ML20247A559
| ML20247A559 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/21/1989 |
| From: | Backus R BACKUS, MEYER & SOLOMON, SEACOAST ANTI-POLLUTION LEAGUE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#189-8345 LBP-88-32, OL, NUDOCS 8903290141 | |
| Download: ML20247A559 (82) | |
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UNITED STATES OF AMERICA ,;pr NUCLEAR REGULATORY COMMISSION UCCM ~, ',,
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) ATOMIC SAFETY AND LICENSING APPEAL BOARD Before Administrative Judged:
Alan S. Rosenthal, Chairman Thomas S. Moore-Howard A. Wilber In the Matter of DocketNo.50-443-OLh'Yf
) (OffsiteLEP
) PUBLIC SERVICE COMPANY )
OF NEW HAMPSHIRL, et al. ) Merch 21, 1989
)
(Seabrook Station, Unit 11 )
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' SEACOAST ANTI-POLLUTION LEAGUE'S,BRIEF ON APPEAL OF THE PARTIAL INITIAL DECISION ON THE NHRERP LBP-88-32
)-
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Robert A. Backus, Esquire BACKUS, MEYER & SOLOMON 116 Lowell Street P.O. Box 516 Manchester, NH 03105 Attorneys for Seacoast Anti-Pollution League
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"n y 1 TABLE OP.. CONTENTS zm g TABLE OP CITATIONS ^ . .. . . . . . ,. J. . - . . . . . .. .
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'I.- STATEMENT:OF'THE CASE .. . . . . . . .. . ' . . ... 1 II. THE PID, DESPITE 'I'IS PROLIXITY, FAILS'TO MAKE ANY^ DETERMINATION.
4 OF " ADEQUACY" AS' REQUIRED BY ,
10 CPR 550.47 (a) (1) . .. . . . . . . .:. . . . . . 15 OL . .
III. THE PID'PROVIDES,NO JUSTIFICATION FOR l APPROVAL OF THE.NEW HAMPSHIRE PLAN AND THE 4
' RECORD PROVIDES'NO BASIS FOR FEMA'S CHANGE OF POSITION . . < . . . . . .' .. . . . . . L19 H IV. THE BOARD ERRED IN ELIMINATING.TBE, <
1 REQUIREMENT FOR " IMPLEMENTING DETAILS j TO BE ADDED TO.THE NHRERP BEFORE i
.u .AN ADEQUACY FINDING COULD BE MADE .!
IN REGARD TO !S3ELTERING . . . . . . . ' . . .... 22 u
% 'V. LTHE BOARD. ERRED IN FINDING THE NHRERP'S :
< LETTERS OF AGREEMENT ADEQUATE . . . . . J. . ' . . . . . 25 VI . - THE BOARD ERRED.IN FINDING AN
, ADEQUATE PROVISION FOR EMERGENCY' '
RESPONSE PERSONNEL- . . . . . . . . . .. . .. 28 '
): . .
,VII. THE BOARD' ERRED IN FINDING THE NHRERP PROVIDED ADEQUATE ASSURANCE
.0F TRANSPORTATION AVAILABILITY'AND
, SUPPORT SERVICES . . . . . . . . . . .... 35
)i _VIII.- THE BOARD ERRED IN HOLDING IT COULD RELY ON AN ASSUMPTION THAT 20 PERCENT OF THE EP2 POPULATION WOULD GO TO RECEPTION CEWTERS,1NOTWITHSTANDING THE CONTRARY HOLDING IN.ALAB-905 . . . . .... 42
)- , I:X. THE BOARD ERRED IN'ITS FINDINGS ON
~
HUMAN BEHAVIOR IN EMERGENCIES . . . . . .... 58 X. THE BOARD ERRED IN DENYING l LITIGATION OF CERTAIN ISSUES . . . . . . .... 65 ,l p XI. CONCLUSION . . . . . . . . . . . . . .... 67 i
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>.ge ;f L'... .. m 1 9. ,1 .c 4,lS "6 ftfAqQasti,bnt3-Polintiloli Lenaue v. j
- t ,. , J;' }1uc3 ea r ~ ~Reculatory Commission,;690;F.2d~1025 . ,, i
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( '} t 1 Ak}{lRISTRATIVE 'CASET 7 y- .i, , -
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, henstI, gland Lightina Co.S(Shoreham ..
, q 7; o $ Nuclear Power Plant, Unit 1)rCLI-87-12, N
'L' ,26 (ERC 383 , (1987.) D .' '
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'Public' Service _Co; 6f_New Hampsh' ire. ,
[%.* (Seabrook Station,' Units.1 and,2) '
( ALAB-422,. 6. NRC 33. (1977T . . . . . 4,60,.69) .
j Lona" Island'Lichtina Co. (Shoreham [
,.- . Nuclear PoweriPlant, Unit 1) . .
EALAB-905128 NRC (1988). - , - .. .- . . 20, 23, 42,. <
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43,4 44, 49, 57 .
-Lona Island"Liahtina Co.l(Shoreham '
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- .NuclearcPower, Plant,.. Unit 1)L ,
L ALAB-832, 23 ' NRC .135 ' (1986) .. .- . .
24, 25,: 40 ,
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p/ 3 2 Philadelphia Electric- Co. (Limerick , s '
Generating: Station, Units 1"and 2), '
LBP-85-14,:21'NRCL1219 (1985)1 . , . , . ... ' ' 15 Long' Island Lichtina Co. (Shoreham
. Nuclear Power Plant, Unit'l)',
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LBP-85-12, 21 NRC'644(1985') . . . . . . . . . 24
'L'ona-Island Lichting Co. (shoreham Nuclear. Power Plant,fUnit 1) 4 !CLI-86-13, 24 NRC 22-(1986.). . .. . . . . . 23 h.
'EggyLATIONS i
4S Esd. Eg_q..55402 (August 19, 19B0)- . . . . . . . .1' y
49 End. Egg. 27733 (July 6,1984) . . 4 - . . . . 15 52 Epf. Egg. 42078'(November 3, 1987) . . . . . 21, 53 NRC/PEMA Reauldtory Guidance q PEMA-REP-3, Februafy'1981 . .. . . . . . 4 .j s j NUREG-0654, FEMA-REP-1 (Rev.1) . . . 7, 14, 15, l 16, 19, 42 )
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N# NUCLEARTREGULATORY col 4 MISSION ^ <
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- A .: ATOMIC SAFETY AND LICEMSINGiAPPEAL BOARD-
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- 1 y[ 'Before Administrative'iJudgest' e
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Alan S. Rosenthal, Chairman' ,
, , Thomas S. Moore '
, Howard A.;Wilber ._
l In:the. Matter of ,)- '
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$y PUBLIC SERVICE. COMPAW ') Docket 1No.'.50-443-OL- .j
'OF NEW1 HAMPSHIRE,'et al.. .) (Offaite EP)', -l m l- ) l J
,' March 21,,1989:
.(Seabrook Station,; Unit 1)' )J
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f -SBACOAsT' ANTI-POL 5UTION LEAGUE'S BRIEP ON' APPEAL.OF: .
TJE PARTJ AL' INITI AI. DECIS);,Q.N_ ON1 THE NURERP LBP-88-32
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The Seacoast Anti-Pollution' League' submits this,brlef'in the;' .j
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'ij above-captioned ~ matter and joins.in~ briefs filed by the- -
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, E CommonwealthCof Massachusetts, New England Coalition on'_ Nuclear' Pollutico and.the Town df Hampton relativo.to said matter.
1 I. SIATEMENT QE_.TJ!E CASE ,
) .
!l This is.an appeal from the Feabrook Partial Initial' Decision .
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(PID) on thelNew Hampshire. Radiological Emergency Response Plan j i
-(NHRERP). The PID systematically. destroys the " adequacy"-standard f
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of' 10 CFR 550.47 (a) (1) while maintaining the formal appearance ]!
, n that the. plan meets the standard. The requirement.for ". adequate" emar<jer:cy planning was described by the NRC, when it adopted the
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- etoergency planning rules, as an "e'isential' safety feature, on a i
pat.with the protection afforded by compliance with the siting. )
' criteria (neak'as those'are) and with the requirements for p
properly designed and constructed engineered safety features. (45 j
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, f_ed. Pf.s. $55402, at 55403, August 19,'1980) ]
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The PID~18 disingenuous, at times intellectually dishonest, 4
and throughout demonstrates a bias and hostility toward the non-
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licensing parties. It belittles and.in some instances denigrates Intervenor witnesses, while finding Applicant and NRC witnesses, !
even whei. testifying outside their areas of expert $ce, reliable, j
) !
(For example, compare PID, 5.64, page 94, stating that:
. . . we J l
find that Dr. Herzberg is no expert at all in the area of . .
l prediction of populace response in case of an emergency", with PIO
)
9.106, p. 275, stating that staff witness Urbanik was offering an -
opinion that "is not purely within his area of expertise as a traffic engineer, (but that] it makes good sense and is base'd upon )
F i sound experience.")
To understand the scope of this-bias.toward licensing, a discussion of the background of the PID is essential.
)
5 Seabrook hac for a long time been known to present severe emergency planning problems because of the site. In 1982, the q Court of Appeals for the District of Columbia, in upholding the
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denial of a 10 CFR S2.206 petition brought by SAPL, stated the obvious:
We are not unsympathetic with SAPL's y positioD in this case. SAPL has presented evidence regarding the unique features of the Seabrook areu and the current state of emergency preparedness in the area that would seem to warrant the Commission's most careful examination in evaluating the ;
> adequacy of the final Seabrook EPZ emergency plans.
SAPL v. NRC, 690 F.2d 1025 at 1033 (D.C. Cir. 1902).
Indeed, in dissenting from ths. Commission's three to two decisicn not to review Harold Denton's decision not to undertake a I
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- S2.206 proceedings /former Commissioners Gilinsky and Bradford' F
'said:' '
Scabrook poses difficult,~and perhaps uniqua', emergency planning problemt. In ;
light of .the time and cost 'likely .to be involved in improving 86abrook's emergenc; l' preparedness, weishould begin:to seek solutions now, not some yeareffrom now, j when the plant'is almosteready to ,
operate. Moreover,,at'that time it will !
be'much more difficult for the.NRC.to ,
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, require remedial measures which could k'~~
delay plant operation. l Asong'the options which we should now ,
.be considering arer . improving parking at'the beach so as to permit 1 rapid ' .
. evacuation, adding. improved access .
)< roads,to the beaches, and constructing 1 additional access roads to Interstate-95. j It should be understood that if emergency preparedness is not improved sufficiently >
by measures such as these, Seabrook's y operation may be contingent on restricted L)
)' use of the beaches.
u The Federal Emergency Management Agency (FEMA) es far back as I 11981 had described Seabrook as "a special' case"'due to the extent i E of public concern over the site problems. According-to FEMA, I i
Evacuation time by sectors within the EPZ i and under the 15-minute alerting and. ;
notification for Summer Sunday ranges from 5 hoers 10 minutes to 6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br /> 10-
) minutes depending on the combination of !
sectors.
1 The basic conclusions are:
- The evacuation time for the Summer Sunday case is determined almost totally by the
)
rate at which tne beaches can be evacuated.
Speeding up the alerting and notification process simply accelerates the rate at ;
which motorists enter the existing traffic congestion, that ranges up to a maximum of 4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br /> 15 minutes. Figure III-20 shows the L long cues (backups) along the beaches.
- The behavior of drivers who are caught in congestion within direct sight of the o
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-Seabrook Station can/be only be guessed >
atfthis time'. Any breakdown in. orderly 4
' , oevacuation'treffic flow will result in ,
c U: evacuation;timen greater than the ones estimated above'.- Total evacuation times '
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could reuge f.com110 hours 30 minutes to 'y 14 hours1.62037e-4 days <br />0.00389 hours <br />2.314815e-5 weeks <br />5.327e-6 months <br /> 40 minutes for an evacuation
^ in which traffic control is, generally r, -
ineffective.
>',' FEMA-Rep.-3, FebruaryL1981,
-t e Mass. AG Egh. 49, p. 46.
In ALANr 422 this Appeal Board hadiacknowledged,;in describing the' issue of the proper application'of'the Commission's siting I j
k criteria, that'"no one disputes that this area IScabrook beach.
area),will be'at times the most densely' populated area in the
,. State." 6 NRC 33 at 51 (1977)
) ..
Even the Licensing, Board below acknowledged the: uniqueness of l
'the Seabrook site. . .
'In examieing the evidence and proposed D findings presented.by the Massachusetts ,
Attorney General, the Board agrees o that there are certain factcrs specific to the Seabrook EPZ that should be considered regarding protection of the s9mmer-beach population. The Federal
) Emergency Mr.nagement Agency han stated with respect to'its considerntien of this issue that:
[F] actors unique at least in magnitude to Seabrook . . . concerning protection
) of the Seabrook beach population are the size of the transient .(* day-tripper")
beach population; size of the beach i population; number of unwinterized housing / commercial buildings; .
volume of corridor type road
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traffic; complexity of road !
network; number of local j governments involved in *.he emergency j planning process; and large i geographic size of the EPZ. 1 (PID 0.47, pi 201) 1 L i l
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Thus, long before .his
. proceeding, all concerned, including l the Court of Appeals, members of the Ccmmission, the Appeal Board, !
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and FEMA, vera well aware that Seabrook, due to its location next to heavily utilized beaches, a.nd in light of tFr limited roud network, would pose an enormous obstacle to a finding that an
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" adequate" level of safety could be achieved through emergency l l
planning. Before the Court in SAPL v. EEC VMELA, the FRC 1 l
solemnly promised that if an "edequete' 'evel of safety could not j
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reasonably be ar,sured through emergency planning, no operating license would be issued. (16. at 10. 9)
The Applicants and NRC staff chose to take P. heir chances,
)
however, an6 opposed every effort to make the adequacy determination at an earlier time. Instead, they went forward with the project in fall knowledge that the emergency planning problems
)
could,if an honest decision were to be made, result in the denial of an operating license.
Accordingly, both construction and emergency planning I
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proceeded. On December 9, 1985, the State of how Hampshire forwarded an earlier version of the IIHRfRP, known as *Rev. 0," off to FEMA: certifying that the plan was, in the opinion of the State
> ?
Office of Emo gency Management " adequate" within the asaning of .
1 federal regulations. The exercise of that plan, in February, l 1986, resultad in a finding of 55 deficiencies, a record hign
) 0 number.
In April, 1986, there was a catastrophic accident at the Chernobyl nuclear plant. In September of that year, the Governor ;
)
of Massachusetts, in reVlawing the implications of that accident,
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anitounced that Messachusette would not engage in planning for the portion of the Seabrook EPZ within Massachusetts. The Governor concluded, after extensive study, that no " adequate" emergency plan was feasible for this cite.
In December, 1986, the Seabrook Applicants petitioned for a rule waiver pursuant to 10 CFR 52.758 in order to shrink the Seabrook EPZ to one mile. The one-mile zone, if approved, would have eliminated any portion Of Massachusetts from the EPZ, since the Massachusetts' border was just over two miles from the plant.
Additionally, if a vaiver for a one-mile zone were granted, the Stabrook EPZ would also have avoided the New Hampshire beaches,
)
along with all but two of the 17 New Hampshire jurisdictions. The waiver petition was thus a reflection of the Applicants' realizatica that achieving an " adequate" level of safety through emergency planning was a very daunting tesk and that licensing could better be assured through elimination of the requirement entirely. (The Applicants continue to believe that reliance on
)
engineered safety featyres sufficiently assures nuclear safety.)
At the same time that the Applicants were pursuing the cale waiver, FEMA wcs in the process of reviewing the NHRERP according
)
to its responsibilities under its regulations and a Memorundum of Understanding (MOU) between it and the PRC. The nead of FEMA's Region 1 Radiological Emergency Preparedness Progract Mr. Edward
)
A. Thomas, was serving as chairman of the Seabrook interagency review group known ac the Regional Ascistance Committee (RAC). On December 31, 1985, he had sent of f a memot andun. (Staf f Exh. 2e
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Attachment 1 Bound in post Tr. 11744, 5/18/88) which asked for
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i S, input from:the RAC members on.whether the NHRERP< met the >
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compliance) requirements of NUREG-0654. - 8 ,
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-s In, February, 1987,-.a response to Mr. Thoman' % u furnichet by a y>
,4 X H : .(the'NRC?s: Jep'resentative.to the Seabrook RAC,; Robert' Bores.
h Bores' rerponse, Staff Fxhibit 5, specifickily, urged approva1Lof
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the NURERP on the basissof the strength of the Seabrook l containment. 'According to Mr.' Bores,L i ID [ M ,
=1'n v,iew of the.'NH plans;for besch
,; closure! anti access control as early
' j~ r.c the Alert classifications.the' cited:
" negligible probability of prompt: containment' failure"'at Seabrook,.und the, low consequence /
clow probability of serious containment bypass i, >
D sequences; the plume travel time to the beach t< . areas'and thO relatively.shott.(2 to 4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br />) time'estimatedt to clear the beaches,;it.
'.' appears that-rick's to the benchfpopulation.
are a small fraction of the. cite 6 riske in NOREG.0396 for this distance.
.O' - (stat f Exh._1, . p. 8): , ,
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Mr. Thomas, after receipt of this memorandum, convened a meeting of the RAC in April, 1987. Mr. Thomas, at that time, k was' prepared to." sign off" on the'NHRERP, provided that NEC was prepared to backup the assertion made by its RAC representative Cr. Bores, concerning the ubique strength of the Seabrook A containment, and consequent low probability for any need of offsite emergancy protection. (See h_13488-E9, June 14,1988)
On April 22, howeve s the Licensing Bot.rd denied the one-mile (Memorandum and Order oZ April 22, 1967) waiver petition.
,.g Basically, accordirig to the- Board, the case for a one-mue:
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emergency planning vonb had r.ot been technically established, IOr " , despite an enormous volume of material which had been furnished by L
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the Applicants, and extensive reviews performed for the NRC staff
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by the Brookhaven National Laboratories.
NRC staff counsel then interceded, and advised Mr. Bores that ,
his memorandu:n, insofar as it referenced Seabrook containment
)
strength as a factor to be utilized in assessing the adequacy of -
the hMRERP, would have to be withdrawn. As testified by Mr. )
Thomas: <
, In approximately April 1986 (sic),
3 I'm sorry, I can't imagine how I have forgotten the day, I just can't quite remember the date, we received what was basically the end of the written input that we needed to discuss this in the RAC. We had a RAC meeting on this
)
particular issue. Came to a conclusion.
1 Unfortunately, following that meeting, a part of the input which we had relied upon very, very heavily, was withdrawn by the agency involved. And, fr. essence, q
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we wete running ou& of time to comply with Judge Hoyt's request that we provide a j position on the beach population--on all ;
issues that were in contention. 1
(.TJt 3114, 10/7/87 )
) In ' June, 1987, FEMA filed its position on the beach population, as follows:
Therefore, using the standard guidance for l the initiation and duration of radiological j
) releases, and the current New Hampshire i RERP including ETE, it appears that thousands of people could be unable to l 1 eave during an accident at Seabrook l involving a major release of radioactivity without adequate shelter for as much as the
)
entire duration of that release. Therefore, until tneae issu?s are resolved even if all the other inadequacies and deficiencies cited in the RAC reviews of the New l!ampshire Plans, and the Review of the Exercise of these plans were to be corrected, FEMA would not be able
) to conclude that. the New Hampshire State and local plans to protect the public in the event of an accident at the Seabrook Nuclear
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This1 FEMA Tosition'was subsequently f$ led with the# Board en [. ,1 s ,, ,
f , t September 11 as .its profiled testimony in; the 'cas6 ! with this J ,
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h, ' crucial. portion'oflits testimony sponsored by.Mr.; i Thomas. FEMA ,
f n y adheredt'oJitspos1ElonupltbroughtNestartofLhearingsini -
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, 4 basic factual' underpinnings,of this FEMA-_ position,-that thousands' >
of: people might be. unable to Lleave' the beach 'for as much us: the; '.' '
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)! entire ilme of plume passage', has.never been disput.ed by .any party: ,
W '.,. ,or any. witness.
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, 1However, no sooner had the FBMA position been published.when!
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it came under-strenuous. attack fyom f.he NRC Etaff'and the- .
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- Applicants. Ti.e atteck by.NR'C staff included oppo'sition at a RAC ,
. meeting: held in- the summer of .1987, including an alleged' NRC
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= orchestrat.ed " vote" to exprths opposition to FEMA's position, and I 1
outright threats by counsel for the Applicants against.Mr. Thomcs, including a. charge that Mr. Thomas might have committed perjury in
); m his first testimonial effort on October 7,'and a further threat 1
also ma'de,to PEMA's attorney, that there would be ' blood on the s1
' floor" if PEMA's : witness on the beach population issue, Thomas, j
)- did .:not change his position. L 13638-39, 13644, 13659r 19652-53 1
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- (Junejl4 and= 15,1988)1 Thomas, although clearly shaken by these I threats,fdid not chan'ge his!p'osition.- Instead,'he was eliminated ,
ss a' FEMA witt.ess, . and ' eventually . r emoved ' f rom .all ' fur ther FEMA- 1 q
'* responsibilities in regard to Seabrook.
In S.later?section of thislbrief, SAPL presents its arguments
[ ,
'
- that there;was nc proper basis for'the FEMA "abopt face" on the .i I
' adequacy of'the NHRERP since, as noted above, the fccts that underlay.its original position had unt changed, except insofar as j
) 3 tho~ facts regardir.g'ETE's had actually worsened since those time- J t ,
. 1
, estimateJ.had lengthened. Bare, SAPL points out that the j 0, circumstances'underLwhich FERA's positiot,. changed were most
),
unusual.-
.1 3'he Lehange of posit $on began with a new consultant, Joseph' Keller, who,, beginning in the f al A of '1987, prepared -material on-
); l s /the FEMA position., Then, on Novvnber 16, the Licensing Board made f
,- a ruling excluding testimony offered by. the Mass. 43 on the dosci i
consequences of' an accident at Seabrook. This tultej, in turn, 1
)
depended upon the Commission's Statement of Considerations in 1] ;
l adopting the: new emergency, planning rule, now fonad at 10 CFR j l
S 3 0. 47 '.c ) (1) . The November 16 ruling apparently made PEMA's- l
) i attorneys much more skittish about continuing to oppose the !
I Applicant and staff pornition on the adequacy of the NHEERP.
-1
)
In December, Mr. Thomas was told by his boss he would be l D \
signing a request for assistance on the Seabrcok issue. When
.]
hearings resumed in January,1908, FEMA counstel indicated that a 1 major change in position was underway. On Tuesday, January 12, f x ;
i 1/ Applicante* umnsel did not substantially dispute that he ')
made these statew ts. L 5789, 11/17/67. l j
) 1 l
-__.-._L. .._:..___...-.-___ - _
I counsel said that the agency would be filing new testimony and
) that "is something like turning an ocean liner around. It doesn't happen in an instant." (Itz 8511) FEMA counsel acknowledged that this was not as the result of any new facts. ("In fact,
) there has not been any new technical information which has caused us to reexamine our earlier position." ( Dtt 8540-41) The next daf, January 13, FEMA counsel indicated something quite different.
) He said:
I've talked with the people in Washington since then and I mean again, I'm not 4 prepared to say what the details will be, but I've gotten a very clear indication i
) that the position we will be taking is that which we have already stated.
Judge Smith: The position that Mr. Thomas took in the RAC meeting?
) Mr. Flynn: Yes.
( m 8960, see also m 8956-8964)
In other words, within a 24-hour period, an ocean liner that was about to turn around was instead going to remain on its original l
)
course.
Two days later, Friday, January 15, the top FEMA official now
)
working on this matter, a newly-confirmed Associate Director for State and Local Programs and Support, Grant Peterson, received a j call from Victor Stello, Executive Director for Operations at NRC,
) the first call he had ever received from Mr. Stello. The call indicated that Mr. Stello "showed concern" relative to what he had hcard about statements made at the hearing. (Itz 12992, 5/26/88)
) (It's a fair inference that the concern was not cbout the statements made on Tuesday, when the ocean liner was turning
)
,q c l 1
around, but'was rather about the statements made on Wednesday, ll when the ocean liner wasn't going to turn around.) A meeting'was !
~
-set up.the'next business day, January 19, at the NRC. At that j meeting, it is conceded that Mr.-Stello said that NRC and FEMA "would go to war":if FEMA attempted-to interpret NRC regulations to require a sheltering' option for the beach population. (It 13027, 5/26/88) Three' days later, January 22, FEMA held a top level. meeting-to discuss the new testimony which it would file.
Mr. Thomas was'a participant in that meeting. The new testimony was filed on January 25, 1988, and stated that'whether or not the.
.NHRERP could be deemed adequate would depend on what New Hampshire
)~ !
authorities determined to do about the sheltering option, in j
' addition to evacuation. It suggested that if New Hampshire had ;.
l
" adequately considered" the sheltering option, and provided a !
)
technical. basis'for-its' decision, the NHPERP "could be" found adequate. (Mass AG Exh. 42, post Tr. 13092, 5/27/88),
~On February 11 and 19, New Hampshire Emergency Management
)
submitted a letter to FEMA, stating 1 that the agency had now
" considered" sheltering as a protective action and that, except in three limited circumstances, it would not be using sheltering as a ,
response except for the very small tiumber of persons who might be at the beach without transportation, the so-called "two percent."
(Mass. AG Exh. 47, cost Tr. 13210, 5/27/88). 1
) !
On March 14, FEMA furnished new testimony, attaching its
]
January 25 interim testimony, and approving the NHRERP, but saying that, to the extent the State was still including sheltering as an
{
option in the plan in the three limited circumstances,
\
) ,- i 1
) )
"implen.enting detail" would be necessary. This was necessary
)
because, nithough there was an " inventory" of structures in the beach area that could be used for she3tersy there was not, and never has been, any plan by which persons at risk could actually be advised as to what shelters to use, and how to get to them. As
)
1 testified by FEMA witness Richard Krimmt i
Q. In any event, whatever the status of the New l Hampshire plans as to the utilization of sheltering, it remains true that the survey -
)
in and of itself is not sufficient to meet the requirements for a plan because it is indeed not a plan; it is an inventory.
Is that a fair statement, Mr. Krimm?
A. (K r imm) Yes, is correct.
) it's an 13024, (Tr. inventory 5/26/88) l On June 10, the agency refiled its March 14 testimony, adding new legal citations to support its position that adequacy was l
) achieved, and again stating that " implementing detai'." would be
(
necessary, but nov omitting the previously attached January 25 j
" interim" testimony. l i
) In the PID, the Licensing Board joined in approving the f NHRERP, but decided that, even though sheltering was to be the f f
preferred response in certain " limited categories", no l
)
- implementing detail" wae either necessary or desirable, despite f f
FEMA's position to the contrary. (PID 8.75, p. 214) Although the i i
PID, like FEMA, concluded that New Hampshire had given " adequate" l l
) consideration to sheltering, it never said that the sheltering would in fact be adequate. Indeed, in addition to the lack of any ;
J plan to get people to the shelters, it was agreed that the dose
) reduction factor f roin the available shelters, consisting in large i
)
j
)
l 1
~P u. ,
... a -
i, y s , ., ,
- p. .'
, 'l,3y , t. x 3 L ; t-1 Imeasure.of'unwinteria.ed hbusing, stock, could be.only about ;10 3 y ps - ( percent. . (P1Dl8.96 (5), p. 227):
By clear implications the Licensing Bolird foundLthat
, sheltering would never be a preferred,sor even; adequate, response.
, (PID 8.76, p. 215) .
Thus, whereas the entire FEMA change of position was suppose'dly. based upon the need to " consider"-
, eheltering, .the end result is that the NHRERP is found adequate without 'any ' sheltering option, and with the facts concerning the .$
difff.culty of evacuation as recited in the original' FEMA' testimony standing unrebutted.
In addition, the Board's "now you see it now you don't" .1
)r.
approach to sheltering means that,.notwithstanding the February,
~
1988 New H'mpshir'e a submissions,'the NUREG-4454 J.10.m.xguida.nce. I criteria stating there has to be a " range of. protective actions" have not been met.. Despite the fact that FEMA's June 10 testimony ]
concluded otherwise, the Board said, " Evacuation would then be the oniv protective action " (emphasis added)' (PID 8.79, p. 217) This is actually a Board finding that the J.10.m : requirement has n9_t 1 l
i been met. !
In the entire 290 pages of the PID., there is no. hint of why
'the.NHRERP has been found to be " adequate." The clear implication is that the PID is adequate.merely because,.according to FEMA's !
most recent position, the " checklist" requirements of NUREG-0654
~
have been met. This is remarkeblev not only because it eliminates
- the separate and basic regulatory requirement of 550.47 (a) (1) that 4
there be an overall finding of plan adequacy, but because NUREG-
. 0654 le not a regulatory requirement, but only a guidance document
)l4 .
n-a----- s.-----.a ----_aa
. _--,-.aw.
O no longer even referenced in the regulations.49 fed. Rea. 27733, l
)
July 6, 1984. There is no question 'but that NUREG-0654, which O
elaborates on and adds flesh to the general regulatory standard, I has the status of a guidance document only. Philadelphia Electric 2 (Limerick Generating Station, Unitu 1 and 2)y LBP-85-14, 21 O
NRC 1219, 1220 (1985) Under the reasoning and findings of the PID, no level of protection need be afforded by an emergency plan, and a finding of " adequacy" can be made even if no protection is afforded. Thus, by semantic legerdemain, the Seabrook EPZ has in effect been reduced, not from ten miles to one mile, but from ten miles to nothing, and the basic requirement of S50.47 (a) (1) has been ignored.
II. THE PID, DESPITE ITS PROLIXITY. FAILS TO MAKE ANY DETERMINATION OF "ADEOUACY" AS REQUIRED BY 10 CFF. S 5 0. 47 (a) (1)
The Applicant /NRC staff ascault on FEMA's former witness, Thomas, was important not only because it succeeded in eliminating a witness whose testimony would not support licensing, but also becadse it removed a key FEMA pcsition that the Licensing Board would otherwise have had to take into account; that the NHRERP failed to provide some qualitative meaningful level of public protection, i.e., provide reasonable assurance of adequate protection in a substantive, and not merely procedural, sense.
As 1 te as January.25, 1988, whun FEMA filed its interim O
testimony, the Agency was still adhering to its position thatt FEMA interprets its regulations to mean that it must determine first whether radiological emergency response plans O comply with NUREG 0654/ FEMA REP 1, Rev. 1 (44 CFR S350.5 (a)) and secondly whether such plans " adequately protect O
1
, o- r .o y ,
th'e public health and sufety by' .
providing reasonable assurance that appropriate measures can be taken offsite
) 'in the event of-a radiological emergency" (44 CFR S350.5(b)).
January 25 FEMA Testimony, _l Mass. AG Exh. 42, Dost Tr., t 13092, p. 7, 5/27/88. I
). .
This testimony was attached to the March 14 version of FEMA's testimony, which stated that "to the extent that it is consistent' with this testimony" the. January 25 testimony was incorporated "by
) ' reference." In the final June 10 testimony, Dost Tr. 13968, 6/1ti/88, the January 25 testimony was eliminated. ( m 13977, Testimony of.Cumwing, 6/16/88) FEMA now purported only to find.
) that the NUREG planning elements in question, J.9 and J.10.m., had been met, and made no finding, independent of compliance with the NUREG checklist findings, of overall plan adequacy. '
)- Thuc FEMA abandoned the proposition that a separate determination on plan adequacy, quite apart from finding compliance with the NUREG-0654 " checklist" criteria, should be .
) made, notwithstanding the apparent requirement, in its own regulations, that it do so. Lawyer-Witness, Cumming, opined that FEMA's regulations were procedural only, and that the mandatory
)' language in those regulations was " incorrect." ( m 14028-29, 6/16/88) I l
The Licensing Board, while not being so candid, has done the ]
) same thing. Nowhere in the PID does the Board even hint at why the NHRERP provides " reasonable assurance" of an " adequate" level of 1
protection, notwithstanding the separate requirement of 10 CFR i 1
) S 5 0. 47 (a ) (1) for an NRC determination on this issue.
)
- _ _ _ - _ _ _ _ _ - _ _ - ._ . _ - ,_. l
'O 4 N ' '
( '
't
)
' cr
- i lOne' result of..having a. decision tested against no' standard, b\. , is that it makes the decision essentially unreviewable, except'on
, procedural grounds. Another resuit is that the Licending Board is left to decide issues on the arbitrary and unreviewable basis of-k its-own personal beliefs and opinions regarding emergency planning. This is extremely ironic, for-throughout the PID the ,
Board has castigated intervenor_ witnesses, (and only intervenor f witnesses), for not being "eraergency planning experts," while at .l the same time'it has offered opinions on emergency planning l matters not supported.by evidence, and as to which the Board 1
)' memberrt themselves have claimed nol6xpertise whatsoever.
]
Thus the Board can say, without any supporting-evidence,.that i d
a critique of the New Hampshire, survey of personnel. resources is ,
j
) " sound enough'for regular, ongo(ng endeavors, has an unacceptable rigidity when applied to emergency planning" ( PID 3.36, p. 35);
that it can " expect" the State will provid't replacement drivers
)- for emergency vehicles "through utilization of other resources identified or to be identified by the State" (PID 4.16, pp. 53-54); that "we believe that in most cases, the decontamination 21 shower will take a significantly shorter time than the allotted ten minutes" (PID 5.90, p. 113); that "The seriousness of this possible occurrence [ heavier than anticipated telephone usage]
cannot be quantified but, in our judgment it does not invalidate T=
the i'mplementability of the NHRERP" (PID 6.20, p. 126); that "we '
do not find that the testifying teachers are representative of !
l
)- teachers at large . . . hundreds of teachers did not voluntear to testify"; (PID 7.20, p. 135); that "we assume that the rational i
l
): ~17~
= _ _ - - _ - - _ - -
R l
), i
,selectmei of the town will find a chief who will stand'by his-
)1 -post" (PID-7.32, pp.'140-141); that " absence of implementing. j dotail-for' sheltering'in the NHRERP is~not so material as to )
1 foreclose a finding by the Board that the NHRERP provideE: )
1- . reasonable assurance.. . . (pID 8.76, p. 215); that "This testimony too [on commuter. returning trips], was' uncontradicted, but the Board intuitive 1v regards the figures as excessive"
) (emphasis added) (PID 9.40, p. 246).
The assumption the' Board makes, throughout the PID, is that all criticism of the NHRERP by Intervenor witnesses is simply
)- carping and not credible because motivated only by a desire to -
defeat licensing, and that all such criticism is groundless and 1
will cease once the licensing is accomplished. The first problem
) with;this. conclusion is thtt, procedurally, the Board has not
'found reasonable assurance of adequate protection in the NHERP ,
l prior to licensing, but, rather has found reasonable assurance i
)' that there s.an be reasonable assurance after licensing is accomplished. The statute, however, requires the reasonable assurance finding before the license issues.
).' This standardless decision thus becomes whatever the Board m
chooses to accept, based on its intuition, expectations, assumptions, and, we submit clear bias. It becomes essentially
) 'unreviewable, and rests on nothing more than the personal
. predilections of the Board Members.
)
)J..
. 1 e
i III. THE PID PROVIDEF NO JUSTIFICATION FOR-APPROVAL {
OF THE NEW HAMPSHIRE PLAN AND THE RECORD i
). PROVIDES NO BASIS FOR FEMA'S CHANGE OF POSITION j i
As discussed aucra, under the first FEMA prefiled testimony, I supported by Thomas, a clear factual basis for finding the NHRERP
) inadequate is set forth. As the concluding paragraph on the beach I 1
population issue stated:
J
. . . it appears that thousands of people could be unable to leave during an accident at Seabrook involving a
)-
major release of radioactivity without adequate shelter for as much as the entire duration of that release.
(PID 8.86, p. 221)
)
None of the facts relied upon by FEMA for that position had changed at the time of the hearing, or have changed today, at least as to the 98 percent of the beach population that is not j
) transit-dependent. FEMA's subsequent panels agreed. (Testimony of D. McLaughlin, It2 12875-78, 5/26/88, Testimony of Cumming, Its 14060-14061, 6/16/88) Indeed, under the PID, the evacuation
)
time estimates were acknowledged by the Board to be longer than v those contained in the NHRERP, and relied upon by FEMA in supporting its original position. (PID 9.94, p. 270-271) The
) Licensing Board has now found the ETE's-for Seabrook to range between 7 1/2 and 8 1/2 hours, far in excess of plume travel time ;
i and time to take significant dose-saving action in the event of a
), fast-breaking accident.2 Instead, evidently relying on FEMA's rationale for i~ts new position (PID 8.96 (9), p. 228), the Board 1
) 2/ As set forth in NUREG-0654, Table 2, p. 17, the emergency _
planning regulations are to include a spectrum of accidents I including releases that can occur, and reach a five-mile distance from the reactor, within as little as half an hour from the initiating event.
3-
\
)
concludes the NHRERP is adequate despite these facts. The Board, indeed,.is fulsome in its praise for FEMA's new witness, Joseph 1
Keller, (PID 8.58, p. 207) who proposed to find " technical" support for the new FEMA position. ]
The Keller testimony, however, was entitled to no weight ;
l-J whatsoever, since it was not based on any facts particular to Seabrook. It was, amazingly, based in part on an NRC training document, NDREG-1210, which was stricken as a supporting basis for
)
the new FEMA testimony, since NUREG-1210 was not an NRC licensing document. (Board Ruling at Tr. 13962, 6/16/88) The Keller testimony was totally generic, and could be used to support an
)
evacuation-only strategy as " adequate" at any nuclear plant, contrary to the requirement for site specific determinations of adequacy, and to the very concept of having individualized
)
operating licenne hearinss on emergency planning, as required under the Commission's regulations. (See, for example, ALAB-905, j discussed infra.)
)
In short, Keller's testimony can provide no basis for FEMA's about face, which stands unexplained on any technical basis, despite FEMA's claim to have a technical basis. The former FEMA
)
position was not based on whether or not there had been -
" consideration of sheltering", but on the inadequacy of the NHRERP to provide reasonable assurance through ADY protective action,
)
either sheltering (given the problem with sheltering the beach population and the poor shielding characteristics of the housing stock), or evacuation, (given the extraordinarily long evacuation
)
)
--~m_.- ------ a
3 y
) ..
.i 1
times,-and the nature of the at-risk population consisting I y primarily.of. scantily clothed beachgoers).3' The ultimate absurdity is that FEMA, having found the NHRERP l fundamentally inadequate because'of its failure to provide
. adequate protection through either of these protective actions,
) ,
now was able to find the plan." adequate" because it had now
. J i
" considered" sheltering, only'to conclude again that it was d
y fundamentally inadequate.- Two wrongs may not make a right, but in {
FEMA's world, two inadequate protective actions add up to an adequate emergency plan.
7 The basis for FEMA's about face is thus~1imited to the o
correctness of FEMA's belief, stated in its March 14 and June 10 l 1
testimony, that its prior position had become legally
)
insupportable because of NRC rulings, including primarily the
. decision in'Lona Island Lichtina Co. (Shoreham Nuclear Power Plant, CLI-88-13, 24 NRC 22), the November 16, 1987 Board Ruling excluding the Mass AG's dose consequence testimony ( L 5594-
)
5616), and the' Commission's Statement of Consideration accompanying its November 3, 1987 rule change. (52 End. Egg. ,
42078-at 42086 (November 3, 1987))
)
SAPL calls on the NRC, through this Appeal Board, to forthrightfully state if PEMA's former position that the NHRERP
}-
3/ The Board notes the former FEMA position did not have the approval of the RAC. (PID 8.95, p. 225) This, bewever, is of no ;
moment because, under 10 CFR 550.47 (a) (2), it is FEMA's duty <
to make " findings and' determinations
- regarding plan adequacy.
Moreover, it turned out that at least some RAC members insisted on
) judging plan adequacy in light of the Seabrook containment and were unable to judge the plans apart from their own belief, formerly asserted by the NRC representative, Bores, that offsite emergency planning at Seabrook could be lessened due to accident ,
i probability. ( L 13580)
)
9 1
1 4
was inadequate was rendered illegal, as FEMA's witness Cumming testified, because of NRC decisions. This is the sole aoparent basis for the chance in FEMA's position, and the parties are. i AD11tled to know if it is leoally corre.gii (Cumming flatly P testified that in his opinion as a FEMA lawyer, that FEMA is bound i by NRC decisions). (ILt 14025)4 According to FEMA's Lawyer-Witness, Cumming, after the Ligensing Board's November 16, 1987
) ruling excluding the Massachusetts Attorney General's dose testimony, FEMA's former position, that it could make a finding of plan inadequacy based on an unacceptable level of risk at the ,
) Seabrook site, "had absolutely no validity." (Its 14055, 6/16/88)
Thus, although the June 10 FEMA direct testimony simply states:
" Legal considerations were a very important influence (in FEMA's
) about face]." (FEMA Direct Testimony., p. 3, pagi_Tr. 13968 (6/16/88), the " legal considerations" were actually dispositive.
(SAPL joins in the Mass AG crgument, in its Brief, that the 1
) November 16, 1987 Board ruling excluding the Sholley-Beyea testimony was erroneous).
I IV. THE BOARD ERRED IN ELIMINATING THE REQUIREMENT FOR " IMPLEMENTING DETAIL" TO l
) BE ADDED TO THE NHRERP BEFORE AN ADEQUACY i FINDING COULD BE MADE IN REGARD TO SHELTERING I. 3 set forth supra, FEMA claims to have reversed its position j
)
on the adequacy of the NHRERP based on the fact, as a result of
)
two Februtry, 1988 State of New Hampshire submissions, that New l
4/ SAPL, of course, believes the real change in FEMA's position had nothing to do with the lav or the facts in this case, but was the result of political pressure, a fair inference based on the i; record and given the absence of any rationality in FEMA's claimed basis for an about face.
3
i Hampshire had now given adequate " consideration" to sheltering.
(PID 6.36, p. 192)
In its submissions, (App. Direct No. 6, ppst Tr. 10022, l
Appendix 1), the State did D2.t eliminate the sheltering option.
It said that in three types cf circumstances sheltering could in fact be the protective action of choice, including "when it would be the most effective option in achieving maximum dose reduction."
(P1D 8.37, p. 193)
Since sheltering was now to be included in the NHRERP as a protective action, FEMA's June 10 testimony concluded that, if it were to be adequate, " implementing detail" would be necessary.
" Implementing detail" is a curious term, since what was lacking, and FEMA was saying was necessary,was a sheltering plan, a matter that most people would hardly describe as a " detail." For O
example, the State had no emergency broadcast messages advising people to shelter, and no plan to move specific gr oups to specific shelters.
O The Board dealt with the problem in a manner similar to its handling of ALAB-905's invalidation of FEMA's 20 percent reception center attendance assumption. It held, in the face of the State's own plan to use sheltering in certain circumstances, that sheltering "would probably never be the protective action choice" (PID 1,14, p. 7), and that therefore the NHRERP should not be improved by " cluttering" it with " unnecessary detail." (PID 8.75,
- p. 215) In short, the Board removed the sheltering option from the NHRERP, despite all the furor about needing to have sheltering
" considered" in order to have FEMA find the NHRERP adequate. By O
l
)' j
. 1 i
i eliminating the sheltering requirement, which FEMA had insisted be l T- " considered," the accompanying requirement for " implementing ,
detail" was also eliminated, notwithstanding FEMA's final testimony.5 l
} This war. plain error. In LPB-85-12, Lona Island Lichtina Co.
(Shoreham Nucleat Power Station, Unit I), 21 NRC 644 (1985), a Licensing Board had held that no evacuation plan was needed for
)' _two hospitals in the shoreham EPZ because of the very low probability that evacuation would over be the protective action of choice. In ALAB-032, 23 NRC 135 (1986), the Appeal Board
) reversed. It said:-
Assuming, without deciding, that the probability of a hospital evacuation is i as low as the Licensing Board believed, !
it does not follow that the emergency ,
) response plan need not concern itself with 1
'how such an evacuation would be carried e f out if it should be directed. To the '
contrary, as we recently observed in a related context:
) The Commission's emergency planning i regulations are premised on the assumption that a serious ,
accident might occur ~and that !
an evacuation of the EPZ might !
well be necessary . . . The
) adequacy of a given emergency ;
plan therefore must be i adju&jed with this underlying assumption in mind. As a corollary, a possible deficiency in an emergency plan cannot
). properly be disregarded because of the low probability that action pursuant to the plan will ever be necessary. Thus, the Licensing Board majority gave i undue weight to the fact that
)
5/ Totally inconsistently, however, the Board went on to consider whether adequate sheltering space was available. (PID 8.81, pp. 218-19) !
) l
la; l
l' evacuation of (a hospital within the EPZ) is remote.
(14 155-56) lO!
In CLI-87-12, 26 NRC 383, the Commission upheld this holding and stated, "we agree with the Appeal Board's reasoning on this issue."
ALAB-832 is dispositive of this issue. A sheltering plan, whether or not called " implementing detail," cannot be omitted as long as sheltering is still a protective accion option, regardless
)
cf the low probability that it will be choser. The PID must be reversed, and this matter remanded for determination as to whether or not an adequate sheltering plan does exist, to carry out the sheltering option in the NHRCRP.
V. THE BOARD ERRED IN FINDING THE NHRERP'S LETTERS OF AGREEMENT ADEOUATE O
Prior to the hearing, the Board egregiously erred in some of its key rulings on the Letters of Agreement (LOA) issue. The Board ruled by Memorandum and Order of May 21, 1986 that no LOA's are required with local EPZ communities or host communities and that LOA's are not needed with school administrative units
( " S AU ' s ) , schools, teachers, day care centers, and nursing homes
.O because they are " recipients" of services. This is blatantly inconsistent both with the underlying purpose for requiring LOA's to provide " reasonable assurance" that necessary services will be provided, and with the Board's own later ruling that "the teachers 1
should be regarded as service providers." (PID 7.10, p.130)
Further, the Board ruled on May 18, 1987 that LOA's are not O
L ____ _ __ _ __ _ _ _ _ _ _ _ _ __ _
w '>
T
- a ;
Nl w > > ,
l
) ,
1 ,
- ])
y,, required for-individuals'11ke bus drivers "who collectively; supply i
a' labor force or activity". 1
)J , j In the PID, the Board never properly joined the issue of the-
'j i -adequacy of the Letters of Agreement (" LOA 's " ) . The record 4 1
-evidence showed that LOA's were not specific'in setting.forth the i h- _ ')
emergency responsibilities'of supporting organizations as is
]
required by the Commission's regulations as explicated in~NUREG-0654 at II.A.3, II.C.4 and II.P.4. The Board, however, ruled (PID l
) {
2.28, p. 20) that the LOA's point out what is expected.of {
l signatories. The evidence shows that the: LOA's indeed do not 1 properly specify who is responsible for which actions, precisely (
V what-is to be done, and how it is to be done. In short, they do j y not provide " reasonable assurance" that' the signatory-providers-will perform the services anticipated. For example, the LOA's with host- f acilities for EPZ specivil facilities do. not set forth even the fact.that there is a responsibility for evacuee
-monitoring, who is responsible for that monitoring and what
) -
o resources are available to accomplish that task. '(See,'for
~
example, the LOA's with the McKerley Health Care Center and Lemi,re Enterprises (attached hereto as Attachments A and B, '
)
respectively). Even given the evidence that the New Hampshire Office of Emergency Management (NHOEM) had no clearly defined management program for letting the individuals collecting letters of agreement know what was to be communicated to the signatories )
i' of the letters, (It. at 2827, 2829, 2837), the Board stated that it "need not find a right and wrong way to conduct a survey" (PID
)~ q 3.35, p. 34) and further accorded no weight at all to the fact {
)-
_ = _ _ _ _ - _ - _:
,. i
< , ;c , ;
- c. ,
j-l 1
~
that-FEMA has-not yet reviewed all the LOA's for adequacy. (PID l
.'2.30, p. 21)-
4 The PID never addressed'the testimony of the Secretary / j Treasurer of Teamsters Local No. 633, David Laughton, who had )
)
' Signed a letter indicating the availability of 1500 Teamster i personnel to' drive emergency vehicles, byt who in his deposition demonstrated a' total lack of understanding that the Teamster drivers were to drive buses into the. emergency planning zone in
)
Mr. Laughton also stated j the event of a radiological emergency.
J that he didn't think the letter required the Teamster membership j j to do anything that they didn't choose to do. (SAPL Exh. I at 22 and 36). It was only after Intervenor cross-examination poin'ted ]
~ :
out the gross inadequacy of the LOA with the Teamsters that NHOEM l 1 removed the Teamsters as a major source of drivers under the Plan. ]
)
The Teamster drivers were largely replaced by Department of Transportation and National Guard drivers for which there are no j rosters in the Plan. (App, Dir. No. 1, p,ost Tr. 2795 at 7 and Tr. i y
at 2992) ,
Two other major inadequacies in the LOA's r?garding vehicles {
l and drivers did not even come to light until Intervenor crots-
)
examination: 1
- 1. The lack of assurance of Bal P. Guadagna, Director of 1
) (Jperations for National School Bus Service, Inc. for the New England Region, a company counted upon to supply a substantial portion of the buses under the NHRERP, as to how many of the 300 driver total indicated on LOA's signed by hini would actually show
).
up to drive. (Mr. Guadagna could not remember having filled in 1
I l
3 I
^
,o the driver numbers and he had no' idea of how many actually would drive.) (Guadaana Rebuttal, p,pf D . B117.at 1-3 and Tr. at 8129,
).
8174); and
- 2. the' fact that the Jan-Car Bus Corupany, which was to have supplied 65 buses and 150 drivers, hed gotie out of business (II..
)
-2930).
There was no evidence a'dduced by the State, except for spoken assertionst.to support the conclusion that the LOA's were adequate, which assertions were rebutted by the factual evidence.
In conclusion, the LOA's are totally inadequate to provide.
" reasonable assurance" that the level of service necessary to
)
provide adequate protection will in fact exist. No LOA's,with schools or teachers were required, despite the Board's own holding that teachers are providsrs of service.
)
VI. THE BOARD ERRED IN FINDING AN ADEOUATE PitOVISION FOR EMERGENCY RESPONSE PERSOMNEL The PID makes significant errors in regard to the issue of personnel adequacy by crediting the Applicants' Pe:sonnel Resources Assessment Summary ("the survey") (App. Exh. 1, i
corrected by App. Exh. lA, p_ost Tr. 4685) as showing that the
) '
number of available personnel to staff response positions in local municipality.ies exceeds the personnel required and thac sufficient State personnel are available to carry out the functions assigned to the State (PID 3.69, 3.70; pp. 46-47). The Board advances a tautological definition of the term "available".:
). -
l l
I
)
> j
w ,
1 Without semantic arguments, the definition 4 can reasonably-be read to mean the pool of ll resources thst will be relied.upon to carry cut the responsibilities assigned.
under the MilRERP. .(PID.3.21, p. 28)
The. survey states' that people can be relied upon because they. l are "available", and the Board agrees that they are available- f because they will be " relied upon." There is absolutely'no valid underpinning for this circular logic. As the tastimony of Olifford J. Earl so clearly pointed out, the curvey was methodologically unsound, failed to define in any reasonable <
)
manner what was.neant by avai) ability of personnel, failed to I
determine what was a reasonable workload so that reasonable
)
estimates could be made of the number of workers needed for l
- rious functions and did not consider appropriately such variables as the time it w
- >uld take to implement actions. (EfL,1 pit ,.p_9st Tr. 3776, passim.) Mr. Earl's testimoLj is buttressed by'the deposition testimony of David Laughton (supra at 27). It I
was absc.lutely clear from his testimony that Mr. Laughton had had
) q no realistic idea of the driving task being asked of the teamsters l i
when he signed the letternindicating availability of.1500 of the ..
1 It is int.eresting to note that after the depocition of Mr.
Laughton, the number of "available" teamsters was reduced from 1500 to ;8 in the Applicants' testimony on LOA's. (App. DiLJlpa.
I 1, post Tr. 2795 at 7 and Attachment 6) Mr. Guadagna's rebuttal testimony (EMEr.g, at 28) also showed how baseless the letters of i
< i agreement from his company were in stating that 300 bus drivers
{
were available. The Board, with no sound inesis for doing so, {
i D
sArtg klan9.he discredited the testimony of local ofi#cials as to
]
__ _ i
.y ,
y -
a
.c .
g i ;
l i(L
" ' !;Y , .. ..
[,- l
) ,
the Icek of availability of. sufficient. personnel to carry out,the?
plan, accepting instead results of' the. unsound survey'-(PID 3.55, p -
3.56; p. 41). None'of the people.wholactually. collected the survey data were put on as, witnesses to give sworn testimony, and,
~
'q fn. Rsnz, the panel witness responsible for preparing the written.
)..
,j survey never 'syst.ematically interviewed those. people who had j i
4 collected the data. (R . at 3243) . Nr. Renz acknowledged that no'
'coumon terminology was used in the. interviews.of the " persons U i'
, knowledgeable'about the specific communities"'(PID.3.10, p. 24)-
1 and no consideration was given to a person's competence to do.a j J task in: assigning that person to that task.-(R. 3323-3325). J
)i a Contrast the credit. the', Board gives to this slipshod survey an6 H the' Board's treatment (PID 3.51, p. 39) of the testimony of Detective.Lally as to the Hampton Police Association's vote that h
the'NHRERP 10l" totally unrealistic, unworkable and unsuppM table," 1 (De!larco and Lally Dir., gost Tr. 3659 at 19' and it, at;3688-91) i and Sergeant DeMr.rco's and Detective Lally's testimony as to the.
T inadequacy of police personnel to carry out the plan. (14. at 3 d and 10-13) This example of the evident bias and hoctility of the Licensing Board appears based on the belief that all criticisms of N, .
I the NHRERP are derived sclely'froci the bad motive of trying to defeat licensing, snd will therefore be cured'if licensing eccurs+
The survey that the Board finds so compelling relies upon (
)
some unidentified person or persons in the Town of Hampton
'("Hampton") aa6 other towns who gave information to some unidentified state or utility person who then passed information b
on tG Mr. Joseph Enoch (R . at 3232-33), which information was J
)
- 1
-e .
O, finally presented.in the written survey format by Mr. Renz. ( Dt.
igi at 3212, 3233) This~information of vague and unspecified origin i' was credited more highly by the Board than direct sworn testimony l
, of two police officers, not to mention the Chairman of the Hampton O
Board of Selectmen (Janetos Dir., pgst_II. 3597, Rossim.), holders of responsible positions in Hampton who have detailed knowledge of l
the characteristics of the towr., its beach areas, its toadways,
- O the people that are in or visit the town, ar.d the capabilities of the town's police force. The Board'also failed to give appropriate credit to other town officials who gave testimony
'o about personnel shortages who are also very knowledgeable about the characteristics of their specific towns. (.QAniat_i.e D11. , post II. 3741 at 1-3, Tr. 3761; Breiseth Dir., post Tr. 3739 at 2-3, o II. 3766-67; Mitchell_ pit., post.Tr. 3805 at 1-2, II. 3846-48; MacDonald pir., post Tr. 3867 at 3-5, II. at 3926; Inaram Dir..,
p.Q3t Tr. 4479 at 4 and 6, II. at 4490; Shivik Di r. , , cost Tr.
g 3780, passim.
The Board further erred in discrediting, on no substantial basis, intervenor arguments about the effect on the adequacy of C emergency response of excessive mobilization times. (PID 3.22, pp. 28-30; 3.51. p. 39). A total of 97 State Police are needed to carry out the NHRERP if the non-participating towns ao not O participate (86 if they do); only 6-7 state police are on duty at the only trooper ba. tracks in reasonable proximity to the seacoast, Troop A in Epping, New Hampshire. (ADD. Exh. IA, Table 3.1-1, 3 Aon. Exh. 1, Table 3.1-4, II. 3370, 3384, 4686, 4720-22; DeMarco and Lally Dir. , nqnt_It. 3659 at 11-12 and II. 3364, 4676-77)
~31~
O
.t > ,
gi ,
- e. ,
1 j
- . 4 Captain Sheldon Sullivan, a' division commander with the N. H.
State Police,, testified that' a cumulative total of 13 state police: J
)
_ officers could be in place within two he'rs. u It could-take up to ]
i five hours to get 100: state polica officers in place. '(n. at J
4704, 4714-15) Richard Strome, Director of.N80EM,-testif'ied that p
state police' will provide 28 traffic' control guicles to Hampton.
(n. at 3364) . It is obvious that a full, complement of these p officers could not be in place for the first couple of hours of the accident, which means that traffic control measures.would not be properly implemented. Officers DeMarco and Lally testified f that under normal conditions during the summez months, it can take' even'the local Hampton police officers'two hours to' travel from )
'the western part of Hampton to the area of critical need on ..
Hampton Beach. (peMarco and Lally Dir. , post Tr. 3659 at 13)
The Board states that the survey of personnel was not j intended to address response availability 'of personnel in the temporal sense since "the survey assumes that people will be.
) "
available when they are needed. (PID 3.25, p. 30) The Board ruled that the issue of whether and when. people will be there is an issue of planning and implementation, not personnel resources.
)
Though SAPL does not agree that those issues are separables even if one were to accept the Board's logic, the Board did not carefully enough look at the planning and implementation aspects of the personnel issue apart from the survey, though SAPL Sid raise those issues in a way that did not rely on the survey as basis (See, for example, SAPL PF 3.1.22). Timing has to be an
)
important factor in evaluating the adequacy of an emergency
).
" 't y
V lfw .j N. ,
^
x
' W W 'h,' ,by -
,. x ,
- w
, < ~ . :l
)$q ; ,'
f .e- ',
l**u=,
wa '
q
- "{1 response.( Otherwise, - the Commission s regulations ~ requiritig a
- {
pL$, cpteparation;of Evacua$1on Time Estimates ia meaningleu, e4 !s. .the '
/
- 15 minute notification requ'irement.-(10 CPR 50 Appendix E M f
y, 1
The'B9ard also.ctred in finding-that there ate Edequate' local
~
e c s i.
' < ,- 4 g
Ll; y) 1 and State responMe. personnel to replace emergency personnel who d 1
have withduvn.from the area as a'rean1t o'f having met their j .
radiatica exposure limits. (PID 3. 58, ' 3. 6% .pp. 42-4 3) Dra s jy Donald Herzberg, Director of the Division of:, Nuclear Med161ne'at- ;
i
'the Dartmouth-Hitchcock. Medical Center, testified that ths SR ]
exposure limit for 2ocal emergency workers cou'Ld 'bo #14.vered to 'n
( large number of the 1300 State and 3ccal energency workers ,
)
(HerzberpJ.ir. , pqg.t;'
'relatively quickly under certain scenarios. ,]
q II, 5012 at 2) Applicants' witness John Bonds, Assistant Director: '
j
)
for Plannihg of the Division of.Public Health Services'of the N.H.
Dept. of' Health and Human.Servicesr agreed that an emergency worker could potentially recedve up to'25R.within an hour. L(II. j i
y at 4983) Severe personnel shortages could result when personne.L 1 reach their exposure limits because no adequate-sized back-up. pool? ;
of trained workers exist, The number of emergency workers p desigr.ated to carry out compensatory functions in the Plan for the 17 local communities is only 69 people. (&p.g. Exh.__l, Table 3.1-4 'j J
and It. at 3480) {
1 y iFEMA stated that it does not have assurance that tne EPZ l 1
municipalities can fully implement their plans because many key 1 i
positions do not have a back-up for second shift responsibilities, l
.. _ i
)
6/ Of course, this returns us to the basic issue in this case-- i the lack of cny standard of adequacy. Absent a standard, it doesn't matter if it takes two weeks to man the traffic control posts. 1See, pp. 14-18, suora) ,
1 L {
"E *
- 3 'j.Nr!
o or,d; i- 1 ,
a- i ,
! Q/ ' l a s. _ ,
'I S Y' '
' O' "'
i; R t ,
ve G/
=
i 4 ,
I i
- (FEMA' D'ii. , ' cost ' Tri 4051 at?(81))1and ; indicated that, ataf fing:
14]. .l. ' '
. 4 , L' ,
)j'
' < rosters would need to.beLprovided~before the-Plan would be deemed-
]j j
L adequate. - (PID- 3.66, ' p.' 45) With no basis,. ,tne' PID blithely,
' J i' I
concluded'*weexpectthattheStatehasJpr6vided(the'information." [1
~1 "i 1
(Id. ) ,
3 J
/ Though the' Board -acknowledged that Dr.: William T. -Wallace, ,
h, d
~ Jr. ,' Director of the Div'isich 'of Public Health Services '("DPHS"),. '
,t j ji j, testified as' to' che resistance of state health workers to .
"1 4 participate in; the NERERP'on a; voluntary; basis (PID'3.61, p.43);
]f the Board stated: ,
We must view these responses in the. ;
y, context of an emotionally' charged E
licensing .proceedliig where such - -
statements of: predicted, behavior can lue use6 in an effort to defeat such.
clicensing or for the pressuring'~of one's
. peers.. We'therefore give them little ,
[' weight:in our deliberations. (13.),
SAPL is astounded at this comment'because this resistance to
'}
-j participation'in the'N3RERP came to light in responses to a letter
) sent to his staff by Dr. Wallace unbeknownst to SAPL or other t 1
intervenous, requesting individuals from his staff,to participate L 1 in the NHRERP. Interveners only' learned of the Wallace letter and k
)' ~ responses when the 'documen'tc were produced by the State of New It Hampshire in response to a more generalized discovery request. 3 baffles us to understand how the Board could think the context of -l
)s the proceeding could have affected the responses to Dr. Wallac'e's letter. (Responses are at SAPL 3, post Tr. at 3433) Dr. Wallace was cble to recruit only the minimum number of DPHS workers i rFDdred, (:D;. at 3440-41) a number he had concerns'would not be ,
sufficient.- (it. at 3413-14)
) ..
A_ _ _ ._ _ _ _ . - . _ _ _ _ _ - - _ _ _ - - _ - _ , _ _ . _ _ _ _ . . _ _ _ _ .
< l, 3 N l
[,
L
=
Issues of the shortages of the Department of Health and Human g O Services Employees (DHHS) and host community firefighters are <_
discussed jnfra at 45-47.
h VII. TUC BOARD ERRED IN 21[QJES_,TP4E NHf1ERn ypOVIDED ADEOUPTZ ASSURMGS 0F TRANSPQR'@"lQl! [-
O AVAILABILITY AND svPPcRT sanvings- g ShPL contentions 18 and 25 were'ffled.oh Feornary 22, [
1986. They stated respt.:tivelyr The locah New Fampshire community plans ,
O' of BreM anod, Exeter, Portamouth, Seabrook [
=
and New Jostle significantly miscalculated the uumbers nr non-suto owning population based I on the percentages of non-auto owning population given in each of the cbove-stated .
No buses are provided in the plans plans. -
O for the individuals who are not accounted '
for due he these miscalculations. Therefore, -
tnese pla: 1 fail to meet the requirements of "
10 Cr2 0"',. 47 (a) (1) , S50. 4? (b) (8) , ,-
NUkBG-0654 II.J.10.g and HUREG-0654 Appendix (, p. 4-3. -
O t The New Harnpnhire State and local F radiological emergency response plans i do not reasonably aerure that the public health cnd safety will be adequately protected because the provisfons for .
O protecting those persons whose monility may bq impaired due to such factors as "
i institutional or other confinceent are _
patently lacking. Therefore, the plans do not meet the requirements of 10 CPR :
S5 0. 47 (a) (1) , S50. 47 (b) (8 ) and NUREG-0654 g C II.J,10.d. -
?
These contentions were admitted by Board Memorandum and Order [
of April 29, 1986 at pp. 94-95 and p. 100. By Memorandum cnd I w
O Order of November 4, 1906, the Board ru]ed on motions for partial I summary disposition of these contentions and granted the motions -_
" insofar as these contentions assert that adequate procedures for g O identifying persons with special needs do not exist." In other words, interveners were barred from litigating the adequacy of the [
l O
) i k
l State of New Hampshire's special needs curvey even though the NRC j' Staf f opposed summary dispositiori based on the evaluation of FEMA. d (Memorandum and Order of November 4, 1986 at 14-17)
On NGvember 26, 1986, SAPL not only filed revised bases for j Contentions 18 and 25 based on the Rev. 2 MHF'?RP, but also filed a new contentica, SAPL Contention 37, as follows: )
The NHRERP Rev. 2 fails to provide reasonable ascurance of adequate public
) protecticn because an adeauate number of emeroency vehicles cre not provided for in the plans and further there is no assurance that effective use of these vehicles will be possible in j view of a potential outgoing flow of ,
) evacuating traffic and a significant lack of drivers. Therefore, these plans do not meet the requirements of 10 CFR SEO.47 (a)(1), S5 0.47 (b) (3) ,
.S50. 47 (b ) (16 ) and NUREG-0654 II.J.10.g j and'II.J.10.k. !
)
The Board ruled on these contentions on February 18, 1987 and provided supporting bases for its rulings in a Nemorandum and Order dated May 18, 1987. SAPL 18 was admitted with the
)
limitation that no population comparisons betW:aen Rev. 2 and ecelier versions of t.he NHRERP would be allowed (Hemorandum and Order of May 28, 1987 at 39) and admitted SAPL Contention 25 as )
) f limited to the bases provided in SAPL's November 26, 1986 l p19ading. The lioard also admit.tcJ SAPL Content.f on 37.
The Board cerunitted reversible error in batting interveners b
from litigating the adequacy of the State of New Hampshire's specirl needs survey. There were genuine issuer of material fact i
in dispute an to the accuracy of the numbers of special needs
]
)
persons for whom transportation arrangements would need to be I made, (PID 4.4 at pp.48-49) identifibd by that survey. Due to 1
)
-3c- )
)
,, , . + '+
Nl'. ,<< '
);
'b '
' l: O W ' design and methodological flawa r SAPL believes that the survey '
,q
{' resulted in~a sign.ificant underestimation of the special needs 1 population. Since-these estimates factored into the total l, estimation'of emergency response vehicles needed, SAPL believes '
)L that the: number of' vehicles' planned for in:the NHRERP is inadequate-to meet the cetual level of need'knd thatvintervenors .l were denied.due process of-law in'being barred from litigating.tbe
) basis for and adequacy of those numbers. Reliance on this flawed 3
. survey;is the foundation tor! several of the Board's findings (PID 4.6, p. 49; 4.s8, p. 50; 4.11, p. 51; 4.20, p. 56; 4.42a p. 66).
y Even if one were to accept Applicants' estimates of. emergency vehicle needs, SAPL believes the record evidence showed that there: ,
k 1
wus no reasonable assurance that the numbers of buses, ambulances,. t r
), other vehicles and sufficient drivers for thc.se vehicibu would be '
available. Between September 10, 1987, the-date on which the Applicants filed their first draft of testimony on transportation. ,
) needs, the number of buses available to carry out the NHRERP
'l
' declined by 105 (TI. at 4286-4287) Applicants claimed in their testimony that the LOA's reflect the availability of 796 drivers 'l
). from the. bus provider companies, but SAPL believes that the record evidence shows that the driver numbers on the LOA's are 4 j
meaningless (see discussion of Sal P. Guadagna's testimony, supr.A 1
) at 27-28 and discussion of David Laughton's deposition, suora at j 27, 29). The Board appears wi311ng to assume on no sound basis I 1
that the National School Bus Drivers discussed by Mr. Guadagna j
) will be available. . . . we do not find Mr. Guadagna*s testimony )
I to support a finding that driver response will be in.tdequate." J (PIL 4.16, pp. 53-54) The Board further found on no sound basis i i
) ._ _ ______ _ _.___ _ __ __ __ l
l
) i I
1 1
I that " deficiencies in the driver pool will be provided for thscugh j
) 'f utilization of other resources identified or to be identified by the State." CO2.) There are no rosters of the names of the Department of Transportation, New Hampshire National Guard and
) Teamster personnel alleged to make up the emergency driver pool in j the plan. (App. Exh. 5 and TI. 2992) Further, the Director of ,
I' NHOEM, Mr. Strome, did not know the procedures for call up of the
) DOT and National Guard drivers. CIr. at 4316)
The Board's unsupported findings are dizzying in the rapidity of their descent from the heights of reason. Intarvenors exposed
) the fact that the 1500 teamster driver pool was a chimera, that the next to the largest alleged bus provider company, Jan Car, was )
out of business CEtt 2930), that the largest bus provid-or, 4
) National School Bus Service, Inc., had no idea how many drivers would show up to drive and that the one bus company (the Berry i 1
Division of National School Bus Service, Inc. in North Hampton) '
) that did insist on doing a survey of its drivers wound up f tading a
)
out that only a very small percentage would be willing to perform
]
J the expected service. (Hutchinson Dir., post.Tr. 4562 at 2-4; It. i 1
) at 4567-68) SAPL believes that the Applicants' testimony as to the l l
adequacy of bus and driver numbers tas not only been rebutted, but l
dissolved. Furthermore, after the hearing record closed and
) contrary to the Board's finding that ". . . revisions demonstrate to the Board that Applicants have taken the necessary measures to j correct their est! mates in response to better and more current
) information" (P;D 4.17, p. 54), the Applicants nave boosted the l
)
t
).
number of drivers for'the Berry division of National School Bus Service,'Inc. back up from 9 to 65 (see the accompanying "SAPL i Y l Motion for Expansion of Record," the attachment thereto and PID ,
l 4.12-4.14, pp. 51-52). )
One of the moat significant issues examined ir the l
) .
I transportation availability and special needs' portion of the i i
hearing on the NHRERP was the problem of providing adequate j 1
assistance to populations in institutions such as nursing homer.. l
) i The NHRERP is grossly inadequate in this regard. The Board wholly I ignored the testimony of the late Joan Pilot, who at the time of the hearing was the Prraldent of Amoskeag Ambulance. (Filot Rebuttal, pgn_f._Ir. 7670, pasalm.)
. Mrs. Pilot testified that nursing home residents with severe osteoporosis, diabetics with )
i insulin requirements and those with chronic obstructive pulmonary I
)
disease would definitely need ambulance transport. (Li. at 2)
Applicanto' tectimony indicated, however, that even though there k
are ten nursing homes in the EPZ, not even ons ambulance was
)
a]1ocated to nursing homes. The mere 18 ambulances allotted to institutions were to be cent to the two EPZ hospitale. (App. Dir.
No. 2, post TL. 4228 at 4 and 10; Tr. 4290-91; Tr. 4294-95) The
)
18 ambulances are assumed to transport two hospital patients each, even in the case of Advanced Life Sapport (ALS) patients (Yr.
4293). Mrs. Pilot testified that only one ALS patient should be
) 3 transported per ambulance (Pilot Dir., po:4t Tr. 7670 at 2). There is thus not even sufficient coverage for the hospitals.
The Board dismissed assertions that nursing homes need more
)
transportation resources allocated (2rahan Dir., post Tr. 7806 at
)
t 2
- _ - _ _ - _ . _ - - _ ~ - - .. ]
n a: n \
Y i 9).because,the~ Board said'that Daniel Trah'an'of the Seacoasti e"
]
J<
f a 1
Health Center'in Hampton admi^cted:in;his testimony that~he.himself had provided information.to NeV Hampshire Civil' Defense about his
~
~
facility needB. '(PID 4;.39, p. 65)~.This!is.a flabbergasting- ,
y failure to consider the evidence fully andfresponsibly. ~Mr . - '-
Trahen tostified that hc.was told that only buses:would be J- l available'and he-said that'he. felt he had:no choice in the. matter.
~
( E 7820, 7837) The Board ac'knowledges that-he testifled that I
, . his patients.would need ambulances. (PID 4c36, p. 63) .He further 3-, testified that durin'g an evacuation of his-facility.due to a bomb. l
'l
)'
scare, a few patients went critical due to stress. (Tr. at .7840)
The Board committed errors of law and fact when it. stated that ad h a changes in the plan could be' instituted in the event of an f.
emergency. The Commission instituted emergency planning regulations.because ad h a responses were held to be inadequate i
(See ALAB 832). Further, there is no factual basis for assuming that other resources could be made available on an ad h g basis.
)-
Rockingham County Commissioner Maureen Barrows testified that 93 of the patients at the Rockingham County Nursing Home in
~
Brentwood are total care patients and.that she could not see how
)
any of these persons could safely be transported on a bus bed conversion kit. ( b 4456-57) The Board acknowledges that both ,
) _.
Mr. Trahan and Mrs. Barrows testified about staffing shortages )
that would arise at their facilities if a radiological emergency were announced. (PID 4.35, p. 63; 4.36, p. 64) The Board )
I
)
dismissed both the Trahan and Barrows testimony on this point, i citing the fact that the two facilities have evacuation plans and )
l'
} l J
l l
- v. -
(
)
havn' carried out evacuations in the past. (PID 4.38, pp. 64-65) r y The Board failed to note that Mrs. Barrow's prediction was based l.
on a survey of nursing home staff.and that the Administrator of the nursing home, Mr. William Sturtevant, had communicated his
)
dissatisfaction with the plan for the f acility to State officialc.
(Barlows Dit., post Tr. 4405 at 4,_T_t. at 4430-31, 4454, 4470+71, 4476) The Board also failed to take into consideration the fact j
) that the evacuation of Seacoast Health Center was not an evacuation out of the tcwn but down the same street and that all the resources that were available, then " state police, local
) police, local fire departments, and other town fire departments" (Tr. 7838), would not be available during a radiological emergency J l
because they would be required elsewhere. The evacuation at the
) Rockingham County Nursing Home resulted from a fire in only orso room and affected only one building. (App. Exh. 12) These past j l
evacuations hardly d('monstrate that staffing exists "within both
) facilities" to carry out an emergency evacuation in the event of a radiological emergency. (PID 4.38, p. 65)
The Board also discounts intervenor testimony as to the time )
i
) it would take to load hospital patients onto emargency vehicles.
(PID 4.40, p. 66) The Board assumes that patients would be at the j loading point, not in their beds when emergency transportation ;
)
arrives. Again, the Board failed to consider the Pilot testimony. I Mrs. Pilot said that it is not possible to expedite advanced life support patients except to prepare their paperwork and that it
) takes from 28 minutes to one hour to move such a patient from bed to stretcher in the same room. Lines, oxygen connections, tubes
)
e
~ - - _ - - _ _ . - - _ - -
h m , ;. ys -
1
~
y g" l, l.
l' ': t .
t ,' ,
< l 3w '
'} ^, $
r , and'the'Itke make the process' complicated and. time consuming. 1 1
)
, I * (2g. at'7674-7676) l t 9
VIII. THE BOARD ERRED IN HOLDING IT COULD RELY ON
'S AN ASSUMPTION THAT 20 PERCENT-OP-THE EPZ
, POPULATION WOULD GO'TO RECEPTION CENTERS, .
l J
,- E_O3Q WITHSTANDING THE CONTRARY HOLDING IN ALAB-905 -
A critical-issue in radiological emergency' planning _is the 'l adequacy of facilitiesLto. handle those persons within the .
)
approximate ten-mile plume exposure emergency planning zone who 1 i
may be ordered to evacuate in the event of a nuclear disaster, j i
including so-called " reception" centers where evacuees'can go to' l
) ' i be registered, monitored ~to determine if they have been subjected i to radioactive contamination,.and, if necessary, decontaminated. H i
,, The explication of the requirements for these facilities is
)
- fourd in the NRC and FEMA basic planning document, NUREG- l t
0654/ FEMA-REP-1 (Rev. 1).. As stated in ALAB-905: l i
- ncluded within this guidance is the provision <
) in Criteria II.J.12 for radiological 1' monitoring 1 of EPZ evacuees: !
Each organization shall describe the means for r.egistering and monitoring of evacuees at relocation centers in a
) host areas. The personnel and equipment j available should.be capable of monitoring !
within about a 12-hour period all i residents and transients in the plume exposure EPZ arriving at relocation l centers. (ALAB-905, slip Opinion pp. 13-14)
As pointed out in ALAB-905, NUREG-0654 does not itself establish the number of evacuees for which planning is required; j instead, it calls for adequate personnel and equipment to deal
)'
with "all" of the individuals who can reasonably be expected to i require services.
) 4
\ <
. = - _ _ _ - _ . _ - . - _ - _ . _ _ _ . _ ._ _ - _ . .b
O In both the Shoreham and Seabrook proceedings, the adequacy of the reception centers was put in issue by interveners. In both proceedings, the license proponents, applicants and NRC staff, chose to rely on a FEMA.d0cument, an internal memorandum known as the Krimm Memorandum promulgated December 24, 1985, to establish the planning basis for the number of evacuees for which the facilities were to be staffed and equipped. App. Dir. po. 4, post R. 4740 at 3-4, R. 4767-68, also FEMA Direct, post R . 5091, p.
59, (Global p. 80).
That Memorandum contained an assumption that the planning basis for the reception centers should be a minimum of 20 percent O
of the EPZ population. In both the Shoreham and Seabrook proceedings, the Krimm Memorandum was marked into evidence, and provided the basis for judging the adequacy of the reception O
centers to perform their necessary roles.
In ALAB-905, the Appeal Board held that the 20 percent assumption in the Krimm Memorandum lacked sufficient Dusis to support the Licensing Board's finding on the adequacy of the reception center for Shoreham.
.g However, in the Seabrook Partial Initial Decisiots ("PID")
despite the issuance of ALAB-905 one month earlier, the Licensing Board held that it could find the New Hampshire Radiological O
Emergency Response Plan ("NHRERP") adequate as to reception centers on the basis of the Krimm Memorandum and that, indeed, the 20 percent assumption of the Krimm Memorandum would be accorded O
the status of a " rebuttable presumption" because it came ftom FEMA. (PID 5.66, pp. 96-97).
O
)L ALAB-905 makes it beyond peradventure clear that this i l
}
decision 11s totally and' egregiously erroneous. It must be l reversed. i The Applicants had the bur' den of proving that there were L adequate resources to staff the four reception centers, and that.
they had appropriately planned for~the number of evacuees from the Seabrook EPZ who would require services. To the Krimm
) Memorandum's 20 percent assumption Applicants c1himed they had added two conservatism. The first was that they.had prepared to j i
i assume that all transit-dependent persons would go to the !
) reception centers. (However, they also took the position that this' amounted to a very small number of people, approximately 2 percent of the evacuating population.) (App. Exh. 5, Volume 6 at
) p. 2-1; TI. at 4936, 4940). Second, the Applicants stated that l they were using the Manchester reception center staffing i
requirements as the basis for all reception centers. Manchester,
) because it was to host evacuees from six towns plus evacuees from Hampton Beach, was expected to have a somewhat higher load, based l upon the 20 percent assumption, than the other reception centers.
)' However, despite these claimed conservatism which were said i
to amount to a capability to actually service about 25 percent of ;
the EPZ population. (PID 5.9, p. 70), it is undisputed that no j
i survey or other specific analysis of the likely number of evacuees who would elect to go to the reception centers was undertaken.
(See PID 5.19-21, pp. 74-75) .7
) '
7/ It should be noted that there are also reasons to believe the 20 percent assumption was based on numbers that were too low; i.e., not at all conservative. First, the numbers were based on
, Continued on following page "
) - - _ _ _ _ - _ _ _ _ - _ - _ _ _ _ _ _ - _ _ _ _
i a1 .
l', . ;,.
,' (j
); j- y 1
q
.a. 4 4 1
.It is also undisputed 'that che staffing to moet .the! '
Applicants20-percent planning' basis, with the two claimed -'
F.
" conservatism" added, was very, marginal.- For' example, the' '
-Department of Public Health Services (DPHS) was supposed toc d l
),
provide " personnel!to staff the 24 decontamination. administrative j q
-positions;in the four host communities ... .. Currently, 18 ;
individuals are identified to fill these positions."- .
(PID 5.33, _ ]
1
- p. 80). Dr. William T. Wallace testified that originally 48 auch- i
) 1
" individuals were sought, but the; number needed was reduced from 48 (n .
i to 24 by a. decision.to staff just one 12-hour. shift. 3417, i 3443)- The decision to staff just one shift is contrary to'the
)
regulatory requirement for staff to respond and to augment the 1
-initial response'on a continuous basis. 10 CPR 550.47 (b) (1) .
The evidence revealed a struggle not'only to fill the.DPHS
)
. administrative positions, but also difficulties encountered by .
E the Department.of Health and' Human Services (DHHS), to fulfill
]
otaffing requirements for registering and providing other services 'l
), j i
to evacuees arriving at the reception centers.. A'. survey was conducted under the auspices of_ Applicants' witness William Colburn, Coordinator of Emergency Services, DHHS, indicated that-
)
some 28.1 percent of the state employees surveyed in regard to carrying out tasks in a nuclear emergency would refuse to do so. .l
)
(SAPL Exh. 5; h.. 4784-85). Indeed, some 42.8 would be unwilling 1
I Continued from previous page I 1
)'
the' Applicants' claimed beach population estimates, which were underestimated, as the Board conceded. (PID 9.94, pp. 270-271)
Second, it failed to take into account the stranded daytrippers at Hampton Beach, a matter the Licensing Board found to be "of no moment." (PID 5.69 and 5.70, pp.99-100).
p 1
T . 1 to respond to any emergency, " including" one at Seabrook. (PID 5.80, p. 107)
)
According to the NHRERP, some 428 individuals are needed to carry out registration functions at the four primary centers over a 12-hour period. (PID 5.27, p. 77) At the time of the
)
testimony, there were only 95 people in the DHHS emergency service units (ESU's) specifically trained to fulfill these functions.
(it. at 4788, 4822) However, according to Applicants' witness
)
Colburn, there were some 471 additional personnel available in division officea outside of Concord who could be called upon to staff the four reception centers. (PID 5.27, p. 78 and Tr. 4800-
)
4801) The Licensing Board, in making its finding noted that.these additional personnel were not being trained for tasks under the ;
NHRERP. (PID 5.87, p. 111). The Board further expressed its
)
concerns and recommendations as follows:
Notwithstanding Colburn's confidence that sufficient numbers of DHUS workers would be available to respond to an emergency at j
)- Seabrook, the Board believes that SAPL's {
concerns regarding the availability of DHHS i volunteers have merft. The Board finds that l further efforts should be made by State officials to develop a list of workers who, -
in fact, may reliably be called upon to j
) staff the reception centers regardless of 1 the time of day. The Board also notes that l the FEMA witnesses indicated that call list l rosters for local personnel should be made !
available. FEMA Dir., ff. Tr. 5091, at 80. I The Board finds that simi]ar rosters should
) be prepared for the DHHS workers who are depended upon for reception center duty.
(PID 5.82, p. 108)
According to the Applicants' expert witness on human l
) behavior, Dr. Dennis Mileti, training of emergency workers in their roles is a key factor to avoid role abandonment in the event
)
1 s'. r I o
e, of a nuclear' emergency. l(See testimony of Dennis Mileti-at Appz )
1 Dir.-No. 7, past II. 5622 at pp. 117-118; SAPL'P.F. 7.1.21) Dr2 - j-e -
1 Mileti's view of the.importance of emergency workers understanding
.their roles in emergency' ostensibly was adopted by the Licensing q Board (PID Idl3, p. 7), though the Board did not ask for evidence ir F
of, completed training. Mr. Colburn conceded that the 471 3
'l additional people at division offices were npt only not being- l 1
trained, but were not a guaranteed figure.
(It. 4803, PID 5.81, : (
): !
- p. 107). I Under the NHRERP, the actual function of monitoring general public evacuees and emergency workers is to be performed by
)
I firefighters from the host communities. (App. Dir. No. 4, post
]
Tr. 4740 at 18-20) Applicants estimate that a total of 66'
. 'firefighters are needed at primary reception centers and an
)
additional 20 are needed at secondary reception centerc, yielding
]
a total estimated need of 344 firefighters to deal just with the 20 percent of evacuees Applicants are anticipating under the
}. {
NHRERP (13. and II, at 4900). No second shift staffing has been i planned. (Ir. at 4879-4880) Salem, Dover and Rochester do not ;
have enough firefighters to staff both the primary and secondary
)
centers. Further, Salem ~and Dover do not'have enough firefighters to staff just the primary centers alone even assuming every single firefighter were to report for duty. Applicants' testimony claims
)
that mutual aid firefighters will make up shortfalls through no I l
reference at all to those personnel appears in the Rev. 2 plan l (App. Dir. No. 4, post Tr. 4740 at 20, II. at 4901-4903).
)
= - ___-_- ___________ .__
m.
'b ,
Another; egregious problem with the level offmonitoringLand
)~ -decontamination services ic that.the NHRERP makes absolutely ~no ,
f provisions for'special facility evacuees ~(Tr.- 4342-4943). The PID .
notes that these special facility-evacuees.are to be monitored and
) decontaminated at their host facilities (PID- 5.19, p.'75). The
.PID acknowledges that the amanded staffing plans for the decontamination centers eliminated the " Healthcare-Facility"
). , category of monitors (PID 5:77, p. 105) but the PID makes the Linadequate suggestion that perhaps an additional four. monitors in' -
Dover and Manchester might fix the problem. (PID 5.76 and Order
'1 y .10. 4 (c ) ) .The.Eoard has neglected to think about the fact that special facility evacuees may present special problems for monitors due to1 physical impairments and the fact host' facilities for special facilitics are scattered all over, some not even
~
)
located in the host consunities and at a distance away.from them.
(See e.g. App. Exh. 5, Vol. 21A, Portsmouth Hospital RERP at C-2
) and C-4 and Vol. 26A, Goodwins of.Exeter Plan at C-2.)
)
i The adequacy of reception centers and other monitoring and )
decontamination services being based upon the 20. percent figure of
) the Krimm Memorandum was held wanting in ALAB-905, and the ability to meet evenEthat 20 percent planning basis under the NHRERP was ,
I shown to be inadequate.
y Undisputed facts supporting the need for a reversal of the PID as regards reception services for evacuees are that:
(1) SAPL challenged the adequacy of the reception centers in
)
its Contentions 3, 7 and 33.
)
a 1
.l
)- 1 1
i (2) Applicants and staff chose to defend the adequacy of the j q
y
. reception centers on'the basis of the Krimm Memorandum's guidance 1 that a 20' percent planning basis was appropriate; and a l
(3) ALAB-905 found the planning basis of the Krimm )
i Memorandum insufficiently supported by FEMA and required that the j i
i numbers to be planned for reception center services should be l determined on a reasoned site-specific basis.
However, at Seabrook, as at Shoreham, Interveners did more i
)
than raise the issue and trust the Licensing Board to require the f Applicants to meet their burden of proof. SAPL and Mass. AG produced evidence.that directly challenged the 20 percent
-assumption. 1 SAPL produced as witness, Dr. Donald L. Herzberg, the
)
Director of the Division of Nuclear Medicine at the Dartmouth-Hitchcock Medical Center in Hanover, New Hampshire. Dr. Herzberg ;
had actual experience in carrying out radiation accident drills both at Dartmouth-Hitchcock Medical Center and at the University of Arkansas for Medical Sciences in Little Rock, Arkansas, the primary care hospital for the nuclear unit Arkansas I. Dr.
Herzberg also testified, without challenge, that he worked daily
)
with radiation, and was licensed as a designated user of radioisotopes. !
)<, In his direct testimony, Dr. Herzberg testified that, " Based upon my experience with small decontamination exercises it is my opinion that the vast majority of evacuees will come to be checked." (Herzbera Supplemental Testimony, post Tr. 5012, p. 2,
)
Quection 5) In addition to Dr. Herzberg, there was also evidence
)
- _: ______ ____ _ b
l from a Massachusetts Attorney. General's witness, Dr. Albert n Luloff, a sociologist, testimony which was not mentioned by the Board. Dr. Luloff had done a " beach blanket" survey at Hampton Beach, which included the following question:
As you were leaving the beach area suppose that you learned that.you might have been exposed to a - -
radiation leak and that you were told by radio to report immediately to a specified monitoring and decontamination center located in N. H. about 20 miles away. Would
>: you report to such a center? (Corrected Testimony of Dr. Albert E. Luloff, post TI1 ,
8203, Attachment 4, Forms A and B, Question 12) -
The results indicated that some 88.6 percent of all
> respondents answered this question: "yes" (Id. , Attachment 4.2,
- p. 6).
Thus, in the record of the Seabrook proceeding, there was -
) clearly evidence that supported a challenge to the 20 percent ,
planning assumption.
The Licensing Board did not ignore the potential impact of ,
) ALAB-905 on the reception center issue for Seabrook. It acknowledged "that all evacuees are given an opportunity to be w
monitored m der the plan." (PID 5.63, p. 93) It then said:
> Notwithstanding the apparent contradictory '
holding on facia 11y similar facts by the ,
Appeal Board in Lona Island Liahtina Power (Shoreham Nuclear Power Station, Unit 1),
ALAB-905, 28 NRC __(November 29, 1988), '
we believe that continued reliance upon the
) FEMA-based 20 percent guidance of the Seabrook EPZ is appropriate.
9
)
b l
1 In this circumstance, we find that the 20 i percent planning basis used'by the NHRERP Rev. 2 l
)
is both reasonable and adequately supported in j the record. (PID, 5.65, pp. 94-95; 5.66, i
- p. 97)
This was error so manifest as to betray intellectual
)
dishonesty on the part of the Licensing Board, if not an outright insubordinate refusal to recognize the directly applicable holding of a higher tribunal.
]
)
It is interesting to note that not even the losing party on I
ALAB-905, could accept this inconsistent holding of another j licensing board regarding the Seabrook plant. Th2 attorneys for l
)
LILCO, in urging the Commission to provide expedited review of ALAB-905, in hopes of reversing it, had this to say: 3 The Seabrook Board ' distinguished' the ' facia 11y similar facts' of Shoreham. (Seabrook, Slip
)
Op. at 94) The explanation of the distinction !
is attached (pages 94-97 of the Seabrook Decision) . l The distinction, if LILCO understands it, is I that there was a challenge in Shoreham to whether l the FEMA guidance applied to the site-specific characteristics of the Shoreham site, whereas no 1
) such challenge was mounted in the Seabrook proceeding.
]
This distinction will simply not hold up. The Appeal Board in ALAB-905 did not quarrel with whether the FEMA guidance applied to the Shoreham site. It rejected the FEMA generic guidance itself,
)
in part because it did not take into account site-specific features of any cite.
The Seabrook decision reaches the correct result.
It is the effort of a competent licensing board .
to reach the right result in the face of a ;
) seriously incorrect Appeal Board decision. {
The Seabrook Board's distinction is unsustainable, j but it is ALAB-905 that is the problem. j Acolicants' Motion that Commission Expedite l
)
I
) I i
i
)--
Review of alt.B-905 and Consider New Information l In Decidina Whether to Review It, pp. 3 and 4.-
) (Attachment C).
SAPL is forced to agree in part with the LILCO attorneys inscfar as they have concluded that the Licensing Board's Seabrook decision ,is flatly inconsistent with ALAB-905. Accordingly, we
) )
will now illustrate the total inadequacy of the Seabrook Licensing !
Board's purported distinction.
)
What the Licensing Board did, in all too typical fashion, amounted to nothing more than another attempt to " blame the victim" by criticizing SAPL's handling of the reception center issue. Thus, the Licensing Board, in its obvious haste to reach a
)
predetermined pro-licensing result, did the following:
(1) It decried SAPL's witness of having " limited value as an
)
expert" and then called hita a "non experta, and (2) It criticized SAPL for not undertaking more extensive cross-examination of FEMA's witnesses in an attempt to explore the
)
basis for its 20 percent guidance. (PID 5.65, p. 96).
A review of Dr. Herzberg's qualifications and testimony, and the Licensing Bodrd's discussion of his testimony, reveals the
)
shallowness, indeed, the outright dishonesty, of the Board's decision. The reason the Board went to the lengths that it did to impugn Dr. Herzberg's testimony was the awareness that if an
) Intervenor proffered evidence running counter to a FEMA finding, under NRC procedural law very familiar to the Board, the presumption would burst and the Intervenor's evidence would be
). weighted against FEMA evidence in suppor t of its finding. (PID 5.66, p. 97) With regard to the evacuee load estimate, the Board
)
F >
y )
obviously knew from ALAB-905 that FEMA had no evidence to support its 20 percent figure for Seabrook. Thus, the Board realized that Y
if-the presumption was " rebutted" by the proffer and admission of evidence the Applicants could not carry the day on this issue. As a result, the Board ruled, against the clear weight of the. i
)
evidence, that Dr. Berzberg was a "non-expert" whose testimony was not " competent." (LI.) In fact, no party moved to strike his testimony as not competent and no party requested a finding that
)
his testimony was not expert or otherwise not competent and admissible. The Board's extreme finding, not at all supported by the record, was driven not by an assessment of Dr. Herzberg's
)
testimony, but by the Board's need to remove ADy contrary evidence from the record so that the FEMA presumption could "carr[y] the day;" despite the holding of ALAB-905. In any event, the Board's
)
case against Dr. Herzberg fails on all points raised.
First, the Board criticized Dr. Herzberg for not knowing "of the plans or planning standards developed with respect to other
)
nuclear facilities." (PID. 5.63, p. 93) Such knowledge was obviously not essential to Dr. Herzberg's testimony, and it was also irrelevant in light of the holding in ALAB-905 that a
)
reasoned basis for estimation related to site characteristics was required for determining the number of evacuees who would seek out reception center services at a particular plant. It also flies in
)
the face of the NRC's recent rule change stating in the " Statement of Considerations" that the issue of plan adequacy is not to be determined by comparison to any other plan. 52 Fed. Rea. 42078 at
) <
42085 (Nov. 3, 1987).
)
., ~ ~ 4 - -
0',
4 , ,
s Second, the Board noted, for some reason, that Dr..Herzberg .)
a- . . . )
. "did not' review all parts of NHRERP Rev. 2." (JJ1. ) What
) '
relevance this would have to Dr. Herzberg's testimony, in light of I
f the fact that the NHRERP consists of some 31 volumes of material, most totallyLunrelated to the issue of reception centers, was
).
never made clear. (The Board never mentions how few of the Applicants' witnesses could claim to have read all of the131
{
)
volumes of the NHRERP.) Dr. Herzberg did review relevant sections i
. of the NHRERP'. (T_r.
r at 5063)
Third, the Board criticized Dr. Herzberg for not attaching a specific quantified estimate to his opinion that the " vast
).
majority" of evacuees would go to reception centers for
' monitoring. This is a novel requirement and one that would cast p the burden of proof on'SAPL rather than on the licensing proponents to establish the planning standard for determining adequacy. The Board, in fact, criticized SAPL in another area for ,
y cemanding a certain number in suggesting the planned for numbers of evacuees were too low. It said: . . . we do not believe that i
the Commission's emergency planning scandards require the level of I mathematical precision SAPL that appears to demand." (PID 5.70,
)
- p. 100). Clearly this is another example of the Board's ,
application of a double standard depending on which party's
- interests were at stake.
Fourth, in the apparent hope that a shotgun blast discrediting Dr. Herzberg would suffice when no single clear basis
)
for.doing so existed, the Board denigrated Dr. Herzberg's qualifications as a witness with the following: . . . we find ;
).
.i
q
, -,, g . ,
3 m
)L 1
that Dr. Herzberg is no expert at all in the area of large scale. j
,i
)- . emergency planning or the prediction of populace response in the case..of an emergency." (PID 5.64, p. 94) This pronouncement- >
l 1
' ignored the fact that Dr. Herzberg was limiting his testimony to l l
)-
the area'of his. training and experience, (which included radiation ]
i accident' exercises), the attitude of the public toward j l
radioactivity, and the general desirability, as a public policy
}
)- matter, to'know whether or not people fleeing from a nuclear accident are indeed contaminated. In effect, the Board itself struck Dr. Herzberg's testimony, on its view of his
)-
qualifications, though Dr. Herzberg both on cross-examit.ation by
~
Applicants' counsel, and in response to questions.from Judge Smith, ably defended his qualifications. (see Attachment D)
)
)
Fifth, and finally, the Board suggests Dr. Herzberg did not actually challenge the FEMA 20 percent planning basis, but merely ,
" expressed interest in" it. No fair reading of Dr. Herzberg's
)
testimony by the Board, or anyone else, could result in such a conclusion. Dr. Herzberg, in his supplemental direct testimony, clearly did state his opinion that the " vast majority" of evacuees
) would seek services. (Herzbera Supplemental 'restimony, post Tr.
- .5012 at 2)
And on cross-examination, Dr. Herzberg further testified as l
) follows:
A. (Herzberg) I am only saying that if you want to find out if somebody is contaminated, you you have to check them. I don't think that I j can go beyond that.
)'
l l
l
l Q. Is it the lack of a publicity campaign that you were complaining of?
l I A. (Herzberg) No. l
"}
Q. No.
A. (Herzberg) Simply reading through the proposals it seems to me as if the numbers that
) are being prepared for are inadequate. (11 5025- -
5026) !
Lastly, as stated earlier, the Licensing Board treated the i l
Krimm Memorandum not merely as a FEMA position, but gave it the status of a " rebuttable presumption." Nowhere else in its 290 ,
page PID does the Board describe FEMM o positions in this way. To i l
the contrary, elsewhere the Board, when crediting a FEMA position, {
1 is careful to note that FEMA's position "is supported by the preponderance of the reliable, probative and substantial
. evidence." (PID 8.05, p. 225-26) (In other instances, when the j
) !
FEMA findings were not favorable, as in requiring " implementing; j detail" on sheltering, the Board simply rejected FEMA's position wholesale. (PID 8.75, pp. 214-15)). Thus, once again, the Board betrays its bias. FEMA positions essential to a favorable result ,
{
are treated as " rebuttable presumptions." Those the Board likes are found supported by the propond.rance of the evidence. Those
)
the Boari dislikes--i.e., the naes adverse tc the Applicant / Staff )
I position, it disregards or reverses.
Evidently, to the Licensing Board, an Appeal Board decision
)
invalidating a FEMA position not only is ineffective, but results j l
in the invalidated position having such an enhanced status that it ]
i does not need, like other FEMA positions r to be supported by J
reliable, probative and substantial evidenc3. It prevails as a j i
l
)
)
" rebuttable presumption." By so ruling, the Licensing Board not only failed to apply ALAB-905, tat in fact, turned it upsid'a
)
down.8 In ALAB-905, not only d.id the Appeal Board strike down the FEMA 20 percent guidance as unsupported, and dixect that a j
) i reasoned site specific basis for estimation needed to be developed i I
for particular facilities, but it went even further, anJ in {
1anouage that cl.early has app.llcation to the Seabrook site, stated
}
l ns follows:
. . . it seems to us, among other things, the demographic and meteorological characteristic 3 of a particular EPZ might have considerable
) influent:e upon the percentage of the persons q withi7 khe EPZ that would, in the event i of an accident, seek monitoring j either on instruction or on their own initiative. i i
For example, some EPZ's doubtless could have a
- opulation that ic concentrated close to or in
) a prevalent d6wnwind direction from the reactor, f,t seems fair to asume fcr plagning purposes i;Act the percentaae of such an_j27 copulatipn chqt would seek monitoring wou'Jd ]'
s_ionificantiv exceed.._that of the populgt.fon qLa d f3 in which_most persons were located '
) at. oreat#r d! stanS 3e f rom th3_Leactor and upwind. (ALAB-905, Slip Opinion, pe 21, emphasis added).
)
8/In contrast, this same Board a ated on the record: !
"The Board, at the time when the rabuttal (sic) presumption 3
was favoring the Interveners, the Board riare it clear that we were not going to be very much impressed by rebuttal [ sic]
presumption. We will be impressed by the rationale and the technical basis of FEMA's witnesses e The policy basis is something that we are required by {
regulation to recognize, but we also recognize that the j rebuttabic presumption tends ta afeaken and even vanish when
)
it is brought into question.
Now that the advantage goes to the Applicant [ sic] we feel pretty much the same way, exactly the came." (Transcript of d April teleconference at 0940)
)
1
_ _ _ _ _ _ _ _ ____ _ 1
e -
g ~
.e
<3p ;
) ,
n ,
i
,, l IX. THF' BOARD ERRED IN ITS F7NDINGS ;l Jm HtEAE BEHAVIOR IN_ EMERGENCIES i
.The Board begins its discuscion of human behavior with the j 1
g j ssue of. role UDandonment ainong commtmity leaders. The Board ]
acknowledges:that community leaders who testified in the hearings j
)
that they would abandon their emergency roles to look after the ]'
I safety of their intimates and their own safety made these. )
1 statements "with apparent conviction." (PID 7.2, p. 127) j I
).
However, the Eoard then rested its determination as to community. ]
of.ficials' role abandonment on the " realism" doctrine and rejected
]
claims that the public officials would refuse to plan for
)
radiological emergencies if Seabrook were licensed. (PID 7.4-7.6,
'pp. 123-129)- The Board erred in. applying the " realism" doctrine to teachers: "The presumption that officials will exercise their best effortt to protect their charges should apply to teachers ag ,
well as to other aove e:nment 1eaders.." '(emphasis added) . . . "we "
have rejected the implication of such testimony that the teachers
)
will fail to perform . . . In accordance with the presumption of the eme.rgency planning rule." (PID 7.17, p. 133) This conclusion is based on the error of fact that teachers are to be considered .
)
government leaders, and lthe conclusion, which is an error of law, j
.f16ws from that faulty premise. The Commission in the emergency i planning rule did not go so far as to apply the " realism" doctrine i
to non-governraent employees and would have had no legal basis for so doing. This Licensing Board cannot extend the reach of the
" realism doctrine" beyond its bounds. (Many of the teachero, such i
)-
as those at Phillips Exeter Academy, are not even governcent employees, much less government teachers.) i
)
4, s
c #. ,
n ,
i ~ .j h '
The Boar'd, further disbelieves the testimony of the teachers
) and'other emergency responders on the basis of testimony provided-by Dr. Dennis Mileti (PID 7.18,.p. 134) who subscribes to a theory ;
that " role strain" does not result in role abandonment. (PID f l '/ . 4 2-7. 4 3, pp; 14 5-146 ) Dr. Mileti did testify,.however, chat if a teacher. believed that by staying at work, their family would either die or suffer significant injury, they would go home and
)- tend their family. L(Tr 6512 -(11/30/87) .The Board noted.that Dr. !
Mileti had testified that the most 1ikely situation in an emergency is:a continuum from totally fearful to totally fearless
) people. (PID 7.22, p. 136) The Board decided on no particular bauls to " expect teachers to perform better than the general
_ population in an emergency." (Js.) l
) . Massachusetts Attorney General's' witnesses Ziegler and Johnson testified:taat people ate more fearful of radiation than other potential sources of danger except war and terrorism.
) (Ziealer, et al., post TI. 7849 at 43-47) This was a view corroborated by Dr. Herzberg's testimony. Dr. Herzberg statedt
)
"I firmly believe they will not respond in the uoy in which people
) react to floods and earthquakes. I think there is an element of j
hysteria in the public in relationship to radiation, and that will J
)
affect the way they respand." (T2.. 5059-60), The teachers on the !
r panel independently asserted that they perceived a drastic j
(
difference between a nuclear emergency and other types of emergencies in how they would respon6. (Tr. 3950-3953) f The Board, however, chose to discount all of the testitaony j i
about the fundamental differences in human respcnse to .)
I I
)
_ _ ___ _- _ __ __ - - 1
i l
yy v i
' radiological versus L other types of emergencies on the say-so of
.Dr.'Mileti. -Though'the Board acknowledged MAG PF 7.1.6,, citing
-R. 6425, the Doard seems to have missed the cite on that page in '
+
the November - 20,-1988 transcript and points instead to R. 6429
.i ,
(PID 7.64, p. 156).
~
Indeed, the HAG PF cite was correct as j;
> . 1
-originally stated. Dr. Mileti did acknowledge at Tf. 6425 that- A
, the published literature in the United States indicates a.-higher
_ level of fear of radiation than of other hazards.
)
The Board states that Dr. Mileti rejected the position that l
fear of radiation is unique on the basis that that belief is contradicted by etapirical evidence. (Jf. ) However, there was no- ,
empirical evidence to that~effect in this record. The Board
.Itself acknowledged ~that Mileti's field research on the TMI accident. "does not meet the standards for evidentiary reliability in NRC adjudications." (PID 7.59, p. 154) Hence the Board's rejection of the Ziegler and Johnson and the Herzberg testimonies on this point, not to mention the teachers' predictions, w.as unfounded.
The Board concluded, based on Mileti's work, that the
. determinants of human behavior remain the same across all types of' .
emergencies. There is no evidence of this. I In other past i emergenc!es,'such as TMI, human behavior has been determined or shaped by hazards that are capable of detection by the human sentrar ionizing radiation cannot be detected without the aid of -
special instruments which most members of the public do not have ]
available. Human responses to this kind of phenomenon are best predicted by someone like Dr. Herzberg who has had extensive qI l
1
l 1
b experience in observing human responses to said phenomenon, albeit in a more limibed wetting. Dr. Herzberg stated that disruptive !
) !
behavior should be oxpected in.a radiation disaster situation. j 1
(Egrzbera Dir., post TI. 5011 at 3)
The Board went on to discuss the second part of the debate on human behavior, the predicted response of the general public.
(PID 7.67, p. 158) The Board cited Dr. Mileti for the proposition that natural and technological disasters are not usually I
accompanied by panic or total confusion (PID 7.68, p.158) and described the theory Mileti subscribes to in regard to the emergence of the " therapeutic community" and the prevalence of I rational behavior. (PID 7.69-7.73, pp. 158-161) The Board found that the " therapeutic community" would emerge in the Seabrook EPZ despite the special fear of radiation and large proportion of
) ]
transients in the summer. (PID 7.81, p. 165) There are some i
serious flaws in the Board's consideration of the evidence which has led to this erroneous finding. The Board stated that evidence
)
of the effect of a very large transient population on the ;
emergence of a therapeutic community might have been useful (PID (
l 7.80, p. 164) but then ignored the evidence about the riot in 9 Hampton Beach in 1972 involving.between 3,000 and 10,000 youths that took over seven hours to quell and required the assistance of 1 l
the National Guard and 100 Maine State Police. (Zall_on, et al.
) t Dir., post Tr. 8608 at 4-5)
I Further, the Board failed to note that Dr. Mileti holds (
rather an unusual set of beliefs at to what does and doen not
)
i constitute evidence of panic. Dr. Mileti stated that individual j l
l
) l
o . -
b; y
.ir 1 - ' selfish acts may,have been. incorrectly labeled as panic, but it is.- l j .certainly not panic when individuals behave in ways inconsistent with.the good of'the collective.- (II...at 9412) Dr.:Mileti did not
. agree that drivers driving up the right-hand shoulder of the road or crossing a double yellow line to drive'up the left lane or
] 1 s abandoning vehicles in the traffic stream are evidencing panic
{
reaccions. (R . at 9423-24) Therefore, Dr. Mileti's testimony that panic would not prevail cannot be taken to mean that'these
{
kinds of behaviors will not occur. Indeed, Dr. Mileti acknowledged that'he thought of his own father when he was asked about drivers' seeking their own evacuation routes after being j
)
stuck in' traffic.for hours. (R . 9432) !
The Boerd did not consider-the testimony of Detective Lally 7
of the Tcun of Hampton to the effect that drivers'. deliberately
- disobey office';s in a rainstorm and that he has seen people "that would run you down if it's raining to get out of the beach." (R. I at 3714) The Board .a]so did not consider Rye Civil Defense Director. David MacDonald's testimony that he has seen instances where drivers have removed traffic barriers and drin n onto
)
' flooded roadways. (MacDonaJ_d Air., post Tr. 3867 at 6 and Tr.._at 3911-3912) Further, the Board did not address the testimony of long time Hatapton Beach resident Mimi Fallon about the aftermath y of the explosion of the fireworks factory adjacent to Seabrook t
Station when she heard on the police radio that people were driving on both lanes out Route 286 and passing the fire truck.
(Fallon, et al. Reb.', Oost Tr. 8608 at 4) Though the Board did
)
briefly note the late Chief Edwin Olivera's testimony, they failed r
); m ,
j j
to mention.the more extreme kinds-of driver disobedience he-y testified. thatL he ~ has 'seen .such as people driving on: the sidewalk's. (Olivera Egh. , post 'II. 9483 at 4-5, IL.19471,) Police !
Chief Andrew' Christie also testified that based on his' experience
). people panic and do' funny things under strass.' (Sh r is ti e .' Rir. ,
post Tr. 3714 at 3-4) Chief Olivera made the further telling point that a.large percentage of the peoples in the beach area are '
in the.17-25 age range and that. drivers in.this age group tend to
). ,;
be more disorderly initheir driving. (Olivera Egb., Epst1II. 9483 )
at 5)- l
),
Indeed,.it is clear that Dr. Mileti's work on human behavior ;
l issues related to Seabrook contained no evaluation of the
-i' particular characteristics of the site on human behavior. (Tr.
): 6314) Applicants' own expert on evacuation time estimates stated l
that the time it.would take to get cars just three to four blocks -;
off the beach strip under a Region I evacuation order is in excess y of'5-hours and 40 minutes. (it. 5716-5719, 6714-6715) SAPL witnesses Fallon, Hollingworth and Weinhold stated that at that !
potat, the nuclear plant would still be visible to evacuating
[ drivers attempting to exit the area in their cars. (Fallon, et al. Enh., post Tr. 8608 at 2-3 and accompanying videotang) ;
1 Applicant 9' witness Lieberman stated that " gapers blocks" where i
)- drivers "take their eyes off the road in front of them to take a i look out to the side to see something interesting" can create a
" shockwave which can cause congestion." (ID;. at 6709-6711) Dr.. .i
). Mileti conceded he had no. expertise in the area of drivers' behavior in traffic jams (It. at 6317), and that he is nm ' reed
)
O !
in social rJychology and took no social psychology coarses while work'ing on his Ph.D. (R. at 6318). Nonetheless, he claimed that 1 0 j traffic jams in emergencies are not problems, (R . at 6318) and l the Board h u decided to believe that his testimon_y that aberrant,
. anti-social and individually focussed acts fall off in emergencies in efeditable as it applies to driver behavior as well as other types of. behavior as w211 as other types of behavior. (PID 7.84,
- p. 166)
O Dr. Mileti testified that the three determinants of panic aret (1) a persor, perceives that a specific threat to his
" physical survival" is imminent . . ., (2) there are escape O
routes that, if traversed, i.re perceived as being able to offer
" safety"; i.nd (3) those escape roates are blocked or closed off uch that they cannot be traversed. (App. Rob. . No. 5, po st 't'r .
O 9468 at 3) These are factors that would exist in the beach area in the Seabrook EPZ if a serious radiological emergency were to cccur because roadways would i.e blocked to travel in some t.reas O
for hours. br. Mileti agreed that some people on the beachec in Hampton and Seabrook would be fearful for their physical survival, g (R. at 9410) He also agreed that people in a traffic jam would believe they were in a traffic jam. (ld.) However, Dr. Mileti concluded that since people could get out of their cars and walk, they were not blocked in the kind of way that would generate O
panic. (R. at 9419)
-The Board credited Dr. Urbanik's testimony that there is no vidence that aberrant driver behavior has been a factor in any O
evacuation in U.S. history. (PID 7.83, p. 166) However, the O
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' " constrictive roadway network and'high population density in the I n Seabrook be'ach areasare unique,'(PID.8.47, p. 201; 9.11-9.13,-pp. )
).
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.233-235;-3AG Exh. 48, p. 3) and the instances of driver bad j behavior observed,in'" normal" Leach-area conditions, testified to (
- q. ,q
); , byiwitnesses Lally-and Olivera' supra-at 62-63.)'would be compounded i in-an emetiency when everyone was seeking-to exit the area at-
-once.
~'
X. IllE BOARD ERRED IN DENYING
,, M TIGATION.0F CERTAIN ISSUES 1-(A) SAPL:Contontion_d ,
$@L' filed. Contention 4 on the Rev. 0 NHRERP on February
~
)' .
'l 21, 1986. It starod: ,
The New Hampshire' State, local and.
host' community' plans fail,to meet in adequate,fashi'n o the requirements that !
y provisions be made fos: medical treatment !
of' contaminated injured individuals as set forth 'at '10 CFR S50.47 (b) (12) and ;
NUREG-0654-II.L.1 and L.3. {
}
The basis of this contention stated that the capacity of the
)' ,
. local medical facilities capable of treating radiation accident q !
patients listed in the NHRERP was inadequate. The maximum, capacity:of the hospitals was 51 Type 2 patients (" Type U being
~
-defined as those requiring medical care as well as being radiologically contaminated) and a total of 76 Type 1 patients
(" Type la being defined as those who have experienced excessive i 3-m exposure to radiation). SAPL pointed out that the provisions for the Type 2 patients would only suffice to serve .027 percent cf the Applicants' projcction of.the New Hampshire portion of the EFZ
)
total populat.lon.
)
i i
-l' This ::ontention was rejected by the Board b6cause the Applicants, at the prehearing conference of March 26, 1986 submitted a copy of a letter from John DeVir.centis, " committing tr.e Applicants to full compliance vith the Commission's Interim Guidance on Emergency Planning Standard 10 CFR S50.47 (b) (12) .
(Memorandum and Cider, April 29, 1986 at 82-83)
SAPL was therefore barred from litigating the factual issues surrounding the capabilities of the listed EPZ hospitals to provide adequate medical services under the conditions of a i radiological emergency. )
'B) SAPL Contention 5 SAPL filed Contention 5 on February 21, 1986. It states as fo]Iows:
The New Hampshire State and local plans 3
are deficient in that they do not ensure that there will be adequate personnel or the timely arrival of personnel trafned in radiological monitoring in the plume exposure EPZ following a release of radiation from Seabrook Station. Neither is there
) gcaurance that monitoring can be carried on for the required time frame. Therefore. .
1 the requirements of 10 CFR SSO 47 (a) (1),
S50. 47 (b) (1) , S 50. 47 (b) (8 ) , S5 0. 47 (b ) (9 ) ,
and NUREG-0754 II.J.7, I.8, and I.11 and ;
II.A.4 are not met.
)
In the basis for the contention, SAPL pointed to the long travel time for state field monitors to get to moaltoring and sampling locations in the EPZ, and the insufficiency of personnel
)
to provide proper coverage of the area and to allow for continuous I 24-hour operaidone.
1 SAPL Contention 5 was admitted by Board Memorandum and Order )
of April 29, 1986, but was summarily disposed of by the Board on j
)
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)
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November 4, 1986 (Memorandum and Order at 17-21). SAPL believes 1 that the Beard erred in deciding that a total of 13 state monitors i
O to' cover all shifts for monitoring the roughly 200 square mile New s
Hampshire portion of the EPZ was sufficient on the basis of the H Affidavit of William T. Wallace, Jr., tne Director of the New CF ' Hampshire Division of Public Health Services ("DPHS"). .The other affiant supporting summary' disposition of SAPL Contention 5 was Jame6 A. MacDonald. He stated that Seabrook Station has the O capebility to deploy'three monitoring teams from the EOF "within" 60 minutes. SAPL's affiants Richard Piccioni, Ph.D., Nancy Eyler, l M.D. and Steven'Meshnick, M.D., Ph.D., stated that they believed O that the actions taken by the State would occur too late to be effective. SAPL believes that Dr. Wallace was not qualified to make the assessment he made as to numbers of n.onitors. SAPL's O affiantt were highly qualified.
XI. [QHCLUSION The PID is a dishonest and slipshod product. It blatantly 0 defies an Appeal Board holding on reception centers (supra at 43-44, 49, 50-51, 53, 56-57), ignores anothet Appeal Board holding, affirmed by the Commission, which clearly upholds the necessity O for " implementing detail" for aheltering (_sspf.n at 24-25),
consistently puts the burden of proof on Interveners on contested issues rather than the Applicants and their staff allies, drips 0 with bias cnd hostility toward the Interveners, and ab.silgntin _
eliminates any substantive requirement that emergency plans provide " reasonable assurance" of " adequate". safety.
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- The bias le gross.- For example, Interrenor witnesses are ,
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occasionally called "no expert O all" (as to Dr; Herzberg, 5.64, ,
h ,, j p.'94,) "has no value" (teacher-Dunfey because of her Clamshell- ]
participation, 7.15, p. 132), "haplens" (as.to Chief Christie, Chief of Police-in a non~-participating town, 7.32, p.140) or
" ardent anti-Seabrook activists" whose testimony.was, "within the area,of.their competence . . . reasonable" (regarding SAPL l i
j.' wicnesses'Hollingworth and Fallon, who produced a videotape f
1/ ' showing a'seven hour traffic jam at the beach, 9.124, p. 283).
y Nowhere does the Licensing Board note any possibility of bias on the part of Applicant vitnesses, all of whom after all are paid for4 testimony to support the granting of a license. 'a
)
~
Once before in the long and' unhappy history of Seabrook licensing,fthis Appeal Board found a Licensing Board decision to fall "far short of meeting the applicable standards." ALAB-422, 6 .i
.NRC 33, 40, (1977) On that occasion, the Appeal' Board decid9d to.
1 confine.itself to criticism of the Licensing Board, and instead wrote a new decision upholding the Licensing Bonrd result authorizing the License, which appears to Interveners'to be the inevitable result of any NRC licensing proceeding.
This was a bitter pill for. appellants, including SAPL, to swallow. Their enormous efforts had succeeded in convincing the
' Appeal Board that the Licensing Board decision was replete with
). , 1 error,,only to be deprived of the fruits of their efforts by having the Appeal Board itself correct the errors, rather than take-the courageous act of remanding, which would have slowed the licensing juggernaut.
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'm y,s y' Howev' c r, in that case, the Appeal:.' Boafd added:
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- Wefmight add that,;notwithstandingfour i authority to'do.so, we.normally would be
- h. ./
, , 2 reluctant to searchLthe record.to" determine.,
whether'it' included. sufficient information'<
., , ' to support conclusions for;which the
. Licensing ~ Board itself. failed!to' provide.
j adequate justification.~ Rather, a' remand-hg1- (very~possibly accompanied by'an. outright T-v i " '
vacation of the . result' reached' below) would -
be.the'usualicourse. In this. case, the-
.very protracted nature of-the' proceeding,)
l and the concomitant desirability to; bring, it to an'end, have'have'1e6 us to depart 1
c . ,
1 from that. course. Given the resultant drain on-our time--at the expense of seasonable, disposition of other matters oncour~ docket . .
- equally deserving. of prompt : attention- , there is no assurance that even such. considerations.
will carryJthe day in future.
- l. ' ;
(6'NRC at 41) l
'Will; history repeat itself or will, at long last, the Appeal Board have the courage to stop this regulatory charade, in spitei h,
.t.h,e: vast: sums of mon'ey. riding on thisfmatter, and. insist upon due Lprocess of. law?
SAPL,'and the'other' Interveners,'are hopeful. They are not, T', however, optimistic..
~l l
, Respectfully-submitted, j Seacoast Anti-Pollution League '
);
By their Attorneys, BACKUS, MEY & SOLOMON ,
By: [# '
}-
/tiobdYt n. Backus, Esquire l 116 Lowell Street 1 P.O. Box 516 l Manchester, NH 03105 j L" (603) 668-7272 l E
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00LKliED '
' CERTIFICATE OF SERVICE UMIN
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DATED:' March'21, 1989 L': 89 MM 23 P 3,,59 I'hereby certify that copies of the within brief'haveibeen forwarded this.date by first-class: mail, postage prepaid:to th'e; parties cn.the attached. service list.
fgodai i"..,
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p (6beYt 'Al Backus, Esquire i
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ATTACHMENT A !
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McKERLEY HEALTH CARE CENTER + DERRY. INC. j
'- PEAnony RoAo
)
Dzuv. Nuw HAMP4H!nx 03038 003 434 1566 Septenbor 16,1H16
) Mr. xicanal P.. daucj, Octor TechnoloC cal ..uzarda Olvision i
State v0 New :.e r.puhire Executivo.Depurtnent New nainpahire Civil De regime Acency scate Office Yark Souta
)- 107 Pleasant :treet
- Concord, 11. H . , 03 J 01
Dear Mr. Hawoj:
Thi.s'lotter confirins the w!111ngnoss of the licKerley
!.eoltP.' Onre Conter c ' Oerry to accept patient ovkcuuos from tr,e sver, ide
)' lioma on a ~ temuorary basis in the event of an evacuation due to an ~
sucident at Saabrook Station. -We can accommodate, on averogo, ell 2h of Iven:ide's residents.
It is understood that we will be contracted directly uy tne Eventido !orne in the event of an emortency, and that your reopense will;
) be coor:linete with t::e New liampchiro civil Defense Agency.
Sincerely,
).
,! j < A I
Brian Horan, Ad$ninis tru tor ,
Bli:1p
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ATTACHMENT B j
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I LE:MD.E ENTI3tPR132:5 e 12C a!ver Streec, pecnescer, New Haapantes 03103 603-66S-1810 Q / '
)-
Marca 11. 1967 j Oaniel Trohan Adannistrator '
Seacoast Health Center the.
22 Truck Road
) Hampton, NN 03842-1298 I Dear Mr.-Trahan.
This letter will confirm the willingness of our Manchester f acilities to accept {
your 107 residents in the event of an evacuation due to Seatrook Station or
). other emergency. It is understood that you will contact the facilities listed ,
belos directly and coordinate your response with the New Naapshire Clwil Def ense
- Agency . .
Facility Adeintstrator Phone Number
) Maple Last Healtheste Rita M1ville 669-1640 198 Pearl St. j Manchester
' Villa Crest Susan tacourse 622-3262 1276 Hanover St.
)
Manchester I .
Maple Leaf Inc, claice tsetre 669-14f2 593 Maple St. '
l
.%sachester s
,l j Actual assignment of your residents to each facility will be based on occupancy
). and beds available at tha time of the energency. It is further understood that if such a transfer should take place, your f acility will transport the medica-tions, plans of care and support personnel to care .far your residents.
Sincerely.
I L h.' ~
hafLestre President cc: Richard Strose Director
)
New Haspehire Civil Defense Agenr.y p 107 Pleasant St.
Cuncord. NH 03301
)
t.c t x t 2.s 2
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- l issue is material to 25 percent operation, however, then ALAB-905 may be the only re-
). maining obstacle to a 25 percent license. Accordingly, LILCO respectfully requests that the Commission expedite its review of ALAB-905.
II. FEM A 20 Percent Guidance
) LILCO also rcqm that the Commission consider two recent Seabrook rulings in deciding whether to review ALAB-905. Neither Seabrook ruling was available when LILCO filed its Petition for Review, and for this reason the Commission should grant
) LILCO's motion. See Consumers Power Co.Dildland Plant, Units 1 and 2), ALAB-115,6 AEC 257 (1973).
The short of the matter is that LILCO has not been allowed to rely on FEMA's
) guidance while the Seabrook applicants have. ALAB-905 was handed down on November 29, 1988. The Appeal Board, reversing the Licensing Board, ruled that i d
LILCO could not rely on FEMA's guidance calling for a minimum planning basis of 20
) percent of the EPZ population.
One month later, on December 30, 1988, the Seabrook Licensing Board issued its Partial Initial Decision on the New Hampshire Radiological Emergency Response Plan.
) Public Service Compan'y of New Hampshire (Seabrook Station, Units 1 and 2), ASLBP No. 82-471-02 OL,28 NRC (Dec. 30,1988). The Seabrook Licensing Board conclud-ed, as a matter of evidentiary presumption, that FEMA's guidance calling for a mini-
}
mum planning basis of 20 percent of the EPZ population is both adequate and appropri-ately applied to the Seabrook EPZ. Seabrook, slip op at 6. The same FEMA guidance was at issue in both Seabrook and Shoreham.
The Seabrook Board " distinguished" the ~"f acially similar f acts" of Shoreham.
Senbrook, slip op. at 94. The explanation of the distinction is attached (pages 94-97 of the Seabrook decision). The distinction, if LILCO understands it, is trat there was a
)
challenge in Shoreham to whether the FEMA guidance applied to the site-specific char-Octeristics of the Shoreham site, whereas no such challenge was mounted in. the Seabrook proceeding.
)
O.
- This distinction simply will not hold up. The Appeal Board in ALAB-905 did not 0 3 quarrel with whether the FEMA guidance applied to the Shoreham site. It rejected the FEMA. generic guidance itself, in part because it did not take into account site-specific ;
i features of any site.
O The Seabrook decision reaches the correct result. It is the effort of a competent licensing board to reach the right result in the face of a seriously incorrect Appeal Board decision. The Seabrook Boards distinction is unsustainable, but it is A' LAB-905 O that is the problem.
The Seabrook decision strengthens LILCO's argument that the Commission should review, and reverse, ALAB-905. It is flagrantly unfair to deny Shoreham a license be-O cause the FEMA guidance is inadequate v :lile granting Seabrook approval a month later based on the same FEMA guidance. Two licensing boards, having heard evidence on the issue, have now accepted FEMA's 20 percent guidance. The Appeal Board's refusal to O accept the evidence should be reversed.
LILCO believes that the issue of whether FEMA's 20 percent guidance is sup-portable has been adequately briefed. The briefs filed with the Appeal Board discuss O the evidence supporting the guidance, and the proposed findings filed with the Licens-ing Board provide a more thorough review of the evidentiary record. LILCO therefore submits that the Commission can (and should) reverse ALAB-905 in short order.
O IIL The Realism Rule In addition to the part of ALAB-905 rejecting FEMA's 20 percent guidance, LILCO has challenged the part dealing with the availability of the Bellmore reception O
center. This part of the decision, LILCO contends, misinterpreted the Commission's
" realism" rule,10 C.F.R. 50.47(c)(1) (1988). .
The Appeal Board's interpretation of the realism rule in ALAB-905 does not af-O feet Shoreham only; it affects Seabrook as well. In a Memorandum and Order issued December 15, 1988, the Seabrook Licensing Board ruled on the General Exercise O
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, , .2. MR.1 CACKUS: Well, I think. from his answer he's ~ Just o u.
3 'G ven as some experience he has, I think he does have some.
i i 4 expertise.
)f o '5 , JUDGE SMITH: His. Air Force. experience?
6 MR. BACKUS: ' Yeah.
7 JUDGE SMITH: Okay.
)E< ]
8 1 MR.; ' DGCKUS s . And his experience with drills- !
9 generally, and -- .
10 JUDGE SMITH: I was just hoping in.the interest of-g,
~
11 1' his- tim 2 ' and ot' . the record that we might be:able to' cut that 12 out becuuse'it doesn' t. really seem to me' to be necessary to ;his 13' testimony, or.of'particular value to the Board.-
14 THE WITNESS: (Herzberg)' May I'say something?
15 ' JUDGE SMITH: Yes, certainly.
3 16 THE WITNESS: (Herzberg)' One of the things I think 17 that my area of expertise does -- is important, is that' in i .,
18 addition to my education and experience in terms of working 19 with radioactivity, I work with' people who are somewhat against l
)
20 their will, since they are ill, exposed to radiation, and I 21 work with them rather intimately as their treating or 22 diagnosing physiciar.. And I think what I feel.a particular 1
23- area of expertise in is knowing how these people relate to 24 radioactivity, not just es a biological phenomenon, but their 25 whole way.that they deal with this idea. i
)
Heritage Reporting Corporation -
(202) 628-4888 d
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MR. BACKUS: Well, of' course, he'also testified he
)L 2 works with people who'are exposed to radiation, sometimes 3 intentionally, although. unwillingly, because they are 111. He 4 has.seen their reactions. He has worked on emergency
). 5 preparedness at his hospital, and at other' facilities. I don' t 6 think there is any question about his qualifications.
I 7 JUDGE SMITH: All right, let's : do it this way. Dr. )
) 8 Herzberg does not' want his testimony to be mispercelyed, I' m ;
9 sure.
10 What'is your qualification to make that observation?
) 11- THE WITNESS: (Herzberg) Well, first of all, let me 12 say that.I think this is a difficult ~ area, and I,have thought 13 about this a~1ot, because I' m not sure -- there are a lot'of '
i q
~'
). . 14 people among all of-us with titles.that you could pull out and l 15 decide one way or the other whether or not they are experts.
16 But the fact is, is it's going to be hard to find people who
)' 17 are exert in large-scale radiation. '
18 JUDGE SMITH: Yes, but those people aren' t in here l 19 testifying, and you are, and that's why we want to know what
) R2O your expertise is. '
s .]
21 THE WITNESS: (Herzberg) Well, what I' m getting at 22 is, is that there is a lot of experience that people have w'ith-
) 23 disasters of one form or another. There is very little .
1 1
24 experience that people have with radiation disasters. i l
25 So I would say that if there were someone who had a s j
i
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t a 8 Heritage Reporting Corporation !
(202) 628-4888 i
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.i HERZBERG - CROSS 5056 y ; .. 1 lot of experience with disastrous' releases of radioa'ctivity, L 2 those people would clearly be more expert in their' testimony 3 than I.am, and I, don' t have any argument.with that.
4 But my point is, is that we' re really kind of short
- 5 on people like that, and what it. seems to me that I have'to 6 offer in the area of expertise is ,whether or not .it's exactly 7 like the circumstance we are'looking at. I do have a
) 8 relatively broad experience in working with people who are l
9 being subjected to exposure.or to' radioactivity. And I talk to i 1
10 them at some' length, and I see the -- new somewhat to the 1970s 1 i
) 11 and '80s, but the terror in their faces when they'are l 12 confronted with the fact that radioactivity.is going.to be in j 13 their. bodies.
i
}- '14 And, no, I' m not the perfect -- .I
-j 15 ' JUDGE SMITH: You' re talking about observations in l
. 16 patients.
) 17 THE WITNESS: (Herzberg) Many, yes, over some 15 !
18 years. 2 19 JUDGE SMITH: All right.
4
) 20 THE WITNESS: (Herzberg) And so I don' t see myself
)
21 as the perfect expert witness, but I do think I have valuable 22 observations that do' relate to the question of a radiation i
) 23 disaster.
{
24 JUDGE SMITH: All right. With that explanation and
-s j 25 limitation, your objection is overruled.
) <
l Heritage Reporting Corporation (202) 628-4888
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. -1 I Alan~S;LFosenthal,' Chrman. LRichard A. Hampe, Esquire fAtomic Safety and Licensing.
.. John Traficontei Esquire j NH Civil Defense Agency: ,,',' Assistant Atty. General' Appeal Panel Hampe & McNiche,las
~US NRC
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- 35. Pleasant. Street 19th Floor JWsshington,.DC' 20555 Concord,~NH 03301 .
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t Kenneth A. McCollom' Suzanne Breiseth Edward Thomas Atomic Safety and Office of Selectmen FEMA Licensing Board Town of Hampton Falls
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US NRC State of New Hampshire
~ Augusta, ME 04333 Washington, DC 20555 Concord, NH 03301
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Mr. Angie Machiros, . Chrman. '
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~ William S.' Lord, Selectman ,
' Town Hall 7; Friend' Street
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- Senator.Gordon J.'Humphrey
.US Senate .,
Wmchington, LC' 20510
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.US-NRC 1 Washington,,DC 20555 I
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Pres. & Chief Exec. Officer
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