ML20006C434

Applicant Response to Board Order of 900111.* Suggests That Board Defer Further Action on Remanded Issues Until Commission Has Spoken.W/Certificate of Svc

ML20006C434
Person / Time
Site:	Seabrook
Issue date:	02/01/1990
From:	Trout J PUBLIC SERVICE CO. OF NEW HAMPSHIRE, REID & PRIEST
To:	Atomic Safety and Licensing Board Panel
References
CON-#190-9790 ALAB-924, OL, NUDOCS 9002080036
Download: ML20006C434 (18)

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February 1, l$g%EIED gC i

i UNITED STATES OF AMERICA y0 FEB -5 P3:34 NUCLEAR REGULATORY COMMISSION j

F'CKL Ig.[gi WICI.'

XE Dr SECRETARY UC before the l

t ATOMIC SAFETY AND LICENSING BOARD l

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In the Matter of

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PUBLIC SERVICE COMPANY OF

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Docket Nos. 50-443-OL I

NEW HAMPSHIRE, et al.

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50-444-OL

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Off-site Emergency i

(Seabrook Station, Units 1 and 2)

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Planning Issues

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APPLIchMTS' RESPONSE TO LICENSfMG j

BOhRD ORDER OF JhMUhRY 11, 1990 i

On January 11, 1990, this Board issued an order asking l

the parties still interested in participating in these proceedings' "to advise the Board on how to proceed in accordance with the directives of ALAB-924 and how (the l

parties) propose to participate in the resolution of the remanded issues."2 The Board also required the Applicants to l

i By letter of January 19, 1990, the Seacoast Anti-l i

Pollution League advised the Board and parties that it did not have "the least interest whatsoever in any further proceedings before the Board."

E33 Aeolicants' Motion to Dismiss hbandoned Remand Issues (Jan. 26, 1990) [ hereinafter " Motion to Dismiss")

at Exhibit 1.

2 Memorandum and Order (Recardina Issues Remanded in ALAB-924) (Jan. 11, 1990) at 1.

900D000036 900201 PDR ADOCK 05000443 b3 O

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" confirm their commitment respecting transportation needs for certain special facilities "in Rye and Exeter."3 i

The portions of ALAB-924 remanding four issues to the Licensing Board for further consideration are presently on appeal to the commission.'

It was and remains the l

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I Anolicants' nosition. as excreased in their Petition for Review thereof, that ALAB-924 was in error and should be reversed as to those issues.

A ruling by the Commission on I

that petition may wholly eliminate any further need for this Board to address these matters in any way.

Thus, Applicants respectfully suggest, the Licensing Board may wish to defer i

further action on the remanded issues until the commission has spoken.

In the meantime, however, Applicants respond to the Board's directions herein.

1 A.

Romand Issues 1.

LQ&s for Teachers Ridina Evacuation Buses In ALAB-924, the Appeal Board asked that this Board

" resolve the existing inconsistency in its interpretations of the role of school personnel in an evacuation and determine 1

Id. at 2.

1 3

Egg ADolicants' Petition for Review of ALAB-924 (Nov. 10, 1989).

The Intervenors have appealed other portions of the decision.

Interve nors ' Petition for Review of ALAB-924 (Nov. 21,

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1989).

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whether any LoAs should be obtained from school personnel."5 The Licensing Board already has resolved that perceived inconsistency, in its Memorandum of November 20, 1989.6 Therein the Licensing Board explained that the inconsistency j

arose from the use of similar terms in dealing with two otherwise distinct areas of controversy.#

The Board went on to clarify that LOAs are not required for evacuating teachers because (1) they would be acting as " individuals who i

i collectively supply a labor force or activity;"a (2) some t

teachers would be using the buses for their own. evacuation, and thus "would in every sense be recipients of that evacuation service;"' (3) the school as a whole, of which the l

teachers are an integral part, are recipients of evacuation 4

5 Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-924, 30 NRC (Nov. 7, 1989)

[ hereinafter "ALAB-924" and cited to the slip, opinion) at 11.

Public Service ComDany of New Hannshire (Seabrook Station, Units 1 and 2), LBP-89-33, 30 NRC 1989)

(hereinafter "LBP-89-33" and cited to the sTIp.(Nov. 20, opinion).

In this connection, it should be noted that LBP-89-33 is now the law of the case, subject only to ana sponte Appeal Board review.

This is so because two intervenors, NECNP and SAPL, never-filed a notice of appeal with respect to LBP-89-33, and the remaining intervenors never sought an extension of time to brief their appeals with respect to that decision.

Thus thers is no appellate challenge to LBP-89-33.

I Id. at 9-10.

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14. at 10 I

Id. at 11.

services;" and (4) the weight of the evidence is that

" teachers as a group will not abandon students needing their j

care.""

i The Board having responded to the Appeal Board's request, no further proceedings on this issue are required.

l Moreover, the Seacoast Anti-Pollution League ("SAPL"),

i sponsor of the contention under which the issue arose, has f

refused to participate in any further proceedings."

For that reason too, no further action on this issue is f

i warranted.

2.

Sufficiency of the 1986 NHCDA Snecial Needs Survey

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In ALAB-924, the Appeal Board " remand [ed) the matter of the sufficiency of the 1986 Special Needs Survey for further consideration by the Licensing Board.""

The Appeal Board did so because it concluded that at least some issues of l

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Id.

In part because they collectively are service

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recipients, LOAs are not required for the schools themselves.

See Lena Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 NRC 644, 856-58 (1985).

LBP-89-83 at 11; 333 also id. at 8-9.

Moreover, the Board noted that teacher participation is not essential to the planned evacuation of the school children.

Id. at 8; 333 also e

Tr. 3356-57.

Even if no school personnel participated, the children would be under the supervision-of the bus drivers while being evacuated, 32g., Tr. 3388-89, and of reception center personnel and/or volunteers appointed by the Reception Center i

Manager after evacuation.

App. Ex. 5, Vol. 4B, App. B at B-1, B-3, B-4; App. Dir. No. 4, ff. Ir. 4740 at 10; Tr. 4960-65; App.

Dir. No. 7, ff. II. 5622 at 126.

Egg Motion to Dismiss.

u ALAB-924 at 19.

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1 material fact existed in spite of Applicants' notion for o

summary disposition of the survey issues."

Responding to the Appeal Board's directive, this Board

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made a further careful review of "the factors that lead the Appeal Board to reverse the grant of partial summary disposition, the pleadings of the parties in support and in opposition to Applicants' Motion, and the information subsequently developed and reflected in the record of the New Hampshire portion of this proceeding.""

On the basis of y

that review, the Board concluded that "the focus of SAPL's i

i identified concerns regarding the adequacy of the 1986 l

Special Survey is to fine-tune and broaden rather than l

replace the methodology employed by the NHCDA to identify special needs populations,"" and that "the survey 1

deficiencies identified by SAPL, even if ultimately found to be meritorious, are either of no merit or are amenable to relatively simple and timely correction."'I After issuance of the Licensing Board's memorandum containing the above analysis of this remanded issue, SAPL l

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Id. at 16.

As the Appeal-Board appears to concede, just what those surviving issues are is not yet clear, since SAPL has I

failed to identify them.

Ema id, at n. 40.

1 LBP-89-33 at 16.

Id. at 21-22.

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14. at 17.

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l withdrew from participation in any further proceedings."

Since SAPL is the sponsor of the underlying contention and l

the sole advocate of this issue," its withdrawal eliminates j

the need for any further proceedings.i' i

I SAA Motion to Dismiss at Exhibit 1.

The Board noted, LBP-89-33 at 14 n. 7, that NECNP addressed an arguably similar issue, as to identification and

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notification of hearing-impaired individuals, under NHLP contention 4.

However, when NHLP-4 went to hearing for trial, Applicants and NECNP stipulated to a resolution of the i

contention, and it was withdrawn by NECNP.

Rag Tr. 8853 and-Stipulation ff. II. 8853.

l Had SAPL not withdrawn, Applicants would have proposed

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80 proceeding along the following linest 1

a) It first would have been necessary to determine what specific factual issues remain to be litigated.

SAPL's Statement

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of Material Facts as to Which SAPL Contends that SAPL Contentions i

18 and 25 Raise Genuine Issues as to Identification of Those with I

Suecial Needs (June 9, 1986), Attachment A hereto, defines the maximum scope of the issues to have been litigated.

However, while the Appeal Board held that some of these issues survived, it is also clear that at least some of them did not survive Applicants' summary disposition motion.

Hence Applicants would have proposed that Applicants and SAPL sach file, within ten (10) days of the issuance of the Board's scheduling order on the remanded issues, a brief identifying the specific issues from Attachment A which have been disposed of and those which survived the May 1986 motion for summary disposition.

b)

It is also clear that developments on the record --

including the SPMC-Exercise record -- may have disposed of all of the issues that ALAB-924 suggests survived summary disposition in j

1986.

Hence Applicants would have proposed that, in the briefs described above, the Applicants and SAPL also indicate which issues have been resolved, in whole or in part, by subsequent developments already on the record, c)

Finally, since 1986 two additional surveys have been conducted by the New Hampshire office of Emergency Management (NHOEM), and the survey has been suitably " fine-tuned" and

" broadened".

Hence, should the Board have found, after j

consideration of the above-referenced briefs, that some subset of h. -

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3.

Leadina Time for ALE Patients i

Based upon a perceived inconsistency in certain plan

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language,I' and on testimony by SAPL witness Pilot which it f

characterized as being "without apparent contradiction,"22 i

l the Appeal Board remanded for further consideration "the j

issue of (whether) preparation time has received appropriate consideration as a factor in deriving ETEs for (advanced-

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life-support patients)."'3 It is undisputed on the record that the only ALS I

patients in the New Hampshire EPZ are in the two EPZ hospitals.

In its memorandum on ALAB-924, the Licensing Board reviewed the record in detail, clarified a few mis-l citations which may have misled the Appeal Board, and demonstrated that loading time for ALS patients in fact is already accounted for in the evacuation time estimates.25 j

The Licensing Board then went on to note that:

issues still remained to be resolved, Applicants would have l

proposed to resolve them by means of a motion for summary disposition which would have placed these new facts before the Board.

21 ALAB-924 at 26.

22 Id. at 25.

23 Id. at 26-27.

II. 4295.

SAPL's appeal, too, was limited to "the time I

24 it would take to load hosoital patients."

Seacoast Anti-Pollution Leauue's Brief on Aeneal of the Partial Initial Decision on the NHRERP LBP-88-32, at 41 (March 21, 1989).

25 LBP-89-33 at 24-29. r

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"Some improvement could be made in the NHRERP by requiring an amendment to the plan (or town plans) to provide for instructions to the staff of special facilities to prepare ALS patients for transportation at the order to evacuate.

Moreover, any confusion over the distinction between preparing special-needs persons in anticipation of arriving transportation, and assembling them can be readily resolved.

This type of improvement does not require any significant revision j

to the NHRERP and it can be readily accomplished by the Applicants.andtheStateandverifgedbytheNRCStaff during the post licensing period."

Applicants have consulted with the State of New Hampshire, and hereby commit to have the language clarifications suggested above by the Board made, subject to Staff oversight as indicated.

Accordingly, no further proceedings on this I

issue are required.

Moreover, SAPL was the sponsor and sole advocate of

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this issue as well.

Thus ShPL's refusal to participate further'7 constitutes an additional reason why no further i

proceedings need occur on this issue.

4.

Imolementina Detail for Shelterina of General Beach Pooulation In ALAB-924, the Appeal Board held that implementing detail was required for the general beach population (as opposed to the estimated 2 percent of the beach population without vehicles) "g2 long ga sheltering for the beach population is a protective action option under the NHRERP."28 I

Id. at 29.

27 Egg Motion to Dismiss.

88 ALAB-924 at 59 (emphasis added).

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i The Appeal Board contemplated that the plan would provide for sheltering that general beach population in only two limited l

i circumstances:

(1) when sheltering would maximize dose reductions, because of "a short duration, nonparticulate (gaseous) release that would arrive at the beach within a relatively short time period when, because of a substantial beach population, the evacuation time would be significantly

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larger than the exposure duration" ( M. a limited puff release on a summer beach day) andt (2) when physical I

j impediments make evacuation impossible."

l During the hearings on the NHRERP, FEMA took the position, through its witness Joseph Keller, that evacuation (when physically possible) would always be the preferable protective action for the Seabrook beach population in light of, inter alia, the uncertainties of release composition and duration, the effects of groundshine, and the poor quality of the shelter available in the Seabrook beach area.30 This FEMA position was vigorously contested by the Intervenors, i

both at trial and on appeal, and was upheld by both the Licensing Board and the Appeal Board.31 In October 1988, the NHRERP, Rev.

2, Vol. 4, Appendix F was revised to conform to the FEMA position that was litigated (and subsequently M. at 50-51, 59.

30 H. at 52-55.

l M. at 55-58.

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upheld):

at step IV.B.4 (General Emergency) it is I

recommer.ded to evacuate ERPA A, an approximate two-mile radius that includes Hampton and Seabrook beaches, based on a

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declaration of a General Emergency subject only to constraints to evacuation.

This revision to bring the plan j

5 into conformity with the FEMA position was served on the Board and parties on October 13, 1988."

The effect of the change is to eliminate sheltering as an option under the i

first of the two circumstances contemplated by the Appeal i

Board.

Since' sheltering is no longer a planned protective l

action option under those circumstances, no implementing j

detail is required in that case.

i Thus there remains only the issue of implementing detail for the second circumstance, ita. when evacuation is physically impossible, for example because a blizzard has blocked all roads or a tidal wave has destroyed all bridges.33 The amount of implementing detail necessary in such circumstances would be minimalt with the roads blocked or the bridges out, emergency response officials would need very little additional information in order to arrive at an

" accurate picture of the (shelter) option's overall benefits 32 Egg Letter of G. Huntington, Assistant Attorney General of New Hampshire, to Chairman I. Smith, Atomic Safety and Licensing Board, October 13, 1988, and enclosures thereto.

33 123., conditions not normally conducive to large beach populations.

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t and limitations" vis-a-vis a non-existent evacuation t

option."

Likewise, the amount of detail needed is limited by the fact, specifically recognized by the Appeal Board, i

that the types of shelter available to the general beach population is so "down in the dirt in the error band, it's trivial."35 The only implementing detail that would be required pursuant to ALAB-924, therefore, is to direct emergency response officials to, in those extremely unlikely circumstances.that a physical impediment to evacuation exists, broadcast an EBS message instructing the members of j

the general beach population to proceed immediately to the nearest available fully-enclosed building and remain there."

Applicants have consulted with the State of New Hampshire, and hereby commit to have this change made.

With the existing Stone & Webster shelter survey as a reference, state decision makers can be confident that sufficient indoor space is available.37 This change is minor and can be l

ALAB-924 at 64.

l 35 Id. at 57.

l Directing beachgoers to the nearest available building i

is consistent with the NHRERP's existing shelter-in-place approach.

Egg Public Service Comoany of New Hamtshire (Seabrook Station, Units 1 and 2), LBP-88-32, 28 NRC 667, 758 (1988).

37 Id. at 771-72.

All the buildings listed in the survey are " suitable", ALAB-924 at 68, in the sense that they possess the minimal.9 drf which the Appeal Board recognized was all that was available.

Id. at 56.

Beachgoers would be directed to go l

accomplished under Staff oversight. Accordingly, no further proceedings on this issue are required.

B.

Transportation Commitments Applicants hereby confirm that the NHRERP provides for "the transportation needs of special facilities based upon maximum facility capacity.

in the cases of the Webster facility in Rye, New Hampshire, and the Exeter Healthcare facility in Exeter, New Hampshire.""

Specifically,

. The Webster facility staff has, in recent discussions, indicated that their maximum capacity is 69 patients, broken down as 5 Category 2, 27 Category 3,

and 37 Category 4 patients.

The NHRERP commits 1 evac-bed bus, 1 school bus, and 1 coach bus to the facility, with 6 Category 2 spaces, 48 Category 3 spaces," and 36 Category 4 spaces, or a total of 90 spaces for a maximum of 69 riders.

The Exeter Health Care facility has indicated that its maximum capacity is 115 patients, brehen down as 58 Category 2, 36 Category 3, and 21 Category 4 patients.

The NHRERP commits 6 evac-bed and 1 coach bus to the facility, with 58 Category 2 and 64 only to underline "available" buildings, ira those standing and enterable.

14. at 70-71.

Also useable for Category 4 patients. !

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Category 3 spaces, or a total of 122 spaces for a maximum of 115 riders.

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Respectfully submitted, j

t f%hdE Thomas G. Dignan, Jr.

George H. Lewald Jeffrey P. Trout Jay Bradford $nith Geoffrey C. Cook William L. Parker Ropes & Gray One International Place Boston, MA 02110-2624 (617) 951-7000 i

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ERR supra note 39. i

Attcchm:nt A Statement of the Material Facts as to Which SAPL Contends that SAPL Contentions 18 and 25 Raise Genuine issues as to identification of Those With Special Needs.

1)

The survey sent out by the State of New Hampshirm i ill Def ense Agency should be supplemented by a well-planned and implemented program of additional identification techniques for special needs populations because it may not have been received, read and/or understood by the following:

a)

Those who do not pay their own electric bills because they rent apartments where utilities are included in the rent, stay in motels, or only seasonally reside in the EPZ.

b)

Those who are unable to read the English language either ug due to Illiteracy or inability to understand the English languaEe.

e)

Those who suffer such conditions as blindness or other visual impairment.

d)

Those who suf f er such conditions as impaired intelligence or mental confusion due to aging.

2)

The survey sent out by the State of New Hampshire should have been accompanied by public announcements via the print and electronic media to flag the arriving survey to public attention and to explain its relevance to members of the public.

The questionnaire did not give potential respondents sufficient motivation to respond.

It may well have been thrown out by.

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people who did not understand its applicability to their f

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situation.

3)

Only one questionnaire has been sent out by NHCDA and it is to l

t be sent out only annually according to the Strome Affidavit.

I This will be insufficient to locate all special needs persons.

4)

The State of New Hampshire should supplement the survey with an outreach program to social service agencies and other institutions that routinely provide assistance to special needs individuals.

The Strome Affidavit mentions that it will be distributed by "several" social service and local municipal agencies.

This program should be evaluated to assure thoroughness and efficacy.

5)

The design of the special needs questionnaire could have been l

Improved to eliminate ambiguity.

Respectfully submitted, SEAOOAST' ANTI-POLLUTION LEAGUE By its Attorney r

June 9, 1986 i

W d1 Be 9&

Robert A.

BacEus BACKUS, MEYER & SOLOMON 116 Lowell Street P.O. Box 516 Manchester, NH 03105 (603)668-7272 1

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CERTIFICATE OF SERVICE I, Jeffrey P. Trout, one of the attorneys for $he;Appliisants herein, hereby certify that on February 1, 1990, I thdel ib4K1 of the within document by depositing copies thereof with",% p'd[eral

'N Express, prepaid, for delivery to (or, where indicated, by depositing in the United States mail, first class postage paid, addressed to):

1 Administrative Judge Ivan W. Smith Adjudicatory File Chairman, Atomic Safety and Atomic Safety and Licensing Licensing Board Board Panel Docket (2 copies)

U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway

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Bethesda, MD 20814 Bethesda, MD 20814 Administrative Judge Richard F.

Cole Robert R. Pierce, Esquire Atomic Safety and Licensing Board Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board East West Towers Building U.S. Nuclear Regulatory 4350 East West Highway Commission Bethesda, MD 20814 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Administrative Judge Kenneth A.

Mitzi A. Young, Esquire McCollom Edwin J. Reis, Esquire 1107 West Knapp Street Office of the General Counsel Stillwater, OK 74075 U.S. Nuclear Regulatory Commission One White Flint North, 15th F1.

11555 Rockville Pike.

Rockville, MD 20852 l

George Dana Bisbee, Esquire Diane Curran, Esquire Associate Attorney General Andrea C.

Forster, Esquire Office of the Attorney General Harmon, curran & Tousley 25 Capitol Street Suite 430 Concord, NH 03301-6397 2001 S Street, N.W.

Washington, DC 20009

• Atomic Safety and Licensing Robert A.

Backus, Esquire Appeal Board 116 Lowell Street U.S. Nuclear Regulatory P. O.

Box 516 Commission Manchester, NH 03105 Washington, DC 20555

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Philip Ahrens, Esquire Suzanne P. Egan, City Solicitor l

Assistant Attorney General Lagoulis, Hill-Whilton &

Department of the Attorney Rotondi i

I General 79 State Street l

l Augusta, ME 04333 Newburyport, MA 01950 l

Paul McEachern, Esquire John Traficonte, Esquire l

Shaines & McEachern Assistant Attorney General 25 Maplewood Avenue Department of the Attorney P.O. Box 360 General Portsmouth, NH 03801 One Ashburton Place, 19th Fl.

Boston, MA 02108

• Senator Gordon J. Humphrey R. Scott Hill-Whilton, Esquire U.S. Senate Lagoulis, Hill-Whilton &

j Washington, DC 20510 Rotondi (Attnt Tom Burack) 79 State Street Newburyport, MA 01950

• Senator Gordon J. Humphrey Barbara J. Saint Andre, Esquire One Eagle Square, Suite 507 Kopelman and Paige, P.C.

I Concord, NH 03301 77 Franklin Street (Attn Herb Boynton)

Boston, MA 02110 H. Joseph Flynn, Esquire Judith H. Mizner, Esquire Office of General Counsel 79 State Street, 2nd Floor Federal Emergency Management Newburyport, MA 01950 Agency 500 C Street, S.W.

t Washington, DC 20472 Gary W. Holmes, Esquire Ashod N. Amirian, Esquire Holmes'& Ells 145 South Main Street 47 Winnacunnet Road P.O. Box 38 Hampton, NH 03842 Bradford, MA 01835 Mr. Richard R. Donovan Mr. Jack Dolan Federal Emergency Management Federal Emergency Management Agency Agency - Region I Federal Regional Center J.W. McCormack Post Office &

130 228th Street, S.W.

Courthouse Building, Room 442 Bothell, Washington 98021-9796 Boston, MA 02109,

l George Iverson, Director N.H. Office of Emergency Management State House Office Park South 107 Pleasant Street Concord, NH 03301

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'Jef frey P. Trout

(*= Ordinary U.S. First Class Mail)

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