a) (1) .

1" Commonwealth Edison Company (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 245 (1986); South Carolina Electric and Gas Comoany (Virgil C. Summer Nuclear Station, Unit 1), ALAB-64 2, 13 NRC 881, 895 (1981).

L (Citation

^

exoertise on the subjects which it seeks to raise.

, omitted.) The' Appeal Board has said: 'When a petitioner

'cddresses this' criterion it should set out with as much .

particularity as possible'the precise issues it plans to cover,.

identify its prospective witnesses, and summarize their proposed testimony'."'" The Intervenors proffered no witness to establish that the failure to-include those events within the scope of the oxercise would result in a situation where a " fundamental flaw" (1 3. a flaw (1) in the plan (not in its execution), (2) which is not correctable by further training of personnel, and (3) not otherwise readily correctable)'37 'would remain undetected. These are not pure legal questions; and to prevail on them the Intervenors would need expert witness testimony. The showing fails on the-third factor.

.i l

l

'" Commonwealth Edison Company (Braidwood Nuclear Power

Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 246 (1986), citino with acoroval, Mississioni Power and Licht Co. (Grand Gulf Nuclear Station, Units 1 and 2) , ALAB-704, 16 NRC 1725, 1730 (1982) (emphasis added). Accord, Public Service Company of New l

Hampshire (Seabrook Station, Units 1 and 2), ALAB-918, 29 NRC 473, 483-84 (1989).

137 f Public Service Company of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-918, 29 NRC 473, 485-86 (1989). Egg also Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-903, 28 NRC 499, 506 (1988).

l 1

r L The Intervenors conceded that the fifth factor favors the

' App 1'icants.'" Thus the two most important factors weigh against cdmission of the contention and it should be rejected.UE

4. The Intervonors Bave Failed to Plead how The Alleged 4

- Insufficient Scope Resulted in a situation where a Fundamental Flaw could Avoid Detection. l The Licensing Board has ruled that the Intervenors' ef fort must fail for lack of an allegation that the onsite exercise was of insufficient scope to reveal fundamental flaws and alleging l how the specific matters they maintain were improperly excluded would have revealed any otherwise undetectable fundamental flaw."0 _The Licensing Board was correct in its ruling.

The seminal case with respect to the necessary scope of an cmergency_ exercise is the decision of the Appeal Board in Lona

' Island-Lichtina Co'. (Shoreham Nuclear Power Station, Unit 1),

ALAB-900, 28 NRC 275 (1988). Therein the Appeal Board set the i

standard by which the scope of an exercise would be judged as:

"that the exercise itself must be comprehensive enough to permit a meaningful test and evaluation of the emergency plan to ascertain.if that plan is fundamentally flawed.""' Since that 1" Motion #2 at 8.

u9Public Service Comoany of New Hampshire (Seabrook Station, Units 1 and 2), LBP-89-3, 29 NRC 51, 59, aff'd, ALAB-915, 29 NRC 427 (1989).

"0 LBP-89-33 at 38-39.

"I ALAB-900, 28 NRC at 286 (emphasis in the original). ,

"C4 , q 1

i

. time, the Appeal ^ Board has also held that if the flaw revealed is ene which:can be readily corrected or can be corrected by

' cupplemental training of personnel, it is not a " fundamental l l

' flaw.""

As the: Licensing Board observed,"3 one is unenlightened by MAG's filings ~as to how the failure to engage in any or all of the various activities which MAG claims were improperly not-included in the exercise' precluded the ascertainment of any

" fundamental flaw (s)" in the plan. Moreover, preclusion by

. reason of exercise scope is_not even generally alleged. In light of the Appeal Board's standard, this is a necessary allegation of

, basis with respect to a scope contention, and the failure to include such is fatal to the effort.

P rescinding from the foregoing pleading deficiency, an

- analysis of Intervenors' filings fails, in any event, to reveal p

the suggested presence of any " fundamental flaw" in the onsite i

plan which presently remains undetected but would have been 1

discovered through execution of the activities MAG suggests 4

l should have been undertaken. .

l The additional PAR activities Intervenors deem necessary L

would have uncovered, at best, only training inadequacies. These are not " fundamental flaws". The same can be said for the u2Eublic Service Comoany of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-918, 29 NRC 473, 485-86 (1989). Egg also Lona Island Lich11na Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-903, 28 NRC 499, 506 (1988).

"3 -

LBP-89-33 at 38-39.

l

i further activities MAG claims should have been, but were not,  ;

carried out by the offsite monitoring teams. similarly, the only l problems which might have been demonstrated by a shift change clso would have been of a personnel training nature. And, l insofar as the allegations of not demonstrating staffing l cufficiency are concerned, the staffing of a plan is as well 1

demonstrated by personnel rosters and personnel records as by an Cxercise and need not be demonstrated by such activity. Indeed, I the existence of sufficient staff is usually viewed as a planning issue, not an exercise issue. Finally, the allegations as to VANS gain MAG nothing. The regulations require only an exercise of the onsite plan. Mobilization and deployment of VANS are performed in accordance with the of fsite plan.'"

5. The Fundamental L'egal Theory of MAG is Flawed.

I The fundamental legal theory espoused by MAG on behalf of

! himself and the other intervenors is that 10 CFR 50, App. E,Section IV.F.1 and Footnote 4 thereto and other regulations of the Commission should be read as requiring, as a matter of law, l that certain activities enumerated in his motions and brief must he included in the prelicensing onsite exercise called for in the third and fourth sentences 10 CFR 50, App. E 5 IV.F.1. The premise underlying the entire legal argument is that Footnote 4's language which requires " testing the major observable portions of the onsite and offsite emergency plans" applies to the exercise I

1"APJ2. EX. 4 2, App. G & IP 2.16.

F - . _ _ __ _ - -. _ _

Conducted by the Applicants on September 27, 1989. The language Cf 10 CPR 50, App. E 6 IV.F.1 does not admit of the construction

. MAG would give it. As recently stated by the Appeal Board:

"As is the case with statutory construction, ,

interpretation of any regulation must begin with the language and structure of the provision itself. [ Citations omitted.)

Further the entirety of the provision must be given effect. [ Citation omitted.) Although the administrative history and other available guidance may be consulted for background information and the resolution of ambiguities in a regulation's language, its interpretation may not conflict with the plainmeaningofthewordingused'jnthat regulation. (Citations omitted.)"

As noted earlier, the key to the entire legal theory of MAG is the assertion that the requirement for testing "the major observable portions" found in Footnote 4 to 10 CFR 50, App. E 6 IV.F.1 must be applied to the exercise of September 27, 1989.

Such a construction of the regulation would be at complete odds with the language of the regulation itself. To begin with, l

10 CFR 50, App. E i IV.F.1 begins by describing a " full participation exercise" in the first sentence. The section then goes on to state in the second sentence that "[t)his exercise" l Chall be conducted within two years of the plant receiving a license to operate at greater than 5% of power. In the third Gentence it states that if "the full participation exercise" is held mere than one year prior to the issuance of a license to operate at above 5% power, "AD exercise which tests the j uSLona Island Liahtina comoany (Shoreham Nuclear Power Station, Unit 1) , ALAB-900, 28 NRC 275, 288 (1988).

l-l _ _ - - - . -. . . _ .

L licensee's onsite emergency plans" (emphasis added) shall be CCnducted within one year of the issuance of such a license, and 4 in the fourth sentence we are told that "[t]his exercise" need n;t have state or local governmental participation.

1 When one parses through the regulation as above, at least two things become patently clear. First, whatever the "an ,

Cxercise" is that is referred to in the third and fourth i

OCntences, it is not the same thing as the " full participation i Cxercise" referred to in the first and second sentences. Second, the words " full participation" are not used in conjunction with 1 the "an exercise" referred to in the third and fourth sentences.  ;

This being the case, Footnote 4 has no part in defining the "an Cxercise" of the third sentence because, by its terms, that fcotnote only purports to deal with situations where the term

" full participation" is used in a regulation "in coniunction with caergency preparedness exercises" (emphasis supplied). Thus if, oo MAG is trying to do, one wishes to engraft the " major cbservable portions" criterion on the "an exerciseh in the third ,

00ntence, in the words of the apocryphal Maine farmer "you can't got there from here."

l The interpretation argued for above is reinforced by the ,

longuage in the second sentence of Footnote 4 which contains the

" major observable portions" language. The reference to

" mobilization" is set forth in the conjunctive with the testing j requirement, and the listing of personnel - " State, local and >

licensee" -- is also set out in the conjunctive. The reading i

l 1

that MAG tries to give the regulation, 133 infra, would require that that listing of personnel be in the disjunctive. The l interpretation herein argued for is further supported by the language used by the Commission in its recent decision denying the Applicants' request for an exemption.'" In describing the regulation under discussion the Commission stated:

" Pursuant to the Commission's regulation, -

from which the Applicants seek relief in their instant petition, if more than a year has passed since a full participation exercise, AD exercise of the Applicants' i onsiteplanmustbeheldyJthinoneyear before license issuance."  ;

By use of the indefinite article in the above quoted language in referring to the phrase " full participation exercise," the

-Commission makes clear that whatever the "an exercise" referenced in the third sentence of 10 CFR 50, App. E i IV.F.1 is, it is D21 o " full participation" exercise and, thus, not subject to the criteria enunciated in Footnote 4 to 10 CFR 50, App. E i IV.F.1.B.

The argument from regulatory interpretation and history made below by MAG is also flawed. As we understand the argument, it is as follows: MAG begins with an analysis of the regulatory language itself.us Basically, he claims that the phrase " full participation" should be viewed as having been used in two ways.

l

'"Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-89-19, 30 NRC (Sept. 15, 1989).

"7 CLI-89-19, supra, Slip Op. at 2.

"B lat. Br. at 11-15.

Cne is defining the "how" of an exercise and the other as defining the "who." MAG states that what this all means is that, ,

while the exercise which took place on September 27, 1989, did j not require the participation of State and local governments because it was not a " full participation" exercise, it still required the " full participation" of the licensee in the sense that licensee personnel were required to test all " major cbservable portions" of the plan being exercised. Next, MAG goes Gn to say that his reading of the regulation is further supported by the regulatory history of the exercise requirements of 10 CFR 50, App. E.'" In summary, this is an argument that, as of 1980, there was only one prelicensing exercise required called a " full ccale" exercise which MAG claims required what he views as full participation by everyone who was required to play, and that, cince then the commission has stated that various changes in the regulation governing exercise requirements have not served to lessen the duties or burdens of licensees with respect to such oxercises, the licensee must engage in " full participation" in l its onsite exercise referenced in the third sentence of 10 CFR 50, App. E $ IV.F.1.

Having made his two parallel arguments for the concept that the exercise of September 27, 1989, was required to meet the

" major observable portions" criterion, and after attempting to justify his appeal to administrative history,150 addressing

1. 1.nt. R. at 15-23.

IILt. R. at 24-25.

l certain Staff arguments made in a prior pleading,"' and making a public policy argument,ur MAG then goes on to argue that under. l

the holding of the Appeal Board in ALAB-900, the necessary " major i 1

tbservable portions" to be exercised are defined as a matter of i law in the regulations and include the activities which he argues l thould have been carried out, but were not."3 As already pointed out, MAG's argument simply ignores the P

fact that the words " full participation" nowhere appear "in conjunction with" the term "an exercise" in the third sentence ,

I which is what was being run on September 27, 1989. It has further been pointed out earlier that MAG's argument, insofar as it interprets the sentenue containing the " major observable l portions" language in Footnote 4 to 10 CFR 50, App. E 6 IV.F.1,'"

cimply ignores the " mobilization" language and the use of the conjunctive, as opposed to the disjunctive, throughout the centence. Finally, MAG also ignores the fact that the second Centence of Footnote 4, which contains his key " major observable L portions" language, wholly refutes the concept that " major cbservable portions" constitutes a definition of what must be l included in the scenario. This is so because the " major cbservable portions" of the plan which that sentence requires to be tested, and the personnel which the sentence requires to be

'" Int. kr. at 25-28.

"'In%. Dr. at 28-29.

"3 1at. Br. at 29-35.

'" Int. Hr. at 12-13. .

Cobilized, are only those which are necessary to " verify the capability to respond to the accident scenario." In short, the centence of the footnote contemplates that the scenario will be Cet independently of any requirement contained in that sentence. l The actual language of the regulation simply cannot be twisted to the meaning MAG desires. I The argument from history also ignores certain salient ]

facts. When MAG quoted the regulation in his brief,"5 he ]

i neglected to insert the Footnote 4 call into the quoted language a from 10 CFR 50, App. E 5 IV.F.1. This may have been a Freudian clip given its location directly after the first use of the term L

" full participation," which tends to negate the idea that the  !

word was used in two ways as MAG would have us believe. But what is even more interesting is to observe the placement of the call cf what became Footnote 4 the first time it was proposed for l inclusion in the regulations. This occurred with the publication of the proposed rule.which eventually, after alteration, became l

l

! the final rule adopted effective August 6, 1984."' That proposed 1

rule was published on July 21, 1983,"I and it proposed the 1

following 1 2.b. to be included in 10 CFR 50, App. E E IV.F:

l l "2. Each licensee at each site shall:

"a. Annually exercise its emergency plan.5 "b. Except as provided in paragraph three us int. RI. at 10-11.

"' Eta 49 Fed. Reg. 27733 31 pag. (July 6, 1984).

"I 48 Fed. Reg. 33307 at gag (July 21, 1983).

I l

below, include in its annual exercise:

"(i) Annual full participation' by local ,

government agencies.  ;

"(11) Annual full oc partial participation7 by states within the plume exposure EPZs."D8 ,

The call to what was the footnote which became Footnote 4 to the  ;

present 10 CFR 50, App. E $ IV.F.1 was "6" in the above-quoted proposed regulation. Given its setting, it is clear that from ,

the beginning " full participation" was a term designed to designate the "who," not the "how," to utilize MAG's own terms.

Another piece of the history of the regulation conveniently ,

ignored by MAG is certain language of the Commission in the Statement of Reasons and Basis which accompanied the promulgation '

of the present rule."' In that statement, the Commission, in referring to the "an exercise" requirement of the third sentence of 10 CFR 50, App. E E IV.F.1 in response to the Commonwealth Edison Comment urging its elimination, described the

justification for the exercise as follows

1 "The importance of annual onsite emergency planning exercises by the licensee's operational staff has already been recognized ,

in the Commission's regulations, which now require that after a facility is licensed to operate there must be an annual onsite exercise. This annual emergency response function drill ensures that the licensee's new personnel are adeouately and oromotiv trained and that existina licensee eersonnel maintain their emeroency resoonse canability.

The existing requirement of a pre-operational onsite exercise within one year prior to "8 48 Fed. Reg at 33310.

"'52 Fed. Reg. 16823 gi ggg. (May 6, 1987). -

full-power license issuance is consistent with this chilosechv as well as the Commission's general desire to have pre-operational emergency planning exercises as close as prpgticable to the time of licensing."

What the language quoted with emphasis reveals is an

. understanding by the Commission that the "an exercise" contemplated by the third sentence of 10 CFR 50, App. E 6 IV.F.1 was an exercise that would serve the purpose of uncovering personnel deficiencies in the nature of lack of training or clippage of skills rather than " fundamental flaws" in the plan itself. This makes sense because any " fundamental flaws" in the plan itself would have been revealed in the " full participation" cxercise already held for that facility more than one year prior to licensing and also prior to the holding of the third sentence "an exercise." Indeed, as the Commission itself further observed in promulgating the present version of 10 CFR 50, App. E ,

E IV.F.1:

"To the extent that an offsite pre-licensing exercise is intended to reveal whether an emergency plan has fundamental flaws, that Durpose can be achieved at least as well by i an exercise held within two years of licensino as within one year."*'

Undoubtedly, it is this concept that the Commission had in mind in its decision denying the exemption sought by the Applicants when it referred to the on-site plan for Seabrook as having "previously been exercised and adjudicated" and then went on to i

'"52 Fed. Reg. at 16824-25.

52 Fed. Reg. at 16824.

l l

I J

1 Ctate that "any contention" would need to allege a fundamental flaw.'" In short, it is doubtful that any contention can be csserted with respect to this exercise at all, and certainly the c any contention" language of the commission would dictate that the Intervenors at least plead the fundamental flaw that the improper scope would fail to reveal.  ;

As noted earlier, a necessary part of MAG's legal theory is i that ALAB-900 is to be read as holding that the regulations, in Cnd of themselves, define what constitute the " major observabic portions" of an emergency plan which must be exercised. That ALAB-900 did not purport to make any such ruling is apparent from the face of the decision, inasmuch as the Appeal Board devoted much of its opinion to a factual analysis of whether certain facets of the plan at hand were required to be exercised.'"

In sum, the legal theory which is the gravamen of the entire onsite exercise contention effort simply will not wash.

E. There is no Merit to the other Post

, Hearing Attempts to Roopen the Evidentiary Record for New Contentions.

l As the Licensing Board has noted,'" there were filed two l

last minute efforts to delay this proceeding in the form of motions for the admission of late-filed contentions. One of l

these, which sought to have a hearing on an application for an

'"CLI-89-19, supra Slip Op. at 4 & n.5.

l '"ALAB-900, EupIn at 293-300.

'"LBP-89-33 at 34-37, 40-41.

~57-l l

operating license amendment," r;4s been mooted by withdrawal of that license amendment application.

The other effort is contained in a document styled "Intervenors' Motion to Admit a Late Filed Contention and Reopen the Record on the SPMC Based Upon the Withdrawal of the M:ssachusetts E.B.S. Network and WCGY" ("EBS Motion"). In this ,

offort MAG, acting for himself and other intervenors, attempts to c:mbine relevant facts well known to him for many months with the irrelevant fact of a recent withdrawal of a letter of agreement (LOA) to fashion an alleged significant safety issue supposedly only recently knowable by MAG. Underlying all of this effort is on affidavit by The Massachusetts Civil Defense Director, who

" pinch hit" for the original affiant after the original affiant opparently refused to endorse a form of affidavit previously filed by MAG unsigned but represented to be " authorized and l

cpproved" by the original affiant."' Intervenors claim error as .

1 o result of the fact that the Licensing Board has not reopened l

'the record on this matter."7 I

l

%5 Intervenors' Motion to Recoen the Record and Admit Late-l Filed Contention Recardino Proposed Amendment of Seabrook ooeratina License Aeolication (Nov. 17, 1989). This filing was  !

l noted by the Licensing Board in LBP-89-33 at 37, n.24.

'" Original Motion filed under date of October 30, 1989 at i 12. In his discussion of the history of this contention, MAG carefully omits to mention the fact that the original affiant, ,

whose " withdrawal" forced the retraction of the motion on November 8, had not signed the affidavit that was filed in his name on October 30. Supp. M2 at 77.

1' "7 Supp. M2. at 76-80; Stav App. at 5-6; mag 223 at 7-8.

The title of the EBS Motion presages its first erroneous  :

basis, 1 3., that execution of the Seabrook Plan for Massachusetts Communities (SPMC) is dependent upon the participation of the " Massachusetts EBS Network" in general and Ctation WCGY in particular. The thrust of the EBS Motion is  ;

that, since WCGY and the Massachusetts EBS have declared their intention not to participate in SPMC because of alleged failures l Of the Applicants to live up to alleged commitments,'" the SPMC l

cannot function. This is so, it is alleged, because the l

l participation of WCGY as the " gateway" EBS station to the Merrimac Valley operational area is essential to activate the other Merrimac Valley EBS Stations and, without operation of these stations, SPMC cannot be executed. In particular, it is clieged that two significant safety issues are raised by the withdrawals: (1) bocause WCGY has withdrawn, the EBS in the Merrimac Valley area supposedly cannot'be activated,'" (this is a

" coverage" issue #0) and (2) that without WCGY the Applicants cannot meet the 15 minute prompt alert and notification criteria."1 The EBS Motion is supposedly timely because it was not until the recent withdrawals that these issues existed and were known to MAG. ,

a

'"See Af fidavits of John F. Bassett and Douglas J. Rowe Ottached as Attachments "F" and "G" to The EBS Motion, respectively.

'"EBS Motion at 15.

n0EBS Motion at'16.

"1

• EBS Motion at 16-18.

i i

j i l

)  !

The problem for MAG is that he has known for some time that i SPMC did not rely upon either WCGY or the Merrimac Valley EBS Network. Had he wanted to litigate problems arising out of the fact that only two sister EBS stations were being relied upon to I notify the public and to disseminate information, he could have end should have litigated such matters a long time ago. In the Seabrook Station Public Alert and Notification System FEMA-REP-10 Desian ReDort (" REP-10 Report") published in redacted version

( on April 30, 1988, it was made perfectly clear that Applicants were relying on a single contract with a set of sister FM and AM EBS stations for initial notification and dissemination for information.'" Indeed, when it was discovered that the station call letters had been set out in the SPMC in the unredacted version, MAG and the other parties were sent in June of 1988 a letter enclosing the unredacted pages of the REP-10 Report.

These pages make clear that the SPMC would be relying solely on WLYT-FM and its sister station WHAV-AM. That these were the two EBS stations relied upon was also made clear to MAG during the deposition of Gregory Howard taken on November 16, 1988.'" This fact was also revealed in cross-examination conducted by MAG l

'U REP-10 Report at 1-3 at gag.

'UHoward Deposition at 129 gi ggg. A portion of the deposition was put in evidence as MAG Ex. 126 on June 27, 1989, .

I cnd p. 129 which has the specific reference to the two stations is the last page of that exhibit.

i I

l 1

I l

1 l

during the hearings before the PANS Board,"' and also during Cross-examination before the Licensing Board on June 28, 1989."'

since the filing of the EBS Motion MAG has filed yet another cotion seeking litigation of an additional EBS issue, 1 3.,

whether the two stations relied upon should be deemed -

insufficient because their Arbitron ratings show that few people normally listen to them."' The short answer to this is that the SPMC does not assume, or require, that.these stations presently have a large audience; the pre-emergency information material (PIM), as well as news releases broadcast on other radio and television stations, advise people to turn to those particular ctations upon hearing the sirens.'" In addition, this latest offort suffers from the same defects as the EBS Motion which are discussed immediately below."8 In order to succeed in obtaining a reopening of the cvidentiary record, the Intervenors must establish that the

"'II . (5/2/89) at 147-51.

U5 Lt. 27893-94.

"'Intervenors' Motion to Add an Additional Basis to the Late Filed Attached Contention to the Motion of November 9, 1989 (Nov. 22, 1989).

'#Tr. 27894-96. At the specific request of MAG, literally cvery page of the PIM directs people to turn to these specific ctations. Joint Sticulation Recardina Pre-Emeraency Information Issues, ff. II. 28285 at 2, 3, 4.

'"Moreover, MAG's argument simply cannot stand in the face of the stipulation which he entered into before the PANS Board on May 2, 1989. Egg Apolicants' Resoonse to "Intervenors' Motion to Add an Additional Basis to the Late Filed Attgched Contention to the Motion of November 9, 1989" at 7-8 and n.14 (Dec. 2, 1989).

l cotion is timely, is directed to a significant safety issue, and i

\

that a materially different result would be likely if the newly i proffered evidence had been considered initially.'" In addition,-  ;

where, as here, the contention sought to be litigated was not previously in controversy, the "five factors" test must be  ;

I Catisfied.'" We address the last of these requirements first.

The balancing of the five factors weighs against the ellowance of the motion. As is clear from the recitation in the introduction above, MAG was, or should have been, well aware over I cne year ago that SPMC did not contemplate the use of WCGY or the Merrimac Valley Network EBS operational Area stations in order to meet ,the alerting requirements of 10 CFR $ 50.47(b) (5) . There .

j cimply has been no showing of any good cause for filing this contention at this late dato. That being the case, Intervenors must shoulder a heavier burden with respect to the other four factors.ist As usual, it must be conceded that the second and fourth factors favor the Intervenors, but these are the less weighty L f actors . ts2 With respect to the third factor: Commission " case l

l 1"10 CFR $ 2.734(a).

1"10 CFR $ 2.734(d) incorporating 10 CFR $ 2.714 (a) (1) . ,

181 E.g., Public Service ConDany of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-918, 29 NRC 473, 484 (1989);

Vircinia Electric & Power Co. (North Anna Station, Units 1 and 2)3 ALAB-289, 2 NRC 395, 398 (1975). ,

1" Commonwealth Edison ComDany (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 245 (1986) ; South Carolina Electric and Gas Company (Virgil C. Summer Nuclear Station, Unit 1) , ALAB-64 2, 13 NRC 881, 895 (1981).

l . . . . - . _

.- - ~. - -.

l I

1

! law establishes both the importance of the third factor in the i cvaluation of late-filed contentions and the necessity of the Coving party to demonstrate that it has special expertise on the ,

f cubjects which it seeks to raise. (Citation omitted.) The  ;

Appeal Board has said: 'When a petition addresses this criterion it should set out with as much particularity as possible the precise issues it plans to cover, identify its prospective ,

witnesses, and summarize their proposed testimony'.""" on a cursory look, the two EBS motions might be viewed as having complied with the requirements of the third criterion; but, on close inspection, it has not. The affiant now offered for the first motion has no special expertise in radio network design.

Neither he nor the original affiant purports to be an expert on oither coverage or the issue of whether the 15-minute criteria can be satisfied.'" The affiant offered for the second motion is not purported to have any expertise in the area of human behavior  !

in emergencies. These are the issues which the hearing, if granted, would be about. It is these matters which must be addressed under the third criterion, and they are not.

1" Commonwealth Edison Comoany (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 246 (1986), citing with accroval, Mississioni Power and Licht Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC 1725, 1730 (1982). Accord, Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-918, 29 NRC 473 at 483-84 (1989).

l

'"Indeed, the second affiant is even less certain as to the E clieged lack of a provision for ensuring notification is made to the public in the Seabrook EPZ within 15 minutes. Compare Boulav Affidavit 1 4 (" appear to exist") Eith Sawyer Affidavit 1 4

(" exist").

As to delay, there is no doubt where the delay factor -

weighs. On balance, we submit, factors one three, and five weigh Cgainst admission of the contention, and, therefore, the motions Chould fail under 10 CFR li 2.734(d), 2. 714 (a) (1) .

There has been no showing that the facts alleged give rise t to a significant safety question. The claim in the EBS Motion is that there are two significant safety questions raised which warrant reopening. The first is a coverage question. However, cs the record shows,"5 there is coverage of the EPZ by the WLYT-FM and WHAV-AM, the sister EBS stations under contract. With respect to the 15-minute notification, that has been exercised and fully litigated. Again, there is nothing in the materials filed which casts doubt on the concept that notification can be made in about fifteen minutes through the contract EBS stations.

Thus, there simply is no safety question raised, never mind a cignificant safety question.

In addition, it should be remembered that insofar as there is an unstated issue being raised to the effect that all EBS ctations should be available, they, in fact, will be, assuming the Governor activates them. The realism doctrine dictates that cny effort to base these motions on the concept that the Governor will not activate the entire EBS system, when requested, must be rejected. Indeed, it has been held that an Applicant need not have LOAs with a state EBS network, its mere existence (clearly demonstrated by Intervenors' own affidavits) is sufficient to "5

L:. 27893-94.

t i

cstablish that prompt notification will be provided by the system when called upon."' l There has been no showing that a different result would be i likely. The facts are the facts. SPMC simply does not depend upon the Massachusetts EBS System in general or WCGY, in l particular. The result will be the same even assuming everything that is stated in all of Intervenors' affidavits is true.  ;

F. There has Been No Demonstration That Significant Reversible Error Eas Been Committed in PID II.

1. The Licensing Board Committed No Error in its Resolution of ,

the Contentions concerning the SPMC Intervenors raise a number of particularized allegations of ,

crror with respect to SPMC contentions in PID II in their filings -

which we address seriatim. Before doing so, however, Applicants -

make the general observation that, throughout MAG's 32-page catalog of alleged errors in PID II,"7 there is not a single citation to the SPMC evidentiary record, be it transcript or i

cxhibit.- This omission is not surprising given that, as l

[ demonstrated below, reference to that record reveals Intervenors' essertions of error to be based time and again upon speculation, misrepresentations, or plain untruths.

"'Lona Island Lichtina Co x (Shoreham Nuclear Power Station, Unit 1) , ALAB-911, 29 NRC 247, 254-55 (1989).

"Ili&Q EgE. at 11-43. -

l

n:

]

First MAG asserts'that the Licensing Board erred in not requiring separate ETEs for the Massachusetts communities contained within the various Emergency Response Planning Areas

! (ERPAs).tes This allegation ignores the fact that: (1)

Applicants' ETEs give PAR decision makers adequate and useable ,

information, whereas the extra data MAG seeks to incorporate l

would not be useful and could instead overly encumber decision-cakings ta (2) MAG's own expert stated that he did not know what use, if any, PAR decision-makers could nake of Massachusetto-cpecific data;* and (3) NRC guidance calls for integrated, rather than state-by-state, planning."' Likewise MAG's clain that "[t]here is no record basis for the Licensing Board's ossumption that a coordinated effort in PAR decision making will  ;

come to pass"w2 g , ,g ,py y f ,y ,,,in ,

Next MAG asserts that "the ETEa are premised on [early staffing of Traffic Control Points (TCPs))."* This allegation is both false and irrelevant.'"

tesM. at 11-12.

• L.g . , R . 2 6714 - 15 .

• R. 28241.

• NUREG-0654, at 19, 23-24.

"2 E EQID. at 12.

• L_q. h. 26710-11.

l *E EQID. at 13 ; ggg also M. at 15-16.

'" App. Reb. No. 16, ff. h . 26681, at 36-48. Indeed, MAG's ossertion here is flatly contradicted by his own proposed findings on the SPMC. E.gg Massachusetts Attorney General James i

MAG's claim that "there is . . . no record support for the l l

Licensing Board's assumption that (traffic guides) will be aided ]

(by state and local police)"* is false."? So is MAG's assertion that "[t)here does not appear to be record support for (the) presumption . . . that stati ?nd local police can be relied upon

.to identify road impediments that block evacuation routes during the first hours of an evacuation."*

MAG's attack on the Licensing Board's findings with respect to staffing for evacuation-specific personnel

• overlooks the '

facts thats (1) since MAG offered no opposing evidence,#00 the FEMA finding of adequacy is unrebutted; (2) the Board had ample cdditional record support for its findings;iO' and (3) if needed, o second shift is planned to be made available through a nutual ossistance agreement with the Yankee Atomic Electric Company.i0i Similarly, MAC'e argument as to tr61ning for second-shift traffic l

M. Shannon's Prooosed Findinos of Fact. Rulinos of Law, and Conclusions with ResDeft to the Seabrook Plan for Massachusetts

( Communities and the Exercise Contentions at 63 (August 14, 1989).

• HAQ . Cpm. at 14.

• L.g . , App . Reb . N o . 21, ff. II. 23537, at 12, 31, 37, 46;

h. 23667; App. Reb. No. 9, ff. h. 17333, at 21-22.

' M .Csm at 15; 3g3, M ., R. 23666-67.

• MAQ. .Com at 16; presumably that is what MAG meant by

" evacuation of specific personnel." ,

200 PID II at 196.

20'L.g. , Tr. 18695 ; App. Reb. No. 16 ff. h . 26681, Attach.

D. j r2 Lg., R. 23966. -

I l 1 l

'l i

)

guides'" again ignores the unchallenged TEMA presumption,'" the fact that those guides would be drawn from a Yankee Atomic pool  !

)

Cf Personnel suited for such work,#" and the fact that PEKA )

interviewed second-shift guides during the Graded Exercise and ,

found that they knew their jobs.'" Finally, MAG's claim that route guides must accompany the drivers of every van, station .

wagon, and ambulance'" (aside from its total lack of any +

cvidentiary foundation) was not raised in any admitted contention .

cr testimony, and thus is too late.

MAG next claims that "there is no range of protective i

Octions . . . for the beach population in (sic) Massachusetts EPZ."I" The. record, however, shows that there is an adequate range, including a partial sheltering option.'" Similarly, MAG's assertion that "[n)either the SPMC, nor the record, reflects what the DRF for the general housing stock is" is, at best, .

I 2p l

HAG C2E. at 18-19. <

I"PID II at 196 2M E23., II. 22613, 19177.

au II. 22625.

2p HAG C23 at 19-21.

! I" MAG CSE. at 21.

PME 2., II. 18513, 18575; II. 14120, 14130; II. 18574; App.

Ex. 42, Plan 5 3.4.2(A) at 3.4-4, 5 3.6.1(F) at 3.6 - 11.

Indeed, MAG's own ETE witness assumed a partial sheltering option of the beach-area population. II. 17096.

l-l

Disleading."' FEMA provided substantial testimony, expressly relied upon by the Board, that the correct DRT was used.'" i MAG asserts that "(njothing has been done to correct the (radio communication range) problem noted by TEMA.""'

Prescinding from the fact that MAG is wrong in claimi.ng that FEMA found a range problem requiring correction,2n MAG omits the fact j that no communications are required under the SPMC at distances .

beyond range.'" Moreover, MAG ignores the fact that the record Chows, and the Board found, that all communications problems ,

which FEMA did identify have already been corrected.ru MAG's attack on the Licensing Board's findings concerning Applicants' special needs survey?" is likewise built upon otrategic omissions and factual sleight of hand. KAG omits to cention, for example, that Applicants' survey suceneded in iderititying proportinnately twice es uany speciel needs persons

Os had MAG's witntsw in his own experience, and that the 4.3%

figure cited by MAG was taken n21 from the witness's own cxperience but from an unidentified, unproduced, and otherwise 22MAQ g.qm. at 22.

l tu PID II at 221-222, citina II. 18577-78, 18587-590. Egg also II. 24919.

tu MAG gna, at 24.

1. U gga App. Ex. 43 F at 207.

8"E2g., App. Reb. No. 22, ff. Tr. 27223, at 18.

1. U PID II at 255, and citations therein. Egg also PID II at l 256-57.

I"MAQ Lic. at 24-27.

l l

l

i unexaminable secondary source.8" Also misleading is MAG's claim f that "the Intervenors ... show[ed) that the Applicant's [ sic) curvey failed to identify any non-institutionalized emotionally  ;

Cr mentally disturbed persons in the entire Massachusetts EPZ."I"  ;

What the Board actually found was that, apart from Applicants' ,

curvey, there simply was no evidence in the record as to the cxistence or non-existence of such persons.'" Thus the Licensing Board could have rested on Applicants' undisputed evidence, or on ,

the unrebutted FEMA presumption, but instead it asked Applicants to " renew their efforts and to refine their techniques" to search for such people.880 Far from committing error, the Board acted conservatively on this issue.

Next MAG claims that the Board's satisfaction with Applicants' methods for identifying special facilities resulted from "a double standard for utility plans as opposed to governmental emergency response plans.""M Again MAG omits key facts, itet, that the Board based its findings on "the non-l currency of any data-gathering techniques used for future ,

l \

2n PID II at 286, citing to testimony of MAG's Witness; Tr.

39569-572. Moreover, the witness was unable to support the 4.3%

cstimate by reference to information from actual emergencies.

II. 19601-2. All MAG showed, in short, was that one survey, one time, conducted somewhere by somebody, yielded 4.3 percent.

I"MhQ G23 at 26.

1 '

2W PID II at 287.

2207 g ,

221 gAQ 223 at 27-28.  ;

1

'i

i ,

i 1

planning,"222 and on Applicants' specific commitments to augment j Cnd increase the frequency of their data-gathering,223 quite apart from the effects of non-participation.

MAG's complaint as to procedures for contacting elderly housing projects after hours, and as to the number of telephone calls which special population liaisons must make, is that the Board delegated to the NRC Staff the task for overseeing the implementation of the procedural enhancements requested by the Board .224 Prescinding from the fact that the changes have already been accomplished and are contained in Rev. 1 of the SPMC, the

' Board clearly was correct in its factual judgment that these ,

matters should be left to the Staff. As the changes did not involve major revisions of tho plan, they by definition did not amount.to "tundamertal flaws."

MAG's assertion that "tho SPMC does not provide for cmbulances to transport the contaminated injured"M is false.

The Board expressly found, with direct record support, that Applicants had in place a " pool of su:plus, unused and returning l

l SPMC-committed ambulances" to use in transporting contaminated '

injured persons,226 and that in-addition there were numerous other community ambulance resources which could reasonably be relied 222PID II'at 288.

223 Id. at 381, 288-289.

224 E fan. at 28-30.

225 E fam. at 30.

226

• PID II at 309.

1 s

MAG's discussion of nursing home staffing I28 upon as a backup.227 likewise simply ignores the evidence as to the plans already in ,

place, the resources available, and the expectable response.2n It is alleged that the Licensing Board erred, in light of ALAB-924, in not requiring LOAs for teachers to the extent that they are expected to care for children in a radiological caergency.230 Prescinding from the very real question of whether there was extant any contention raising this issue with respect to SPMC,'31 we respectfully refer the Commission to $$ I.A.3.a cnd I.A.4.a above for a diucussion of the substance of the Appeal Board's holding on this issue. Moreover, whatever may be the viability of an issue as to the duty of a New Hampshire teacher to care for children in his or her charge in an emergency, there is no such issue in The Commonwealth. Attached hereto and marked "A" la e memorendum iusued by the Hassachusetts Geeretary of tho l

l Executive office of Public Safety which makes clear that it is i the policy and law of The Commonwealth that teachers must I

cooperate to any extent requested by the Governor in a nuclear 227 2d. at 308-3098 !dt AlSo TI. 21582, 21588, II. 21370.

228 MAG Cam, at 31-33, 2M E.g., App. Ex. 42, IP 2.7 at Attach. 3; II. 21306-312, 21317; II. 21272-73.

230 Supp. h at 72-73; Stav App. at 3-4; MAG E2m. at 33.

23'Intervenors cite to no such contention in their various briefs, and Applicants have not been able to find one on review of the admitted contentions. The same infirmity exists with regards to MAG's newly-raised call for LOAs with individual cpecial-facility employees, mag gem. at 33.

l

emergency. Under the realism doctrine it can be assumed that the Governor of The commonwealth will not permit school children to L be abandoned to fend for themselves.

MAG asserts that the Board " erred in finding the Westborough facility to be a suitable congregate care facility for the cpecial needs population," because the facility was never reviewed by FEMA to house special needs persons and there is no indication that there are handicapped accessible bathrooms cvailable.nr MAG's assertions are nisleading. The record shows that the Westborough buildings are fully handicapped accessible; the uncertainty only was with respect to h2M many handicapped '

cecessible bathrooms there are in the buildings.2n Be that it may, the Westborough facilitica have been evaluated for American Rod Cross (ARC) certificate capacity by a certified ARC shelter nznager.2M There is no error.

MAG next alleges Licensing Board error because it e.ssigned

the ~teview of procedures to be instituted for the reunification l- cf school children with their parents to the NRC steff,"' MAC l nicstates the Licensing Loard's finding. The Board's firiding was rcgarding reunification procedures for transit dependent families cnd their school children and transporting such families to 1

MAG E9E. at 33-34.

2"E2g., Tr. 21458.

U4 TI. 21463-65.

2n MAG G2E. at 34. -

t l

3 Congregate care centers.3" But reunification is not a safety ,

issue, as the people at issue would have already been safely  ;

cvacuated from the EPZ.337 MAG has never demonstrated that his -

Cllegation has any regulatory basis. Moreover, he requested no l finding of the Licensing Board that such a procedure was i

required. Given the above, the Licensing Board was correct in leaving resolution of this question to the NRC staff.

NAG contends "[t]he Licensing Board's finding that Holy Cross host school is adequate is without foundation."3" However, ;

contrary to MAG assertion that " FEMA never reviewed the use of Holy Cross as a host school f acility,"239, FEMA's witness Donovan Cxplained FEMA's evaluation of Holy Cross as a host facility concluded that the arrangements there are adequate to host school children.'"

Similarly, MAG's plaint that more hospital beds need to be  ;

pre-identified is lung an rhetreic but wholly devoid of facts.E" Applicants have LGAs with four hospitals whose total beds number 1120, vj th another 65 beds in reserve -- more than five times the i

tate.) capacity of the two EPZ hospitals to be evacuated, or nearly ton times the average daily census of those two i-u4 PID II at 343 (8.132) '

237 Ir. 21325.

• " MAG C9E. at 34.

239 g

2@II. 22680-81.

20 MAG E9E. at 36-37.

1

i i

i fccilities . ' Nor does MAG's purported concern, that nursing home residents will have to be evacuated to hospitals due to lack Cf bed rails at the special host facilities,3 have any record ,

cupport. To the contrary, the special facility plant expressly j provide that "special care equipment [and) medications" are to be teken with the facility residents in case of evacuation.'" '

MAG's attack on the Board's findings with regards to cmbulances, buses, and bed-buses is likewise unfounded.'" In his present filing, MAG merely repeats the speculations and numeric oleight-of-hand which the Licensing Board thoughtfully and ,

thoroughly demolished in its findings.'" As to bed buses, MAG omits to mention that the Board specifically required Applicants to acquire or execute LOAs on 35 bed buses (which Applicants have cince done); confirmatien of the execution of LoJ,s cicarly f alls within the supervisory authority tradit!.onally delegated to the Ste ff, as the Licensing Doar.3 has ione t r e .'"

g Intervenors charge that the Board 3rred in treating the 1

holding made with respect to the 20% rule in the NHRERP phase ut l I Egg PID II at 343-44, and transcript citations therein.

! B: sed on average daily census figures, Applicants could expect to j have about 400 beds available to accommodate about 129 evacuated  !

hospital patients. Id.

243

, MAG .C.Qs. at 37.

tu lr._21273 26 MAG Com. at 37-40.

au PID II at 375-380.

247

14. at 382,.451.

~75-

the' case as ran iudicata on the percentage of evacuees who had to l be provided for in monitoring facilities.248 This amounts to an orgument that because at Seabrook there are two rather than one caergency plans and further because they happened to get tried seriatim, Intervenors get two bites at every apple.20 The' Licensing Board correctly took the position, that whenever a matter was of a nature that there was no basis for believing that the result on an issue could vary by virtue of geographical location, the issue, once available for trial in NHRERP, could not be retried in the SPMC phase of the hearings. The Intervenors, as a group, simply failed to mount a proper challenge ' '.he 20% rule in New Hampshire. The 20% criterion is equally c: " 'id or invalid as a planning basis in either New Hampshil- , Massachusetts.2% No evidence as to the validity of ,

._L G2m. at 10-11; Stav App at 4-5; MhG G2E. at 40-41.

2WAt least, this is the position which SAPL candidly takes.

SAPL GSE. at 10-11. MAG, on the other hand, amazingly asserts that "the Appeal Board found that the [20%) issue had never been raised or litigated in the New Hampshire proceeding." MAS CDE.

at 41; RaA ale 2 Stav Aeo, at 4-5. The facts are exactly the contrary. The Appeal Board found: that "[o]n its proposed conclusions of fact, SAPL invited the Licensing Board to find, on the strength of Dr. Herzberg's opinion,-that 'it is unreasonable to plan for only 20% of evacuees reporting to centers for services,'" ALAB-924 at 37; that this challenge by SAPL failed because "SAPL made no effort to enlighten the Board respecting the justification for preferring Dr. Herzberg's conclusion to that of FEMA", id.; and that, after the Appeal Board itself i reviewed the testimony, "it is simply impossible to conclude that the trier of fact was obliged to reject the FEMA position on the strength of Dr. Herzberg's contrary opinion," id. at 44.

p 2n The Appeal Board reached a similar conclusion, noting that

'the Intervenors in New Hampshire could have mounted the same kind of evidentiary attack on the Krimm memorandum as did the LILCO g opponents, but that the Intervenors simply failed in their

t the criterion could have been offered in the SPMC phase that

.could not have been offered in the NHRERP phase, had the issue been properly raised there. The Intervenors failed to mount the challenge and the time for doing so passed them by.

In-the event that the Commission disagrees with the foregoing, then it is the position of the Applicants that the Appeal Board decision, ALAB-905,"1 wherein the 20% rule was held to'have insufficient extant evidentiary basis, should be everruled.for the following reasons. It does not appear that in

[ ALAB-905, the Appeal Board addressed or decided the basic question of whether any NRC adjudicatory board is permitted to overrule generic FEMA guidance in the emergency planning area.

It is true that the NRC Staff is considered only another party to NRC adjudicatory proceedings and that when its Reg. Guides are called into question, the Staff must defend them and Licensing cnd Appeal Boards may decide not to follow them. But FEMA guidance is not guidance from a subordinate arm of this agency.

It is rather the position of a sister federal agency, an agency which the President of the United States empowered to take the lead in offsite emargency planning for nuclear power plants. And j l its findings are accorded the only rebuttable presumption to be found in NRC regulations. Thus, FEMA generic policy is not in the same legal position as a Staff Reg. Guide. Yet, the Appeal i

l I

afforts to do so. ALAB-924 at 42.

31Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1) , ALAB-905, 28 NRC 515 (1988).

Coard in ALAB-905 seems to have assumed that it could overrule that judgment of FEMA if, in the Appeal Board's opinion, the-judgment was not well~enough documented'on the record to withstand the Appeal Board's scrutiny. The analogy that comes to nind is to hark back to the days when financial qualifications were an issue in NRC proceedings; would an Appeal Board feel free-to disregard, as not well supported, an Internal Revenue Service Ruling if one was being relied upon in the financing scheme for a nuclear power plant; or to disregard a policy statement of the SEC in the area? We think not. And we respectfully suggest that FEMA's position is no less entitled to deference; indeed, in light of the Presidential directive by President Carter, FEMA's position is even stronger.

Apart from the foregoing legal argument, we' respectfully

'cuggest that certain of the factual assumptions that apparently chaped the reasoning of ALAB-905 were faulty. The Appeal Board could find.no basis for equating the number of persons seeking l

chelter with those that will need to be monitored. At first 1

-glance, the assumption that there will be more people who will l

'ceek monitoring than both monitoring and sheltering seems 1

logical.- However, it will not bear up under practical consideration of the realities of a nuclear event. If there is no release, the public will be so informed and essentially no one If there is a release and contamination in will' seek monitoring.

on area, the public information will inform people that if they were in a certain area, they are potentially contaminated. It is 1

. f 1

L l 1

cxpected that they will be advised of the decontamination process. As a result, who will go to the reception center? The Cnswer is: those who cannot go home to shower or to a hotel room

'cr anywhere else. No rational person is going to stand in line ct a congregate care center to be monitored and take a shower if found contaminated if, in the alternative, that person can go olsewhere and immediately get a shower. Thus, there is a very

_ definite connection between the number who seek shelter and the i l

number who will need monitoring and decontamination. The numbers I for all practical purposes will be equal. In fact, moreover, the plans.for New Hampshire and Massachusetts go one step further.

Because all persons who are provided transportation are planned to be monitored, the resulting planning basis is well in excess

' of 20 percent of the total population.252 Irrespective of the foregoing, there is a basic question of N .

squity involved here. A utility follows the guidance of a l FCderal Agency with lead responsibility in an area, guidance which has been followed throughout the country so far as we are aware, plans accordingly, and then another federal agency says "gotcha." This cannot be the type of National Government that is ,

intended by our Constitution and our laws. If the civil rights 1 l

of an individual were so treated, the Courts and Congress would ba justifiably outraged. It is to be remembered that this agency l offered no guidance of any kind in this area. A utility could go 252

LBP-88-32 at 701, 703; App. Reb  !!o. 17, ff. II. 25423, at 4-5.

4 a

nowhere else.for guidance than the Krimm Memorandum. Indeed, there are any number of plants cranking out power on the same

- planning basis. The result of ALAB-905 " borders on the Kafkaesque. "2n Finally, we cannot help but note the fact that FEMA has formally advised this agency of its intent to continue to use the 20%' rule unless advised to the contrary by the Commission.2% No cuch advice has been forthcoming as of this writing. We also note the fact that the Director of Nuclear Reactor Regulation (NRR), speaking for the Commission, has stated the Agency's continued adherence' to the FEMA 20% Rule.2n In that same decision, NRR' points out that a rationale for the 20% rule is also found in the fact that the laws of meteorology preclude Gimultaneous contamination of the whole EPZ.256 This was put forth as one of the rationales for the use of the 20% rule at Seabrook also.257 NRR also points out that the planning basis allows for expansion, if necessary, through use of other industry l

Gnd government resources.258 -SPMC is also designed so that l-l; I

2H Vermont Yankee Nuclear Power Coro. v. HEC, 435 U.S. 519, L 557 (1978).

1:

1 2H Letter Peterson to Stello (March 28, 1989).

2n Lona Island Liahtina Co. (Shoreham Nuclear Power Station),

DIRECTORS' FINDINGS ON EMERGENCY PLANNING CONTENTIONS (April 17, 1989) (hereafter cited as "LILCO FINDINGS" and to the slip l opinion) at 12-13.

256

14. at 12.

257 App. Dir. No. 4, ff. Tr. 4740, at 2-3, 258 LILCO FINDINGS at 13.

I-t o

+

governmental entities can contribute further resources and manpower. The decision of NRR together with the fact that a number of plants are now running on the basis of the 20% rule illustrates conclusively that, even if it be necessary to litigate the validity of the 20% criterion, operation should ctill be allowed to proceed under 10 CFR $ 50.47(c)

Returning to MAG's-compendium of alleged errors, MAG asserts ,

that there is no factual record to substantiate the Licensing Board's conclusion, PID E 9.62 at 392-393, that proportionately fewer non-EPZ resident day trippers and employees will use the I reception centers than will the general public as a whole.259 To

.the contrary, the Board's findings constitute its resolution of Lthe-conflicting factual and expert testimony presented by Applicants, on the one hand, and MAG, on the other, on this issue. Indeed, it is to be noted that the Board's conclusion as L

to the actual percentage of non-EPZ resident day trippers and cmployees that should be planned for at the reception centers is closer to the amount argued by MAG than by Applicants.22 l

Next MAG asserts the Licensing Board erred because it did not require Applicants to identify or develop procedures for clearing extra space in the reception center parking areas prior to issuance of an operating license.2e This argument is just p

silly. Prescinding from the fact that clearing a parking lot 259 at 41-42, BAG E23 2M PID II at 393-94.

26' MAG Com. at 42.

. - -- -. - ~.

does not require elaborate pre-planning in the first place, MAG

.ckips over the fact that the Board found, based on both l

l Applicants' and MAG's testimony, that Applicants do not take credit in their parking calculations for the storage space.262 Additionally, MAG's own photographs reveal that the equipment

.needed to remove or rearrange stored items is already present at the sites.2a' Since the photographs indicate that the parking creas are generally ~open, and that sufficient time exists for the areas to be cleared prior tc the arrival of evacuees, the Licensing Board reasoned that this could be accomplished on an ad has basis, although it called for plans to be drawn up anyway.2s Here again the Board, far from committing error, was extremely cautious.

MAG alleges that the American Red Crosa (ARC) has not participated in planning with respect to the SPMC, and that I therefore there is no factual predicate upon which the Licensing Board could find that the ARC will be available to respond in a timely and adequate manner to provide staffing for congregate

' care centers.265 MAG's argument is disingenuously self-serving, for it is the Commonwealth of Massachusetts which has caused the 1 Massachusetts state-level American Red Cross to refrain from SPMC 2s PID II at 416, 417.

2sMAG Ex. 122 and 123, p_itad ID PID II at 417.

2M id, at 418.

265 MAG Com. at 42-43.

t l

planning.'"' Moreover, the facts (omitted by MAG) are that contact with ARC, and'even local-level planning, has occurred,7 cnd.that procedures are in place for coordination with ARC through the New Hampshire chapters and_through liaison personnel .26a Finally,.the Intervenors complain of the fact that in the face of ALAB-924, the Licensing Board held that there was no need to include ETEs for special facilities in SPMC.269 Intervenors argue, in essence, that the Appeal Board has held that as a matter of law there must be included ETEs for each special facility (apparently no matter how useless they would be). The argument is based on Intervenors' reading of footnote 71 at page 27 of ALAB-924. To begin with, it is problematical whether the actual language of the Appeal Board can be pushed to the limit Intervenors would push it. However, if the Appeal Board was in

fact holding that NUREG-0654, Appendix 4 requires inclusion of individual special facility ETEs even when they serve no useful purpose because they are not. longer than the general evacuation times,2m the Appeal Board, we respectfully suggest, is in error.

NUREG-0654 states that "[e)ach special facility shall be treated

[ .-

2M Spa PID II 9.151 at 440.

267

h. 21055-56.

26a App. Reb. No. 6, ff. R . 21049, at 71; h. 18724-25; h ,

21056; App. Ex. 42, Plan 6 2.4.2 at 2.4-1, and id. at IP 1.6.

269 Supp. MS2 at 71-72; Stay bpm. at 3-4.

2m S22 PID II at 85-90.

cn an individual ~ basis."E" This is not the equivalent of saying  ;

1 that each one has to have its own ETE. It means that a hard look l l

.must be taken and if the conclusion is, as it is in this case,- l 1

that all individual ETEs are within the envelope of the general l L

cvacuation, there is no need to include useless information in the plan. Any other result is absurd.

2. The Licensing Board Committed

-No Error in its Resolution of the contentions concerning the Graded Exercise.

Intervenors raise a number of particularized allegations of orror with respect the resolution of contentions with respect to thL FEMA Graded Exercise. We address them seriatim below.

SAPL raises a number of questions as to the " scope" of the exercise.272 These include complaints that only one ambulance and one wheelchair van were exercised, that only two out of three

monitoring teams were exercised and one of them went to the wrong I

place, that only four State Police officers were actually placed at traffic control points (TCPs), that only three bus companies were exercised, no school evacuations were undertaken and thus no l

l teachers were exercised,2n and that no demonstration was made of 1

l gecond shift capability by an actual shift change at the 2n NUREG 0654, App. 4 at page 4-10.

2n SAPL Com. at 11-13; E22 also Stav 6pp. at 6-7.

2n Egg also Stay App. at 6-7. If schools were actually evacuated it would seem that the exercise would be in violation of the regulation which limits the scope to that which would not require "uandatory public participation." 10 CFR 50 App. E 5 IV.F.1.

1 r

E

i L reception centers. Prescinding from the fact that SAPL cites to

'nothing in the. evidentiary record which in any way undermines the factual' foundation upon which the Licensing Board based its t L findings, we are unenlightened as to how these alleged defects in ccope, had they been. filled,-would have conceivably revealed cnything but errors by personnel which constitute flaws which could be corrected by supplemental training of personnel and are, therefore not " fundamental flaws."2n Absent a demonstration that the' exercise scope was so insufficient as to make it likely that ,

a specified fundamental flaw would go undetected, there is ru)

Orror.25 Intervenors also raise an issue as to PANS, claiming that it has never been exercised.2n It was exercised in the graded oxercise to a sufficient extent. It was not exercised in the onsite exercise because it is not part of the onsite plan.

L Moreover, siren verification is classically one of those matters i

left to post-licensing resolution by the Staff.2n There is no regulatory requirement that sirens be audibly tested before a license is authorized.2n 1

L 2n Public Service Company of New Hampshire (Seabrook Station, l Units 1.and 2),-ALAB-918, 29 NRC 473, 485-86 (1989).

25 333 discussion 5 I.D. infra. I 2n Stav App. at 5-6.

2ntouisiana Power and Licht Company (Waterford Steam Electric Station, Unit 3) , ALAB-732, 17 NRC 1076, 1105 (1983).

2nNorth Carolina Power & Licht Co. (Shearon Harris Nuclear Power Plant) , ALAB-852, 24 NRC 532, 546 (1986). -

l _ _ _ __-___-__ _ __ ____ - _______ _ ___. .

I

4a

3. The Decision has all the Indicia of Regularity.

Intervenors devote a good deal of time arguing that PID II has no indicia of regularity, as well as accusing.the Licensing Board of bias.2M - The only_ actual procedural irregularity that is Gentioned is the fact that the decision came out with a reference to its becoming final in 30 days.'" In fact, this was cured flater in the same decision.281 As to the bias charges., if the Intervenors-mean this, there is a recognized procedure to ,

follow,282 and as usual the Intervenors have not availed themselves of the correct procedure. The charge is just plain

' baseless and should be plainly and firmly rejected.

l l

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[

2Mgypp M. at 11-17 ; SAPL .CJ23. , passim.

2so ngs Supp. M. at 14.

2st l Egg PID II at 570.

282 10 CFR S 2.704(c).

l l

l

l l

L

' I

I II. THE REQUISITE SHOWING FOR A STAY OF EFFECTIVENESS OF PID II AND ITS AUTHORIBATION OF THE ISSUANCE OF A FULL POWER LICENSE EAS NOT BEEN MADE. I I

A. The case has not Been Made for a Stay l Under 10 CFR E 2.788.

Herein the Applicants address each of the factors required to be addressed under 10 CFR 6 2.788.

1. Whether the moving party has made a strong showing that it is likely to prevail on the merits?

As this Commission has stated:

"To meet the standard of making a strong showing that it is likely to prevail on the merits of its appeal, the movant must do more than merely establish possible grounds for appeal. In addition, an 'overwhelmina showina of likelihood of success on the merits' is necessary to obtain a stav whera the showina on the other three factors is we a k . " #"

In Section I of this argument the Applicants have addressed each of the assertions of legal error made by the Intervenors as to 1

which they assert they can prevail on appeal. Herein we rely on that discussion for the proposition that, far from showing a strong likelihood of success, there is virtually no likelihood that the Intervenors can and will convince any appellate tribunal that the Licensing Board decisions contain any error which l require a finding that there is a significant deficiency in 1

2c Alabama Power Company (Joseph M. Farley Nuclear plant, Units 1 and 2), CLI-81-27, 14 NRC 795, 797 (1981). (Footnotes omitted, emphasis supplied.)

l

r" k I

'l Oither NHRERP or SPMC as that term is used in 10 CFR EL 50247(c)(1) . l MAG asserts that the Appeal Board, by certifying to the Commission in ALAB-922 one facet of one evidentiary question  !

which arose in the NHRERP proceedings, divested the Licensing Board of jurisdiction to utter any judgment as to the SPMC and Cxercise issues then before the Licensing Board.2m Prescinding from the narrowness of the question certified, i.e. whether

-comparative dose calculations for certain extreme accidents was  ;

relevant to determining whether " reasonable" dose reductions were achieved by the NHRERP's approach to the beach sheltering issue, the Appeal Board in ALAB-922 simply did not disturb the Licensing Board's prior ruling on this issue, and that Licensing Board ruling, absent contrary action by the Commission, remains the-law of the case.2m SAPL argues that the Intervenors have prevailed on the

merits because of the remand in ALAB-924.22 However, that 1

argument ignores the fact that, even assuming ALAB-924 is not-wholly reversed, the Intervenors have not yet prevailed, and, for the reasons set out in Section I.A.3, should not prevail on the ,

l' issue of whether the shortcomings perceived by the Appeal Board 2M Stay App. at 2; Supp. Mg. at 74.

2n Moreover, if the Appeal Board had believed that ALAB-922 divested the Licensing Board of jurisdiction to enter PID II, then the Appeal Board doubtlessly would have said so in its order of November 14, 1989. Egg note 35 supra.

2M SAPL 293. at 6-7.

I

u -

1 are significant under 10 CFR 5 50.47(c) (1) . Certainly, the

~

Intervenors have not shown that the likelihood of prevailing is a

" virtual certainty," which is required where there is no showing of irreparable harm as seen below.887

2. Whether the Party will be Irreparably Injured Unless a stay is Granted.

"The most significant factor in deciding whether to grant a otay request is 'whether the party requesting a stay has shown that it will be irreparably injured unless a stay is granted. '"288 There simply is no basis upon which the Intervenors can claim immediate and irreparable harm from the issuance of the full power license and operation of Seabrook at full power. The claim

. basically is that the Intervenors are harmed, assuming their assertions as to the emergency plans alleged deficiencies are correct, by allowing a reactor to run before these deficiencies cre corrected.289 In one sense, this state of affairs, if it cxisted, could never be said to be "immediate" harm. But before 1

l there is any harm from a perceived shortcoming in an emergency plan there must be an intervening event of extremely low 1

as7 General Public Utilities Nuclear Corooration (Three Mile Island Nuclear Station, Unit 2), ALAB-914, 29 NRC 357, 361 (1989).

ZuMetropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-84-17, 20 NRC 801, 804 (1984), quoting Westinchouse Electric Coro. (Exports to the Philippines), CLI-80-14, 11 NRC 631, 662 (1980). Accord, Public Service Company of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-89-8, 29 NRC 399, 408 (1989).

289 SAPL C23 at 28.

N - -

. t J

! probability. This alleged harm is hardly."certain'and great.""0

~

1

'More'to the point, none of the alleged. shortcomings are I

'cignificant to the basic operation of the plan and none, if they  ;

1 H

Cxisted, would constitute " fundamental flaws."

l Intervenors assert that they will be harmed because the .

.1 issuance of a license will render their appeals meaningless.2n.

This simply is not so. Issuance of the License will not moot any 1 cppeal. The appeals will continue and, if the Intervenors prevail, the relief may be loss of the license or further i

hearings or whatever is appropriate. What immediate ,

i offectiveness will do is assure that the long and successfully

-used~ tactic of delay through legal process as opposed to

.oubstance will no longer be a weapon in the hands of the Intervenors. l Intervenors' claim that their procedural rights have been l Obused and this constitutes irreparable harm.nz These l g

1 Intervenors'have had more "due process" than any group in legal history. Constitutional protection is afforded to "due process",

, not " endless process." Moreover, Intervenors ignore (as always) 1 that Applicants have due process rights too, that they are l' '

! sntitled to a final decision, not just an " endless loop of litigation."

L i

l IN Cuomo v. HEC, 772 F.2d 972, 976 (D.C. Cir. 1985).

1. "SAPL Com, at 14.

N2 Stav App. at 7.

i _90_

l l

r 1

y Intervenors raise the argument that operation at full power

cntails' major contamination of the facility in the face of an underfunded (in their view) decommissioning capability."3 This basically is nothing more than a rerun of the financial qualifications arguments seeking to have this commission review l the financial qualifications of the Applicants in the full power cetting. Further, the argument only has any validity if one.

. assumes that the Intervenors prevail to the degree that a license is to be forever barred. This can hardly be the case, given the l'

l fact that the only issues left are those of planning and exercise which are, by nature, correctable. Furthermore, alleged. harm which requires a complete victory in major litigation is certainly not "certain."

Intervenors also assert that the plant will be run by poorly trained operators and that this state of affairs amounts to immediate and irreparable harm."' Even assuming any operator was poorly trained, again, before any harm could occur, not only L

l would he have to act improperly, but also numerous safety systems

[ would have to be defeated before any risk could ensue to anyone.

l There simply is no case for immediate irreparable harm.

i "3 SAPL .Q_qm. at 28-29; Stay App. at 8-9.

1. "Stav App. at 7-8. They omit to mention, however, that their allegations regarding supposed operator errors during the June 1988 exercise have been rejected by both the "Onsite" Licensing Board and the Appeal Board. Public Service Comoany of New Hampshire (Seabrook Station, Units 1 and 2), LBP-89-4, 29 NRC 63, 74-86, a f f ' d , ALAB-918, 29 NRC 473 (1989).

• L .

I t

1 L 3. Whether the Granting of a stay Would Bara Other Parties?

The. delays in' construction and operation of Seabrook Ste. tion have, inter alia, resulted in the bankruptcy of the largest utility in-the State of New Hampshire. It is a matter of administrative notice that the idleness of a generating plant the size of Seabrook produces costs to the owners thereof in six figures every day. And the financial costs to these Applicants are no exception to the rule, as seen from the Affidavit of Ted Feigenbaum attached hereto and marked "B." Intervenors argue 1 that Applicants must show " irreparable harm" and this commission "does not recognize these costs as irreparable harm." The i

standard is not " irreparable harm,"-it is " harm," and the Commission most certainly does recognize these costs in analyzing this third factor.2M The harm to the Applicants if a stay is granted is immediate and great. The balance of equities on this matter tips markedly towards the Applicants.

4. Where the Public Interest L Lies.

There is a very real public interest in getting Seabrook on line and producing power, as the Secretary of Energy of the United States has' persuasively demonstrated.?" This can and D0 Florida Power & Licht Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAB-404, 5 NRC 1185, 1188 (1977); Public Service Comoany of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-437, 6 NRC 630, 634 (1977).

2% D eclaration of James D. Watkins (May 19, 1989), Attachment C hereto, geg also Feigenbaum Aff. at 11 3-8. It is interesting L

to note that the affidavit offered by Intervenors, from the l

l l i

m l

l chould be given full weight by the Commission in its

.deliberat ons.

i ,

B._ No Case has been made for a Stay of Immediate Effectiveness Under 10 CFR 5 2.764 (f) (2) (i) .

1. Introduction Section 2.764 (f) (2) (i) of the Commission's Rules of Practice provide, in material part, as follows:

"An operating license decision will be stayed by the Commission insofar as it authorizes other than fuel loading and low power testing, if it determines that it is in the public interest to do so, based upon a consideration of the gravity of the substantive issue, the likelihood that it has been resolved incorrectly below, the degree to which resolution of the issue would be prejudiced-by operation pending review, and other relevant public interest factors.

We address each constituent part of the test articulated below.2n 1 2. The gravity of the substantive L issus[s).

The only technical issue involved, the errors of operators during low power testing, has been completely resolved at this L t-juncture. The balance of the issues are emergency planning matters. As has been seen in Section I above, even assuming the former Massachusetts Energy Secretary, does not address the Watkins Declaration, despite the fact that the Watkins Declaration was served on Intervenors some three months before the Pollard Affidavit was prepared.

1. 1. S ee Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), CLI-85-13, 22 NRC 1, 2 (1985).

l . -- _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

i l

l ' flaws do, in fact, exist, they do-not constitute fundamental flaws in the plans.- Indeed, all of them can fairly be l L characterized as details of implementation.

L f

3. The likelihood that (they have) been resolved incorrectly below.

We-respectfully refer the Commission to the discussion in Szction I. On the bases argued there, we suggest that the Licensing Board has resolved no issues incorrectly. Even if one agrees with the Appeal Board in its decision to remand the four items it did, none of these matters are so significant or

" substantive" as to preclude operation of the plant,

4. The degree to which correct resolution of the issue (s) would be prejudiced by operation pending review.

The only technical issue is one of training. The balance of the issues are emergency planning issues whicn, at most, could require corrections and supplements to plans. The resolution of these issues simply cannot be prejudiced by plant operation.298 l

5. Other Public Interest Factors i

As set forth in Section II.A.4, the public interest would best be served by getting Seabrook on line and contributing to L the power supp3y of New England.

"8 See PhiladelDhia Electric Co. (Limerick Generating j Station, Units 1 and 2), CLI-85-13, 22 NRC 1, 3 (1985).

1 I

i l

[

III. THE PETITION FOR REVIEW FILED WITH THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, BEING PATENTLY PREMATURE AND TERREFORE-INEFFECTIVE TO INV0KE THAT COURT'S - SUBJECT MATTER JURISDICTION, FAILS TO OUST THE COMMISSION OF ITS POWER TO COMPLETE THE MATTERS BEFORE IT.

As a preface to their lengthy filings addressing why.the Commission should decide the matters now before.it the way the Intervenors want them decided, the-Intervenors threaten to file a paper with the United States Court of Appeals for the District of Columbia Circuit and they advise the Commission that, upon such filing,;(i) the Commission will be, in fact, precluded from

' deciding the matters.at all unless (ii) it elects to decide them the Intervenors' way and on the Intervenors' schedule.2n This prohibition is claimed to arise out of the legal effect of a paper filed on December 4* in the-United States Court of Appeals for the District of Columbia circuit.3" Beyond demonstrating that necessity (whose maiden name may well have been desperation) remains the mother of invention, the Intervenors' assertion of

.the power to interdict the Commission's acting on the matters now L 'before it is wrong and should be ignored by the Commission.

1 Whilst understandably not amplified in any detail,3M the zwS.upp. Ms. at 8 ff.

3"The threat made in the December 1, 1989, EMpn. Ms. at 8

'having later been carried out.

3"The. Intervenors' argument on the point that the mere i

filing of a Petition for Review arrests the Commission's power to take.any action in the matter consists of the essentially unadorned citations to United States v. Benmar Transportation &

Leasina Coro., 444 U.S. 4 (1979), and Public Service Company of Indiana (Marble Hill Generating Station) , ALAB-493, 8 NRC 253, 258-59 (1978). Benmar, essentially not on point since there was l

l

~~ ^ ~ ~

1 ,

( 1..Intervenors'. claim. to have effectively ousted the Commission of [

jurisdiction depends upon the proposition that the December 4*

filing was effective to confer subject matter jurisdiction upon the Court of Appeals.. In order to determine whether or not it ic, in fact, barrod from further action, the Commission must censider this question. After not more than a moment's ,

= consideration, it becomes . obvious that the December 4" filing in the Court of Appeals did not have the effect the Intervenors no question but that a final order had issued from the I.C.C.,

ctands if anything for the converse of the proposition argued by the Intervenors:

"'(t]he concept "of an indivisible jurisdiction which must be all in one tribunal or all in the other may fit" some statutory schemes, . . . but it does not fit <

this one [under the Hobbs Act).' . . . Ordarly rules of procedure are necessary in order that appellate review may be had of agency findings, but empty formalities devoi'd of' either substantive or procedural benefit have no place in the normal scheme for administrative review unless Congress chooses to place them there. Here Congress has.quite clearly not chosen to impose such virtually meaningless requirements as L the Court of Appeals insisted upon."

444;U.S. at.6. Marble Hill seems equally unhelpful to the Intervenors' strange proposition, since (i) there was no question ns. to the finality of ALAB-459 and the Court of Appeals' juris-diction over it, (ii) there, as here, the Appeal Board noted, the party claiming that the Commission couldn't act on an intra-agency appeal was the same as the party who had claimed that appeal, (iii) the Appeal Board elected to proceed in any event, and (iv) the Appeal Board in Marble Hill did not have before it Benmar Transoortation, which undercut the premise of the argument of an " indivisible jurisdiction" altogether. (See 8 NRC at l

n.18.) l I

I L

' - .I

3"

_ claim (but do not defend) It follows that the Commission need not (and indeed may not).go into suspended animation. l Under the Hobbs Act,3" the Court of Appeals has exclusive

. jurisdiction to review oniy " final orders of the (Commission]

_tade reviewable by section 2239 of title 42."3" Under section i

2239 of title 42, the Atomic Energy Act, "(a]ny final order" in a licensing proceeding is subject to judicial review.3" The final grant of a full-power operating license is a final order for 3"If also asserted (implicitly) by the Intervenors' this Commission may not even censider the question of whether the Court of Appeals has acquired subject matter jurisdiction, this assertion, too, should be rejected. A tribunal always has jurisdiction to determine its jurisdiction, see Duke Power Co.

-(Perkins Nuclear Station, Units 1, 2 and 3), ALAB-591, 11 NRC 741, 742 (1980); Kansas Gas and Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1) , ALAB-321, 3 NRC 293, 298 (1976), and to proceed once it determines that it has jurisdiction, Duke Power Co. (Perkins Nuclear Station, Units 1, 2 and 3) , ALAB-597, 11 NRC 870, 873 (1980). As the argument is that the commission

' loses jurisdiction because the Court of-Appeals acquired it, the Commission must of necessity consider whether the mere filing of a patently ineffective piece of paper does, indeed, confer subject matter jurisdiction upon the Court of Appeals. For the reasons set-forth above, the answer to that question is in the negative.

Indeed, this is not the first time that the commission and

. its boards have been required to consider the effect of a claim of. superseding jurisdiction in the Court of Appeals. Both in Public Service Comoany of Indiana (Marble Hill Generating Station) , ALAB-493,. 8- NRC 253, 258-59 (1978), and Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-

-349, 4 NRC 235, vacated on other arounds, CLI-76-17, 4 NRC 451 (1976), such analyses were both necessary to rule upon assertions

.of want of Commission jurisdiction, and were undertaken.

3"28 U.S.C. 5 2342.

3" Egg Sierra Club v. HEs, 825 F.2d 1356, 1362-63 (9th Cir.

L 1987) ; Western Union Telecraoh Co. v. Egg, 773 F.2d 374, 378 (D.C. Cir. 1985).

3"42 U.S.C. 9 2239(b). -

l

. -t 9 (

-purposes of the Hobbs.Act and the Atomic Energy Act and.is thus r; viewable'in the Court of Appeals.3" ' Contrary to Intervenors' accsertion,'however,"the initial' decision granting such a license

'dtes not'become a' final-order as:soon as it is rendered. Rather, in the present context, PID II is non-final-for at'least.four L:

'cqually_ dispositive reasons.

First, PID II is subject to a mandatory "immediate

,cffectiveness a creview by the Commission."7 Under.this review, y theicommission must determine whether to stay the effectiveness y

fof'the initial decision.pending further Commission review.3"

'During the review process,.the initial decision is automatically otayed.3" It~cannot "become effective until [it is) reviewed and sxplicitly accroved by the Commission."3"

- Second, PID II is the subject of pending stay motions under

- 10 CFR'S 2.788. Given that the Commission'has taken jurisdiction I

L over these motions and set them upon the same schedule as its l 5 2.764 determination, it is practically the case here (if not always theoretically the case) that PID II cannot become effectivo until the stay motions have received further agency 3" Ohio Citizens For Resoonsible Enerav. Inc. v. Nuclear Reculatory Commission, 803 F.2d 258, 260-61 (6th Cir. 1986),

l cert. denied, 481 U.S. 1016 (1987).

307 10 CFR S 2.764(f)(2).

3"Id.

3"10 CFR S 2.764 (f) (2) (iii) .

3"Ovstershell Alliance v. EBE, 800 F.2d 1201, 1206 (D.C.

Cir. 1986) (emphasis in original).

l 1

I

L ,

l

~ - . . x..

cetion.3" Indeed, as the Court of Appeals for the D.C. Circuit ,

has previously in*ormed the Commission and the parties at an Carlier stage in this very matter:

"The December 21, 1988 order was conditioned on later agency action; therefore, it was not a final order.

See National Treasurv Emolovers Union v. Fed 3ral Labor Relations Authority, 712 F.2d 669, 671 (D.C. Cir.

1983); Sierra Club v. NRC, 825 F.2d 1356, 1362 (9th Cir. 1987)."*1' Third, PID II is not final because Ir.tervenors have filed a notice of appeal with respect to it. While the Intervenors claim o power to decree that their invocation of the Commission appeal process does not impact the finality of PID II,3U this claim is plainly incorrect as a matter of law. Under 10 CFR S 2.760(a),

an' initial decision authorizing the issuance of a license is considered final action of the Commission forty-five (45) days after it is rendered, "unless an acoeal is taken . . . or the Commission directs that the record be certified to it for final decision." (emphasis added). Once elected, the Commission's cppellate review process is mandatory, and the Intervenors' act of making'that election operates gx oroorio viaore to render the 3"Est New Enaland Coalition v. HEQ, 582 F.2d 87, 99 (1st Cir. 1978) (Commission rule mandating that superior agency authority review lower board action would make review prerequisite to review in court).

312 New Encland Coalition on Nuclear Pollution v. HEC., No.

88-1817, Egr Curiam Order entered May 25, 1989 (at 2).

su Supp Mg. at 8.

cgency action incomplete until that process is exhausted.3" As cuch, PID II is not a final order unless and until it is upheld Jen appeal.3" r

Fourth and finally, PID is rendered non-final by the simple

'fcct that 45 days have not yet elapsed since-the date of PID II. I The Commission's long-standing regulation establishes that an i initial decision does not become final until 45 days have passed 3"g33 Sierra Club v. HEC, 825 F.2d 1356, 1362 (9th Cir.

1987) ("(a]n order is final when the. administrative agency has

.given-its 'last word on the matter'").

3D ggg:In the Matter of Of fshore Power Systems, ALAB-686, 16 NRC 454,.455-56, aff'd on other arounds, 16 NRC 1691 (1982)

(initial decision granting license to manufacture standardized nuclear plants does not constitute final agency action until Appeal Board's agn sconte review of it is complete).

Intervenors had the option under Section 2.760(a) to forego Commission review, thereby permitting the initial decision to bgcome final agency action forty-five-(45) days after its

. pronouncement (assuming no election by the commission on its own motion to review it). The taking of intra-agency appellate review is not a condition precedent to sufficient finality to permit Hobbs Act review jurisdiction. New Encland Coalition on Nuclear Pollution v. HEC, 582 F.2d 87, 99 (1st Cir. 1978).

Where, however, such intra-agency review has been initiated, and

' indeed where the Intervenors continue to assert a right to that appeal at this time, administrative action on PID II is not complete. Thus, PID II is not a final order, and tne Court of Appeals does not, as yet, have jurisdiction over it.

It is an interesting question whether, once an appeal from a Licensing Board initial decision has been claimed, its waiver by all parties would restore or restart the 45-day " clock" under 10 CFR $ 2.760(a). That question need not be addressed unisss the Commission is inclined to take the Intervenors' filing of a petition for review, and their assertion of the preemptive effect of that filing, as an implied waiver of the 5 2.760(a) appeal, and further if and only if the Commission determines not to elect (under 5 2.760(a)) to assert its jurisdiction over PID II gMA sconte, and further only after the 45 days has run.

-100-

y ,

t j

u cince the' decision-was announced.3" Thus, despite any other j provisions affecting its finality, PID II is not yet final simply -

because 45 days'have not passed since it was issued.

-For each of these independently sufficient reasons, PID II is manifestly not yet " final agency action." It necessarily follows that the paper filed by the Intervenors-on December 4*  !

does not have the legal effect they assert it to have (namely, to have conferr'ed jurisdiction on the Court of Appeals). In the absence of such a legal effect, the argument regarding preemption of this Commission's power and statutory duty to continue the administrative process is without premise.

CONCLUSION PID II should be made immediately effective and the Director of Nuclear Reactor Regulation should be authorized to issue the l

p l

t 3"10 CFR 9 2.760(a) (1989). Egg also PID II, at 570 (order becomes final 45 days from date of service unless appeal taken).

l

-101-1.

?

full { power operating license. All requests-for stays pending cppeal should be denied.3" Respectfully submitted, s

1 -

• I 7.4 /t.,j . ppV}

Thomas G. Dignan,'Jr.

George H. Lewald Jeffrey P. Trout Jay Bradford Smith Geoffrey C. Cook William L. Parker Ropes & Gray One International Place ->

Boston, MA 02110-2624 (617) 951-7000' .

Counsel for Applicants L

k l

3"Nor should any housekeeping stay pending appeal to the courts be granted in the circumstances of this case. Egg Philad-elchia Electric Co. (Limerick Generating Station, Units 1 and 2),

CLI-85-15, 22 NRC 184, 188-89 (1985).

-102-l 1

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Mass. Civil Def ense Agency and Cffice

1. of Imergency Preparedness TRCM Charles V. Bar;y, Sec:stary Execu:ive Office.of Public safe y ,

DACE: April 24, 1989 c.

RE: Cer:espondence from Plymouth telectmen Nuclear Emergency Planning -

l I have-directed. Executive Office of Putlic safety, General Counsel stanley E. Adelman to :eview the oc::espondence you ,

.have submitted concerning the duty of municipal employees :=

participate and assist in nuclear emergency planning.

Our General Counsel is-in ecmplete agreement with the I conclusion s:sted in Town Counsel's opinion letter of incemte:

L 30, 1966: "to the extent cooperatica is requested by the L -Coverner c: the D1:ector-of Civil Defense, all Town empicyees, including teachers, are requi:ed to eccperate." This

' conclusion is required, as Town Counsel points out,'by the express terms of the Massachusetts Civil Def ense Act.

L Please advise the appropriate officials in Epz towns a cc o r ding .'.y .

CVB/ cat cc: stan Adelman, General.dounsel W Pete: +. Agnes, Jr., Assistan: Secre ary l

11 0

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• Cecamkar 30, 1988 .

l ttoO.m6#mes

c.  : .w.e  :

Mr. 'Ailliam Griffin, Ixtcutive secretary i 71yssuth Tevn Mall 11 Lincola Street .

Plymouth, )n 02260 ,e Ro Town Employees' caligatisa under Massachtsetts ,

civil Defense Act ,

cear Mr. Griffin:

You have requested an opbien ir.tarprating the obli%sti ns of Tevn employees under the Massachv.satts civil Cafense Act, '

Chaptar $39 of the Acts of 7.950, in the event of a release of radiation, specifically, vou seek a dotaraination as to whether  ;

l T vn a=p1=yees, particularly school Department emp1=yses, ars ,

l rectired to participate in amargancy respense plans f=r the l

Filgria Nusisar power plant. ,

l The-unashiguous lanvusgo of chapter 639 appears to requira all pt411s espla Direct:r of civiyets to cooperate with the severnor and tasDefense in all 'J.atters ,

It shall ha the duty of the tenhars et, and of each and every officer, avant, tr.d employee of every political suhdtvision of this ccamenvam12. ar.d of each ::sr.her cf all other governanntal bodias, avancies, and authorities of any natare whatscover fully 2: eceparate with-the Gcverner ar.d C.e Director of Civil Oefensa in L all matters affest g y,ivil defense.

St. 0.9so a.639, 120.

A radiation leak frem a nucitar y=ver plant is specifica11Y l

' sat forth as the basis for a precla:ati:n of e=argency, theraty l

triggering the provisiens of the Civil Oefanse Act. St. 1979 ,

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t William oriffin, '

1xecutiva secretary *  ;

cesaker so, asse j 769e 2  !

2.?ps, l'28. Tharsters, to the extent coeparatica is reg.2ested by the Governer er the Directer of civil catansa, all Town acplayeas, includir.; schcol teach,ars , are required to cacparate.

j Although the Act cantair.s no specitis enf=rcement zecP.anisa

• for failure to esaply with this prevision, the severnce is '

tushtrized to presulgata axecutive orders and requiatiens in taticipatien of an emergency. Vielstion of any previsian of these regulations ar.d/or orders is punishable hySt. up1950,to one year c.639, in jail, a five hundred dellar fina, er heth. '

IS. 4 '

2 you hava any T.iesti=ns, please call za. ,

, Jewry t.r:1y yours,  !

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