ML20235V242
| ML20235V242 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 02/28/1989 |
| From: | Backus B, Traficonte J BACKUS, MEYER & SOLOMON, MASSACHUSETTS, COMMONWEALTH OF, SEACOAST ANTI-POLLUTION LEAGUE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#189-8206 ALAB-905, LBP-88-32, OL, NUDOCS 8903100099 | |
| Download: ML20235V242 (125) | |
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(206 D0ldiED U flEC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ,
,) p 4 32 ATOMIC SAFETY AND LICENSING APPEAL BOARD Tos +
Before the Administrative Judges: [;g f ' _
Alan S. Rosenthal, Chairman Thomas S. Moore Howard A. Wilber
)
In the Matter of ) Docket Nos. 50-443-OL
) 50-444-OL PUBLIC SERVICE COMPANY ) (Off-Site EP)
OF NEW HAMPSHIRE, _E T _A _L .
)
)
(Seabrook Station, Units 1 and 2) ) February 28, 1989
)
MOTION OF SAPL AND THE MASSACHUSETTS ATTORNEY GENERAL FOR RECONSIDERATION OF THE DENIAL OF SAPL'S FEBRUARY 24, 1989 MOTION FOR EXPEDITED REVIEW OF LBP-88-32 IN REGARD TO ALAB-905 INTRODUCTION The Massachusetts Attorney General (" Mass AG") and the Seacoast Anti-Pollution League ("SAPL") (collectively the " Interveners")
move for reconsideration of this Board's denial of SAPL's February 24, 1989 motion seeking expedited review of a portion of the Licensing Board's decision on the adequacy of the emergency plan ("NHRERP") for the New Hampshire portion of the Seabrook EPZ.1! In support of this motion, the Interveners state:
8903100099 590228 -
PDR ADOCK 05000443 0 PDR, 1/ The Mass AG received and reviewed (for the first time) SAPL's motion and accompanying memorandum on February 28, 1989. On that day, the Mass AG prepared a draft of the following motion styled as a memorandum in support of SAPL's motion. Like SAPL, the Mass AG believes that overall efficiency and economy will be served by an expedited review of a portion of the NHRERP decision. The Mass AG intended to introduce further reasons, detailed in the text above, supporting this belief. Before the Mass AG's draft was complete, he learned from counsel for SAPL that the relevant motion had been denied by this Board. Because of the reasons set '
forth above in the text, the Mass AG (with SAPL) moves for d reconsideration of SAPL's motion which the Mass AG hereby joins. )3
- 1) As detailed in SAPL's accompanying memorandum in support of its February 24 motion, the Licensing Board erred in its disposition of certain contentions having to do with the adequacy of planning for the monitoring and decontamination of evacuees from a Seabrook radiological emergency. In further support of SAPL's position, the Mass AG notes:
a) The Board's decision that,.notwithstanding ALAB-905, the FEMA 20% " evacuee load estimate" (LEP-88-32, slip opinion at 96) for the Seabrook EPZ is "both reasonable and adequately supported in the record" (97) is based on the rebuttable presumption that the Board attached to the FEMA finding. The Board recognized that the 20% figure used by FEMA as a standard was of generic and not site-specific origin.
Further, the Board was also aware that ALAB-905 required site-specific support for whatever planning basis was used as a standard. In these circumstances, the Board, having found the 20% figure to be presumptively correct based on the " absence of contrary evidence" (o'), transformed it into a site-specific analysis with the following sleight-of-hand:
Here, witnesses for FEMA testified that it was FEMA's position that " provisions for monitoring must address at least 20% of the total EPZ population." Those same witnesses testified that, inter alia, "the State Plan contained adequate provisions for the registration and monitoring of evacuees . . ." Logically, FEMA's finding as to the adequacy of the registration and monitoring provisions of NHRERP Rev. 2 is implicitly based on a subsidiary conclusion that FEMA's generally recommended minimum 20 percent planning basis was appropriately applied to the Seabrook EPZ. (97, transcript cites omitted.)
t The best that can be said of this " argument" is that it is l logically fallicious. Obviously, FEMA believed the 20% figure was " appropriately applied" to Seabrook. FEMA held this belief not because it did any site-specific analysis (it did not and has not) but because FEMA's 20% figure was a generic standard
" appropriately applied" (according to FEMA) to every site.
FEMA's act of applying its generic standard to the Seabrook site is not a determination that that standard is appropriate for that site, but a further indication that FEMA has made no determination of the appropriate standard specific to that site. Thus, the Board's notion that FEMA's finding is
" implicitly based on a subsidiary conclusion" that itself was site-specific is absurd and ignores the very nature of the 20%
figure as a generic standard.
b) The Board found that the FEMA finding "carrie[d]
the day" on this issue. (97.) As SAPL has noted, the Board savaged the testimony of SAPL's witness, Dr. Hertzberg. The reason that the Board went to the lengths that it did to impune Dr. Hertzberg's testimony is that the Board was aware that if any Intervenor proffered evidence running to a FEMA finding, then under NRC procedural law very familiar to the Board, the presumption would burst and the Interveners' evidence would be weighed against FEMA evidence in support of its finding. (97, citing cases.) With regard to the evacuee load estimate, the Board obviously knew from ALAB-905 that FEMA had no evidence to support its 20% figure for Seabrook. Thus, the Board realized that if the presumption was " rebutted" by the proffer and
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admission of evidence the Applicants could not carry the day on this issue.2/ As a result, the Board ruled, against the clear weight.of the evidence, that Dr. Hertzberg was a "non-expert" j (96)>whose testimony was not " competent". (Id.)' 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 the testimony of this particular witness, but by the Board's need to remove any contrary evidence from the record so that the FEMA presumption could "carr[y] the day."
c) Such a solicitous concern for the FEMA rebuttable presumption on this issue stands out in LBP-88-32 as the only instance in-which the Board based its decision on the bare FEMA finding, unadorned with accompanying evidence (which, of course, FEMA did not have and the Applicants did not know they needed). Moreover, the same Board stated on the record: )
The Board, at the time when the rebuttal (sic]
presumption was favor'ing the Interveners, the Board made it clear that we were not going to be very much impressed by rebuttal [ sic]
presumptions. We will be impressed by the rationale and the technical basis of FEMA's witnesses.
2/ The record had closed before ALAB-905 issued. A presumption Is " rebutted" in two senses: 1) evidence that supports a finding contrary to the presumed fact " rebuts" or meets the presumption in the sense that the opponent of the presumption has met his burden of going forward and has proffered contrary evidence thereby causing the presumption to fall out of the case; 2) evidence that outweighs any permissible inferences and other evidence remaining after a presumption is rebutted in the first sense, also is said to " rebut" the presumption. The text above uses " rebut the presumption" in the first sense.
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The policy basis is something that we are required by regulation to recognize, but wefalso recognize'that the rebuttable presumption tends to weaken and even vanish when it is brought into
. question.
- Now - tha't the advantage goes to the Applicant
[ sic) we feel pretty much the same way, exactly the same way. (Transcript at 9940.)
- 2) The Board's error has had and will have a marked impact on further proceedings regarding the~ adequacy of emergency planning for the Massachusetts portion of the EPZ. The lower Board has expressly relied on its analysis in LBP-88-32 in not admitting contentions'on the adequacy of the SPMC and the June 1988 exercise. Judicial economy $/ dictates that this Appeal Board expedite review of this issue and thereby correct the course now taken by the Board in the Massachusetts proceeding, a) In April 1988, the Mass AG submitted MAG Contention.
65 which alleged, inter alia, that adequate " resources including personnel, facilities, and equipment have not been secured to adequately respond to a radiological emergency at Seabrook." In the basis, the Mass AG stated that 9
planning for decontamination and monitoring facilities . . . required to treat and deal with the potentially large number of injured ignores the fact that the SPMC is not, in.the first instance, going to enable all or substantially all of the beach population to avoid doses causing severe health effects.
3/ In fact, simple rationality dictates expedited review here. The Board below has considered its treatment of the 1 evacuee load estimates as an EPZ-broad ruling. This is an instance in which the division of the EPZ into two areas with correspondingly separate proceedings belies the site-specificity of any legally defensible planning basis. Put another way: if the Interveners are correct, there should be a remand of the f '. issue on the NHRERP. At some point in the future, the Board's further use of its.LBP-88-32 errors will result in a remand of its decision on the SPMC. There is no reason for not reaching this matter now.
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l (MAG 65 is attached as Exhibit 1.) In July the Board ruled refusing to admit this contention. (July Memorandum is Exhibit 2.) on December 16, 1988, the Mass AG filed a motion for reconsideration of the July decision in light of ALAB-905.
(December Motion is attached as Exhibit 3..) The Board heard argument on December 20, 1988. (Transcript at 15141-15160, attached as Exhibit 4.) On January 4', 1989, the Board denied Mass AG's motion to reconsider MAG 65. (Memorandum and Order attached as Exhibit 5.) l b) Similarly, the adequacy of the evacuee monitoring planning basis for the SPMC was presented by the Mass AG in contentions filed on the June exercise. On September 21, 1988, the Mass AG filed MAG EX-18 which alleged, inter alia, that the exercise disclosed inadequate " procedures, facilities, equipment and personnel for the registration, radiological monitoring, and decontaminating of evacuees. . . ." (MAG EX-18 is Exhibit 6.)
In Basis B, the Mass AG specifically alleged that " facilities" were inadequate because "many more persons would have been ,
reporting to the reception centers for monitoring than ORO and the State of New Hampshire had the staff and equipment to monitor within a 12-hour Period." Initially, neither the Applicants nor the Staff objected to the admission of this contention in this regard.
After the issuance of ALAB-903 on November 10, 1988, both the Applicants and the Staff objected to the admission of this contention based on its purported failure to allege a fundamental flaw. In its December 15 Memorandum and Order (Ruling on the June 1988 Exercise Contentions) the lower Board discussed MAG EX-18 and permitted the Mass AG to amend his
pleading.- On January 3, 1989, the Mass.AG filed " Additional Comments on the Effect of ALAB-903". (Exhibit 7) This. pleading at 10-14 specifically addressed both ALAB-903.and ALAb-905. On January 13, 1989, the lower Board issued a further Memorandum and Order on the admissibility of MAG EX-18. (Exhibit 8 at 10-15.) In this January 13 Order, the Board ruled that the Mass AG in his January 3, 1989 pleading'in effect sought to file-a late-filed contention raising ALAB-905 issues for the first time. The Board denied admission to MAG EX-18 on this basis. Finally, on January 20, 1989, during oral argument on this issue, the Board ruled that although MAG EX-18 had raised the issue of the adequacy of the planning basis for monitoring evacuees'for the SPMC, that issue was res judicata in light of LBP-88-32. (Transcript at 15288-15295, 15332-15340, Exhibit 9.)
On this sole basis, MAG EX-18 was not admitted.
For the reasons set forth above, the Interveners move this Board to reconsider SAPL's motion to expedite a portion of the appeal of LBP-88-32.
Respectfully submitted, JAMES M. SHANNON ATTORNEY GENERAL V0s hn Traficonth hief, Nuclear Safety Unit One Ashburton Place Boston, MA 02108 617-727-2200 ON BEHALF OF:
7 C_ d T Seacoast Anti-Pollution Le#gue ,
1 Dated: February 28, 1989 l
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EXHIBIT 1 i
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UNITED STATES OF AMERICA (
NUCLEAR REGULATORY COMMISSION Before Administrative Judges:
Ivan W. Smith, Chairperson Gustave A. Linenberger, Jr.
Dr. Jerry Harbour
)
)
)
)
In the Matter of ) Docket Nos.
) 50-443-444-OL PUBLIC SERVICE COMPANY OF NEW (Off-sice EP)
April 13, 1988 (Seabrook Station, Units 1 and 2), )
)
)
ATTORNEY GENERAL JAMES M. SHANNON'S CONTENTIONS SUBMITTED IN RESPONSE TO THE SEABROOK PLAN FOR THE MASSACHUSETTS COMMUNITIES I
I. GENERAL INTRODUCTION TO THE CONTENTIONS SUBMITTED BY THE ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS A. Position of the Commonwealth on Fmaraency Plannina J for the Seabrook Station For a period of years, the Commonwealth of Massachusetts, including the state executive and local governments, attempted to formulate adequate emergancy plans for the Massachusetts portions of the Seabrook plume exposure EPZ. The Commonwealth came to recognize, as a result of these efforts, that I
particular features of the Seabrook site made impossible planning that would adequately protect the health and safety of s
the relevant public. The large summer transient beach ;},,,
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population, the limited means of ingress and egress to the beach areas, the meteorological site conditions and the absence
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B. To the' extent that the SpMC identifies and relies upon resources purportedly available to the State and local governments there can be no assumption that these resources are or will be adequate.
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l CONTENTION 65: The SpMC fails to meet the planning i
standards set forth at 50.47 (b)(1), (8), (9), (12) and (13) I and the corresponding guidance of NUREG 0654 because adequat.e resources including personnel, facilities and equipment have not been secured to adequately respond to a radiological
- emergency at Seabrook Station. As a result, there is no i
reasonable assurance that adequate protective measures can and will be taken. 50.47(a)(1).
BASIS: The Applicant has acknowledged that because of the peculiarities of the Seabrook site, emergency protective I
measures contemplated by the SpMC may not actually protect the relevant populations from significant radiological harm and injury. (As noted supra, the Applicant draws no inference of planning inadequacy from these facts.) However, planning for decontamination and monitoring facilities, transportation of the contaminated injured, medical support and care and the entire reage of basic services required to treat and deal with the potentially large number of injured ignores the fact that the S?MC is nat, in the first instance, going to enable all or substantially all of the beach population to avoid doses causing severe health effects. Further, the initial protective
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measures will also not substantially reduce life-threatening doses for many individuals. Having failed to prevent these l health effects with an effective range of protective measures, the Applicant must adequately plan to handle the human health consequences.
Facilities CONTENTION 66: The facilities identified in the SpMC as the Emergency Operations Facility (" EOF") and the Emergency Operations Center ("EOC") are inadequate for the purposes required. As a result, the SpMC fails to meet the planning standards set forth at 50.47(b)(8); NUREG 0654 II.H.2. and 3 and Appendix E, IV, E, 8.
BASIS:
A. Both facilities should not be housed in the same building. No provision is set forth in the SpMC for back-up power in the event of the loss of power to these facilities.
Such loss of power would effect both facilities simultaneously.
B. The Emergency Offsite Center is not accessible to Massachusetts State or local government officials during an emergency at Seabrook. The EOC is located at Newington, New Hampshire, approximately 15 miles north of Seabrook Station on the New Hampshire-Maine border. Interstate 95 passes within two miles of the station and the other two north-south secondary roads fall within the EpZ 10-mile arc. personnel
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EXHIBIT 2
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LB 7/22/88 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY.AND LICENSING BOARD Before Administrative Judges:
Ivan W. Smith,' Chairman Gustave A. Linenberger, Jr.
Dr. Jerry Harbour
)
l In'the Matter'of ). Docket Nos. 50-443-OL
) 50-444-OL l PUBLIC SERVICE COMPANY OF ) I NEW HAMPSHIRE, at al. (ASLBP.No. 82-471-02-O L)
) (Offsite Emergency.
) Planning)
.(Seabrook Station, )
Units 1 and 2) )
) July 22, 1988 MEMORANDUM AND ORDER - PART I (Ruling on Contentions on the Seabrook Plan For Massachusetts Communities) .
I. PRELIMINARY STATEMENT The several interveners, led by the Attorney General of' Massachusetts, now joined by'some. additional Massachusetts local governments,'have submitted hundreds of contentions and sub-contentions on the Seabrook Plan for the Massachusetts Communities (SPMC). In Part I of our Order ruling on the contentions, we address the pleadings of the 1 Massachusetts Attorney General (Mass AG), New England Coalition on Nuclear Pollution (NECNP), and Seacoast Anti-Pollution League (SAPL) . Part I is issued without
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The fact that the AG would extend the financial issue to specific applications does not save it.
Basis B is objected to by the Applicants who state that SPMC, Sec.
2.2.1, provides that the SPMC does not depend upon any governmental resources for implementation. The Attorney General disagrees and, in reply, alludes to Mode 1 of the plan.
Basis B as originally submitted provided no specifics for the AG's theory. The sparse explanation submitted with the AG's reply would require the Board to research the SPMC for its support. This is the AG's responsibility, not ours.
Basis B is rejected as non-specific.
Contention 64 with Basis A.1 only is .
accepted.
MAG Contention No. 65 The SPMC at 50.47(b) fails to meet the planning standards set forth (1), (8), (9), (12) and (13) and the corresponding guidance of NUREG 0654 because adeguate resources including personnel, facilities and equipment have not been secured emergency to adequately at Seabrook Station. respond to a radiological As a result, there is no reasonable assurance that adequate protective measures can and will be taken. 50.47(a) (1) .
As a basis for the contention the AG argues that certain post-exposure protective actions, 34g.,
decontamination, monitoring, transportation of contaminated
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injured and other post-exposure services re1'ating to the care of contaminated or injured persons do not prevent, in the first instance, large doses to all or most of the beach
g population.
No'one disputes this truism.
That is not the purpose of post-exposure services. j I
Also, his argument goes, initial protective measures will not substantially reduce life-threatening doses for all or most of the beach population.
Applicants challenge this unsupported allegation.
But, as a planning basis, it can be assumed that some will be exposed.
That is exactly why there are post-exposure planning requirements. '
The basis concludes that the Applicants, having failed to prevent health effects to a large population, must plan to handle the health consequences. {
Applicants argue that there is no support for the allegation that a large population will be contaminated, and that, in any event, there is no regulatory requirement to demonstrate an abilit y to treat a large number of radiologically-injured persons .
The AG has not explained the regulatory basis for this assertion and we can find none.
We have also considered the AG's reply that the Applicants may not be heard to argue that the evaluation criteria for post-contamination resources at an average site should not apply to Seabrook. Reply at 44. This is a mischaracterization of Applicants' answer.
Answer at 113.
The contention is rejected.
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i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
~ ATOMIC SAFETY AND LICENSING BOARD Before the. Administrative. Judges:
Ivan W. Smith, Chairman Gustave A. Linenberger, Jr.
Dr. Jerry Harbour
)
In the Matter of ) Docket Nos. 50-443-OL
) 50-444-OL PUBLIC SERVICE COMPANY ) (Off-Site EP)
OF NEW HAMPSHIRE, EI AL. )
)
, Laabrook Station, Units 1 and 2) ) December 16, 1988
)
MOTION FOR RECONSIDERATION OF MEMORANDUM AND ORDER-PART I (RULING ON CONTENTIONS ON THE SEABROOK PLAN FOR MASSACHUSETTS COMMUNITIES).
On July 22, 1988, this Board issued its Memorandum and Order-Part I (Ruling on Contentions on the Seabrook Plan for Massachusetts Communities) (hereinafter " Ruling'on Contentions"). The Ruling on Contentions rejected, among other contentions, the MAG Contentions 2, 65 and 76'. On November 29, I 1988, the Appeal Board issued ALAB-905 in the Shoreham
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J proceeding. In that decision, the Appeal Board ruled on two issues, both of which affect the admissibility of MAG )
.i Contentions 2, 65 and 76 in the Seabrook case. The Appeal Board's ruling indicates that this Board erred in rejecting those contentions. For that reason, the Massachusetts Attorney General respectfully requests that this Board now reconsider its earlier ruling, admit MAG Contentions 2, 65 and 76 to the SW IzW
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SPMC litigation, and permit a two week. discovery period (during which interrogatories and document: requests would need to be l filed and depositions noticed and taken) on the three contentions.
MAG Contention No. 2 MAG. Contention No. 2 provides:
There exists at present no record support for the application of 10 CFR 50.47(c)(1)'to the litigation of the adequacy of the SPMC. As a consequence, becaus<a, as noted; the SPMC will not be implemented or followed, there exists no plan that meets the planning standards of 50.47(b) or 50.47(a).
Bases The threshold requirements of 50.47(c)(1) have not been met in this case. Specifically:
A. There has been no determination or finding that the Applicant has failed to meet the " applicable standards set forth in paragraph (b)" of 50.47.
B. The Applicant has not asserted that "its inability to demonstrate (such] compliance . . . results wholly or substantially from the decision of State and/or local governments not to participate further in emergency planning."
C. The Applicant has not demonstrated to the Commission's satisfaction that "(i) The applicant's inability to comply with the requirements of paragraph (b) of this section is wholly or substantially the result of the non-participation of State and/or local governments."
Moreover, the Applicant has not detailed specifically which of the (b) standards it is unable to meet. In fact, the SPMC1/ states at Plan 2.0-1 that the "NHY Offsite Response Organization ("ORO"] is fully capable of implementing an adequate emergency response in the absence of State and local participation provided that governmental authorizations are granted for actions which the NHY [ORO] lacks the legal authority to perform." Thus, 1/ The SPMC will be cited as Plan, Pro- (Procedures), and App-(Appendix).
several planning standards apparently can be met by the SPMC in the view of the Applicant and no "due m
allowance" pursuant to 50.47(c)(1)(iii) would be appropriate.
D. The Applicant has not demonstrated and cannot demonstrate to the Commission that "(ii) [it] has made a sustained, good faith effort to secure and retain the participation of the pertinent State and/or local governmental authorities, including the furnishing of copies of its emergency plan." First, the Applicant has engaged in a course of conduct over a period of years designed to circumvent the need for Massachusetts officials to participate in emergency planning at Seabrook. Specifically, beginning in 1985, the Applicant spent large sums of money attempting to have this Board reduce the plume exposure EPZ so that Massachusetts would no longer be within any portion of the required planning zone.
These activities began prior to the determination by the Governor that no adequate planning for the Massachusetts portion of the EPZ was feasible and during the same period that the Commonwealth was .;
attempting to prepare emergency plans. Second, over a i period of years, the Applicants' lead owner, PSNH, and its Seabrook operating division, New Hampshire _ Yankee, have developed a conscious corporate policy toward emergency planning that has denigrated its purpose and functions. This corporate policy rests on a two-fold basis: 1) an unremitting arrogance regarding the capacity of plant design to eliminate radiological risks to the public; and 2) the financial imperstive that prevents the acknowledgement that a site does not become less inappropriate the more money is spent at it. Instead of the " sustained good faith effort to j secure and retain" State and local participation, the ;
Applicant has attempted to minimize the serious inadequacies inherent in planning for this site by: 1) understating the summer beach population, 2) shifting the planning focus onto those accidents for which timely response is not imperative in any determination of adequacy; and 3) denying that there exists any substantive standard of adequacy against which i emergency planning should be measured.
E. The Applicant has provided no detailed description of existing planning deficiencies or which of the SPMC's alleged " compensating actions" are designed to mitigate which specific deficiencies. As a result, no determination is possible concerning what planning standards are to be evaluated pursuant to 50.47(c)(1).
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! 4 The essence of:this contention is that.the Applicants must-make a factual showing before $50.47(c)(1) is applied and they have not done so as a factual matter. Specifically,-the Applicants must demonstrate at the hearing that:
- 1. they cannot meet certain planning standards;
- 2. their inability to meet cer'tain standards is wholly or substantially the result of governmental non-participation; and
- 3. they have made a sustained and good faith effort to secure and retain governmental participation.
The basis for these claims are set forth in detail in the formal bases of the contention and present factual issues for i litigation.
The Board, however, rejected the contention as not presenting a " litigable issue" by viewing the contention as "an organizational and procedural one" only. Ruling on Contentions at 15-18.
In ALAB-905, the Appeal Board addressed issues that arose out of the unavailability of one of three reception centers proposed by LILCO for monitoring, decontamination and sheltering. That unavailability was due to a New York Supreme Court decision, Town of Hemostead v. Lona Island Lichtina. Co.,
Index 23779/87 (N.Y. Sup. Ct., August 22, 1988) restraining LILCO from using the facility as a reception center because it violated local zoning laws.
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LILCO argued that~the injunction was immaterial to the
' licensing proceeding because under S50.47(c)(1).it is presumed that in'a real emergency the facility would nevertheless be available. .ALAB-905 at 8. The Appeal Board rejected.LILCO's argument, in1RI alia, because "the invocation of [S50'.47(c)(1)]
raises:a host of factual questions that (had] not yet been subject-to scrutiny by.the other parties or decided by the Licensing Board but which must he resolved before
[S50.47(c)(1)] comes into play." id. at 9 (emphasis supplied). Specifically, the Appeal Board found that LILCO had not yet made the required factual showina that (1) its inability to use the facility was " wholly or substantially the result of the non-participation" of the Town of Hempstead and (2) it "has made a sustained, good faith effort to secure and retain the participation" of the Town. Id. The Appeal Board could not have been clearer about its view of S50.47(c)(1) when it wrote that "this factual showing i1 a condition crecedent to LILCO's successful reliance on the presumptions of the realism rule (in 550.47(c)(1)] and such facts must kg oroved before the Licensina Board. Id. at 10 (emphasis supplied).
These are precisely the same factual issues the Massachusetts Attorney General had raised in his Contention No.
- 2. The Appeal Board has found them relevant and necessary to the proceedings. This Board's rejection of that Contention is simply inconsistent with ALAB-905 and should be l
F reconsidered.A#
MAG Contentions 65 and 76 MAG Contention 65 provides:
The SPMC fails to meet the planning standards set forth at 50.47(b)(1), (8), (9), (12) and (13) and the corresponding guidance of NUREG 0654 because adequate-resources including personnel, facilities and equipment have not been secured to adequately respond to a radiological emergency at Seabrook
. Station. As a result, there is no reasonable assurance that adequate protective measures can and will be taken.
50.47(a)(1). 1 Bases The Applicant has acknowledged that because of the peculiarities-of the Seabrook site, emergency protective measures contemplated by the SPMC may not actually protect the relevant populations from significant radiological harm and injury. (As noted supra, the Applicant draws no inference of planning inadequacy from these-facts.) However, planning for decontamination and monitoring. facilities, transportation of the contaminated injured, medical support and care and the entire range of basic services required to treat and deal with the potentially large number of injured ignores the fact that the SPMC.is ant, in the first instance, going to enable all or substantially all of the beach population to avoid doses causing severe health effects. Further, the initial protective measures will also not'substantially reduce life-threatening doses for many individuals. Having failed to prevent these health effects with an effective range of protective measures, the Applicant must adequately plan to handle the human health consequences.
2/ The Board in its July ruling wrote that the Mass AG had
" backed off" from Basis D of Contention No. 2 " acknowledging that it is not'in dispute." Ruling on Contentions at 16. In fact, the document cited by the Board to support its conclusion stated only that the Massachusetts Attorney General acknowledged that the fact that officials of the Commonwealth will not participate in planning is not in dispute. Egg Reply of the Massachusetts Attorney General to the Resoonses of the NRC Staff and the Aeolicants to the First Six Conte 1tions Filed by the Massachusetts Attorney General at 45-46 (June 20, 1988). Basis D contended more broadly that the Applicants must demonstrate that they nave made a " sustained good faith effort to secure and retain the participation of the (non-participating governments)." Therefore, the F ass AG did not, in fact, "back off" from Basis D. San Massachusetts Attorney General's August 2, 1988 Motion icI Adootion af LD Agenda at 2 which had noted this same point immediately after the July ruling was made.
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MAG' Contention 76 provides:
The SPMC fails to meet the planning standard set forth at 50.47(b)(12) and the guidance of NUREG 0654 II.L. because it fails to provide adequate arrangements for medical services for the contaminated injured individuals. In light of the candid l acknowledgement by the Applicant-that emergency planning at L
I Seabrook does not provide any particular. level of protection to the summer beach populations in the event of a serious fast-paced accident, the SPMC should provide sufficient medical services to treat and care for those who were neither able to shelter or evacuate and as a result suffer contamination injury. As the Atomic-Safety and Licensing Appeal Board has stated: "Thus, for a serious nuclear accident to result in the hospitalize
- ion of large numbers of people, not only must an already unl.4ely accident be serious [ sic], but also the emergency _ response to protect the public must be ineffectual."
Southern California Edison Comoany (San Onofre Nuclear Generating Station, Units 2 and 3), 16 NRC 127, 138 (1982).
Bases A. The SPMC asserts at Plan 3.8-2 that " medical emergencies" that arise in~the course of an emergency response will be handled by Emergency Medical Services (" EMS")
" established in local communities." These EMS are-not otherwise identified and no agreement between the ORO and these organizations exist.
- 1. Local communities in the Massachusetts plume exposure EPZ have extremely limited emergency services. Many of the communities contract out for these services with companies that serve other'non-EPZ towns. As such, these EMS are not available to the towns during a Seabrook emergency.
- 2. Many of the EMS personnel are voluntary and auxiliary
[ sic) and would not be available during a radiological emergency in the absence of any agreement because of prior commitments.
- 3. EMS personnel are not trained to respond to or deal with radiological emergencies.
The Board rejected the two contentions on grounds that it explicitly linked together. Ruling on Contentions at 101. The Board concluded that the contentions should be rejected because they appear to demand a higher standard than the requirements of the applicable planning regulations. In essence, the l
contentions alleged that given the large population close-in to the plant and other peculiarities of the Seabrook site the Applicants' plan could not prevent health effects to a substantial portion of the EpZ population and, therefore, any planning that would be adequate must be capable of handling these consequences. The Board seems to have concluded that these allegations were tan site-soecific and that there was no regulatory requirement to demonstrate an ability to meet site-specific problems --- in this case, the care and treatment of a large number of radiologically injured persons. Egg Ruling on Contentions at 92, 100-101.
In ALAB-905 the Appeal Board not only considered the effect of the unavailability of the reception center under
$50.47(c)(1), it also reexamined "a subsidiary finding."
ALAB-905 at 12. Specifically the Board took another look at the basis for LILCO's estimate of the number of evacuees who would seek radiological monitoring in the event of a release.
Under NURE6-0654 guidance criterion II.J 12 the personnel and equipment at the reception centers should be capable of l
monitoring within about a 12 hour1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> period the transients and I residents that would be estimated to arrive at the centers. ]
l LILCO urged that this guidance be applied to a figure of 20% of j the EPZ population. ALAB-905 at 14. This figure was based I
almost exclusively on a single, internal FEMA memorandum dated December 24, 1985. Id. Based on that figure the Licensing Board had found that the available reception centers were adequate insofar as the monitoring of
evacuees was concerned. LBp-88-13, 27 NRC at 523. The LILCO intevenors challenged that conclusion by attacking the 20%
figure as without sufficient basis.
The Appeal Board reversed the Licensing Board concluding that neither the FEMA memo alone nor any other evidence in the proceeding adequately supported the 20% figure'as a planning basis at Shoreham. In so ruling, the' Appeal' Board held that the FEMA memo was generic in character and'that a site-specific' analysis was necessary to determine the adequacy of monitoring facilities:
To begin with, underlying the analysis in the memorandum appears to be the tacit assumption that the issue it addresses is generic in character. For, as we read it, the memorandum concludes, without qualification, that a twenty percent planning basis will suffice in the formulation of monitoring arrangements for not merely Shoreham but all other nuclear facilities as well. That premise, however, is not so clearly justified as to warrant acceptance in the absence of an explanation of the reasoning at the root of its adoption. To the contrary, it seem to us that, among other things, the demographic and meterological 1' characteristics of a particular EpZ might have considerable influence upon the percentage of the persons within the EpZ that would, in the event of an accident, seek monitoring either on instruction or on their own initiative.
ALAB-905 at 20-21.
l The Appeal Board has now clearly held that site-specific issues !
should be analyzed to determine whether personnel and resources exist to meet the needs of the particular Ep2 population in an emergency. In LILCO, the relevant issue was the adequacy of the reception centers to monitor a certain portion of the EpZ population. In Contentions 65 and 76, the Massachusetts ;
- l Attorney General squarely presented the same issue of the I
i.
adequacy of-decontamination and monitoring facilities as well as the issue of the sufficiency of resources for the transportation an'd medical treatment of that portion of the EPZ population at Seabrook that would require such care and-i treatment in light of site-specific characteristics and effects of an accident. In the light of ALAB-905, MAG Contentions 65 and 76 should not have been rejected and this Board should reconsider its earlier ruling.
Respectfully submitted, JAMES M. SHANNON ATTORNEY GENERAL COMMONWEALTH OF MASSACHUSETTS rh /
p By: \ 6 b k Stephan A Jonas-Deputy Attorney General Eublic protection Bureau John Traficonte Chief, Nuclear Safety Unit Department of the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200 DATED: December 16, 1988 I
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.FAI COMMC TE OF MASSACHUSETTS Essex, ss. ,]jy j] g , The Idad Court L. lie) COUq-
)
NEW HAMPSHIRE DIVISION OF ) No. 127,990 Misc.
PUBLIC SERVICE COMPANY OF ) .
NEW HAMPSHIRE, ) EXHIBIT 2
)
Plaintiff, )
)
- v. )
)
JAMES ZATZOS et al., )
)
Defendants. ) _
)
)
MASSACHUSETTS ELECTRIC COMPANY, ) No. 128,184 Misc.
)
Plaintiff, )
)
- v. ) ,
l
)
JAMES ZATZOS et al., )
)
Defendants. )
)
INTERI4CUTORY ORDER This matter having come before the Court on a conference !
attended by counsel of record for all parties, and the parties having agreed that, in order to expedite matters and I
avoid further litigation, without any admission of liability, l the Court should enter this order, now therefore it is ORDERED as follows:
- l. The " Cease and Desist order" issued by the Building Inspector of Haverhill on February 26, 1988, and the subse- .
quant proceedings before the Board of Appeals of Haverhill thereon are therefore hereby annulled.
l l
l l
- 2. This cottor 10 rcmendcd to tho Building Inapcetor of Haverhill for such action, if any, as the Building Inspector determines may be warranted under the circum-stances.
- 3. The Court retains jurisdiction over this matter for such further proceedings as may be necessary or appropriate as a result of the action resulting, if any, from romand.
- 4. No ruling on costs and damages.
By the court,
\bbt
/ John E.
u/AVA FanttinIJr.
Mustice Entered, this, hJay
- of October, 1984:
Attest:
Charles W. Trembly, Jr.
Recorder s .s.s.. +*
Am st ,,
I W. 'i 6 72, , ,
6 l
O ,
l' 4 l
t l
l EXHIBIT 4
19141
- L applicant, and then changed his mind after calls by the 2 Attorney General and particularly after the disclosure, and 3 I might say that this whole concept is not a pleasant aspect 4 of thir litigation. - -
5 When you interviewed, there was no prohibition 6 against you interviewing these bus companies. The sanction 7 was you can't use the evidence. You use your own judgment l
8 as to whether you introduce it, you reinterview, and we will 9 reserve the decision as'to whether any sanctions should 10 apply within the context of the evidence that you are l 11 presenting. '
12 In the meantime, the sanction remains in effect 13 until you bring it to our attention again and demonstrate
! 14 that it doesn't serve any purpose. We don't want to remove 15 it out of context. Now what else have we got?
i 16 How about this 9057 Do I take this up tonight, 17 ALAB 9057 Are you prepared? Are you prepared to take up l 18 the Motion to Reconsider?
19 MR. TRAFICONTE: Yes.
20 JUDGE SMITH: Are you? Is it your pleasure? Is 21 it generally your pleasure to do this tonight? I know
, 22 that --
23 MR. TRAFICONTE: That might be the right word, but 24 is there a response? Have you filed a response to this?
I 25 MR. DIGNAN: No. You' re going to hear it right Beritage Reporting Corporation (202) 628-4888 i
l I
I
ll 19142 1 now in the age-old tradition of trial argument.
2 HR. TRAFICONTE: Oh that's right. You prefer to 3 just stand up on your own feet and argue it. Fine, that's l 4 fine. We briefed it, so the disadvantage is to the other 5 side.
6 MR. DIGNAN: Very briefly, Your Honor this. ALAB 7 905 was an ALAB handed down on the merits of a case. It was 8 not a discussion as to what is needed to be pleaded to admit 3
9 a contention. There were two holdings, which as I 10 understand that the Attorney General --
l 11 JUDGE SMITH: Wait a minute, Mr. Dignan. Would 12 l you speak up and speak a little bit more slowly. I 13 MR. DIGNAN: I' m sorry. There were two holdings 14 in the case which I understand the Mass AG is basing this 15 motion on. One was that on the record of the Shoreham 16 proceeding, there was not support for the planning basis 17 used, and in the Shoreham proceeding, after the testimony 18 was all in, the applicant had not made the prerequisite 19 showing with respect to a certain town, as to whether or not 20 a sustain ed effort had been made to get it in.
21 Now in Shoreham, they ran the exercise, as I l I
22 understand it, with the assumption that the center that was, j i
23 the Decon center which was involved there, was in the plan 24 and the result was that when it came to ligh't that the Court '
25 had made a ruling that under the zoning laws it couldn't be l
Heritage Reporting Corporation )
i (202) 628-4888 l 1
19143 1 used, there was a problem, because after the exercise had 2 been run and all that, the Decen center had been relied on 3 in the plan. That was it.
4 Now keeping it in mind that those were the 5 rpecific rulings, let's talk about the AG's contentions.
6 Mass AG II. This is a contention, as I understand it, that 7 in effect sought a purely legal ruling on the issue of 8 whether evidence could be adduced on anything else prior to 9 trying out in a courtroom the issue of whether the 10 applicant's problems were caused by the state's 11 intransigence, or whether the' applicant had in fact made the 12 sustained effort.
13 The Board rejected it, saying the purpose of the 14 proceeding was to determine whether the facility -- the 15 utility's facility may be licensed, and that the effect of 16 the contention would be to dismiss the application without 17 the applicant's having an opportunity to demonstrate that 18 50. 47 (c) had been complied with.
19 These were described in your original opinion as 20 " solid grounds" which had been addressed by the staff. Now i
21 what the Board went on to say was we don't have to prove 22 anything before the hearing. Now there's nothing said in I
23 ALAB 905 that mitigates the force of the Board's reasoning l l
24 in rejecting that contention. ALAB 905 has nothing to do i 25 with the line of reasoning the Board adopting.
l t
Heritage Reporting Corporation
{ (202) 628-4888
L 15144 i 1 The line of reasoning the Board adopted is as 2 valid today as it was the day before ALAB 905 came down.
l 4 3 905 didn't speak to the question of whether or not it was i
- l. 4 legitimate to bring in a contention, a broad legal I
i 5 , contention that you've got to prove all this before you can 6 have a hearing. The Board's ruling was perfectly sound, 7 because if the contention is accepted, the hearing ends.
8 Even if it's accepted just for litigation, because 1
9 the contention was you can't have a hearing until the 10 applicant proves something that we're not going to give him
' 11 a hearing to prove, and that's why the Board threw it out i
12 and the force of the reasoning is unchanged by anything said 13 in 905.
j 14 Mass AG 65 was a contention that there had to be j 15 more equipment because at Seabrook, there would be more 16 people injured than at any other site, and that -- but there i 17 is nothing stated in the basis as an allegation of fact to 18 back up (a) the conclusion that there would be more people l l 19 a injured at Seabrook than at another site, and (b) that 20 however many may be injured, what we have is not necessary.
21 I remind the Board of a few basic principles, and l
22 we've gone into another context before. At all sites, one 23 can conjure up an accident that gets an awful lot of people, 24 up to 100 percent of the population in'the zone. I mean 25 whatever the site, whether it be Seabrook or a rural site.
Heritage Reporting Corporation
( (202) 628-4888 b .
15145 1 May back in San offrey, the Commission said you 2 don't go running around constructing hospitals and things 3 because there's a nuclear power plant. And if -- what we're 4 going to have to. do is assumsa that. a.buge. number of.
5 contaminated and sick people exist in a site, then I guess 6 the logic of the contention is we've got to demonstrate or 7 build hospitals to take care of them, and that simply has 8 been rejected, way back in the San offrev proceeding as a 9 legitimate contention to try out.
10 So my point is, with respect to all of these 11 contentions, and incidentally MAG 76 is just another version 12 of 65 really, except it concentrates on contaminated injured 13 as opposed to other things. My only point is that none of 14 the forces, none of the rulings you made, and the reasoning 15 was sound, in my judgment were addressed in this recent ALAB 16 at all. And therefore, I think the Motion for 17 Reconsideration should be denied.
18 It simply does not address the force of the i
19 reasoning the Board used in rejecting these three 20 contentions. That's the reason I'm content to argue this 21 without briefing it, is simply because that's my basic 22 argument. All that has to be done is set the Board's actual l 23 orders, not Mr. Traficente's version of what was in those 24 orders, but the actual language of the Board up against ALAB 25 905 and one looks in vain for anything in ALAB 905 that Heritage Reporting Corporation (202)' 628-4888
__.udd
19146 1 vitiates what the Board actually ruled.
I 2 I think the rulings were sound, and there's no 3 doubt in my mind that the ,latter two contentions -- I )
1 4.. addressed.the first one in detail and.I pointed out.the. -- j 5 other two -- is just right down the pike against the 3.an 6 offrev ruling which says you don't have to construct a lot 7 of hospitals and other things because you built the nuclear 8 power plant.
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation (202) 628-4888
l I
15147 f I
1 That's my argument on that. I think the motion l 1
2 should be denied. No, you don't get a rejoinder because I 3 didn't brief. l
(
4 MR. TRAFICONT5;- I didn' t even ask -- I was going-5 to ask, would you permit me to comment or respond and if you 6 say no, I'll be perfectly content as well. This is a very 7 serious motion, Your Honor. I think 905, as I read it and I 8 tell you I was busy last week and I wouldn't have been 9 busily laying this motion if I didn't think it was a serious 10 one.
11 I think 905 indicates that as to those three 12 contentions --
13 JUDGE SMITH: Can I hear your rejoinder, whether 14 we want --
15 MR. TRAFICONTE: No, no. This is the prelude that 16' tells you what I would make argument on.
17 MR. DIGNAN: One other thing in the aspect of this 18 motion. If you do decide to let it in, no discovery. I 19 mean that's the big thing about it, as I understood the 20 motion, is we want a big discovery period.
21 MR. TRAFICONTE: Big? Two weeks.
22 MR. DIGNAN: Yes, that's big.
23 JUDGE SMITH: What kind of discovery do we need if f
24 your case is dead, you know, if you're out of business? 1 25 MR. TRAFICONTE: Yes.
l \
l l
Beritage Reporting Corporation (202) 628-4888 1
19140 1 JUDGE SMITH: I'm focusing now on 2, on 2 contention 2. I might say that I certainly realize I had 3 not fully understood the arguments on contention 65 and 76.
4-- I just didn't, re-read the contentions and L went on..the-. .
5 assumption you were talking about reception centers, and not 6 treatment of contaminated injured.
7 MR. TRAFICONTE: Your Honor, let me take a minute 8 and make an argument in response to Mr. Dignan. I know it's 9 late, but --
10 MR. DIGNAN: It is late, Your Honor, and I've 11 contented myself at putting it before the Board on an oral 12 argument after a thorough, written motion.
13 JUDGE SMITH: Yes, I know, but the Board might 14 want to ask some questions here.
15 MR. TRAFICONTE: I'm willing to answer questions.
16 How's that?
17 JUDGE SMITH: All right and when you' re cross-18 examined, it's short, direct answers.
19 -(Laughter) 20 JUDGE SMITH: Well, that's a part in ALAB 905 in 21 which the Appeal Board talks about as a condition precedent l 22 to moving on to 47 (c) (1) , you have to demonstrate that the 23 problem is attributable to the local governments and that 24 you have made efforts and for the life of me I can't find f I
l 25 it.
l
)
I Heritage Reporting Corporation (202) 628-4888 i
10149 1 HR. DIGNAN: They said in the context of --
2 JUDGE SMITH: Wait. Just give me the page. I 3 MR. TRAFICONTE: Page 9, Your Honor.
4 -
JUDGE SMITH-: Do you have AIAB-9454 5 MR. TRAFICONTE: Page 9.
6 MR. DIGNAN: My point is that was in the context 7 of a hearing being completed and on that issue of that j l
8 center, the utility, at least according to the Appeal Board 9 and I must say I've read the utility's petition for review 10 of the Commission, and they certainly disagree with that 11 categorization of the evidence.
12 But according to the Appeal Board, they didn't put 13 the evidence in with respect to that particular town. We 14 understand we've got to put evidence in of the fact that we 15 made an effort with the Commonwealth, and we understand 16 we're going to put in evidence that we've got a problem 17 because the Commonwealth won't cooperate. We don't think 18 it's going to be very difficult, given the admissions on 19 file. I mean they've admitted their policy is not to 20 cooperate. j i
21 But we understand we've got to put that evidence 22 in. But that doesn't mean this contention gets in. That's 23 my point, because the contention -- what they're trying to 24 do here, Your Honor, is they never made a contention. Let's 25 get it on the table. They never put in a contention that l l
Beritage Reporting Corporation (202) 628-4888
.__dIl _____
l 19190 1 said the planning basis you've used in there for the number ;
i 2 of people you've got to handle for decontamination purposes 3 in 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> is low. They just didn't do it. They missed
'4- it. - . . . . _ , ,,
I 5 What they're trying to do is bootstrap, which is 6 the real ruling in ALAB 905 that survives. The real ruling 7 of ALAB 905 that survives is that the FEMA 20 percent basis 1 8 is no good. Okay, now. They didn't do that. So what 9 they're trying to do is bootstrap that issue into the case l i 10 by looking at this Contention 2 which went out on a bases 11 that had nothing to do with anything of ALAB 905, but rather i 12 on the wording of the specific contention as the Board saw 13 it, and the same thing with 76 and 65.
l 14 That's what's going on here. It's that simple, I
15 and that's the reason I'm prepared to argue at all, because i
16 if the Board reviews its own rules, you will find that 17 nothing you said is vitiated by 905. In other words, you 18 took a path on this, on all three of these contentions, 19 which is legally sound, and which 905 wasn't even coming 20 close to addressing.
21 MR. TRAFICONTE: I do have to respond, Your Honor, 1
22 to one general --
23 MR. DIGNAN: Just keep it in mind. They didn't l \ ,
l 24 apparently put anything in on that town, because that town !
l 25 was out of the EPZ as I understand it, on Long Island. J l
Heritage Reporting Corporation j (202) 628-4888 g i
i
.]
19191 1 MR. BACKUS: Your Honor, I'd just like to note l l
2 that contentions were raised that involved 905 in the New l 3 Hampshire proceeding, as I'm sure you're aware. Some of the 4 SAPL contentions directing - - l 1
5 MR. DIGNAN: Can we review only what's before the 6 Board and not what's not before the Board.
7 MR. BACKUS: I didn't want to add to the Board's 8 pile of papers, but I am aware that 905 will have 9 implications for --
10 MR. DIGNAN: If it survives, it will.
11 JUDGE SMITH: Well, I'm aware of the contention 12 and the issue.
13 MR. TRAFICONTE: Your Honor, can I just make some 14 clarifying comments. First of all, I'm the author of the 15 motion. Take it from me. There's no link here between the 16 Motion to Reconsider as to number 2, and the very separate, 17 maybe two motions --
18 MR. DIGNAN: I agree. I agree with you.
19 MR. TRAFICONTE: All right. There's no link at 20 all. We think that these are two different issues. 905 21 speaks at different points to both. As to the contention 22 number 2, I'm amazed to hear Mr. Dignan say that he would 23 expect that he would put in evidence or that he feels it
'24 would be necessary to put in evidence that would meet and 25 demonstrate that they have made a sustained good faith ,
, Heritage Reporting Corporation (202) 628-4888
F i 10102 1 effort to coeuro and rctcin tha participation of tho 2 relevant governments.
3 I believe that that's appropriate. That's why I 4 wrote a contention that said.that as.a. matter of fact, they 5 have not made that sustained good faith effort.
6 MR. DIGNAN: Yes, and your contention was -- and 7 the reason it was shot down was not that we couldn't do it, 8 is that you haven't done it yet so you can't-have a hearing 9 until you do.
10 MR. TRAFICONTE: No --
11 MR. DIGNAN: And that's the way the Board 12 interpreted it, that's the way I argued it, and that's the 13 way the Board ruled on it.
14 MR. TRAFICONTE: There's nothing in contention 15 number 2 that says you can't have a hearing until you do.
16 It's a contention permitting us to do discovery on an issue 17 of fact, which we think is a relevant issue of fact.
18 MR. DIGNAN: Here's what the Board's ruling was, 19 not what you said it was. Here's the Board's ruling. "The 20 NRC staff opposed contention 2 on solid grounds." I' m 21 quoting from the Board's order, page 16, July 22, 1988.
22 "It notes that the very purpose of the proceeding 23 is to determine whether the utility may be licensed under 24 50. 47 (c) (1) , and that the effect of the contention will be 25 to dismiss the application without providing applicants an Beritage Reporting Corporation (202) 628-4888
15193 1 opportunity to demonstrate their entitlement."
2 Now what Mr. Traficente is trying to tell you is 3 that his contention should be read as saying what it didn't 4 say. What the contention says is.there exists at present no 5 record support. ,That's the way he begins it, for the 6 application of 50.47 as a consequence, because there's no 7 SPMC will not be implemented. There exists no plan that 8 meets the planning standards.
9 And what the Board very simply said is Mr.
10 Traficonte, how can there be any record of support before 11 the hearing starts, and I want the contention. Now ALAB 905 12 has nothing to do with the wording of contentions, the 13 drafting of contentions, or anything else.
14 What ALAB 905 held, if it be good law, is that in 15 this particular case, they were not satisfied on the 16 planning basis, and the second thing they weren't satisfied 17 was that they had demonstrated that this particular town --
18 was it Hempstead -- they hadn't put any evidence in, 19 according to the Appeal Board, that Hempstead wouldn't 20 cooperate. l 1
21 They also said that what they saw was that 22 Hampstead had done it on the basis of zoning law, not on the 23 basis of non-cooperating. Now I mean, it was an entirely ,
l 24 different context in ruling on contentions. They had a {
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25 record there, and the answer is yes. I've always assumed Heritage Reporting Corporation (202) 628-4888
l 19154 1 that for example with respect what we say in the plan, you 2 know, we can't do certain things because of the non-3 cooperation. I'm going to have to put in some evidence and 4 believe me, if there's ever a cinchy one it's this one, that 5 the Commonwealth won't cooperate.
6 MR. TRAFICONTE: No , we've admitted that. We're 7 talking about sustained good effort to retain --
8 MR. DIGMAN: I don' t think they' re have any 9 trouble believing me, my friend, I'm going to be able to de 10 that, including the hours I spent up at the AG's office 11 trying to get them to agree; your present AG's predecessor 12 and was told to take a hike.
13 JUDGE SMITH: All right. So you don't believe 14 that ALAB 905, with respect to the condition precedent, was 15 a misstatement of the law.
16 MR. DIGNAN: No.
17 MR. TRAFICONTE: The Board can reach its own 18 conclusion. We think the contention clearly puts forward a 19 matter in dispute. We made a claim in the contention. I'm l
20 reading on page 3 of our motion. Basis D of the contention j l
21 says the applicant has not demonstrated and cannot i
22 demonstrate to the Commission that "it has made a sustained i 23 good faith effort. " i 24 We contended that there was a predicate for the 25 application of the new rule, which had a factual component, l
Heritage Reporting Corporation l (202) 628-4888 dl
19155 I 1 that they had to have made a sustained good faith effort.
2 We contended, in contention number 2, that that is not a j 3 fact. That they have not made a sustained good faith 4 e f f o rt .
5 We expected that that contention would have been 6 admitted and discovery permitted on'that issue of fact.
7 JUDGE SMITH: Well see, we could read -- we read 8 the emergency planning regulation for ourselves. Now the 9 issue here, what does 905 say?
10 MR. TRAFICONTE: On that issue, fine.
11 JUDGE SMITH: That we did wrong, and I don't see 12 what they did wrong on this one.
13 MR. TRAFICONTE: Well, if you turn to page 5 of 14 the motion, there are the relevant quotes from 905 and 15 they're the quotes that caused me to file this motion. On 16 page 5 of our brief, and I'm reading right in the middle of 17 the page where the sentence begins "specifically."
18 "Specifically, the Appeal Board found that LILCO 19 had not yet made the required factual showing that (1) its 20 inability to use the facility was wholly or substantially 21 the result of the non-participation, and (2) it has made a 22 sustained good faith effort to secure and retain the 23 participation of that town.
l 24 "The Appeal Board could not have been clearer 25 about its view of the new rule when it wrote that 'this Heritage Reporting Corporation ]
(202) 628-4888 [
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1 19196 1 factual showing is a condition precedent to LILCO's 2 successful reliance on the presumptions, and such facts must 3 be proved before the licensing board.'"
4 - It was . those facts, particularly the second fact i 5 because the non participation is a given. It's the second j l
6 fact, the sustained good faith effort to retain our 7 participation, that contention 2 attempted to put at issue 8 as a matter of fact, on which we would then have had 9 discovery rights.
10 JUDGE SMITH: And we didn't really --
11 MR. TRAFICONTE: You read it as a legal, and I 12 think you read it as a legal contention. I think Mr. Dignan 13 read it --
14 MR. DIGNAN: And you never moved to change it. He 15 read it as a legal -- excuse me. The Board read it as a 16 legal contention, they ruled on it as a legal contention, 17 and you will find it --
18 JUDGE SMITH: Well, we didn't rule on it as a 19 legal contention except --
20 MR. DIGNAN: No, wait a minute. You will find in 21 the pre-hearing conference, you had nothing, no quarrel with 22 that ruling at all.
23 MR. TRAFICONTE: Because we didn't have 905 --
24 MR. DIGNAN: But 905 is nothing to do with it.
25 JUDGE SMITH: Okay. I want to point out we ruled Heritage Reporting Corporation (202) 628-4888
15107 1 that it is not a legal contention, nor a factual contention.
2 It's a procedural contention.
3 MR. DIGNAN: Right. That's right. I l
4 JUDGE SMITH: It's a question-of when this burden- 1 5 rests upon the applicants, and in what particular i 6 circumstances. And not that they don't have to meet the 7 condition precedent of the regulation. I don't think 8 there's anything we did as a matter of fact, although I will 9 admit that when I first read that, I said I'd better go back 10 to look at 2 and see if that's the case.
11 MR. DIGNAN: I did too, but once I read it and re-12 read the ruling versus ALAB 905, it's just the context of 13 905 isn't directed at what this Board did.
14 JUDGE SMITH: The difference is in 905 they're 15 speaking to LILCO after the evidence is all in, after the 16 record is closed. And here we're not talking about what 17 applicant's burden is. We' re saying what are the 18 circumstances and when do they meet the burden? Then you've l 19 got other contentions to take care of.
l 20 MR. TRAFICONTE: All right. I understand that, 21 and I've been enlightened today that Mr. Dignan indicates he 22 feels he has an obligation to put on evidence in this 23 regard.
24 JUDGE SMITH! Well, that's another matter. I mean 25 to the excent that he has to put on evidence in face of a f
l l Heritage Beporting Corporation (202) 628-4880
19158 1 persistent refusal to cooperate, is a different matter not 2 covered by this contention.
3 MR. TRATICONTE: We have conceded that we are not 4 a non-participating state.under the new rule. -So we can -
5 save ourselves that time.
6 MR. DIGNAN: Well then probably what I'm going to l I
7 argue, John, is that's all I need, because if you have a '
8 policy of not participating, then I don't think I have to 9 make a frivolous good faith effort.
10 MR. TRAFICONTE: No, you --
11 MR. DIGNAN: And I think we made one.
12 MR. TRAFICONTE: That's the point.
13 HR. DIGNAN: But the point is whether we did or 14 not is irrelevant because --
, 15 JUDGE SMITH: Gentlemen, I'm sorry. I think we--
l 16 MR. DIGNAN: No matter what effort we make, you' re 17 going to turn me down.
18 JUDGE SMITH: We can rule on the motion, I think.
19 We're not going to let 2 in. 905 doesn't change it. I 20 don't know about 65 and 76. I have to go back and read 21 that. Two doesn't get in. As such, no contention and I'm 22 not sure there was any, but no specific contention alleging 23 that there was, in a particular instance, no sustained i
24 effort, good faith effort to enlist participation, was 25 rejected.
l Heritago Reporting Corporation (202) 628-4888
15159 1 HR. TRAFICONTE: Your Honor, I would just, before 2 you make your final decision on that, and I know it's late 3 in the day. I would just refer you again to the actual 4 language-in -basis. D -of. contention 2, because it sets forth.
5 precisely that.
6 JUDGE SMITH: Oh, that one was rejected on another
)
7 basis. I don't have it before me. As I recall, I'm going 8 to plead inconsistent bases.
9 HR. TRAFICONTE: Well, that was the one where you ,
10 backed off because of the basis, and I'm reading from your :
1 11 July opinion. The Mass AG backed off from basis D, 12 acknowledging that it is not in dispute, and we had at the 13 time commenting in a pleading that that wasn't precisely 14 true, that we had backed off of only a portion of it.
15 MR. DIGNAN: Yes, but the portion you backed off, 16 it's all over. I mean --
17 MR. TRAFICONTE: Okay, good. Delighted to know i
18 it.
l t 19 MR. DIGNAN: Look, I've got my own case and you've I
20 got a real winner if you say I can't -- if I haven't at the j 21 end of this proved that a good faith effort wasn't made, l
22 because I don't think I really have to prove it, but believe l 1
23 me I will. But I don't have to, because if I've got what .
l 24 I've got, which is a flat adminsion that it's the policy of
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25 the Commonwealth of Massachusetts and its towns and cities l
l Heritage Reporting Corporation 1 (202) 628-4888 4
, 19160 1 not to cooperate in planning, I don't think I have to go 2 full --
3 JUDGE SMITH: What was basis D?
4 - MR. TRAFICONTE : - Basis D is set forth in my.
5 motion, Your Honor, on page 3, in its entirety. (pause) 6 JUDGE SMITH: Oh, I remember. I read that you 7 backed off of it, which spared us the need to go through 8 which was very unpalatable contention. It's the type of 9 contention that I've just to learned to instinctively 10 dislike because it rambles and argues; it infuses 11 distracting pejorative language.
12 So we didn't have to do it, and we reconsidered 13 it. We had our arguments up in Boston and there was no 14 reason to change our ruling on that. (pause) All right, 15 we'll hold in abeyance what you had to say about the second 16 part of the motion. I missed the thrust of that one. But 17 we' re not going to change our ruling on 2.
18 MR. TRAFICONTE: Would you want -- I missed the 1
19 portion --
20 JUDGE SMITH: We'll hold in abeyance our ruling on l l
21 the second part of your motion, but we're not going to 22 change our ruling on contention 2. Anything further this l 23 evening?
24 MS. SELLECK: The schedule. l 25 MR. DIGNAN: The schedule, my favorite topic.
l l Heritage Reporting Corporation (202) 628-4888
__: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - - - _ _ _ . - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - _---- J
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EXHIBIT 5 1
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___.u. _____ ______ _ _ _ - _ _ . -- - - - _- - - _ - _ _ _ ---------a--_-_-- M
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s LB 01/04/89 UNITED STATES'OF AMERICA
. NUCLEAR REGULATORY COMMISSIq13 s ": -d P 3 2 9
ATOMIC SAFETY AND LICENSING BOARD L Batore Administrative Judges:
Gust a k. Linenbe ge r.
Dr. Jerry Harbour 3 ,JggjA44 -5 !930'
)
In ths Matter of ) Docket Nos. 50-443-OL
) 50-444-OL PUBLIC SERVICE COMPANY OF .)
NEW RAMPSHIRE, 31 al. (ASLBP No. 8 2 -4 71-02-OL)
) (Offsite Emergency (Seabrook Station,
) -
Planning)
)
Units 1 and 2) )
i
) January 4, 1989
' MEMORANDUM AND ORDER Memorializing Rulings of.the.Prehearing Conference Held December 20, 1988)
A prehearing conference was' held on December 20, 1988 -
to resolve discovery matters related to the Seabrook Plan for Massachusetts Communities still pending before the i Board.
Also included were discussions of the Massachusetts Attorney General's Motion in Limine, the effect of ALAB-905 on previously excluded SPMC contentions, and scheduling
- matters.
In this Memorandum the Board memorializes the more significant matters orally ruled upon or taken under .
O advisement at the conference. Tr. 14906-15181.
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-y gvfI/UVI"
As a point of procedure and clarification the Board restated its requirements that every pleading provide the following three items en its face page:
- 1. The name of the pleader.
- 2. The date of the document (normally the service date).
- 3. A short description of what the pleading is about.
Tr. 14910. The Board also requests that whenever parties cite a Massachusetts case in support of their arguments they enclose a copy of that case with their pleading when they serve the Board. Tr. 15065.
On December 12, 1988 Applicants submitted a revised request for admissions from the Massachusetts Attorney General. Both items l' and 7 have been settled by the parties. Tr. 14912-13.
The Board took under advisement Applicants' Mo. tion to Compel Answer to Interrogatory by SAPL, dated December 15, 1988. The interrogatory at issue related to Joint Intervenor Contention 8 which alleges that the system for evacuating the transit dependent population is inadequate.
The contention is based in part on former SAPL Contention 6, relating to bus routes and transfer points. The interrogatory queried whether SAPL continaen to assert that there are further measures that can be taken te shorten the wait for buses by transit dependent persons, given route maps and EBS messages regarding start times for bus routes.
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SAPL's answers, on,0ctober 27 and in a December 5 supplement, were facetious.
In essence SAPL maintains that. i the entire scheme of evacuating transit dependent persons is not the best, that even SAPL's ideas would not work, and, f
moreover, SAPL has no obligation to tell Applicants how to 1 improve the plan. In its answer to the motion to compel, SAPL's legal counsel states further that.SAPL "has ideas of ways to provide better for transit dependent transport, ideas which SAPL may or may not elect to employ in the course of cross-examination." .The Board believes that i
SAPL's legal counsel, a' veteran NRC litigator, knows that I parties have the right to discover the case they must meet in the litigation, and that SAPL cannot waj.t until cross- _
examination to reveal its posit', ion. Accordi'ngly, the Board rules that SAPL may not participate in the litigation of ,
Contention JI 8. Whether or not SAPL shares'its ideas for improving transit-dependent transport with Applicants is a question it must answer outside the hearing. We see no prospect for SAPL improving the record with the course it is following. '
In response to the Applicants' Motion to compel Answers to Interrogatories and Production of Documents by Town of
. West Newbury the Applicants and Town have agreed that the 3 .
answers will be served on the Applicants by the tenth of January. This delay, however, will not affect the overall seneduling for the hearing. Tr. 14951.
o Interrogatory No. 225 of Applicants' second set of 1
interrogatories requests disclosure of any zoning connected conversations between the Massachusetts Attorney General's staff and the Mayor or any other official of Haverhill. As App'licants are not going to file a summary disposition motion concerning contention JI-53 and Intervanors will not withdraw it, the Attorney General has been ordered to answer No. 225. Tr. 14943.
The Attorney General and the Federal Emergency Management Agency (FEMA) have agreed to discuss the Attorney General's renewed motion to compel response by FEMA and decide what can and cannet-be agreed upon. Any disputes will promptly be referred to the Board. FEMA has agreed to expeditiously provide any information that it will voluntarily provide. Tr. 14961'. .
Also ruled on at' the conference was the Massachusetts Attorney General's Motion in Limine with respect to the post-exercise evaluation system and report. Tr. 14963. It was noted that the Board's order concerning the Exercise contentions has mooted part of the issue. Tr. 14965. FIDd(
L has agreed to provide Mr. Donovan and some relevant observer evaluators to be deposed in regard to the issue of the destruction of certain evaluation documents. Tr. 14977.
Regardless, the motion ir ligine for procedural purposes is denied subject to its being renewed. Tr. 15006.
i.
. _____m._-.._-aL_ -------- - - - - - - - - - - - - - - - -
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-g-In reference to'the NRC Staff's Motion to Compel Answers to Interrogatories and Production of Documents by the Massachusetts Attorney General,. dated December 14, 1988, Staff has withdrawn its motion to compel to the extent that it sought information as to actions that Massachusetts l
"might" take or "could" take. Tr. 15009. Staff further withdraws its motion with respect to Interrogatory No. 2 since the Massachusetts Attorney General's information as to
, actions it. gill take are sufficient. Interrogatory No. 3.is also withdrawn. Tra 15010. '
The. Board denied Staff's motion to compel supplementary answers to Interrogatory No. 4 by the Attorney General on 4
the grounds that the interrogatory as phrased put too much of a burden on the Attorney General in'the formation of a response. Tr. 15040-41.
As the record stands at this point, there is a presumption that all of the , actions and standards set out in 10 C.F.R. 50.47(b) and Section II of NUREG-0654 which can be transformed into actions in the event of an actual emergency, will be taken if the Commonwealth has the resources. Tr. 15041. It is up to th'a parties to clarify any exceptions to this presumption.
Tr. 15042.
Interrogatory Nos. 10 through 14 deal with the Joint Interveners legal contentions, 44A and 44B. Interrogatory
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No. 10 -asks the Attorney General to set out all hvidence i
they have on the contentions. Tr. 15045. The Board will l
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hold this interrogatory in suspense until the Board rules upon the motion'for summary disposition. Tr. 15060-61.
Interrogatory No. 11 refersoto Basis A.1.to Joint Interveners' contention 44A. The Board has required
' supplemental answers to the following interr'ogatory basis:
"a" and "b" (Tr. 15063); "c" (Tr. 15064);
"d"'(Tr. 15064);
"f" (Tr. 15066); and "h" (Tr. 15066).
Interrogatory No. 12 concerns Basis A.2 to JI-44A. The.
Staff has withdrawn 12(a) and 12(b). ,
The Board finds 12(c),
(d), (e), and (f) appropriate and rules that they be answered. Tr. 15067. The presumption is that'the commonwealth will do each of the 19 items listed in Basis A.2 of Contention 44A and will do a " workmanlike" (best' efforts) job at each of them. The Attorney General in response to this interrogatory will have to explain why the presumption may not apply for each of the items.
Tr.~15118-19. An answer of "I don't know" is appropriate (if true) for (h). Tr. 15124-5. The Attorney General will also provide supplementary answers to parts (i), (j), (k),
and (n). Tr. 15126, 15127, 15130. Staff has withdrawn all interrogatories with respect to actions that "could" or "might" be taken. Only an answer in response to what '
actions "woulda be taken need be provided. Tr. 15130.
Interrogatory No. 13 pefers to Basis A.3 of JI-44A. ,
The Attorney General will answer this interrogatory inclusive of parts (1) , (2), (3), and (4). Tr. 15131.
Again, the responses should only address the "would" part of any interrogatory and not the "could" or "might" sections.
Interrogatory No. 14 was withdrawn. Tr. 15131. The contention (JI-44A) should be rewritten to conform to the withdrawal of Basis B. Tr. 15132.
The Board considered the Massachusetts Attorney General's December 16 motion to reconsider the Board's l
July 22, 1988 ruling on SPMC contentions with respect to MAG Contentions 2, 65 and 76. The Attorney General. argues that ALAB-905 in the Shoreham proceeding mandates that the respective MAG contentions be admitted. The Board ruled that its original rejection of MAG Contention 2 (no effort.
to sa' cure local and State government participation) ,
was based upon the fact that it ra'ised a procedural issue, not a' legal or factual issue. Tr. 15157. The Attorney General '
a however believes that Basis D to the contention now should be admitted as a consequence of ALAB-905. Our original views on Basis D were never thoroughly explained because it appeared that the Attorney General had backed away from it.
July 22, 1988 Memorandum and Order at 16,. We have read Basis D again. It consists of a diatribe faulting Applicants for pursuing their interests under the Atomic Energy Act and, even if the allegations were true, it simply dogs not support a litigable concention with or without ALAB-905.
i MAG Contentions 65 and 76 did not relate to the situation prevailing at Shoreham and discussed in ALAB-905.
The thrust of the MAG Contention 65 was that substantially all of the beach population will be unable to avoid dosep f causing severe health effects, and that the initial 4
protective measures will. net substantially reduce life-threatening dose effects for many. Therefore resources sufficient to handle those health problems must be available because Applicants will have failed to prevent them. MAG 76 partains to arrangements for " contaminated injured individuals" and alleges that, because the Seabrook plan does not provide any particular level of protection to the beach population who suffer." contamination injury," it is inadequate. The difficulty' with. MAG 76, as with other
- Attorney General contentions rejected by the Board, is that
'it seeks to litigate a broad philosophy of its views on emergency planning. While the Board could have extracted and rewritten portions of MAG 76 to be suitable for litigation the result would have been 2EI product, not the \
Attorney General's. s ALAB-905, as it concerns the Attorney General's argument on MAG 65 and 76, is first of all, a discussion of the evidence in the Shoreham proceeding. It sets no new 3 legal requi'rements for emerger cy planning. Second, it relates to 'the registering, sheltering and monitoring of -
evacuees at. relocation and congregate care facilities for l
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the Shoreham EPZ population. MAG 65 and 76 were read by the l
Board to relate to the medical care needed for injured persons.
ALAB-905 does not affect our ruling on MAG 65 ,
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and 76. it
. i ATOMIC SAFETY AND LICENSING BOARD '
l i
W JA Jerpy Harbour ADMINISTRATIVE JUDGE
/
3.-
.I w<w a, -
Gustave A. Linenberger, Jr.
.iDMINISTRATIVf~ JUDGE f/4WY Ivan W. Smith, Chairman Bethesda, Maryland ADMINISTRATIVE LAW JUDGE January 4, 1989 -
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-l EXHIBIT 6 I
1
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1 i
UNITED STATES OF AMERICA j NUCLEAR REGULATORY COMMISSION "
ATOMIC SAFETY AND LICENSING BOARD Before the Administrative Judge: ,
Ivan W. Smith, Chairman Gustave A. Linenberger, Jr.
Dr. Jerry Harbour
)
In the Matter of ) Docket Nos. 50-443-OL-1
) 50 444-OL-1 PUBLIC SERVICE COMPANY ) (Off-Site EP)
OF NEW HAMPSHIRE, EI AL. ) .
) k (Seabrook Station, Units 1 and 2 ) September 21, 1988 I
)
MASSACHUSETTS ATTORNEY GENERAL'S EXERCISE CONTENTIONS SUBMITTED IN RESPONSE TO THE j JUNE 1988 SEABROOK INITIAL FULL-PARTICIPATION EXERCISE l
JAMES M. SHANNON ATTORNEY GENERAL COMMONWEALTH OF MASSACHUSETTS I
By: Allan R. Fierce John Traficonte Pamela Talbot i Assistant Attorneys General Nuclear Safety Unit One Ashburton Place, Floor 19 Boston, MA 02108 (617) 727-2200 1 D _ ._ ___- ______ _ _ _ ___
. 1 I
MAG EX 18.
The Exercise revealed fundamental flaws in both
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the SpMC and the NHRERp in that both NHY's ORO and the State of I New Hampshire failed to demonstrate the adequacy of their procedures, facilities, equipment and personnel for the registration, radiological monitoring, and decontamination of evacuees, as required by 10 C.F.R. S 50.47(b)(10) and the guidance set forth in NUREG-0654 S II.J.12 ("The personnel and equipment available shall be capable of monitoring within about
)
a 12-hour period all residents and transients in the plume exposure EpZ arriving at reception centers"). Thus, ORO and l I
the State of New Hampshire failed to satisfy Exercise Objection i l
19, and this precludes a finding of reasonable assurance that (
adequate protective measures can and will be taken in the event of a radiological emergency at Seabrook, as required by 10 C.F.R. S 50.47(a)(1) and (c)(1). j Exercise results which individually and/or collectively form the basis for this contention include the following:
A. The Exercise failed to demonstrate that in the event of an actual emergency at Seabrook Station, the reception centers i could be timely activated, because for the Exercise, necessary L equipment and supplies, including monitoring trailers, wero
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delivered to the reception centers prior to the commencement of I the Exercise. In a real emergency such equipment would not be i
located at the reception centers prior to the emergency. '
-l B.
The exercise failed to demonstrate that ORO and:
New Hampshire had adequate staffing, procedures, facilities and
' equipment to monitor within 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> all evacuees who would have arrived at reception centers.
l As required by NUREG-0654, 5 II.J.12,'neither NHY ORO nor-the State of New Hampshire demonstrated the ability to meet the SpMC's.and.NHRERP's goal of monitoring evacuees at a rate of 55/ hour per monitoring station. In. twenty minute " mini'
. scenarios," the State of New Hampshire averaged three minutes to' process one evacuee, and NNY ORO also averaged less than 55 evacuees per hour for each monitoring team with the second shift teams performing considerably worse than the first' shift teams.
There is no reasonable assurance that even the monitoring rates that were demonstrated in the 20 minute scenarios, when personnel knew they were being tested for speed,'could be maintained for a 12 hour1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> period. See also par.
(g), below.
Moreover, the Exercise demonstrated a fundamental flaw in the SPMC and the NHRERP in that in the event of the kind of' radioactive release that occurred during the Exercise, resulting in a clock-wise sweeping plume that hit virtually every town in the EPZ, many more persons would have been l reporting to the reception centers for monitoring than ORO and the State of New Hampshire had the staff and equipment to monitor within a 12-hour period, even assuming each team could monitor at a continuous rate of 55 evacuees per hour.
Moreover, in the event of an actual wide-spread contaminating l release, such as occurred in the Exercise', it is likely that many persons not within the towns specifically instructed.to
. report for monitoring would also report to the reception-centers for monitoring to assure themselves that they'had not been contaminated.
C. During the Exercise the State of New Hampshire and-NHY's.ORO also failed to demonstrate the capability to adequately monitor evacuees and vehicles and to detect radiation. The State of New Hampshire failed during the exercise to detect increased levels of radiation in two persons, which FEMA believes was due to a lack of sufficient equipment, .i.e., headsets for each monitoring team'and/or faulty monitoring equipment or inadequate maintenance of monitoring equipment. In addition, NHY ORO did not use '
adequate or consistent procedures far monitoring most vehicles entering the reception centers, (e g , only the door handles and front grill were monitored on most cars) and the monitoring trailer for evacuees at the North Andover reception center was inappropriately set up in an area with a high level of i background radiation which caused the outside dosimetry to I
" spike real bad" according to ORO personnel. Furthermore, the twenty-minute mini-scenarios did not appropriately test monitoring capability in that monitoring teams knew to look for contamination in the only one or two places on the person where the packets of contaminated material could be placed, i.e.,
1
pockets, and the' contaminated packets were notfdistributed randomly among'the " evacuees," but were instead d'istributed to-every fifth person in line.. Except for the.two twenty-minute
-mini-scenarios, when the monitoring teams were' alerted that packets of contaminated material were_being placed on the
" evacuees," no contaminated packets were placed on any persons to be monitored.
D.
The Exercise revealed ~a fundamental flaw in that it failed to demonstrate adequate knowledge or training and/or adequate procedures in the handling of contaminated individuals-and vehicles. -For example, with respect to the State of New Hampshire, FEMA found the DPHS staff at the state EOC were not-familiar with the Radiological Screening Program.and who has specific duties and responsibilities for' implementation of the program.. In addition, FEMA found further. training warranted
- for the DpHS personnel relative to providing recommendations to reception center staff pertaining to the handling of contaminated individuals and vehicles. With respect to-NNY's ORO, it took over one half hour to complete monitoring'of the one contaminated injured individual who arrived at the North Andover reception center, and at least ten minutes before any of the personnel discovered that the man was injured, as well as contaminated. In addition, the man was not informed, prior to his departure in a simulated " ambulance," of th9 radiological monitoring program.
l-E, The Exercise demonstrated a fundamental flaw because there is insufficient space at the reception centers to handle all the vehicles that would arrive there in the event of a wide-spread contaminating release like the one which was simulated for the Exercise. For example, the North Andover reception center, to which all of the Town of Amesbury was instructed to evacuate, has parking capacity in its " clean car" lot for at best 100 cars, leaving aisles between cars for them to exit. The parking lot for contaminated vehicles is considerably smaller. Many more vehicles would have needed to be parked in these lots if the Exercise had been a real emergency.
F.
The Exercise revealed a fundamental flaw because it did not demonstrate adequate staffing for two shifts at the reception centers. For example, at the reception center in Dover, FEMA found that " additional personnel for security, directing evacuees, and housekeeping would have to be provided to bring the facility to fully operational capacity." FEMA Exercise Report, pp 184-185. There were also insufficient personnel at the reception centers in Beverly and North Andover to staff all necessary functions, and a large percentage of the first shift personnel, especially those in supervisory positions, were not relieved by personnel from the second shift. There is thus no assurance of a 24-hour staffing j capability for these facilities.
1 1
G. i The Exercise demonstrated a fundamental flaw I because. procedures for exposure control at the reception centers were inadequate. For example, although " clean" and l j
" dirty" areas were established and roped off at each center, procedures were insufficient and staffing inadequate to ensure that clean / dirty areas were respected by staff and evacuees; people were routinely able to cross over these lines undetected. There was also insufficient space inside the monitoring trailer for people being monitored to consistently stay behind the " clean" line, and those found to be contaminated could not move down to the decontamination area in the trailer without brushing against those who were being monitored.
In addition, clean / dirty procedures were not adequately maintained during the twenty-minute mini-scenarios where the goal was to process evacuees through the trailer as rapidly as possibly. During the mini-scenarios in North Andover there was no monitoring of the evacuees' feet or hands prior to entering the trailer. As a result, people whose feet were contaminated I would likely have spread the contamination to others inside the trailers. Also, no green " clean" tags were issued to those people deemed clean after monitoring. If these procedures had I been in place, it would have taken significantly longer to l process evacuees through the monitoring trailer.
In addition, the Exercise demonstrated that procedures for handling contaminated clothing are inadequate. During the l
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Exercise evacuees who do not wish to give up their clothing were allowed to leave the~ reception center with the contaminated articles in hand, albeit in a plastic bag.
The Exercise revealed a fundamental flaw in that no procedures are in place for dealing with pets who may be brought to the reception center by their owners, and who may be contaminated. For example, staff at the reception center in North Andover said they would not monitor pets brought to the reception center because the SpMC did not provide for that and had no idea what would be done with pets. In the event of an actual emergency at Seabrook Station, it must be expected that many people will arrive at the centers with their pets regardless of any instructions they may receive not to. (EBS messages given during the Exercise did not instruct evacuees to leave pets at home when they left, and pre-emergency information -- which people do not have -- will not be an effective way to tell people to leave pets at home.) In the event of a major contaminating release, as was simulated during the Exercise, some of these pets brought to reception centers ,
are bound to be contaminated. If these contaminated pets are not monitored and allowed to leave the reception centers without decontamination, they could contaminate clean people I they subsequently come in contact with.
H. The Exercise further revealed a fundamental flaw because there are insufficient procedures and equipment in place to ceal with vehicles that may break down while in line 1 l
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at the rec'eption contors. For example,-personnel at the North Andover reception center did not know what to do with a special needs van that broke down-in front of the monitoring trailer-and was to some extent disrupting the flow of traffic for several hours.
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in that most processing of evacuees prior to monitoring, including registrations occured o~utdoors without any covering overhead. In rainy-weather, the conditions simulated on the day of the Exercise, not only would evacuees get soaked, but clean / dirty lines could not be maintained, and all papers, including the RERPS and registration material which were set out on tables outdoors would be drenched. Indoor processing space has not been demonstrated to be available; thus there is no reasonable assurance that these facilities are' adequate.
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EXHIBIT 7 l
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UNITED STATES OF AMERICA.
NUCLEAR REGULATORY COMMISSION l
ATOMIC SAFETY AND LICENSING BOARD Before the Administrative Judges:
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Ivan W. Smith, Chairman Gustave A. Linenberger, Jr.
Dr. Jerry Harbour
)
In the Matter of ) Docket Nos. 50-443-OL
) 50-444-OL PUBLIC SERVICE COMPANY ) (Off-Site EP)
OF NEN HAMPSHIRE, El AL. )
)
(Seabrook Station, Units 1 and 2) ) January 3, 1989
)
ADDITIONAL COMMENTS OF THE MASSACHUSETTS ATTORNEY GENERAL'ON THE EFFECT OF ALAB-903 ON HIS EXERCISE CONTENTIONS 8.C.1. 8.C.3. 18. and 21.C.
In the Board's December 15, 1988, Memorandum and Order (Ruling on June 1988 General Exercise Contentions)(the " Order"),
the Board has reserved its' final ruling on MAG Exercise Contentions EX-8.C.1, EX-8.C.3, EX-18, and EX-21.C pending the submission by the Massachusetts Attorney General (" Mass AG") of j l
any additional comments he may wish to submit on the effect of j ALAB-903 on these contentions. With respect to EX-18 and EX-21.C the Board has also afforded the Attorney General an i
opportunity to revise his contention pleadings to address the ALAB-903 objections raised. Order at 46, 52. The Mass AG hereby submit 1 the following comments and amended pleadings.
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-General Comments-Before commenting specifically on the application of the ALAB-903 standards to each of the four exercise contentions /
bases,noted above, the Mass AG offers the following general comments.
In ruling on the Exercise Contentions, the Board appears
, implicitly to have taken the position that the second part of j ALAB-903's two-part test for a fundamental-flaw ("significant revision") applies regardless whether those who are responsible.
for drafting the plan have committed to making the revisions j
necessary to correct flaws which are identified in exercise contentions and which meet the first part of the test
(" essential element"). If this is so, the' Mass AG strongly urges the Board to reconsider its views on this issue and adopt the position that where contentions meet the first-prong of the two-part test, unless FEMA or the NRC Staff has extracted a commitment from the party responsible to correct.the flaw alleged, and those corrections are minor (not "significant"),
then the contention.should be admitted. Unless ALAB-903.is given this interpretation, the NRC and its licensing boards will have created a giant loophole in the emergency planning regulations which permit identified, serious, but "readily correctable" flaws in essential elements of emergency plans to go uncorrected. Simply because a major flaw in an essential plan element may be readily correctable (e.g., a simple rewrite of a key plan procedure which inserts an absolutely essential
step that,the Exercise reveals is necessary) is no reason to ignore it altogether and allow the essential planning element to remain flawed. ALAB-903 requires no such arbitrary result.
Rejecting an exercise contention for failure to meet ALAB-903's "significant revision" test makes sense, but only in the following context:
- 1) In observing a graded exercise, FEMA' notes a significant " problem" which it describes in a draft report as one requiring corrective action (i.e.,
either a " deficiency" or an "ARCA") and
- 2) FEMA then receives a " commitment" from the party responsible to take remedial action (plan revision, more training, etc.) which is noted in the final exercise report and does not amount to a significant revision of the plan.
In such a context, an exercise contention which simply reiterates this problem would, pursuant to ALAB-903, not be admissible. Thus, properly interpreted, ALAB-903 holds that if a contention alleges that an exercise revealed a serious problem with an essential element in a plan but FEMA has already extracted a commitment to correct the problem in a way ;
'c h a t is simple, straightforward, and does not require a significant revision of the plan itself, then licensing boards do not need to litigate the issue further--there is reasonable assurance that the problem has been or soon will be adequately resolved. The Board itself has noted the logic in this view in the action it took regarding SApL EX 5. Een Order at 57. But where FEMA's exercise report has not identified a problem which is described in an exercise contention, and that problem (as described) reflects a failure of an essential element of the
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I plan, that contention must be admitted unless the responsible party acknowledges the existence of the problem and offers as an affirmative defense its commitment to correct the problem in l
a way that the Board finds'does not involve a significant revision in the plan. It would be unreasonable for the NRC to approve emergency plans that are frought with identified, serious flaws which are not required to be corrected simply because such correction would be relatively easy. Such cannot be the holding of ALAB-903.
EX-8.C.1 (See the Board's discussion in the Order at 29-30.)
As a preliminary matter, the Mass AG notes that .n the SPMC- !
" plan" litigation a contention basis, JI-27.E, is currently pending which the Mass AG believes encompasses the concern raised in MAG EX-8.C.l.L JI-27.E.-states as follows:
E. The SPMC does not detail how a delegation of authority during an emergency would actually take place. No verification procedures are set forth that ,
would insure that the specific content of state I authorization is understood and verified. Further, no verification procedure exists as to the identity of i those giving and receiving such authorization. !
EX-8.C.l. states as follows: i i
C. Communications established with the !
non-participating governments were also demonstrated {
to be inadequate:
l 1/ This is not to say that Ex-8.C.1. is purely a plan contention having no relation to the Exercise. The Plan itself was extremely vague on the methodology to be used in contacting !
the Governor's representative. The Exercise revealed that l methodology to be a telephone call and also revealed that no verification system whatsoever is utilized.
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- 1. No verification methodology was used in communicating with the Governor's Representative (FFMA Control Cell). As a result, the exercise did not demonstrate that ORO.could establish communications with the governor.
On the condition that the Board agrees that the concern raised in'EX-8 C.l.--that the lack of any method of verification of the bona fide identity of the caller from the ORO or the recipient of the call (as a bona fideLauthorized representative of the Governor) provides no reasonable assurance that ORO could in fact establish communications with the Governor or his designee--is encompassed by JI-27.E., the Mass AG would withdraw EX-8.C.l. In the event, however, that the Board somehow views EX-8.C.1. not to be encompassed by JI-27.E, the Mass AG offers the following comment on ALAB-903 and EX-8.C.l.:
- 1. EX-8..C.l. identifies a problem in an essential element !
of the olan.
One of the basic emergency planning standards is that there be " prompt communications among principal response organizations to emergency personnel and to the public." 10 '
C.F.R. 550.47(b)(6). Under the SpMC there is no doubt that the Massachusetts state government is a principal response organization. According to the SpMC, initial contacts with state officials are to be made by telephone. Sam, e.g., I.p.
2.14, S5.1.3. The SpMC further provides that the ORO Director.
1 i "will provide recommendations to the Governor of the l
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actions, notifying the general public, and available NHY Offsite Response Organization resources and response." SPMC (Amend 6), $3.1 at 3.1-3. What became perfectly clear during the Exercise is that all communications with the Governor's representative is also by telephone, and during none of the initial calls to various key state officials or the Governor's l
l representative did the ORO callers offer the recipient any l means of verifying that the caller was a bona fide ORO Director (or Assistant Director). (Likewise, the ORO caller had no means of verifying that the recipient was indeed an authorized representative of the Governor.) Because the real-world state government recipient of the ORO Director's call may well be totally ignorant of the SPMC, the ORO, and the ORO's I organizational chain-of-command, there is no reasonable assurance that absent a verification system any of these key state officials will ever accept the initial ORO call from a !
receptionist. If they do accept the call and then demand some form of verification, neither the SPMC nor the Exercise
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suggests that the ORO caller has any quick means of doing so.
The likely result is a substantial delay of the very type !
contemplated by ALAB-903, i.e., one which is likely to have affected the protective action recommendations in an actual emergency. (While the ORO scrambles to come up with some ad hac verification scheme, its PARS do not get communicated, let alone issued to the public.) Thus, a failure to have an identity verification system in the SPMC reflects a failure of l
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an essential element'of the plan because " prompt 1 communications" between ORO'and key Massachusetts state officials cannot be reasonably assured as required by 10 C.F.R.'S50.47(b)(6).
- 2. EX-8.C.l. identifies a failure that can be remedied
-QD1v through a significant revision of the olan.
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The Mass AG cannot conceive how this failing can be readily corrected. Were the Commonwealth of Massachusetts engaged-in 1
planning for a radiological incident at Seabrook Station,-it- !
would perhaps be quite simple to-de' vise some call-back or coded password system for verifying the identities of.both the bona fide.ORO-telephone callers and the recipients of the calls for the Massachusetts state government. But in-the absence of-any 1
a participation in planning by the state prior to an emergency,
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no such pre-existing simple system can be put in place. It thusLappears that the SPMC's procedures, which simply instruct ORO Directors (or Assistant Directors) to make telephone calls.
to. key state officials without having any verification system in place,'need to be reassessed and preconceived to a i significant extent'in order to either (a) build in some timely and workable system of prompt communications between verifiably bona fide Directors of the ORO and verifiably bona fide representatives of the Massachusetts Governor or (b) avoid the !
need for making these calls in the first place.
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EX-8.C.3 (See the Board's discussion in the Order at 29-30.)
- 1. EX-8.C.3 identifies a oroblem in an essential element of the olan. i MAG EX-8.c.3 states as follows:
- 3. Significantly, the exercise failed to demonstrate that ORO emergency communications are compatible with those systems;used by the non-participating governments. In fact, the Applicants made representations to the Mass AG that Massachusetts police radios and other forms of communication might interfere with ORO j communications. Thus, in the event that the '
governments respond by employing their own personnel-and communications equipment, there is no reasonable assurance that any integrated communications will l exist or that the ORO system itself will continue to '
be effective.
Two (2) of the 16 basic emergency planning standards set forth in 10 C.F.R. S50.47(b) are not met due to this l deficiency: 6 and 8. As noted above, the-(b)(6) standard requires that "[p]rovisions exist for prompt communications among principal response organizations to emergency personnel and to the public." The (b)(8) standard requires that
"[a]dequate emergency . . . equipment to support the emergency I response [be] provided and maintained." Here, EX-8.C.3 asserts facts which suggest that Massachusetts police radios can interfere with ORO's own radio communications. Thus, both b(6) ,
and b(8) are implicated. In a real radiological emergency, if i ORO radios and Massachusetts state and local police radios l interfere with one another so that both ORO and police l communications are hampered, intermittently if not entirely, I then both b(6) and b(8) are not met. The likelihood in an j 1
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emergency.of having ORO and state / local police radios operating simultaneously in or near the Massachusetts EpZ communities is high, assuming anything other than an unlikely Mode 2 response where the' state and local police stay home. So this potential for radio interference exists under all plausible response scenarios.
- 2. EX-8.C.3. identifies a failure that can be remedied only throuah a significant revision of the olan.
The problem of radio interference between the police and ORO radios can be remedied only through a significant revision in the plan. Both Staff and the Applicants, in their ALAB-903 comments, argue that all that is needed to correct this problem is a change in radio frequencies and that such a change is minor and readily correctable. We disagree. First, neither Applicants nor the ORO has agreed to make such a change.
Indeed, in their opposition to the entry of this contention / basis, they implicitly deny even the need for such a change, thus ensuring that the change will not be made if this contention is rejected. Thus, Applicants' similar objection, accepted by the Board, that the problem identified in SAPL EX 5 1 1
3 is "readily correctable" stands on a different logical underpinning. There the state of New Hampshire has made a
" commitment" to see that corrective action (additional )
training) will be taken. Egg Order at 57. Here no such commitment has been made, and there is no basis for an assumption that any change in radio frequencies whatsoever will occur. If this Board believes that changing the frequencies on l
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1 hundreds of ORO radios, and possibly getting Federal Communications Commission approval to use a new set of frequencies, is not a "significant" revision, then so be it.
We think this is a "significant revision" without which-the entire'SPMC will simply be unworkable.
Second, the problem is not corrected simply by change in radio frequencies. In order to be able to integrate a coordinated emergency response in the field, ORO and state / local police need to have the capability to engage in radio communications with a) each other (ORO-police) and b) with their own staff. For example, should Massachusetts elect to use the ORO Traffic Guides to supplement state and local police (Mode 1 response), the ORO Traffic Guides will need radios with the capability of a) communicating with state / local police and b) communicating with ORO EOC. These functions will ;
have to be accomplished on separate frequencies which do not interfere with one another. It does not presently appear that ORO radios have this capability or that ORO personnel are j l
trained to use the radios in this fashion, j MAG EX-18 The NRC Staff has objected to the admission of this entire contention on the basis of the "significant revision" standard of ALAB-903, and the Board has now afforded the Attorney General "an opportunity to revise his contention pleadings to address the Staffs' argument." Order at 46. We offer the following comments and revisions to our contention pleadings. l l
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L First, this contention. alleges the existence of flaws or issues which FEMA.has overlooked;'so neither FEMA nor anyone' else has required corrective action. SRg Exercise Report.
Thus, no commitments to take any remedial action exist. -In this context, as.noted above in the. General Comments, ALAB-903 cannot be read to require the rejection of a contention which otherwise alleges flaws in essential elements of the plan, as this one does.A#
Second, as to Basis A, this is a basis which alleges that the " scope" of the Exercise was deficient. The relevant ALAB decision is therefore not ALAB-903; it is ALAB-900, which addresses " scope" contentions, pursuant to ALAB-900, the issue here is whether Basis A identifies either (1) a " major
. observable portion" of the plans that was not tested or (2) a failure to mobilize personnel and resources in sufficient
-numbers to verify their integrated capability to respond to the particular accident scenario being tested. Egg Lona Island Lichtina Comoany (Shoreham. Nuclear power Station, Unit 1),
ALAB-900 (slip. op., Sept. 28, 1988). The failure to test the 2/ The< Staff wisely did not challenge MAG EX-18 on the basis that it' failed to reflect a failure of an essential element of the plan. This contention clearly meets that part of the ALAB-903 test. It alleges that the Exercise revealed flaws in both the SpMC's and the NHRERp's procedures, facilities, equipment and personnel for the monitoring and decontamination of evacuees. The basic planning standard not met because of such flaws is 10 C.F.R. S50.47(b)(10). To meet this standard, NUREG-0654 requires that "[t]he personnel and equipment l available shall be capable of monitoring within about a 12-hour period all residents and transients in the plume exposure EpZ arriving at reception centers." NUREG-0654, Rev. 1 (Supp. 1),
SII.J.12.
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. timely activat'icn of.the reception centers and monitoring trailers was aLfailure to test a major observable portion of the. plans. It is no. excuse for failing to test a major observable portion of the plan that no "significant revision" of that plan would:be required in the event a test disclosed flaws. What is required for this failing is a remedial exercise, not plan revisions.
Third, bases B.and E deal directly with the basic
-capability of the ORO and the State of New Hampshire to monitor--
t "within about a 12-hour period'all residents.and transients in-the plume exposure EpZ arriving at reception centers."
NUREG-0654, Rev. 1 (Supp. 1), SII.J.12. The bases allege that in the' accident scenario tested more people and vehicles would have arrived at the reception centers for monitoring than ORO and the State of New Hampshire had the staff, equipment and parking space to receive and monitor within a 12-hour period.
FEMA overlooked these issues, probably because of its use of, its own generic guidance on, monitoring which was rejected in i Lona Island Liahtina comoany (Shoreham Nuclear Power Station), -i ALAB-905 (slip op., Nov.29, 1988) at 12-33. In light of ,
3 ALAB-905, and the evidence generated during the Exercise on the monitoring capabilities of ORO and the State of New Hampshire, 1
it appears that significant revisions may have to be made to the SpMC and the NHRERp. The Exercise demonstrates that significant revisions must be made in both clans includina orovision not oniv for additional monitorina trailers and staff i
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m but also for additional receotion centers as well to accommodate and monitor the Dumber of individuals who would i seek monitorina at the time of'a radiological emeroency. l
, The Mass AG hereby seeks leave to amend ~his Exercise-contention, MAG EX-18, to include the last sentence in the previous paragraph (underlined).
Fourth,~ Bases C, D, and G allege a series of serious flaws in the execution of the plans that were so pervasive and extreme i
that it is now apparent that a significant redraft of the respective plans to upgrade their specificity and clarity is needed.
Fifth, Basis F alleges that the Exercise revealed that there is no assurance of 24-hour (two-shift) staffing at reception centers. Correcting this deficiency requires procuring and training substantial additional manpower. We think this is a terribly significant revision, without which the plans are not adequate, and which no one has committed to making.
1 Sixth, Basis H alleges that the Exercise revealed a plan flaw that previously has been overlooked: despite the traffic congestion that will inevitably exist around reception centers and the difficulties posed by breakdowns occurring there (as occurred during the Exercise), the plans have insufficient procedures and equipment to address road impediments at reception centers. The plans need to be preconceived and revised to ensure that tow vehicles are deployed at reception centers. We think such revisions are critical in light of the i
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1 expected traffic congestion around reception centers; that without such revisions, the plans for reception centers cannot be deemed adequate; and that absent further Board action no one is committed to making these changes.
Finally, Basis I alleges that the Exercise revealed that the pre-monitoring processing of evacuees occurred outdoors and that indoor space for this activity was not demonstrated. This is primarily a " scope" contention, as it alleges that a major observable portion of the plans (the indoor space for processing evacuees at reception centers) was not tested. The "significant revision" portion of ALAB-903 therefore does not apply here, as noted previously. The correction required is a remedial exercise which includes a demonstration of the indoor set-up for processing evacuees at reception centers.
MAG EX-21(C)
The NRC Staff has also objected to the admission of EX-21(C) on the grounds that it alleges merely performance errors "that would appear readily correc,tible." Staff Response at 6. The Board has stated that it "will permit the Attorney General to amend his pleadings to address the objection." Order at 52.
This raises an issue not discussed above in the General ;
Comments section. Here the FEMA draft Exercise Report did identify certain problems with the one ambulance crew tested, FEMA Exercise Report (draft) at 314-316, and it labeled this an "ARCA". Id at 316. FEMA then recommended that the ambulance attendants receive " additional hands-on training on the procedures for contamination control." Id. In the final ]
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Exercise Report,-we found that in Section 4.3, the Summary Listing of Exercise Inadequacies for NHY's ORO, this recommended corrective action has been assigned a " commitment date" of "1989". While this is somewhat ambiguous, we assume that this means that NHY has committed to FEMA to provide this
" additional hands-on training" to these ambulance attendants at the ambulance training sessions offered during 1989. We assume that it does'not mean that the overall training for all ambulance attendants will be modified to include additional hands-on training for all of them in 1989. Because this was the one and only ORO ambulance crew that was tested, observers have no alternative but to assume that this crew's performance is typical of what would have been demonstrated if all the crews were tested. If all ambulance crewe had performed this poorly during the Exercise, and they all had been previously trained, then the problem is likely to be that the training program itself is so flawed that it needs to be significantly revised.
Respectfully submitted, JAMES M. SMANNON ATTORNEY GENERAL COMMONWEALTH OF MASSACHUSETTS s
64vtr Allan R. Fierce Assistant Attorney General Nuclear Safety Unit John Traficonte Chief, Nuclear Safety Unit Public Protection Bureau One Ashburton Place, 19th Floor Boston, Massachusetts 02108 (617) 727-2200 Date:
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i EXHIBIT 8 i-.
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LB- 1/13/89 JAN 191989 UNITED STATES OF AMERICA 19 J 1 hjCLL/,R 34:iTY UNIT NUCLEAR REGULATORY COMMISSION ln ATOMIC SAFETY AND LICENSING BOARD '
Before Administrative Judges:
Ivan W. Smith,. Chairman 3ppypn y g, , 7 ,,
Dr. Richard F. Cole Dr. Jerry R. Kline
)
In the Matter of ) Docket Nos. 50-443-OL
) 50-444-OL PUBLIC SERVICE COMPANY OF )
NEW RAMPSHIRE, 31 al. (ASLBP No. 82-471-02-OL)
' ) (Offsite Emergency
) Planning)
(Seabrook Station,
)
Units 1 and 2) )
) January 13,1989 MEMORANDUM AND ORDER (Ruling on Massachusetts Attorney General's Exercise Contentions 8.C.1, 8.C.3, 18, and 21.C)
In the Board's December 15, 1988 Memorandum and Order ruling on the June 1988 General Exercise Contentions, the Board reserved its final ruling on four Contentions submitted by the Massachusetts Attorney General (MAG EX 8.C.1, MAG EX 8.C.3, MAG EX 18, and MAG EX 21.C) pending the submission by the Attorney General of any additional comments he desired to submit on the effect of ALAB-903 with regard to these contentions. With respect to MAG EX 18 and MAG EX 21.C, the Attorney General was afforded the opportunity to revise his contention pleadings to address i
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the ALAB-903 objections raised by the Applicants and the NRC Staff. On January 3, the Attorney General submitted his Comments
(" MAG Comments") on ALAB-903 and we now rule as to the admissibility of these remaining contentions.
e In a prelude to his specific comments on the Exercise ,.
Contentions, the Attorney General made a general observation regarding what he views as the Board's position that the second part of ALAB-903's two-part test for a " fundamental flaw" ("significant revision") applies regardless of whether those who are responsible for drafting the plan have committed to making revisions necessary to correct minor defects which are identified in exercise contentions and which meet the first part of the ALAB-903 test (" essential element").
The Attorney General argues that rejecting an exercise contention for failure to meet ALAB-903's "significant revision" test makes sense, but only in the following context:
- 1) In observing a graded exercise, FEMA notes a significant " problem" which it describes in a draft report as one requiring corrective action (123. , either a " deficiency" or an "ARCA") and
- 2) FEMA then receives a " commitment" from the party responsible to take remedial action (plan revision, more training, etc.) which is noted in the final exercise report and does not amount to a significant revision of the plan.
MAG Comments at 3.
Contrarily, the Attorney General argues, where FEMA's exercise report has nnt identified a problem which is u_____________------ - - - - - - - - - - - - - - - - - - - - - - -
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described in an exercise contention, and that problem (as described) reflects a defect in an essential element of the plan, that contention must be admitted unless the responsible party acknowledges the existence of the problem and offers as an affirmative defense its commitment to correct the problem in a way that the Board finds does not involve a significant revision in the plan. MAG Comments at 3 and 4.
The Attorney General's argument is not easy to address.
It attempts to bypass the application of the ALAB-903
" fundamental flaw" test for the admission of contentions in
, certain situations. It is flush with " scope" considerations !
in its application to contentions. It is further muddled by its distinctions between FEMA-identified defe:ts and contention-identified defects. However, the concern is clear enough to be meritorious and is ripe for consideration in the context of this litigation.
We find quite plausible the proposition that a contention could identify a plan defect, which the Board in its judgment finds to meet the " essential element" part of the ALAB-903 test, without any guarantee that the identified d
defect will be remedied in the plan. This would be the result of the Board's rejection of a contention that meets the first part of the ALAB-903 test but fails to meet the second -- a defect requiring a "significant revision" of the 1
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plan. The defect could simply go uncorrected since the defect would not be litigated. To correct this potential 1
void,;the Attorney General would seek admission of a I m
l contention as a " placeholder" to ensure that minor defects 1 in " essential elements" of the plan.are corrected.
We regress for a moment to address a FEMA finding of a '&
defect in the plan. FEMA identifies flaws in the plan '
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through its exercise and it labels these flaws as
" deficiencies" or "ARCAs" -- areas requiring corrective action on the part of the Applicants. FEMA then recommends what should be done and in some instances establishes dates by which such actions must be taken. We do not know of any instance where'the Applicants have failed to correct deficiencies identified by FEMA.
We find inherent in the ALAB-903 decision a presumption that FEMA-identified deficiencies will be corrected before a' plan is found to be adequate under the reasonable assurance standard of 10 C.F.R. 50.47. However, we must also apply this presumption to deficiencies identified by the Intervanor's contentions if the Board finds such deficiencies to be defects in " essential elements" of the plan. To do otherwise would be to ignore the spirit of ALAB-903. But here'We do not have the mechanism to support the ALAB-903 presumption that the deficiencies will be corrected. The Attorney General has identified a void and it must be filled.
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-s-In light of the foregoing, the parties are directed to present oral arguments to the Board at the Prehearing Conference, scheduled for January 18 and 19,-1989, to suggest appropriate procedures to address the Attorney j
General's concerns. We therefore conditionally rule on the Attorney General's contentions for the purposes of the June f
1988 Exercise litigation, but we. reserve our final i disposition of the' contentions until the Prehearing Conference.
MAG Exercise Contention 8.C.1: The Attorney General draws the Board's attention to the similarities between SPMC Contention JI 27.E and Exercise Contention EX 8.C.1, and offers to withdraw EX 8.C.1 if we would find JI 27 to encompasses the concern that:
the lack of any method of verification of the bona fide identity of the caller from the ORO or the recipient of the call (as a bone fide authorized representative of the Governor) provides no reasonable assurance that ORO could in fact Governor establish or his communications with the designee.
MAG Comments at 5. We do not need to address the contention's similarities with JI 27.E because we find MAG EX 8.C.1 inadmissible.
The Attorney General is correct in that " prompt communications among principal response organizations to !
emergency personnel and to the public" (10 C.F.R.
- 50. 4 7 (b) ( 6) is "one of the basic emergency planning standards." Id.
Proper communications procedures between
r
- l. l the Governor and the ORO are surely an essential element of '
the plan under ALAB-903 standards.
)
T In support of his contention he argues that during none of the initial. telephone calls to various key state l officials or the Governor's representative did the ORO I' callers offer the recipient any means of' verifying that the caller was a bona fide ORO Director (or Assistant Director) .
This demonstration of the lack of a verification procedure during the exercise is essential to our ruling. lHe further states that the state government recipient of the ORO telephone call "may well be totally ignorant of the SPMC, the ORO, and the ORO's organizational chain-of-command" and "there is no reasonable assurance that absent a verification system any of these key state officials will ever accept the initial ORO call from a receptionist." MAG Comments at 6.
Because of this lack of verification, the Attorney General argues, prompt communication cannot be reasonably assured as required by 10 C.F.R. 50.47 (b) (6) . Moreover, the Attorney General cannot conceive how this "failing" can be readily corrected because "in the absence of any participation in planning by the State prior to an emergency, no such pre-existing simple system can be put into place." MAG }
Comments at 7. He caps his argument with a modest proposal that this communication dilemma either requires a l significant revision of the plan or an avoidance of the need for making these calls in the first place. Id.
1 The Attorney General's argument is nonavailing. He readily admits that "were the Commonwealth engaged in planning for a radiological incident at Seabrook Station, it would perhaps be quite simple to devise some call-back or coded password system for verifying identities." Id. The Attorney General makes our decision easy. A problem that can be simply corrected cannot require a significant revision in the plan. It is readily correctable even i without the government's participation since identification I procedures can be devised by one party before they are adopted and implemented by two parties. But even more j
important, this Board will not entertain arguments i concerning deficiencies that are caused solely by the government's nonparticipation in emergency planning. Egg, Partial Initial Decision (December 30, 1988), LBP-88-32, 27 NRC , Section 7, Human Behavior.
However, we are now faced squarely with the problem the Attorney General raised in his general comments. We have found his contention to raise a defect in an essential ;
element of the plan but we have rejected his contention on the grounds that the defect is readily corrected. The Board will entertain suggestions from the parties as to how this matter can be appropriately resolved. Therefore, MAG EX 8.C.1 is rejected conditionally upon resolution of this matter at the Prehearing Conference.
1
MAG Exercise Contention 8.c.3: The Attorney. General's contention alleges.that the requirements of 10 C.F.R. 50.47 (c) (6) and (8) are not' met because the exercise " failed to demonstrate that ORO emergency communications are compatible with those systems used by the nonparticipating governments." MAG Comments at 8. He also states that the Applicants made representations to the Attorney General that Massachusetts police radios and other forms of communication might interfere with ORO communications. 101 Therefore, he argues, "there.is no' reasonable assurance that any. I integrated communications will exist or that the ORO system itself-will. continue'to be effective." Id.
We agree with the Attorney General that prompt communications among principal response organizations and the provision of adequate emergency response communications equipment are issues which are basic emergency planning standards. However, the Attorney General's argument fails i
to directly allege and explain why and how the nonparticipating government's communications systems are incompatible with that of the ORO. He does nothing to
, embellish what will cause the problems his contention {
i alleges. The Attorney General merely argues that police communication may interfere with the ORO communications if ORO and state / local police radios are operating simultaneously in or near the EPZ communities (MAG Comments at 8-9) and alludes to the problem being one of " radio
frequencies" by referencing the Applicants' reply. MAG Comments at 9. More important to our ruling is the fact that the government's non-participation is the reason why he cannot offer a valid factual basis for his argument.
The Attorney General has failed to plead his contention with the required specificity. We are unsure from the Attorney General's pleading whether there were actually any problems with communication interference demonstrated on the day of the exercise or whether there will be if the governments choose to participate. As the Appeals Board stated in ALAB-903:
Any contention alleging that an exercise revealed a fundamental flaw must address (whether there was a failure in an essential element of the plan) in order to satisfy the Commission's requirement that "the bases for each contention specificity." (be) set forth with reasonable 10 C.F.R. 23 NRC at 581. . . . (an sec 2. 714 (b) . Egg, CLI-86-11, the contention raises a m)atter appropriate foradequate basis assures th litigation in the proceeding, establishes a sufficient foundation for the contention to warrant further inquiry into the subject matter addressed by the allegations, and puts the other parties sufficiently on notice so that they will know at least generally what they will have to defend against or oppose. . . .
Requiring an " exercise" contention to identify a failure of an essential element of the plan that can be corrected only through a significant revision of the plan itself is also reasonable in the circumstances. .
and,Such contentions arise very late in the proceeding, as the Egg court recognized, they warrant treatment that is efficient yet fair to all parties.
233, 735 F.2d at 1448-49. Well-focused, concrete contentions are essential if that goal is to be realized. . . . Thus it is reasonable to expect greater detail in such contentions.
l ALAB-903, at 8-10.
- - l' O ' -
t We simply cannot find factual allegations to support a L
finding that the Attorney General has identified a defect in an essential element of the plan. Moreover, even if we were to find the contention to pass muster under the first part j of ALAB-903, we do not see how this alleged' problem is .
limited to seabrook emergency response planning. Common sense tells us that this is a situation all emergency l
planners contend with in any major metropolitan area where emergency responders must coordinate their activities.
Coordination of radio frequencies is elementary and implicit in any emergency response and we do not find such i
coordination to require any revision in the plan. We therefore reject MAG EX 8.C.3.
MAG Exercise Contention 18: The contention raises issues concerning the registration, radiological monitoring, and decontamination of evacuees. In the Memorandum and Order of December 15, 1988, we afforded the Attorney General anopportunitytoreviseyiscontentionpleadingstoaddress the Staff's argument to deny the contention as failing to-meet the second part of the ALAB-903 test. Id. at 46. The Attorney General was given the opportunity to demonstrate why or how the problems identified would require extensive or significant revisions of the plan, and are not merely readily correctable instances of performance errors revealed by the exercise. Egg, Staff Response to November 14, 1988 Board Order at 6.
j l
l t
f
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L The Attorney General offers an interpretation of the contention which does little to clarify why the Board should admit the contention under the " fundamental flaw" standard of ALAB-903. His response first argues in broad terms that 1
the contention generally alleges problems in essential elements of the plan but it goes on to state "this contention alleges the existence of flaws or issues which-FEMA has overlooked." MAG Comments at 11. We are left to decide whether the contention is one alleging " fundamental flaws" in the plan or inadequate " scope" of the exercise.
As to Basis A, he claims the basis to be one of " scope."
Id. We find it difficult to read Basis A, as worded, as
. alleging a scope problem when we compare it with other-contentions which the Attorney General properly plead as )
scope contentions. Egg MAG EX 1 and 2.
We invited the Attorney General to amend his pleadings to reply to the Staff's objections under ALAB-903, and he j has used his comments to replead his contention as a scope contention. This basis is too vague to have been interpreted as a basis alleging deficiencies in the scope of the exercise in the first reading and therefore it cannot be plead as such at this late date. We further question whether a " scope" basis supports a contention alleging a
" fundamental flaw."
As to Bases B and E, the Attorney General alleges that in the accident scenario tested, more people and vehicles l
l
would have arrived at the reception centers for monitoring than ORO and the State of New Hampshire had the staff, equipment and' parking space to receive and monitor in a 12-hour period. The Attorney General seeks leave to amend his contention to support this allegation under.the ruling in Lena Island Lichtina Comeany .(Shoreham Nuclear Power Station), ALAB-905 (slip op., Nov. 29, 1988). MAG Comments at 12 and.13. We can only interpret this request as seeking leave to file a late filed contuntion. 1 The Attorney General was given the opportunity to amend j his pleadings to address his allegations in the context of )
ALAB-903.
He has chosen instead to raise ALAB-905 concerns.
We deny the Attorney General's motion for leave because he totally fails to pay respect to Commission procedures for !
seeking the admission of a late filed contention.
In considering the admissibility of late-filed contentions, the Board must balance the five factors specified in 10 C.F.R. 2.714(a) for dealing with non-timely filings. Cincinnati Gas and Electric Comeany (William H.
Zimmer Nuclear Station), LBP-79-22, 10 NRC 213, 214 (1979);
Philadminhia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 725 (1985). However, the proponent of a late contention should affirmatively address the five factors and demonstrate that, on balance, the contention should be admitted. Consumers Power Co.
(Midland Plant, Units 1 and 2), LBP-82-63, 16 NRC 571, 578 1
l a
l
1- p (1982), citina, Duke Power'Co. (Parkins Nuclear Station,.
< ' Units.1, 2 and;3), ALAB-615, 12 NRC 350, 352,(1980).
1 Here, as in ALAB-615, the Attorney General "has made no endeavor 1 to shoulder that burden. Indeed, his petition (is)-devoid of the slightest hint of a recognition that its fate I hinge (s) upon section 2.714(a) factors." ' Li.' at 353.
As to Bases C, D and G, the Attorney General states that.the bases allege a series of " pervasive and extreme" flaws in the execution of the plans which require a significant redraft of the plan. MAG Comments at.13. We do not accept his arguments because.he fails to establish why !
and how these alleged flaws would mandate such a revision.
Stated more succinctly, he did not take advantage of the opportunity to amend his general " fundamental flaw" pleadings; he merely augmented his contention with vague, unspecified allegations, none of which go directly to the merits of either part of the ALAB-903 test for admitting contentions.
As to Basis F, the Attorney General alleges that more i individuals and training of individuals are needed to meet the demands of 24-hour staffing at the reception centers.
Id.
The Mass AG gives an example of the Dover reception center where FEMA found "that additional personnel for security, directing evacuees, and housekeeping would have to be provided to bring the facility to fully operational capacity."
MAG EX 18.F, citina, FEMA Exercise Report at
14 -
184-185.- Arguably, lack of adequate personnel at reception centers reveals a deficiency in an essential element of the plan. However, we fail to see how the hiring of more personnel and training them amounts to requiring a significant revision of the plan. But here again, we are faced with a problem that may need correction, and we have no information as to whether Applicants have made a commitment to correct the problem. This matter is held over to the'Prehearing Conference on January 18 and 19.
As to Basis H, the Attorney General claims that the exercise revealed insufficient procedures and equipment in place to deal with vehicles that may break down while in line at the reception centers.
MAG Comments at 13 and 14.
Timely and orderly screening of potentially contaminated individuals and vehicles is an essential element of the plan. But we do not find the provision of new or additional tow trucks assigned to reception and decontamination centers to amount to a correction requiring a.significant revision of the plan. The Attorney General says nothing in his Comments to change our thinking. However, similar to our i
ruling on Basis F, the matter of procedures and equipment to deal with vehicle problems at reception centers is held over for the Prehearing Conference.
Finally, as to Basis I, the Attorney General alleges another scope problem in that pre-monitoring of some i evacuees took place in the out-of-doors and that indoor l
l l
15 -
space for this activity was not demonstrated. MAG Comments at 14.
As with Basis A, we do not find this basis to be plead too vaguely to be accurately read as alleging a deficiency in the scope of the exercise in the'first instance. We again note accordingly that several of the Attorney General's contentions were plead as specific scope contentions.
Our offer for him to amend his pleadings to '
address the ALAB-903 decision was not an offer to piggy-back clarification of vaguely plead scope contentions. MAG EX 18 is rejected conditionally upon resolution of the matters held over to the Prehearing Conference.
MAG Exercise Contention 21.C: The Attorney General's i
contention alleges inadequate training of ambulance crews responding to emergencies based on the exercise day performance of two members of an ambulance crew. Id. FEMA recommended that these ambulance attendants receive
" additional hands-on training on the procedures for contamination control." FEMA Exercise Report Draft at 314-316. The Attorney General now argues that all ambulance attendants are inadequately trained and that Applicants must ,
commit to this additional training or that the Board must find that the training program itself is so flawed that it needs to be significantly revised. MAG Comments at 15.
We do not agree with the Attorney General's argument.
We fail to see how additional training of ambulance attendants amounts to requiring a significant revision in f 1
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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - - - - - . ___ - - - - - - - - - - - - - - J
l the plan. There is also nothing to demonstrate that these two ambulance attendants are representative of the other ambulance responders. We do note however that FEMA has recognized the need for additional training of the attendants exercised. FEMA has assigned a date by which '
these ambulance crews must receive training. Therefore, MAG EX 21.C is rejected conditionally upon resolution of the matter at the Prehearing Conference.
FOR THE ATOMIC SAFETY AND LICENSING BOARD 7' Ivan l fdf $
W. Smith, Chairman ADMINISTRATIVE-LAW JUDGE Bethesda, Maryland January 13, 1989 1
I
.a-
EXHIBIT 9
1528 1 JUDGE SMITH: Is that what your contention is?
2 That tow trucks should be stationed at the reception 3 centers?
4 MR. FIERCE: That if there is a road blockage in 5 the arrival area of a significant center, it can cause a 6 significant problem.
7 JUDGE SMITH: We'll see if your contention says 8 that when we re-read it. I don't know. We have to re-read 9 it. It is a very difficult contention to understand.
10 I understand the language.. But I do not 11 understand the regulatory scheme under which it is offered.
12 That is the problem. We understand what it said. All 13 right.
14 MR. FIERCE: I have nothing further to argue on 15 the ALAB-903 contentions, Your Honor. But I think Mr.
16 Traficonte would still like to have a couple of minutes on 17 just 18 in general.
18 MR. TRAFICONTE: Two minutes, Your Honor, by the 19 clock, on 18 in general. And this will all be greatly 20 benefitting if the Board is going to review 18 over lunch in 21 any event.
22 I would direct the Board's attention to two bases:
23 B and E. It is our position that in one form of words or 24 another, the gravamen of B and E is that for the number of 25 people who would be seeking to be monitored in the event .of Heritage Reporting Corporation (202) 628-4888 l
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0 4
i 1528~!
1 an emergency at Seabrook, there are essentially not enough 2 resources -- facilities, personnel and monitoring centers --
3 to handle the number of evacuees who would seek to be ;
4 monitored. That was what we were trying to say. I believe 5 it is what we did say.
6 That was back in September. That has gone through i
7 various permutations. And as I understood what was going on 8 here, 903 intervened and both the Staff and the Applicants 9 came in and said,_it~is an essential element all right. No i 10 question about that. But the question is significant 11 revision of the plan, no. Because at its best, that part of 12 18 just says they need more monitoring and decontamination ;
13 resources. And it was our understanding that the Board had' L
14 ruled that is right. Significant revision, no. Because all j 15 you are alleging is you need additional monitoring and 16 decontamination resources. l 17 But the Board ruled in December -- it's the 903 18 problem, as I think of it, the Roger Rabbit problem - give 19 the Mass AG an opportunity to go back and revisit his 20 pleadings in light of 903 and come back and amend if he 21 .wants to or if he feels he needs to, to bring his pleading, 22 Exerciso 18, under the rubric or the guidance of 903. And 23 we did. And as the Board has made reference, we filed a l
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24 supplemental additional comments. And in only this 25 instance, we felt it necessary actually to amend, literally Heritage Reporting Corporation (202) 628-4888
1529 1 amend the language of our originally filed contention.
2 JUDGE SMITH: Right.
3- MR. TRAFICONTE: And that is where apparently we !
4 ran into a major firestorm when we did that. And this is 5 why I think this is appropriate to characterize as a 6 clarification.
7 The import of our underlying sentence, which I 8 n of me I hope -- understand where we were.
have in fro't We 9 thought the only thing that was missing from this contention 10 was an allegation that the absence of sufficient monitoring 11 resources constituted or would require a significant 12 revision of the plan. That's what we thought the issue was.
13 So we added the sentence that says, the exercise 14 demonstrates that significant revision'must be made in both 15 plants -- New Hampshire, Massachusetts -- including 16 provision not only for additional monitoring trailers and 17 Staff, but also for additional reception centers.
18 JUDGE SMITH: That's a bo'1d stroke.
19 MR. TRAFICONTE: It's not a bold stroke. Okay. I 20 see. So the Board understood that we had never alleged --
21 MR. DIGNAN: Two minutes are up.
22 MR. TRAFICONTE: Pardon me?
23 ,
MR. DIGNAN: Two minutes are up.
24 MR. TRAFICONTE: Thank you very much. Okay. Then 25 the proof's in the pudding. The Board understands then what Heritage Reporting Corporation (202) .628-4888
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1 1
~1529 1 has happened is the-Mass AG in September failed to allege 2 .significant centers and instead alleged only personnel and 3 perhaps some training. ,
1 4 JUDGE SMITH: That's right. You got it.
5 MR..TRAFICONTE: And then what happened is 905 6 came down the pike and we got. wise that the way to do this j L '
i 7. was to actually use the word " centers." And so then what we 8 tried to do is sneak in under our comments on 903.
]
9 JUDGE SMITH: That's right.
10 MR. TRAFICONTE: Okay. I thought that was what 11 was going on here.
12 I would just refer the Board at lunch to Bases B 13 and E, because Bases B and E say resources. In fact, B says
~
14 the exercise -- original B. Not amended B. Original j 15 September 21 B says: The exercise failed to demonstrate 16 that ORO in New Hampshire had adequate staffing, procedures, 17 facilities and equipment to monitor within 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> all )
1 18 evacuees who would have arrived. I am not going to belabor 19 the point, because I am over it by a minute. I'm not going 20 to belabor the point by reading other portions of B and E.1 l 21 But a-fair reading of-B and E in our minds --
22 JUDGE SMITH: Originally.
23 MR. TRAFICONTE: Originally, was reception 24 centers.
, 25 When we were advised, pursuant to the Board's Heritage Reporting Corporation (202) 628-4888
H 1529 1 December 15 order, we were not trying to sneak in ALAB'905 2 through the back door. I understand the Board has read it 3 that way.
4 ' JUDGE SMITH: What we said in our Order, inviting 5 opportunities to comment on the significance of 903, is that 6 we did not require you to allege the magic words of 7 " essential element" and "significant revision." That if we 8 could read that into it, we would. accept the' contention.
9 And we did.
-10 We also observed that you had never been 11 foreclosed, since 903 arguably narrows the acceptability 12 contentions, in your original drafting effort, you had never 13 been foreclosed from alleging a problem.
14 If it had gone the other way, you would have said 15 hey, we didn't know, if they were going to be that broad we 16 would have alleged other problems.
i 17 MR. TRAFICONTE: No question. l l
18 JUDGE SMITH: But it was narrow. Therefore you j 19 had full opportunity to allege everything. ,
20 MR. TRAFICONTE: No question. And we believe we 21 took the opportunity and did allege. l l
22 JUDGE SMITH: You were not invited to do anything 23 except explain why under 903 your contention would survive.
1 24 You were not invited to make your contention more specific 25 or bigger, but only explain why it should be received under l
Heritage Reporting Corporation i (202) 628-4888
f 1529.,
1 903.
2 MR. TRAFICONTE: Right. And the last comment I 3 will make --
4 JUDGE SMITH: And two times. But go ahead.
5 MR. TRAFICONTE: This is it. The only comment I 6 will make_is, I understand the way the Board has read our 7 underlying sentence. I would just repeat, that as an i 8 attorney, on this side of the ledger, asked to explain or 9 now account for why the need for additional monitoring 10 resources constitutes a significant revision, we stated 11 first that it demonstrates that you would need significant 12 revisions. Why, or how, or in what sense? Because, part of 1 13 the contention includes the claim that in addition to 14 additional monitoring trailers and staff, you would also 15 need additional reception centers.
16 We work from the premise that if it were a fact 17 that after hearing that the Board found that additional 18 centers were required, then the Board would find that that 19 constitutes a significant revision of the. plan. ,
20 So when we amended, in light of the 903 I l
21 opportunity, we indicated to the Board that our' original j l
22 pleading does constitute a fundamental ~ flaw because it 23 constitutes a significant revision if they are required to !
24 open more monitoring and decontamination. That was our 1 25 logic. l Heritage Reporting Corporation I (202) 628-4888 l
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1529 1 JUDGE SMITH: you should have read the word 2 " facilities" to include additional reception centero. If we 3 read that and we agree that that was the reading we should 4 have given, then you are saying we prevail.
1 5 MR. TRAFICONTE: Yes. That's right. l 6 JUDGE SMITH: If we read it, and wo do not 7 believe --
8 MR. TRAFICONTE: That that's what we meant, then-9 we should not prevail.
\
10 JUDGE SMITH: And of course ycu begin with the 11 proposition that we did read it and we did not read it that i
12 way to begin with. '
13 MR. TRAFICONTE: There is no question about that.
14 JUDGE SMITH: But we are going to read it again to l 15 see if we were negligent, or insensitive on our original 16 reading.
17 MR. TRAFICONTE: That I would appreciate greatly.
18 JUDGE SMITH: Jcst to see if that is the reading 19 that should have been given to it, bearing in mind that it 20 is very easy to say reception center, just with a stroke of 21 the word processo'r, and it would have been in there. But we l 22 will read it.
1 23 MR. TRAFICONTE: All right. Just for the record, l
24 I hand write everything, Your Honor. I can't even word !
25 process. But I take the point. That is fine, If the Board l
Heritage Reporting Corporation (202) 628-4888
(
1529 1 would revisit it and look again at the use of the word 2 " facilities" in the context of the body of the contention.
3 JUDGE SMITH: On that point, did you wish to be l 4 heard?
5 MR. DIGNAN: No, Your Honor.
6 JUDGE SMITH: Are you done then, with that area, 7 with the clarification of the contentions?
8 MR. FIERCE: I think we are. That was the only 9 one we were going to discuss at all.
10 JUDGE SMITH: Okay. Now where do we stand on i
11 discovery, on the exercise, I mean on the -- well, we're 12 done with the exercise now. I am eager to get a report on 13 where you stand on discovery on the SPMC.
14 Are we done with the exercise contention?? No ,
15 I'm sorry, Mr. Backus.
16 MR. BACKUS: Your Honor, I understand you to be 17 asking us about clarification of Board rulings.on the sample 18 exercise contentions. Item 2 on your agenda for this pre-19 hearing conference. We think we understand the Board's 20 rulings and we are not seeking any clarification of them and 21 we understand of course we have to accept them for our l 22 fu'rther proceedings before this Board.
23 JUDGE SMITH: All right. We are ready to move on 24 beyond the exercise contentions.
25 MR. DIGNAN: With respect to SPMC discovery Heritage Reporting Corporation '
(202) 628-4888 1
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i 1533; 1 AEIEEE22H EEEEI2H 2 (1:35 p.m.)
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3 JUDGE SMITH: We are going to rule on'the 4 arguments and motion'for reconsideration of Contention 18, 5 with. respect to Basis B.
6 We do recognize the language of the introductory 7 paragraph as referring to facilities. Reading the 8 contention,-reading the basis as a whole, we believe pretty 9 much as I stated earl'ier, that if you had intended to say 10 additional reception' centers, that is an important enough 11 matter that you would not have overlooked it.
12 However, that is not the only basis for our 13 ruling. The first half of it, clearly the emphasis is the 14 number of personnel and equipment which we believe was a 15 readily correctable problem.
16 The second half, where it begins: "Moreover, the 17 exercise demonstrated a fundamental flaw in the SPMC and the 18 NMRERP, in that the event of the kind of radioactive release
~
19 that occurred during the exercise resulting in a clockwise, 20 sweeping plume that hit virtually every town in the EPZ..."
21 et cetera, with respect to that, we recognize that that is a 22 contention raising the 9verall capacity of reception 23 centers, including facilities, personnel, equipment and 24 everything, to monitor the expected population.
25 However, the Board has decided, in its December Heritage Reporting Corporation (202) 628-4888
+
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1533 1 30, 1988 partial initial decisio,n that the planning basis 2 for the Seabrook EPZ is appropriately the FEMA planning 3 ' basis.
4 Therefore, this aspect of it, although I expect 5 you will be complaining to the appellate authorities about 6 that decision, this aspect of it as far as this case is 7 concerned is out of our jurisdiction as gag iudicata.
8 In other words, we could not admit this contention 9 even were we inclined, because we have already made a 10 decision that the planning basis for the population in the 11 Seabrook EPZ is the FEMA basis of -- what is it -- the 12 Krimm, so-called Krimm memo basis?
13 MR. FLYNN: The Krimm memorandum --
14 JUDGE SMITH: The Krimm memorandum. Jurisdiction 15 over that aspect of it has passed before us. It is, as far 16 as this licensing hearing is concerned, the planning basis 17 that is decided, and jurisdiction has passed.
18 MR. TRAFICONTE: Your Honor, just one query on 19 that aspect of your ruling. I understand, I have read the 20 New Hampshire decision. I have read the portions of it i
21 concerning the presumption that would attach to the 20 22 percent figure. Part of our concern in this regard is of 23 course the Board found in that proceeding that that 24 presumption was not rebutted., Just as a point of 25 clarification, if this were admitted, this contention, we 1
Heritage Reporting Corporation (202) 628-4888
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1533, 1 Sould obviously' attempt in this proceeding to rebut it.
l 2 JVDGE SMITH: The issue.of the planning basis for 3 'the Seabrook EPZ was put squarely'in issue by SAPL, and it 4 may be, but nevertheless, our decision --
5 MR. TRAFICONTE: I see. I understand.
6 JUDGE SMITH: It may be that we decided more than 7 we were invited to. But our decision does find, and.it is 8 Egg iudicata for this proceeding, that the correct planning 9 basis is the FEMA planning basis and it will have to operate 10 in this aspect of the proceeding. If we're wrong, I am sure 11 we will hear about it.
12 MR. TRAFICONTE: Just as a general -- well, I -
13 withdraw that.
14 MR. DIGNAN: Your Honor, may I have a point of 15 clarification on the ruling?
16 JUDGE SMITH: Yes.
17 MK. DIGNAN: Do I understand that the ruling is 18 solely on the basis of gag iudicata or is in addition also 19 on the basis of the first reason you gave? I want to find 20 out how many strings I have in my bow.
21 JUDGE SMITH: We do not reach that. It is I 22 altogether possible that with the benefit of the arguments 23 we received today that the second part of the contention, 24 raising the overall capability to monitor all the people who 25 would be seeking monitoring is raised. But we don't reach {
l Heritage Reporting Corporation (202) 628-4888 i
1533 1 that. As a matter of fact, we do not even have the 2 jurisdiction to rule on it now. So we did not exclude it.
3 MR. TRAFICONTE: You did not exclude it?
4 JUDGE SMITH: No, we excluded it, based upon the 5 fat that the planning basis of the 20 percent of the EPZ 6 population has already been adjudicated and is the subject 7 of our decision.
8 This would be within the rubric of that finding 9 which is now, the jurisdiction now rests in the -- not the 10 Bankruptcy Court --
11 (Laughter) t 12 JUDGE SMITH: It's the Appeal Board.
13 We did not exclude it on the basis that it would 14 not otherwise have been a contention.
15 MR. TRAFICONTE: Okay. That's what I wanted to 16 know.
17 JUDGE SMITH: We do not. We do not exclude it, or 18 admit it, or rule on it. We recognize that it does fairly 19 allege an overall capacity ahortfall, that aspect of it. It 20 did fairly allege an overall capacity shortfall of 21 monitoring capacity, including facilities.
22 MR. TRAFICONTE: B'ut that issue is Egg iudicata 23 vis-a-vis the EPZ.
l 24 JUDGE SMITH: Because you've already decided what l 25 the planning basis is for the population who would be Heritage Reporting Corporation (202) 628-4888
1533 1 seeking monitor,ing and reception services. ,
You've already.
2 decided-that.
3 MR. TRAFICONTE: Based on a presumption. The only 4 point of inquiry here is that, as I read the New Hampshire 5 decision, you decided that giving presumptive weight'to the 6 20 percent figure --
7 JUDGE SMITH: That is correct.
8 MR. TRAFICONTE: -- and then holding, after 9 discussion of the record, that that presumption'was not 10 rebutted --
11 JUDGE SMITH: That is right.
12 MR. TRAFICONTE: -- by the interveners on that 13 record. The only reason why I am pressing here is that we 14 want to make sure, we would have of course attempted on this 15 record to have rebutted that.
16 JUDGE SMITH: That's right.
17 MR. TRAFICONTE: All right. As long as that is 18 clear.
19 JUDGE SMITH: Evidentiary argument.
20 MR. TRAFICONTE: Right.
21 JUDGE SMITH: However, we are not ruling on 22 evidence now. We are ruling on jurisdiction. We have lost 23 jurisdiction. We do not have the authority, the 24 jurisdiction,1 authority to relitigate matters that were -;
25 heard and decided in the initial decision.
I Beritage Reporting Corporation (202) 628-4888
1533 1 MR. TRAFICONTE: Is it possible, Your Honor, that 2 the 20 percent figure that has been presumptively 3 established for the New Hampshire portion of the Seabrook 4 EPZ --
5 JUDGE SMITH: It was the'Seabrook EPZ.
6 MR. TRAFICONTE: It was the Seabrook EPZ.
7 JUDGE SMITH: It is the planning basis. 20 8 percent of the EPZ. That is what was found.
9 MR. TRAFICONTE: Would the Board entertain, just 1
10 on this point, and I do not want to belabor this, but would 11 the Board entertain on this precise issue a certification to 12 the Appeal Board?
13 JUDGE SMITH: No.
Well,. I can't speak for my 14 colleagues on that. But you know that we have not been 15 quick to certify matters.
16 The issue would be certify to them whether or not 17 we had jurisdiction? I am confident we do not have 18 jurisdiction. I am confident that when we decide and 19 notices of appeal have been filed, as they have, that 20 everything decided in that decision, except as to which we 21 reserve jurisdiction, passes on to the Appeal Board, and 22 that is the only place where jurisdiction lies on it right 23 now. We do not have it. That matter we would not consider 24 certification. The only thing that you w'ould have -- I 25 don't want to give you any advice, I can't advise you on it.
Heritage Reporting Corporation (202) 628-4888
1533 1 All right. With respect to the parking 100 cars, 2 E, we did not read E -- do you want a moment to talk? Go 3 ahead. If you want time to consult, okay. I was going to 4 continue the ruling. l 6
5 MR. TRAFICONTE: May we just have a minute, to 6 digest it?
7 JUDGE SMITH: Yes.
8 (Counsel confer) 9 MR. TURK: Your Honor, while they are conferring, 10 may I ask for a clarification also? As I understand it, the 11 Board had rejected Contention 18 on grounds other than
, 12 whether the planning basis of 20 percent is appropriate.
13 This is just an additional ruling.
14 JUDGE SMITH: Yes. But you see, we were asked to 15 say we made a mistake. We had overlooked the word 16 " facility," and indeed we had overlooked the fact that the 17 second half of the contention, because at that very time we 18 were deciding the initial decision, the second half of the 19 contention, were it not for Ing judicata, could perhaps have 20 eurvived as a contention. Because if true, it would have 21 been, I believe people would agree, tha't overall capacity ,
i i
22 for monitoring is a major element of the plan, and j 23 inadequacy thereof overall, would require a significant 24 revision of the plan. It may have survived. I am just 25 saying that we don't even have the jurisdiction to talk Heritage Reporting Corporation (202) 628-4888
4 1533!
I about it any more. It's gone.
2 .MR. TURK: If I pose a scenario where someone says 3 well, Board, you should now admit this contention because 4 you should reconsider thi's planning basis, have you reached 5 a point yet in your Order where you determine whether or not 6 the' contention meets the specificity and basis requirements 7 as to the monitoring planning basis? Because I would argue 8 that I do not see in this contention anything --
9 JUDGE-SMITH: Well, we felt that it met 10 specificity and on the basis with respect to monitoring the 11 personnel.
12 MR. TURK: the challenge to the 20 percent 13 planning basis?
14 JUDGE SMITH: No, not that. No. We don't reach 15 it. We're not reaching it. We're not going to reach it.
16 MR. TRAFICO14TE: We are going to have to came 17 back, because you said though not that. I understand the 18 direction that Mr. Turks comments are going ~in is.that 19 there is a defect in the language of the contention. We 20 understand the Board's ruling to be that there is no defect, 21 now that the attention has been called to a portion of it, !
1 22 that there is no defect in the language. It puts at issue ;
23 the adequacy of total capacity. It puts it at issue. But 24 the Board's ruling is that the issue of total capacity is i
25 Igg iudicata in light of the New Hampshire decision. J Heritage Reporting Corporation (202) 628-4888 l
l
I 1534 1 JUDGE SMITH: We stated yes, that the issue of 2 total capacity'is now m judicata and we do not have' ,
,1 3 jurisdiction. We do not exclude or say that we would have ]
.4- included that aspect of it based upon whether it meets the i
5 . specificity requirements, basis requirements, we don't reach
]
6 that. We don't have to reach it. We are just saying that 1
7 in response to your urging us to re-read this. contention and 8 see if it does not raise the question of additional 9 reception centers, we read it and we see at th'e second half, 10 covering-all capacity could well have been read to address 11 additional reception centers. So we did that, in response _
12 to your request. But having done that then we recalled that 13 the population planning basis for reception centers is m 14 iudicata. I 15 All right. Is that clear, with respect to E, 1
16 which related to parking places, 100 parking places?
17 MR. TRAFICONTE: Could we now have that minute 18 that we did not take a minute ago to digest it?
19 (Laughter) 20 JUDGE SMITH: All right.
21 MR. TRAFICONTE: It's the sam'e minute.
22 JUDGE SMITH: Okay. I hope we can say it again 23 the same way the next time you ask us.
24 (Counsel confer) 25 JUDGE SMITH: Mr. Dignan, I assume that you wish Heritage Reporting Corporation f (202) 628-4888 l
I, 4
,g ht; U T UNITED STATES OF AMERICA **
NUCLEAR REGULATORY COMMISSION pg ns -1 P 4 :42 1
On L "?'
) bODiVj 1 i In the Matter of )
!Ni- i
)
Docket Nos. 50-443-OL !
PUBLIC SERVICE COMPA. )
50-444-OL OF NEW HAMPSHIRE, _E _T _A _L . )
)
(Seaurook Station, Units 1 and 2) ) February 28, 1989
)
CERTIFICATE OF SERVICE I,
John Traficonte, hereby certify that on February 28, 1989, I made service of the within MOTION OF SAPL AND THE MAS ATTORNEY GENERAL FOR RECONSIDERATION OF THE DENIA FEBRUARY 24, 1989 MOTION FOR EXPEDITED REVIEW OF LBP-88-32 IN REGARD TO ALAB-905 by First Class Mail or by Federal Express as indicated by~i**] to:
Ivan W. Smith, Chairman Atomic Safety & Licensing Board Kenneth A. McCollom i U.S. Nuclear Regulatory Commission 1107 W. Knapp St.
East West Towers Building Stillwater, OK 74075 ;
4350 East West Highway 1 Bethesda, MD 20814 Dr. Richard F. Cole Atomic Safety & Licensing Board Robert R. Pierce, Esq.
U.S. Nuclear Regulatory Commission Atomic Safety & Licensing Board East West Towers Building U.S. Nuclear Regulatory Commission 4350 East West Highway East West Towers Building Bethesda, MD 20814 4350 East West Highway Bethesda, MD 20814 0* Docketing and Service U.S. Nuclear Regulatory Commission ** Thomas G. Dignan, Jr.
Washington, DC 20555 Ropes & Grty One International Place Boston, MA 02110 Sherwin E. Turk, Esq.
U.S. Nuclear Regulatory Commission Office of the General Counsel 11555 Rockville Pike, 15th Floor Rockville, MD 20852 i
f-l l
A L H. Joseph Flynn, Esq. I
. Assistant General Counsel Atomic Safety & Licensing Appeal Board ,
Office of General Counsel. U.S. Nuclear Regulatory Commission- 1 Federal Emergency Management Washington, DC 20555 Agency 500 C Street, S.W.
Washington, DC 20472 Robert A. Backus, Esq. \
Backus, Meyer & Solomon Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission i 116 Lowell Street Washington, DC 20555 i
P.O. Box 516 Manchester, NH 03106 Jane Doughty Seacoast Anti-Pollution League Dianne Curran, Esq.
Five Market Street Harmon, Curran & Towsley Portsmouth, NH Suite 430 03801 2001 S Street, N.W.
Washington, DC 20009' Barbara St. Andre, Esq. Judith Mizner, Esq.
Kopelman & Paige, P.C.
77 Franklin Street 79 State Street Boston, MA 02110 Second Floor Newburyport, MA 01950 Charles P. Graham, Esq.
Murphy & Graham R. Scott Hill-Whilton, Esq. I 33 Low Street Lagoulis, Hill-Whilton & Rotondi Newburyport, MA 01950 79 State Street Newburyport, MA 01950 Ashod N. Amirian, Esq.
145 South Main Street Senator Gordon J. Humphrey P.O. Box 38 U.S. Senate Bradford, MA Washington, DC 20510 01835 (Attn: Tom Burack)
Senator Gordon J. Humphrey . George Dana Bisbee, Esq.
One Eagle Square, Suite 507 Assistant Attorney General Concord, NH 03301 (Attn: Herb Boynton) Office of the Attorney General ,
25 Capitol Street Concord, NH 03301 Phillip Ahrens, Esq. Sandra Gavutis, Chairperson Assistant Attorney General Department of the Attorney General Board of Selectmen Augusta, ME RFD 1, Box 1154 04333 Rte. 107 Kensington, NH 03827 3 Calvin A. Canney City Manager Gary W. Holmes, Esq.
City Hall Holmes & Ellis 126 Daniel Street 47 Winnacunnet Road Hampton, NH 03842 Portsmorth, NH 03801 I
O i
Ridhard A.'Hampe, Esq. Robert Carrigg, Chairman
( Haiupe & McNicholas l
35 Pleasant Street Board of Selectmen Concord, NH Town Office 03301 Atlantic Avenue North Hampton, NH 03862 J. P. Nadeau Selectmen's Office William S. Lord
'10 Central Road Board of Selectmen
. Rye, NH 03870 Town Hall - Friend Street Amesbury, MA 01913 00 Alan S. Rosenthal, Chairman ** Thomas S. Moore Atomic Safety & Licensing Atomic Safety & Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Commission Washington, DC 10555 U.S. Nuclear Regulatory Commission Washington, DC 10555 CCHoward A. Wilber Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, DC 10555 Respectfully submitted, JAMES M. SHANNON ATTORNEY GENERAL
( A ln a chn Traficonte
/ Chief, Nuclear Safety Unit :
' One Ashburton Place
/ Boston, MA 02108
- (617) 727-2200 Dated: February 28, 1989
_ _ _ _ _ - - - _ _