ML20246N153
| ML20246N153 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 08/30/1989 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | |
| References | |
| CON-#389-9129 OL, NUDOCS 8909080050 | |
| Download: ML20246N153 (49) | |
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. l Augus 3 8 g 1 UNITED STATES OF AMERICA c.p g ,tn>
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- v i!1 j NUCLEAR REGULATORY COMMISSION' WA" '
before the. ,
' ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
)
PUBLIC SERVICE COMPANY ) ~ Docket Nos. 50-443-OL OF NEW HAMPSHIRE,.At al. ) 50-444-OL
)
(Seabrook Station; Units 1 ) (Offsite Emergency and 2) ) Planning Issues)
)
APPLICANTS' RESPONSE TO PROPOSED FINDINGS AND RULINGS OF OTHER PARTIES 1
L Thomas G. Dignan, Jr.
George H. Lewald Jeffrey P. Trout Jay Bradford Smith Geoffrey C. Cook William L. Parker IL Ropes & Gray One International Place Boston, MA 02110-2624 (617) 951-7000 Counsel for Applicants vnoncov.ss 8909080050 890830 PDR ADOCK 05000443 G PDR
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' TABLE OF. CONTENTS
~ Reply'to MAG,. . . _ . . . . . . . . . . . . .. . .. . . . .. . 1
' Reply.to-SAPL. . ... . . . . . . . .. . . - ' . .. . . . . . . . 25
-Reply.to TON . . . . . .. . . . .- . . . . . . . . .. . ... . . 32 Reply to. TOWN... . . .. . .. . .. . . . .. . ... . . 36
,, Reply to:TOA . '
. . . . . . - . - . . . . . . .. . . . . . . . . 38 Reply =to' CON .,. . .. . . . . . . . . . .. . . . . .. . 42
' Reply to TOS . :. . . .. .. . . . . . . . . . . . . . . . . . _ .
43 1
1 I.
PROFITOC.SB l
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August 30, 1989 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION before the-ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
)
PUBLIC SERVICE COMPANY ) Docket Nos. 50-443-OL OF NEW HAMPSHIRE,.gt al. ) 50-444-OL
)
(Seabrook Station, Units 1 ) -(Offsite Emergency andl2) ) Planning Issues)
)
APPLICANTS' RESPONSE TO PROPOSED FINDINGS AND RULINGS OF OTHER PARTIES Introduction Set forth below are the Applicants responses to various of the proposed findings submitted by other parties. The fact that a given proposed finding is not responded to is not to be viewed as an acquiesence by the Applicants as to the relevancy, materiality, accuracy or merits of the proposed finding. In all cases, Applicants continue to rely upon and sponsor as complete, adequate and accurate Applicants' proposed findings with respect to all subjects.
ReDlv to MAG:
Applicants respond to certain of the Proposed Findings PROFIRES.SB i
_ _ . _ . _ _ - - - _ _ _ _ . _ . _ _ _ _ . _ _ . _ _ _ _ _ _ _ _ _ . . _.__m..
- i: .e1
~ and. Rulings of the. Attorney General'of The Commonwealth of
-Massachusetts'(MAG), as follows:
, P.2' 1 1.9 MAG wishes to change the' description of JI-13 by removing the words "for-specific positions." The contention was so narrowed by stipulation of February 7, 1989.
pp. 8-10 11 1.15. A -- 1.15. B. 4 - This is an effort to' argue that the Applicants have not demonstrated that they are entitled to the presumption that The Commonwealth will generally follow the utility.
plan. It is true that, if The Commonwealth delegates full authority to the ORO, Applicants, without any other assistance, can comply with 10 CFR S 50.47(b), and to the extent that is the point being made in Massachusetts Proposed Finding 1.15.B.1 that is accurate.
However, the assertions that Applicants have not shown that whatever shortcomings exist are not wholly or substantially the result
a,
- o:. 6 7
I of nonparticipation by The !
Commonwealth-(5'1.15.B.2), Lor that- -)
l Applicants have not made a sustained good faith'effor't to secure and ,
i retain the participation of- j i
Massachusetts and.its' political- {
subdivisions (1 1.15.B.3), on the
-theory that all-that has been'shown is the refusal of private parties to participate is totally without foundation and patently absutS. To
+
begin with The Commonwealth l
repeatedly has asserted as a matter .j of record that its goal is to stop Seabrook and to refuse to plan. As to the private groups, the situations cited are ones where a i
private party has made clear that its decision not to participate was j the result of its desire not to l place itself in opposition to the position taken by the Governor of The Commonwealth.. The argument mide by MAG is disingenuous in the extreme.
l,
s pp. 10-13 11 1.16.A -:1.16.B.2l This is'an argument that the FEMA rebuttable presumption does not attach to findings of FEMA with respect to utility plans. The Appeal Board has held otherwise.
Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1),
ALAB-903, 28 NRC 499, 507 (1988).
Inexplicably, MAG's filing has no reference to this decision. In addition, to the extent that 1 1.16.B.2 implies that there is a failure of proof with respect to the resources of The Commonwealth, The Commonwealth is in possessicn of the best information as to its resources; it elected not to put on any state witnesses with respect to almost all subjects. If The l Commonwealth had evidence that the l
resources of The Commonwealth were incapable of performing some task, it should.have brought the evidence forward. In the absence of its
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l doing so,-it can be presumed'that the evidence The Commonwealth had would have-been unfavorable to The-Commonwealth's positions. Public Service Comoany of New Hamoshire (Seabrock Station, Units l'and.2),
ALAB-471, "7 NRC 477, reviewed as to other matters, CLI-78-14, 7 NRC 952' (1978).
pp. 14-15 1 1.18.A. Here MAG continues his argument against what he describes as the "best efforts" standard for reviewing plans and' exercises.
Without adopting his title "best efforts," it is clear that FEMA
' witness Donovan used a standard clearly consistent with that applied by this Board in the NHRERP phase of the hearings. This standard is law of the case and Igs iudicata at this point in the proceeding and will remain so absent a reversal of this Board's decision in the NHRERP phase by the Appeal Board or the Commission.
, 9; a p.' 2 4 11 1.17 sh agg. MAG is operating'under the misconception that'some generalized alleged attitude or course of action by FEMA can vitiate the presumption accorded its findings. This is not 1 the law. While MAG obviously is upset with the result, the. fact is that the regulations give the FEMA findings.a status of a rebuttable presumption. He must rebut each such finding point by point; the j rebuttal cannot be global in the ;
i form of a general diatribe of unhappiness.
pp. 15-16 1 1.18.B.1 This proposed finding, inter alia, l relies upon language taken from MAG Ex. 97. That document was admitted on a limited basis and specifically not for the truth of the matters contained. Tr. 22666. In addition, Mr. Donovan stated that he did not agree with the report. Tr. 22042.
l Nothing was adduced on the record to show that the report had been i
l L _ - - - - _ - - _ _ - - - - _ _ - _ . . _ _ _ _ _
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accepted or adopted by FEMA in whole )
or'in part'as being valid.
i
- p. 23-24 TI 1_1.18.C.1(A). Mr. Donovan'is. faulted for having- j allegedly simply accepted the- i Applicants' population figures. In fact, he reviewed the numbers for i
reasonableness, reviewed the j
. methodology used to derive the I i
numbers,'and even' independently checked some of them against published sources. Tr. 18602-603.
l One wonders what MAG is demanding '
was Mr. Donovan supposed to do his l' own census of the EPZ? !
43C at 68-69 [87-88 global]. This finding confers the rebuttable presumption. The rebuttable presumption arises from the FEMA finding, not from FEMA testimony, as argued in MAG's proposed finding.
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pp.136-37
,1.2.1.14 Herein MAG arguesLthat alleged' bias. :l l
arising from;their employment by the j Applicants preclude Messrs. i Callendrello and Lieberman'from being accepted as expert witnesses. .
1
)
1 Unfortunately'for MAG, this theory. :j i
has been rejected as a matter of law l
in NRC jurisprudence. Metropolitan i j
Edison Co. (Three. Mile Island Nuclear Station, Unit 1), ALAB-772,
..)
19 NRC'1193, 1210-11 (1984), 'I Louisiana Power & Licht Co.
(Waterford Steam Electric Station, Unit 3), ALAB-801, 21 NRC 479,.483 (1985). As to the fact of the j
" objectivity" of Dr. Adler, we refer the Board to his attempt to compare
.: 1 evacuations with key TCPs unstaffed i (but with TCPs which require later staffing, staffed) with Applicants' q
ETEs which assumed all TCPs to be staffed, in an effort to discredit Applicants' ETEs, sge Tr. 16992-17015. In addition, an examination
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L:
pn of Dr. Adler's performance on the last day of the hearing with respect to returning commuters'may be in a order on the issuo'of credibility.
E.g., Tr. 28235-36.
1 pp.'43-44 1 2.1.14.M There remains no record support for.
the proposition that Massachusetts officials want Massachusetts-specific ETEs, let alone with any regulatory support that such'ETEs are reauired. For MAG to call upon Applicants to prove the state of mind of Commonwealth officials --
, MAG's purported clients -- is the height of.looking-glass logic,
- p. 46 1 2.1.14.S The witness stated that a-difference of 1.5 to 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> could affect the PAR in a f_eq scenarios.
pp. 49-50 11 2.1.15.D - 2.1.15.E Applicants used the same methodology as the Board did -- they took the July 18, 1987 beach vehicle estimates and then added vehicles in transit. PID $5 9.102-103. The
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Board's 31,000 was-a rounding off of.l the resulting (slightly lower) number. Compare PID 1'9.103 with 1 9.122.
pp.-51-55 1 2.1.15.J' Witness High's estimate that 40% of the beach vehicles are in the-Massachusetts portion of the EPZ resulted from selective use of available data. Tr. 28001-02.
- p. 56 1 2.1.15.N The next sentence in the transcript after Mr. Lieberman's statement."I guess numerically that's correct."
is "I just don't agree that what you are doing is valid."
- p. 90 1 2.1.23.B With respect to the first sentence, on the page after that cited by MAG, the Board stated: "We recognize that there is no specific regulatory requirement for real-time monitoring as the Applicants and Staff point out, and accepting Contention 42 does not suggest there is." MAG apparently missed this qualifying L
l; E --- -- _ - - - _ __ -- -
's J
., 4-sentence.although'he cites other
- parts of that pagefin the next sentence of'his proposed finding.
pp.!117-18
' 11 2.1. 3 6.N -- 2.1. 3 6. 0 The Social DataLAnalysts. survey employment data referred to in-these findings and elsewhere in whatever form it may exist has never been made part oflthe record in this proceeding.
pp. 125-28 ;
i 11: 2.1.36.Z 2.1.36.AA This is a long argument to the i
effect that Mr. Lieberman erred in reducing the reduction'in capacity factor to 10% in modelling the ETEs for returning commuters. -The argument is that the 15% capacity I
factcr reduction should have been !
left intact because it was designed j l
to account for things other than i returning commuters. Prescinding
. i from the correctness of MAG's j analysis, his own witness testified !
that if the capacity factor reduction hed been maintained at IS%
the ETE would only be 15 minutes i
j
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more than calculated with the 10%
factor. 7 '1.er- Rebuttal- ff. Tr.
U 28198 at 5. This hardly amounts.to .
l a difference which would effect PAR decision making.
pp. 134-35 1 3.1.5 If-one reviews the citations for where Mr. Lieberman used MUTCD standards one wi.11 find that he was-applying the criteria to traffic control devices not traffic management. Egg alga Tr. 17579. ;
pp. 156-57 1 3.1.31.H This is not within the scope of any contention admitted into litigation as the contentions were refined by discovery. ;
pp. 160-62 i 11 3.1.31.L - 3.1.31.M The assertions concerning traffic l guide recruiting and the need for 1
l L four-hour shifts for traffic guides i are not within the score of any j J
contention admitted into litigation ]
as refined by discovery.
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b s E . pp. 185-86' 1.4.1.1.A MAG stipulated-that he was not litigating evacuation of transit dependent issues; thus, he is precluded from adopting.the referenced-findings. Stimulation 2/7/89 at 10, n.5.
. pp. 197-98 1 5.1.6.E' .This is an argument-that route guides should be provided for vans, station wagons, wheelchair vans or ambulances. To begin with, these vehicles are not required to' follow a predetermined route in order to accomplish their objective as assigned by the plan; they merely have to get to a specific assigned destination. Second, this line of argument is beyond the scope of any contention admitted in the proceeding.
pp. 207-08.
11 5.1.22.E. The SPMC does not rely solely on "on the spot" training for second shift traffic guides. Training and
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orientation are provided them before L they are dispatched to the field.
SPMC IP 3.2, Attach-2, B17 at p. 12, )
13; IP 3.2 at 4, 5, 7. :
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- p. 2G3
- 1 5.1.23.A Applicants testified that the j i
overall management of an evacuation !
l is complex; Applicants did not say any. individual traffic guide's job was complicated. Tr. 27464-65. l
- p. 218 ;
1 5.1.47.A The additional training referenced was conducted during the week of I
June 26. Tr. 27469, 27471. No l training deficiencies were l l
identified by FEMA. Tr. 27477; App. Reb. No. 20, ff. Tr. 27388 at ;
- 12. l l
.i pp. 221-22 !
1 5.1.63.A All Mr. Donovan conceded was that l l
" liability issues," taken generally, j i
are 3 inked with emergency preparedness. Tr. 19026. He said that he knew of "some. cases" in which " actions have been brought against public officials either for 1
1
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a failure.to plan, failure to appropriately notify the public,
[or] failure to follow their plan."
Tr. 19029. Mr. Donovan did not even mention liability of emergency personnel, much less support the contention.that they would neglect their duties. MAG's. general
" linking" of-liability and emergency preparedness does not even come close to meeting his burden of going forward with the evidence.
p.;261 11 7.1.18.A - 7.1.18.B There is no record support.for the conclusions reached as to the reliability of radio communications nor for the conclusion with respect to coverage. MAG in these proposed findings and elsewhere in this section unwarrantable equates testimony as to what may result with assertions of what has resulted.
- p. 314 1 8.1.4 JI 48 deals only with information gathering, not with the actual provision of assistance. The MAG 1:
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added language, "and provided ,
assistance for the resident", is thus -(another) attempt.to expand the scope of the contentions after- the fact.
pp. 356-57
'1 8.1.78.A.- The allegation is that it is necessary to have the governor's assent to utilize the bed buses.
However, the regulation that governs these matters, as a matter of state law, allows the use of uncertified vehicles in any major catastrophe !
where the number of certified vehicles is insufficient. No i.
gubernatorial consent is required. l
)
pp. 365-66 l There is no record support for MAG's ;l 11 8.1.96.A - 9.1.96.B essay on "gerri-chairs." This fact is not surprising, since MAG's ;
i allegation of a gerri-chair- ;
deficiency is yet another late-filed contention being raised for the first time after the record has closed.
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p.'374' 1 8.1.104.A A review of the cited transcript page will reveal that the testimony ;
was that it could take up to 1:1/2 hours to reach all the. schools, not i
"a" school.
p.:380 j
1 8.1.116.A- Neither this proposed finding nor the one cited to support it.have any basis in the record,
- p. 384
)
1 8.1.124,A There is no requirement that MS-1 hospitals have ability to do bone-marrow transplants.
-p. - 389 1 8.1.136.A There is no need for patient transfer procedures between hospitals, because the hospitals already have agreements between themselves and procedures for such ..
activities in place. Tr. 21450-51.
pp. 399, 410, 411-12 414 11 9.1.14.A, 9.1.15.A, 9.1.37.B, 9.1.42.B
- 9 .1. 4 ' z. C These paragraphs include an attempt to assert that in fe . ARC
Regulations require that CCCs be limited to 1,000 persons. The record reflects that no such regulation, in fact, exists.
Tr. 19187-90. See also Tr. 20942.
p.402 In ALAB-905, the Appeal Board noted 1 9.1.26 that it would be " speculative" for a licensing board to entertain a contention based on ongoing but unresolved state court zonirag proceedings. 28 NRC at 519. In its Memorandum and Order of August 7, 1989, this Board held that it would be " doubly speculative" to consider a threatened, but not yet commenced, state regulatory proceeding. Given that the Haverhill Building Inspector -- who is under the control of City of Haverhill, an Intervenor in these proceedings --
has taken no action against Applicants' use of the staging area in the 10 months since the state courts annulled his original cease-and-desist order, MAG is now asking
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, , this Board to engage in triple speculation.
L p.;419 19.1'.57.A Mr. Donovan'did have an assistant-to check the numbers.in the survey against Appendix M of the SPMC.
Tr. 18909.
- p. 421 l 1 9.1.58.C None of these objections were raised at the time the exhibit was offered and admitted; hence, MAG has_ waived-them. ;
pp. 425-26 1 9.1.60.D The quoted testimony was modified to indicate, "We believe the following ;
to be true." In addition, this l
Board stated specifically as to these pages, "we will not give their l opinion as such any weight- l l
whatsoever." Tr. 19401.
i
- p. 427 1 9.1.60.I All that was shown was that j MacGregor-Smith did not want to sign a contract (Es opposed to an LOA).
Mr. Donovan had verified their 1
_j
intention to provide buses.
Tr. 19495.
- p. 428-29 19.1.60.O' If the Applicants' school buses are already transporting EPZ located children at.the time of the OTE, this will expedite matters rather than result in a bus deficit.
Furthermore, MAG is ignoring the availability of over 1,000 Massachusetts Bay Transportation Authority buses. Tr. 23517, 23734-36.
I pp. 433-35 11 9.1.61.I - 9.1.61.M It is inconceivable that The J Commonwealth, under the guise of !
l being " concerned about the quality l 1
of care that is to be given to Massachusetts citizens", would seek ,
to prohibit the use of out-of-state ,
j ambulance services and bed buses to i evacuate special needs persons from the EPZ in the event of an actual radiological emergency.
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I p. 442 1 9.1.78.A' Applicants testified that monitoring l.
will be done with a Bicron Meter and 1.
Aptec 126B probe. App. Reb. No. 17, ff. Tr. 25423 at 13.
.p. 447 1 9.1.78.I MAG Exh. 120 was received for only a l
single, limited purpose. Tr. 25882-
- 89. It was rejected when offered for the purpose it is used in'this proposed finding, and the Board noted that such later use would amount to a fraudulent citation.
Tr. 24885, 25887-88.
pp. 449-50 1 9.1.78.N No contention ever questioned the technical reliability of Applicants' probes, and MAG gave no hint of the issue in his discovery responses, pp. 460-61 1 9.1.78.BB The basis for discounting day-trippers is simple they are not
.qvacuees; they are headed home to their own houses where they will '
take a shower in the event that they
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have reason to believe themselves to,
[be contaminated. They will'not, assuming-.they are rational,1 sit in a J~ 2 car line and-then stand inLa line in '1 order to be monitored:and then take their shower, if needed, at a.
reception center.
i
- p. 482 i 1L9.1.138 Although not designated as such,-
this is a' proposed finding by MAG, it is not a proposed finding of Applicants. In addition, there has :!
been no need physically to leave l one's responsibilities in order to check on one's family.since the invention of the telephone.
- p. 483 -]
1 9.2.3 The decision relied upon, ALAB-911, i
has been stated by the Commission to ]
be one without legal effect. Long Island Lichtinc~Co.-(Shoreham Nuclear Power Station, Unit 1),
unpublished order.(March 22, 1989).
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.p. .
496
, 1 10.1.9.A Mr. Jones, on cross-examination,' ]j admitted that.the assumption l !
m referenced in the first sentence'of the proposed' finding, to'the effect that government officials would not )
be familiar.with the SPMC-was not j reasonable, thus contravening his' prior testimony. Tr. 23431. ]l
- p. 499 1 10.1.16 It is true that MAG has no burden to )
l offer Commonwealth witnesses, but'an- I
. inference may and should be drawn )
that the testimony of such witnesses, if offered would.have i been adverse to MAG's position under the doctrine articulated in Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),
ALAB-471, 7 NRC 477, reviewed as to !
E other matters, CLI-78-14, 7 NRC 952 )
~
(1978) ("[W] hen a party has relevant evidence within his control which he ,
-l fails to produce, that failure can give rise to an inference that the
~23-
evidence is unfavorable to him.").
In addition, the two principal plans for The Commonwealth's response to a radiological emergency, the CERP and the NIAT Handbook are current rather than outdated, unexercised or rejected. Tr. 23905.
- p. 531 1 11.1.18 Applicants' proposed finding refers to the ORO demonstration of ambulance support for the evacuation of special facility populations which was the subject of MAG EX-2, Basis E. See App. Reb. No. 23, ff.
22702 at 23-29. The performance of ambulance personnel pertaining to this objective (exercise objective
- 18) was not assigned an ARCA by FEMA. App. Ex. 43F at 224. The <
ARCA cited by MAG in his proposed version of the finding pertains to an additional ORO ambulance demonstration for the contaminated-
- injured (exercise objective 23).
The performance ARCA assigned the latter demonstration recommended t
i i
)
additional training for ambulance personnel in contamination control.
Id. at 229-30.
Reply to SAPL: .
Applicants reply to certain proposed findings and rulings of the Seacoast Anti-Pollution League (SAPL) as follows:
- p. 3 1 1.15 There is no transcript or other citation given for this assertion.
The transcript cited in Applicants' proposed findings does support the finding proposed by the Applicants.
- p. 6 1 5.1.8 The first sentence simply is not true. Tr. 1868-87.
p.6 1 5.1.65 Neither the quoted language nor the issue is mentioned in JI-56. See Contentions Memo. at 83-85.
- p. 11 1 5.2.4 There is absolutely nothing in the record of this proceeding that would support such a ruling.
l
- p. 12 1 8.1.62.a In fact, the information referred to has been collected and is available.
Tr. 21554-55.
p.13 1 8.1.62.b The allegation that facility administrators do not know the characteristics of their own buildings is unsupported by the record references given, or by anything else in the record.
- p. 13 1 8.1.94 GM MS-1 says that non-specialized public and private vehicles can be utilized to transport exposed individuals. Staff. Ex. 7 at 3; Tr. L 21591. Applicants have 89 to 97 ambulances under contract, plus others available. Tr. 21587, 21589-590. Moreover, Applicants do provide " contamination control",
within the meaning of MS-1, by segregating contaminated individuals into separate vehicles from non-contaminated persons. Tr. 21582.
1 L---________
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1 This arrangement complies with FEMA's guidance. Tr.'21588-89.
. P. 15 5 8J1.100 . Applicants remain willing and able to engage in advance sheltering ;
a planning with facility l
administrators. Tr. 21550-51. The l Board, unfortunately,1cannot force ,
the administrator to accept Applicants' repeatedly proffered help. The Board therefore cannot and should not force Applicants to include in their plans information I which Massachusetts sources have !
l chosen to withhold from Applicants.
It should be noted that Applicants have done an external survey and classification, Tr. 21554, although that information is of limited value without cooperation by the facility ,
administrators. Tr. 21551.
pp. 16-17.
1.8.1.119 There was more recent testimony that personnel could and would be shifted i i
among the Monitoring /Decon jobs, so as to form from the new reserve pool W_____-__--_-___-____
1[ ".4 p s-... , c.
of Monitoring /Decon personnel,-if I .. = 'needed. Tr. 25789~, 25790, 25791.
pp..17-18 1 8.1.123 .
There is no' record; support
. whatsoever for the assertions made l
by SAPL.
p.22-23 1 9.1.74.b There is no record support for last sentence. This entire area of referral-criteria was outside the scope of the contentions posed and litigated by the Interveners.
Tr. 26000, 26002-03.. Moreover, the referral' criteria is the professional judgment of the RHA; the ORO red team RHA, Mr. Little-field, testified for three days before this Board and demonstrated ample qualification to make such' judgments. In addition, at least one clear objective criterion is provided by IP 2.9 at 5.2.15.
Finally, SAPL failed to include a transcript cite for the statement attributed to Mr. Callendrello. If the cite to Mr. Callendrello's K_=_________---____-___-_--______-____ _ _.
4-testimony had been_ included, it-would have shown that he testified that radiological health physics experts were' consulted. Tr.:21561-62.
pp. 23-24 1;9.1.74.c The efficacy of the radiological screening program is not within the scope of any' admitted contention.
Tr. 26002-03.
4 pp 24 ,
i 1: 9.1.109 Gross' contamination swipes should take about one minute per hour. ;
App. Reb. No. 17, ff. Tr. 25423 at
- 23. Mr. Donovan testified that the tanks arg planned to be plumbed for ;
i continuous flow. Tr. 19099.
i Moreover, there is no record support for the proposition that monitoring (as opposed to decontamination) {
would be interfered with if there was a brief delay in switching 3 tanks. Tr. 19098. There is also no record support for multiple injured people at once, or for the idea that more than one monitoring /decon
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person is needed to look after several such people,
- p. 25 11 9.1.114 Mr.-Donovan correctly pointed out that EPA regulations would allow the wastewater just to be dumped, but that Applicants have-voluntarily taken a more conservative approach and employed the use of holding tanks. Tr. 19100, 19102; EPA 520/1-75-001 at S 7.6.3 (1989).
. pp. 29-30 11 12.1.5 - 12.1.6 The lack of personnel alleged, even if true, is not a fundamental flaw.
It seems to have' arisen from the failure of personnel to report (SAPL P.F. 12.1.4 and 12.1.4.a.) and from the dispatch of personnel to meet real emergencies. (SAPL P.F.
12.1.6.a.) The first condition would not apply in a real radiological emergency, as opposed to a highly politicized drill, and the second would be less likely to occur, and/or would be ameliorated by mutual aid. Mutual aid, due to l . _ _ - - - _ - _ - - _ _ _ _ - - . _ _ _ - _ _ _ - _ _
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the " domino effect"Ldescribed by I
SAPL's witnesses, is virtually 1 limitless. Tr. 25578-581.. ;
- p. 31 j 1 12.1.6.c The assertion'is that it is' improper to rely upcn firefighters as part.of {
j the NHRERP because they may have ]
other emergency daties (fire fighting) at the tire. This l argument is beyond the scope of any contention admitted in the _l .
proceeding as refined in discovery. j t
p.36 1 12.1.13 The contention was admitted solely as a " scope" contention;: attacks.on i
the number of teams planned for in NHRERP is a plan issue beyond the l-scope of the contention. Moreover, y in the event SAPL had an' issue of I this nature to litigate it should have been litigated in the NHRERP phase of the hearings.
pp. 37-38 i
L 11 12.1.15 - 12.1.16 Experience and training of the i sampling teams was expressly ,
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h excluded by the Board's Order of.
December 15, 1988, at p. 56.
.p. 45 1 12.1.33 The witnesses referenced did not say l-one word about the handling of contaminated' materials. The assertion is simply. false.
~ Reply to TON:
Applicants reply to certain proposed findings and ,
(
rulings of the Town of Newbury (TON) as follows.
- p. 2 ;
1.3.1.18(a) Applicants seriously doubt than any police officer, even one named L Merry, was ever employed as a .
L I
" party-time officer" as alleged in this proposed finding.
pp. 4-5 1
1 3.1.18(c)- TON's witness, described the one summer flood as a " freak".
Tr. 17884. The figure of 15,000 ,
1 people was a hypothetical from Judge .
l Cole, not a fact testifidd to. Tr.
17894. The seven hours was a rough
]
outside estimate based on flood conditions and a storm and 1
particular wind conditions. Tr.
j
. 1 17895. There is no cited record support for the last sentence.
pp. 7-8 1-3.1.24 (See also TON 3.1.33, TOWN 3 .1 '.16. WN . b ,13 . 'J . 3 3 ) Certain i . .
Interveners now contend that a traffic management plan must-be
~
designed to minimize the ETE of each i
individual in the EPZ,.rather than 1 i
just the overall ETE. There are at .j least two flaws with this assertion.
First, Interveners never raised this
] 1 argument -- which calls for a complete change in ETE philosophy and methodology -- in their contentions, their discovery responses, or in.the hearings. To inject this new contention now, at j
.i the proposed findings stage, robs '
Applicants of their due process !
rightn to make a factual rebuttal to the claims made against them.
Moreover, it deprives the Board of any factual record upon which to evaluate Interveners' claim. The Board warned the parties that this I f
1
)
9 ->
sort of blatant sandbagging was intolerable.- Tr. 27212.
Second (although Interveners' failure to allow any record-to be developed on this point makes it difficult to draw conclusions), it seems that. Interveners are demanding.
a level.of detail and differentiation in ETE/ traffic management analysi~s that is wholly apart from regulations and the regulatory process.
pp_19-20 14.1.5(e) There is no basis for assuming that buses have to pass each other at the narrowest place in the road.
pp. 20-21 1 4.1. 5 ( f) There is no record support for last two sentences. Moreover, given that Applicants provide 9 buses to evacuate an estimated 194 transit-dependent persons from Newbury, App.
Reb. No. 9, ff. Tr. 17333 at 66, and given that the buses will circulate until they are all full or until nobody remains to be picked up, id.
H . l
^
._b -_ . ..
atL63-64, 65-66,-Applicants' arrangements.are adequate.
- p. 23 1 4.1.11 The.MCDA' plans were not analyzed'and found inadequate. The fact is that The Commonwealth ceased planning in order to accommodate the political decision to refuse to assist in Seabrook planning'made by the Governor of The Commonwealth.
Indeed, The commonwealth has assiduously avoided calling to the stand any experts working for The Commonwealth on the whole subject of emergency planning. A fair inference from this approach is that the technically competent employees 7 of MCDA would testify contrary to the position taken by the Governor l
with respect to the feasibility of emergency planning. No other i
conclusion is possible. Otherwise, the use, by the Attorney General, of ,
1 outside, and presumably rather expensive, experts exclusively to I take positions which competent state .
l 1
'. . ~.
personnel would be able to present would be a colossal waste of the Massachusetts taxpayers' money.
Recly to TOWN:
Applicants hereby reply to certain proposed findings and rulings of the Town of West Newbury (TOWN) as follows:
- p. 3 1 3.1.16.WN.a The TCPs criticized-by Mr. Knowles were designed in conjunction with West Newbury's police chief -- whom the town did not offer as a witness. App. Ex. 50; Tr. 176464-66; 17451; 17458-59, 17446.
- p. 6-7 1 3.1.28.WN,a There is no record support cited and none exists.
pp. 7-9 1 3.1.36 At TCPs the goal is to keep traffic moving, while at ACPs the goal is to slow traffic down and/or stop it. Hence, the different value of flashing lights at each.
p.13 1
1 4.1.11 The MCDA plans were not analyzed and 1 l
found inadequate. The fact is that The Commonwealth ceased planning in order to j accommodate the political decision to
7 _
je - 4 l-1 l refuse to assist in Seabrook. planning
~
-made by the Governor of The Commonwealth.
Indeed,-The Commonwealth has assiduously avoided calling to the stand any experts working for The Commonwealth on the whole l ':
L subject of emergency planning. A fair inference from this approach is that the technically competent employees of MCDA would testify contrary to the position taken by the Governor with respect to the feasibility of emergency planning. No
. other conclusion is.possible. Otherwise, the use, by the Attorney General, of outside, and presumably rather expensive, experts exclusively to take positions which competent state personnel would be able.to qualify on would be a colossal waste of the Massachusetts taxpayers' money. In addition, it is to be noted that the field survey referenced was performed after Amendment 6, App. Reb.
No. 9, ff. Tr. 17333 at 60, and will be reflected in the next amendment. Id. at 60-63.
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- p. 13.
C '1 4.1.12.WN.a' Applicants' witnesres Bald i and j Lieberman personally drove and surveyed ;
f)
L every single TOWN _ bus route. Tr. 17384, '!
1 17419-20.
l 4 p.:15 ,
i 1 4.1.22 There is no support for this assertion;- !
I indeed, the record is to the contrary. l 1
App. Reb. No. 9, ff. Tr. 17333 at 71-109. j Reniv to_fQ&:
Applicants hereby reply to certain proposed findings'and rulings.of thu Town of Amesbury (TOA) as follows:
- p. 2
- i 1 3.1.2 The Board. excluded the portion of j l
Chief Cronin's testimony dealing i with disabled vehicles, as that issue was decided'in New Hampshire.
l Tr. 16190, 16191. l
)
pp. 6-7 1 3.1.7 The mislabelling of Main and Sparhawk has already been noted by. l Applicants, who have committed to correct it. Tr. 16355; ggg also ;
1 App. P.F. 3.1.39, 3.1.40.
'l i
- I 1
I m . PP.L7-8
~
1 3.1.8L The. traffic plan for this ;
intersection (I-95/ Rte. 110) is j i
described in App. Reb. No. 16, ff. )
i Tr. 26681 at 8-9,' App. P.F. 3.1.57.
Chief Cronin's views on driver conduct at this' intersection are in part uninformed, Tr. 16365, and in l
part unsupported speculation as to ,
human behavior. Tr. 16365-66. See also'Tr. 16985. J pp. 8-9 1 3.1.10 The undisputed testimony of the -)
i Chairman of TOA's Board of. Selectmen j is that TOA is "well prepared" for j any non-Seabrook emergency.
Morrissey Reb., ff. Tr. 23938 at 4.
It also is undisputed that App. I Ex. 44 is the only emergency plan j i
TOA has, pursuant to federal SARA i
requirements and applicable state i laws, for dealing with such emergencies. Tr. 16763, 16768, 16771, 16831-33. If the Board were to accept TOA's P.F. 3.1.10, in 1
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- -_ _ . _ - _ _ - - _ _ _ _ _ _ - - _ _ - _ _ , _ _ _ _ . _ - - _ _ . _ - _ _ - _ - - _ - _ - _ _ _ _ _ _ _ _ _ - _ - _ - _ .)
which the town attempts to denigrate and disclaim its own emergency plan, the Board would have to find Mr. Morrissey to be untruthful, and also find the leaders of the town government to have been grossly negligent in performing their duty to protect the health and safety of their citizens from non-radiological emergencies. The record contradicts, rather than supports, such a finding. E.c. App. P.F.
10.1.14-15; App. Reb. No. 21, ff.
Tr. 23537 Attachs. I-K.
pp. 10-12 11 3.1.14 - 3.1.15 These two proposed findings appear to be inconsistent and inherently self-contradictory, as was the testimony adduced by the interveners i
on the subject of cones vs.
barricades.
pp. 13 1 3.1.18 As noted in connection with 5 3.1.2 )
earlier, the subject of disabled vehicles was excluded.
]
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2v '
!+ L a-pp. 13-14 1.3.1.19 This is an ETE,-not a traffic.
management, allegation, and is 1
thoroughly rebutted at App. Reb.
i No. 16, ff. Tr. 26681 at 21-23. .
l
- p. 14. !
Chief Cronin testified that Park !
1 8.1.1 Side has changed its name to Wild ;
Acres. Tr. 16394-95. Residents at Heritage Towers and Wild Acres aza or will be included in Appendix M. {
App. Reb. No. 6,.ff. Tr. 21049.at 5- !
6; App. P.F. 8.1.51. His statements about the number and inclusion of day cares, which are based on l
statements by TOA counsel rather than factual knowledge, are simply !
wrong. Tr. 16396-97; App. Reb.
No. 6, ff. Tr. 21049 at 6.
pp. 14-15 ;
)
1 10.1.1 There is substantial, uncontradicted {
i evidence of TOA's personnel, equipment, training and planning.
1 Morrissey Reb, ff. Tr. 23938 passim; ll Clark testimony Tr. 16750-16899.
l
There'is no reason'to believe that these substantial resources could or would not be used for a radiological, as opposed to a non-radiological, emergency.
l Reniv to CON:
Applicants hereby reply to certain proposed findings and rulings of the city of Ucwburyport (CON) as follows:
pp. 7-8 1 3.1.9 The peak weekend population figures given simply have no basis in actual vehicle counts. See Tr. 17337-38. I P.9 1 3.1.11 Light wooden / plastic barricades can i
be pushed aside with a car bumper, without getting out. This proposed finding thus " misses the point."
, pp. 13-15 l 11 4.1.3 - 4.1.6 CON's findings, in the aggregate, call for a door-to-door pickup of transit-dependent populations, and the use of evacuation routes rather than the employment of side streets.
This approach would seem designed to lengthen, rather than facilitate, the evacuation process, both for t - --___- _____ _ _- _ __ _ _ -
n~- .
o '
.e e.
t-c transit-dependent and general lI g populations.;
pp.115-l'6; l
11'4.1.7 - 4.1.8 CON continues to ignore the fact L !
L that persons at the transfer point- !
L E wait in the transfer buses,.not out ;
in the open. App. Reb. No. 9, ff. .I Tr. 17333 at'63. Thus, space >
limitations, or even flooding up to-a foot or so of water,'is irrelevaht. Id. at 69-70.
Reolv to TOS:
Applicants hereby reply to certain proposed. findings and i
rulings of the Town of. Salisbury (TOS) as follows:
- p. 6 1 3.1.11 The issue of whether drivers will ;
assault traffic guides etc. is not open for litigation in this phase of g the hearing. See Tr. 17201-02; Tr. 16194.96; Tr. 16911-26.
Aberrant driver behavior issues have been i
l
r l, e. g ;
,y a.
~.,_.
1 decided'in'the NHRERP' phase.of'the-case and are Igg iudicata.
Respectfully submitted,
//
VM// - 4;
. Thomas G. Di g pf Jr.
George H..Lewald-Jeffrey P. Trout ~
Jay Bradford Smith Geoffrey C..: Cook.
William L. Parker Ropes & Gray One-International Place Bocton, MA 02110-2624 (617) 951-7000 Counsel for Applicants 1
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--m_lm______ ______________________._.m. _ _ _ _ _ _.____ _.__ _ _ . _ . _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ . _ _ _ _
f N', Q l i.
QQ" 89 st? -5 P 3 :21 CERTIFICATE OF SERVICE
, rt e .. >
I, Thomas G. Dignan, one of the attorneys fqri thetApplicants herein, hereby certify that on August'30, 1989, I made' service of the within document by depositing copies thereof with Federal Express, prepaid, for delivery to (or, where indicated, by depositing in the United States mail, first class postage paid, addressed to):
Administrative Judge Ivan W. Smith Adjudicatory File Chairman, Atomic Safety and Atomic Safety and Licensing ;
Licensing Board Board Panel Docket (2 copies)
U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East. West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 l
Administrative Judge Richard F. Cole Robert R. Pierce, Esquire Atomic Safety and Licensing Board Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board East West Towers Building U.S. Nuclear Regulatory ,
4350 East West Highway Commission Bethesda, MD 20814 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Administrative Judge Kenneth A. Sherwin E. Turk, Esquire McCollom Office of General Counsel 1107 West Knapp Street U.S. Nuclear Regulatory Stillwater, OK 74075 Commission :
One White Flint North, 15th Fl.
11555 Rockville Pike Rockville, MD 20852 John P. Arnold, Esquire Diane Curran, Esquire Attorney General Andrea C. Ferster, Esquire George Dana Bisbee, Esquire Harmon, Curran & Tousley Assistant Attorney General Suite 430 Office of the Attorney General 2001 S Street, N.W.
25 Capitol Street Washington, DC 20009 .
I Concord, NH 03301-6397 i
- Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Board 116 Lowell Street U.S. Nuclear Regulatory P. O. Box 516 Commission Manchester, NH 03105 )
Washington, DC 20555 1
e e Philip Ahrens, Esquire Mr. J. P. Nadeau Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central Road General Rye, NH 03870 Augusta, ME 04333 Paul McEachern, Esquire John Traficonte, Esquire Shaines & McEachern Assistant Attorney General 25 Maplewood Avenue Department of the Attorney P.O. Box 360 General Portsmouth, NH 03801 One Ashburton Place, 19th Fl.
Boston, MA 02108 Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall Route 107 126 Daniel Street - {1 Kensington, NH 03827 Portsmouth, NH 03801
- Senator Gordon J. Humphrey R. Scott Hill-Whilton, Esquire U.S. Senate Lagoulis, Hill-Whilton &
Washington, DC 20510 Rotondi (Attn: Tom Burack) 79 State Street Newburyport, MA 01950 -
- Senator Gordon J. Humphrey Barbara J. Saint Andre, Esquire One Eagle Square, Suite 507 Kopelman and Paige, P.C.
Concord, NH 03301 77 Franklin Street (Attn: Herb Boynton) Boston, MA 02110 Mr. Thomas F. Powers, III Mr. William S. Lord Town Manager Board of Selectmen Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 H. Joseph Flynn, Esquire Judith H. Mizner, Esquire Office of General Counsel 79 State Street, 2nd Floor Federal Emergency Management Newburyport, MA 01950 Agency 500 C Street, S.W. /
Washington, DC 20472 Gary W. Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03842 Concord, NH 03301
om...
Mr.~ Richard R. Donovan l Federal Emergency Management
. Agency Federal Regional'. Center-130 228th Street,.S.W. ,
Bothell,.'. Washington 98021-9796 l
3 Ashod N. Amirian, Esquire t 145 South Main Street ;
P.O. Box 38 :
Bradford, MA -01835 i l
vs M/ i Thomis'G.'D n, Jr.
(*= Ordinary U.S. .First Class Mail) 1 i
1 i
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