Opposition Brief — Massachusetts v. United States Nuclear Regulatory Commission
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Supreme Court, U.S.
FILED
MAY
No. 90-1657 64 1991
OFFICE OF THE CLERK
In the
Supreme Court of the United States
Octroser TERM, 1990
COMMONWEALTH OF MASSACHUSETTS,
SEACOAST ANTI-POLLUTION LEAGUE,
NEW ENGLAND COALITION ON NUCLEAR
POLLUTION, anp TOWN OF HAMPTON,
PETITIONERS,
vo.
UNITED STATES NUCLEAR REGULATORY
COMMISSION, UNITED STATES OF AMERICA, ano
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE,
RESPONDENTS.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF IN OPPOSITION OF RESPONDENT,
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE
THomas G. DIGNAN, Jr.
Ropes & Gray
One International Place
Boston, MA 02110-2624
(617) 951-7000
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QUESTIONS PRESENTED
1. Did the United States Court of Appeals for the District
of Columbia Circuit err in holding that the United States
Nuclear Regulatory Commission (NRC) had not abused its
discretion in permitting the Seabrook Nuclear Power Station
(Seabrook) to operate at full power pending NRC’s further
review of licensing issues?
2. Did the United States Court of Appeals err in according
deference to the NRC’s interpretation of its own regulations in
the circumstances of the case presented?
PARTIES TO THE PROCEEDINGS
In addition to the parties listed on Page 2 of the petition,
Public Service Company of New Hampshire (PSCO)", as lead
owner of Seabrook” participated in the proceedings before
the court below as an intervenor therein, and is a respondent
in this Court pursuant to Rule 12.4. In addition, appearances
were entered for various other cities or towns in The Com-
monwealth of Massachusetts, although these entities did not
actually brief or argue the cause.
* It is anticipated that PSCO, after certain regulatory approvals are
obtained, will be merged into Northeast Utilities, a Connecticut-based utility
holding company.
** Other owners of Seabrook include Canal Electric Company, a subsidiary
of Commonwealth Energy Systems, Connecticut Light & Power Company,
a subsidiary of Northeast Utilities, EUA Power Company and Montaup Elec-
tric Company, subsidiaries of Eastern Utility Associates, Hudson Light &
Power Company, Massachusetts Municipal Wholesale Electrical Company,
New England Power Company, a subsidiary of New England Electric
System, New Hampshire Electric Cooperative, Inc., Taunton Municipal
Light Plant, The United Illuminating Company and Vermont Electric and
Generation Transmission Cooperative, Inc.
TABLE OF CONTENTS
Page(s)
ia Gy kag vccntbacstvssces i
Parties to the Proceedings................ ere ee i
a td nese ta uecaeee iv
yk Gv neces cr vesesevsveeves ]
ese ich sash ess secs acess anes ]
2. The Court of Appeals’ Opinion ............... 3
Reasons for Denying the Petition..................... 4
eee 8
Appendix - Public Service Company of New Hampshire
(Seabrook Station, Units 1 and 2), ALAB-932,
EOD, ow. eke eee ace eanee A-1
iv
TABLE OF AUTHORITIES
Cases:
Page(s)
Arizona Grocery Co. v. Atcheson Topeka & Santa Fe
me ee ere eee
Batterton v. Francis, 432 U.S. 416 (1977) ..............
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945)
F.C.C. v. Schreiber, 381 U.S. 279 (1965) ..............
Gardebring v. Jenkins, 485 U.S. 415 (1988) ............
Immigration and Naturalization Service v. Cardoza-
i eR): ee ere
Immigration and Naturalization Service v. Stanisic, 395
Se tw ee od aga n'a Ghee Rane
Massachusetts v. N.R.C., 924 F.2d 311 (D.C. Cir. 1991) .
Seacoast Anti-Pollution League v. N.R.C., 690 F.2d 1025
es No iweb ns exw sus base4 beeen
Udall v. Taliman, 380 U.S. 1 (1965) ..................
Vermont Yankee Nuclear Power Corp. v. Natural
Resources Defense Council, Inc., 435 U.S. 519 (1978) .
Administrative Decisions:
Public Service Company of New Hampshire (Seabrook
Station, Units 1 and 2), CLI-90-02, 31 N.R.C. 197
LE DP a hate ne ak See eee VC aoe aes
Public Service Company of New Hampshire (Seabrook
Station, Units 1 and 2), CLI-90-03, 31 N.R.C. 219
a are rire enema ey rete eee
Public Service Company of New Hampshire (Seabrook
Station, Units 1 and 2), ALAB-932, 31 N.R.C. 371
PREECE ren’ oh, Een gy ge ay Oe
7
Regulations:
10 C.F.R. §§ 2.700 et seq
10 C.F.R. § 2.786
10 C.F.R. § 50, App. E
10 C.F.R. § 50.47
10 C.F.R. § 50.47(a)(1)
10 C.F.R. § 50.47(b)
La 2S. 2S 2 6 et & 6S. 42- 6 o 4 Se O68 Soe Se ES Be BS OS SO
ee ee ee ee ee ee oe ae ee ee
ee ee ee ee ee ee ee ee ee ie ek i a ay ar he
In the
Supreme Court of the United States
Ocroser TERM, 1990
No. 90-1657
COMMONWEALTH OF MASSACHUSETTS,
SEACOAST ANTI-POLLUTION LEAGUE,
NEW ENGLAND COALITION ON NUCLEAR
POLLUTION, anp TOWN OF HAMPTON,
PETITIONERS,
v.
UNITED STATES NUCLEAR REGULATORY
COMMISSION, UNITED STATES OF AMERICA, anp
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE,
RESPONDENTS.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF IN OPPOSITION OF RESPONDENT,
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE
STATEMENT
1. Background: During the lengthy proceedings which
ultimately led to the licensing for full power operation
(pending further administrative review) of Seabrook Station
2
(Seabrook), a nuclear power facility! located in Seabrook,
New Hampshire, the Petitioners herein sought admission into
evidence of certain prefiled testimony. The testimony pur-
ported to analyze the amounts of radiation dose which would
be received by individuals near Seabrook in the event of a
catastrophic accident, even assurming that the emergency
plans, which had been designed to mitigate such an event by
the State of New Hampshire, were implemented. The cogni-
zant trial tribunal, an Atomic Safety and Licensing Board
(Licensing Board) of the United States Nuclear Regulatory
Commission (NRC or Commission) ,* excluded the testimony
on the basis of prior NRC authority to the effect that calcula-
tions of dose savings resulting from particular emergency pro-
tective actions at particular sites under particular accident
scenarios were irrelevant to the issue of whether emergency
plans required by NRC regulations, 10 C.F.R. § 50.47; 10
C.F.R. 50, App. E, were or were not adequate.’ The correct-
ness vel non of this evidentiary ruling was certified to the NRC
for decision by the cognizant Atomic Safety and Licensing Ap-
peal Board.‘ The decision excluding the testimony was upheld
in a unanimous Commission decision, Public Service Com-
pany of New Hampshire (Seabrook Station Units 1 and 2),
CLI-90-02, 31 N.R.C. 197 (1990).5 The Commission ruled
that ascertainment of the “dose savings” to be realized in par-
' The initial application for a construction permit for Seabrook was filed
in 1973. The full power license issued some seventeen years later in 1990.
* NRC had, as of the time the Seabrook proceeding was pending, perhaps
the most elaborate adjudicatory apparatus of any agency of the United
States. The “trial” proceedings are held before a Licensing Board; from this
tribunal, an appeal was allowed as of right to the Atomic Safety and Licens-
ing Appeal Board (Appeal Board); this, in turn, could be followed by discre-
tionary review by the Commission itself. See 10 C.F.R. §§ 2.700 et seq.
* The Licensing Board’s ruling was read orally from the bench. See the
decision below, Massachusetts v. N.R.C., 924 F.2d 311, 317 (D.C. Cir.
1991). The decision below is reproduced in Vol. I of the Appendix to the Peti-
tion for Certiorari herein (hereafter cited “App.”) App. Vol. I at 16.
* See n. 2, supra.
5 App. Vol. I at 130-201.
3
ticular circumstances are not the proper method by which to
measure the adequacy of a radiological emergency plan;
rather, the proper test was to measure the plan against plan-
ning standards set forth in the Commission’s regulations, 10
C.F.R. § 50.47(b).° The Petitioner’s sought review in the
United States Court of Appeals for the District of Columbia
Circuit of this decision, along with another Commission deci-
sion, issued of even date, which actually authorized full power
operation, Public Service Company of New Hampshire,
CLI-90-03 (Seabrook Station, Units 1 and 2), 31 N.R.C. 219
(1990).” In that Court, Petitioners argued that the exclusion of
the testimony was a violation of NRC’s own regulations, par-
ticularly 10 C.F.R. § 50.47(a)(1).°
2. The Court of Appeals Opinion: The Court of Appeals
affirmed the action of NRC. In so doing it began with a
jurisdictional discussion which illustrates the narrow reach of
the decision. Therein, the Court of Appeals pointed out that
the ultimate decison on review, i.e., the license authorizing
decision, CLI-90-03, was “an immediate effectiveness
review’, reviewable, under prior Court of Appeals precedent,
only for an abuse of discretion.* The Court of Appeals went on
to point out:
“The only ‘final agency action’ at issue here is an order
allowing the plant to operate at full power pending the
Commission’s further review of the licensing issues.””'°
In affirming the exclusion of the evidence, the Court of
Appeals correctly applied a deferential standard of review to
the NRC’s interpretation of its own regulation.'' It found that
the test adopted by the Commission was permitted by the
regulatory language,'* and prohibited neither by any appli-
* App. Vol. I at 183-98.
” App. Vol. II at 1-140.
® Petition at 3.
® App. Vol. I at 43-44.
‘© App. Vol. I at 46; 924 F.2d at 322.
'' App. Vol. I at 53-57; 924 F.2d at 324.
'2 App. Vol. I at 57-63; 924 F.2d at 324-25.
4
cable statutory limitation’® nor any proper interpretation of
rulemaking history.'* In particular, the Court noted that by
neither interpretation, nor draftsmanship, had NRC ever in-
dicated an intent that the regulation at issue would have the
effect of being a “site blocker”, noting that siting regulations
were set out in an entirely separate part of NRC’s
regulations.'® Finally, the Court of Appeals, as had the Com-
mission before it,'® noted that the Petitioners had not taken ad-
vantage of certain procedural steps which would have permit-
ted submission of the testimony in the form of affidavits sup-
porting a motion to waive the regulations on the basis that
Seabrook presented special circumstances.’”
REASONS FOR DENYING THE PETITION
The petition herein is long on history and short on reasons
why the Court should grant the Petition. As a result it is dif-
ficult to ascertain precisely what arguments are being made to
support the assertion that the case presents an important ques-
tion of Federal Law which has not been, but should be, settled
by this Court. In any event, the following reasons militate
against the granting of the Petition.
1. The case does not present the question claimed by the
Petitioners. Petitioners claim that the question presented is:
“May the Nuclear Regulatory Commission (““NRC’’) issue
a full power operating license for a nuclear power piant
without deciding whether the applicable emergency
plans will effectively protect the public in a radiological
emergency.’”'®
'? App. Vol. I at 63-74; 924 F.2d at 325-27.
'* App. Vol. I at 74-80; 924 F.2d at 327-29.
'S App. Vol. I at 71-73, 89; 924 F.2d at 327, 30.
'® App. Vol. I at 200.
'7 App. Vol. I at 89-91; 924 F.2d at 330.
'® Petition at (i).
5
But this is not what NRC did, even accepting Petitioners’ own
version of the proceedings below. The administrative decision
as to which the Petitioners claim error, CLI-90-2, makes clear
that the Commission was not making a decision as to adequacy
but rather was setting forth how such a determination was to
be made.'* Subsequently, that determination was made by the
Appeal Board on May 31, 1990. Public Service Company of
New Hampshire (Seabrook Station, Units 1 and 2),
ALAB-932, 31 NRC 371, 424 (1990) (Appendix to this Brief at
A-78—A-80). Review was not sought before the NRC by the
Petitioners of this decision which has become final agency ac-
tion by operation of law. 10 C.F.R. § 2.786. Nor did Peti-
tioners seek review of that decision in the Courts of Appeals.
Thus, the decision giving rise to the issue stated by Petitioners
here never was appealed by them. The issue actually presented
by the case at bar is not one of whether NRC is assuring itself
of emergency plan adequacy in licensing cases. Rather, the
issue presented is whether Petitioners’ methodology for deter-
mining adequacy should be followed as opposed to that
selected by NRC. As the Court of Appeals correctly recog-
nized, the methodology and procedures by which an expert
agency possessing broad statutory discretion makes its
necessary determinations, is quintessentially a matter com-
mited to agency discretion at least absent a clearly and
unequivocally stated statutory or regulatory provision to the
contrary.”
2. From the face of the Petition it is also apparent that the
issue sought to be raised, assuming it were raised, is not of any
widespread importance. Petitioners claim, in essence, that, in
'® App. Vol. I at 200-201. And, of course, CLI-90-03, likewise did not
determine final adequacy; only that for purposes of allowing operation dur-
ing the pendency of intra-agency appeals, the Licensing Board decision
seemed reasonabie. E.g., App. Vol. II at 1-2, 32-95.
2 Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense
Council, Inc., 435 U.S. 519, 543 (1978); F.C.C. v. Schreiber, 381 U.S. 279,
290 (1965).
6
licensing Seabrook, NRC changed the emergency planning
rule by adjudicatory interpretation from that under which
previous plant licensing proceedings had been conducted.?!
Prescinding from the accuracy of the characterization, it is
clear that Seabrook is the last adjudicatory operating license
proceeding in the NRC pipeline which raises substantial emer-
gency planning issues. Thus, the issue has no practical impor-
tance with respect to future cases, and, if one accepts Peti-
tioners’ own assertions, all other operating plants were
licensed under, and continue to operate under, a rule inter-
pretation more to their liking. It is difficult to see how a peti-
tioner could so define and argue an issue so as to make it less
worthy of this Court’s attention.
3. The Court of Appeals’ deferential standard is in full ac-
cord with settled legal principles and prior decisions of this
Court. Petitioners cite Arizona Grocery Co. v. Atcheson
Topeka & Santa Fe Ry., 284 U.S. 370 (1932) for the proposi-
tion that NRC could not, by adjudication, change an inter-
pretation of its own regulations.** But Arizona Grocery simply
held that the Interstate Commerce Commission, having
declared a certain rate legal in a ratemaking proceeding, could
not in a later adjudication simply declare it “illegal” and
penalize a carrier as a result. Petitioners cite Immigration and
Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421, 446
n.30 (1987) and Batterton v. Francis, 432 U.S. 416, 425 n.9
(1977) as illustrating that the Court of Appeals gave undue
deference to NRC’s interpretation of its own regulation.
However, both of these cases involved interpretations by ad-
judication (Cardoza-Fonseca) and rulemaking (Batterton) of a
federal statute. What was not involved in either case, and was
recognized explicitly in the Batterton footnote cited by Peti-
tioners as owed great deference, was a legislative-type regula-
tion within an agency’s statutory expertise as is here involved.
2! See, e.g., Petition at 25, 31, 33-34.
*2 Petition at 31-32. The Petitioners’ quote from the case is also inaccurate.
The word used by the Court was “retroactive” not “retrospective”.
In short, the prior decisions of this Court cited by Petitioners
are wholly inapposite. The Court of Appeals, in accord with
numerous decisions of this Court, correctly deferred to the
agency in this matter of the proper interpretation to be
accorded the agency’s own, clearly authorized, regulations.”
4. At Note 7 on Page 32 of the Petition, Petitioners seek to
justify their failure to utilize available procedures suggested by
the Commission and the Court of Appeals to obtain considera-
tion of their evidence on the basis that they had no idea that
the Commission would interpret its emergency planning rule
so as not to require specific dose calculations and analyses. The
plea of ignorance belies the facts. Nine years ago, one of these
petitioners, Seacoast Anti-Pollution League, sought to force a
hearing on whether Seabrook could comply with the then
recently adopted, post-Three Mile Island, emergency planning
regulations. In the decision denying SAPL the relief it sought,
Seacoast Anti-Pollution League v. NRC, 690 F.2d 1025 (D.C.
Cir. 1982), a case cited in the Petition itself, the Court of Ap-
peals characterized one of SAPL’s arguments thus:
“SAPL also argues that regulations adopted by the Com-
mission provide no standard by which to gauge the ade-
quacy of emergency plans because they do not set out
specific radiation dose limits and release times.”
690 F.2d at 1029 n.14 (emphasis added). In short, Petitioner
SAPL, at least, had been aware for years that “dose” evidence
was irrelevant under the regulation.
5. Insum, the case at bar represents the unremarkable ap-
plication of settled judicial principles to the discretionary rul-
ing of an agency to permit a license to be effective pending
23 Gardebring v. Jenkins, 485 U.S. 415, 430 (1988); United States v.
Larinoff, 431 U.S. 864, 872-73 (1977); Immigration and Naturalization Ser-
vice v. Stanisic, 395 U.S. 62, 72 (1969); Udall v. Tallman, 380 U.S. 1, 16-17
(1965); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945).
8
intra-agency review of the adjudicatory proceedings leading
up to its issuance. The agency decision that arguably might
have presented the issue Petitioners want to raise was never
appealed by Petitioners.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted,
Tuomas G. DicNnan, Jr.
Ropes & Gray
One International Place
Boston, MA 02110-2624
(617) 951-7000
Dated: May 24, 1991
A-1
APPENDIX
Cite as 31 NRC 371 (1990) ALAB-932
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
ATOMIC SAFETY AND LICENSING APPEAL BOARD
Administrative Judges:
G. Paul Bollwerk, III, Chairman
Alan S. Rosenthal
Howard A. Wilber
In the Matter of Docket Nos. 50-443-OL
50-444-OL
(Offsite Emergency
Planning Issues)
PUBLIC SERVICE COMPANY OF
NEW HAMPSHIRE, et al.
(Seabrook Station, Units 1
and 2) May 31, 1990
In reviewing LBP-88-32, 28 NRC 667 (1988), concerning
the New Hampshire Radiological Emergency Response Plan
(NHRERP) for the Seabrook Station, the Appeal Board affirms
those portions of LBP-88-32, 28 NRC 667, regarding “Re-
sponse Personnel Adequacy,” “Human Behavior in Emergen-
cies,” and “Evacuation Time Estimates (ETEs),” and unpub-
lished Licensing Board rulings on Seacoast Anti-Pollution
League (SAPL) Contentions 4 and 5, except that the Appeal
Board reverses and remands the Licensing Board’s ruling on
ETEs for further calculations relative to the “hidden vehicles”
described in 79.120 of LBP-88-32. Thus, the Appeal Board
A-2
addresses the remainder of issues concerning the NEHRERP
not covered by ALAB-924, 30 NRC 331 (1989), petitions for
review pending. In addition, the Board further explains some
matters in light of CLI-90-2, 31 NRC 197 (1990), petition for
review pending sub nom. Massachusetts v. NRC, No. 90-1132
D.C. Cir. filed Mar. 7, 1990), the Commission’s recent deci-
sion in which it discussed whether emergency planning re-
quirements are “adequate protection” standards within the
meaning of section 182 of the Atomic Energy Act of 1954, as
amended (42 U.S.C. § 2232).
EMERGENCY PLANNING: RESPONSE PERSONNEL
For purposes of judging the adequacy of state and local re-
sponse personnel resources, individuals properly are consid-
ered to be “available” to provide services if they are within an
organization or “pool” that is a candidate to perform a partic-
ular response function.
EMERGENCY PLANNING: RESPONSE PERSONNEL
The Licensing Board’s conclusion that (1) “temporal avail-
ability” of response personnel (i.e., the ability to participate in
response activities on a twenty-four hour basis, and (2) “voli-
tional availability” of response personnel (i.e., the willingness
to participate in response activities), is more properly ad-
dressed and evaluated as part of the “planning” and “imple-
mentation” process (including the full-scale emergency re-
sponse exercise), rather than in assessing the adequacy of re-
sponse personnel resources “pools,” is a reasonable one that is
not at odds with any existing regulatory requirement.
EMERGENCY PLANNING: RESPONSE PERSONNEL;
REGULATORY GUIDANCE (NUREG-0654)
REGULATIONS: INTERPRETATION (10 C.F.R.
§ 50.47(b)(1))
The declaration in 10 C.F.R. § 50.47(b)(1) that each prin-
cipal response organization must have “staff to respond and to
A-3
augment its initial response on a continuous basis” and the
guidance in NUREG-0654 Criterion II.A.4 that “[eJach prin-
cipal organization shall be capable of continuous (24-hour)
operations for a protracted period” do not require or suggest
any particular time by which a response organization must be
“fully staffed” or any particular method by which staffing
adequacy must be demonstrated.
EMERGENCY PLANNING: PUBLIC NOTIFICATION;
RESPONSE PERSONNEL
REGULATIONS: INTERPRETATION (10 C.F.R. Part 50,
APP. E, § IV.D.3)
Section IV.D.3 of Appendix E to 10 C.F.R. Part 50, while
mandating that the licensee must have the capability to notify
state and local officials within fifteen minutes of declaring an
emergency and that the capability must exist to notify the
public of a situation requiring urgent action within fifteen
minutes of notifying state and local officials, does not require
any particular time for attaining full response organization
staffing or any particular method by which staffing adequacy
must be demonstrated.
EMERGENCY PLANNING: RESPONSE PERSONNEL
In the absence of any compelling showing that significant
segments of those in the response personnel “pools” being re-
lied upon as a principal planning basis to establish response
personnel resources adequacy are for one reason or another
likely to be “unavailable,” there was no need for emergency
planners to make a separate “availability” showing as part of
the process undertaken to identify those “pools.”
A-4
EVIDENCE: DUTY TO PROVIDE
A party that fails to put forth allegedly relevant information
on direct examination is not entitled to have that information
considered because it could have been elicited during cross-
examination.
EMERGENCY PLANNING: FEMA FINDINGS (NEED
FOR FINAL FINDINGS)
REGULATIONS: INTERPRETATION (10 C.F.R.
§ 50.47(a)(2))
“Section 50.47(a)(2) does not require deferment of any hear-
ing on State and local government emergency response plans
to await FEMA’s issuance of final findings on those plans.
Rather, what that [s]ection contemplates is a licensing decision
based on the best available current information on emergency
preparedness.” Cincinnati Gas & Electric Co. (William H.
Zimmer Nuclear Power Station, Unit No. 1), ALAB-727, 17
NRC 760, 775 (1983) (citation and footnote omitted). See also
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power
Plant, Units 1 and 2), ALAB-776, 19 NRC 1373, 1379 (1984);
Southern California Edison Co. (San Onofre Nuclear Gener-
ating Station, Units 2 and 3), ALAB-717, 17 NRC 346, 379-80
(1983).
EMERGENCY PLAN(S): CONTENT (SUFFICIENCY)
LICENSING BOARD(S): DISCRETION IN MANAGING
PROCEEDINGS
It is for the Licensing Board to judge at exactly what stage
an emergency plan is sufficiently developed to allow for hear-
ings and a decision, taking into account the evidence on the
current state af the plan. Zimmer, ALAB-727, 17 NRC at 775.
A-5
EVIDENCE: ADMISSIBILITY (SURREBUTTAL
TESTIMONY)
LICENSING BOARD(S): DISCRETION IN MANAGING
PROCEEDINGS (SURREBUTTAL TESTIMONY)
The admission of surrebuttal testimony is a matter within
the discretion of a Licensing Board, particularly when the
party sponsoring the testimony reasonably should have antici-
pated the attack upon its evidence. See Cellular Mobile Sys-
tems v. FCC, 782 F.2d 182, 201-02 (D.C. Cir. 1985). |
RULES OF PRACTICE: APPELLATE REVIEW
APPEAL BOARD(S): SCOPE OF REVIEW
It is a “settled principle of appellate practice that an appel-
lant is ordinarily precluded from pressing issues or advancing
arguments not presented to the trial tribunal,” except possibly
in the case of “serious substantive issues.”” ALAB-924, 30 NRC
at 358.
EVIDENCE: INFERENCES; QUANTUM OF PROOF
RULES OF PRACTICE: EXPERT WITNESS
In reviewing Licensing Board findings based on the testi-
mony of applicants’ expert witnesses, “[t]he possibility that in-
consistent or even contrary inferences could be drawn if the
views of [intervenors’] experts were accepted does not prevent
the trial board’s findings from being supported by substantial
evidence.” Northern Indiana Public Service Co. (Bailly Gener-
ating Station, Nuclear 1), ALAB-303, 2 NRC 858, 866 (1975)
(citations omitted).
A-6
APPEAL BOARD(S): STANDARD OF REVIEW
After giving the Licensing Board’s factual findings the pro-
bative force they intrinsically command regarding aberrant
behavior by the general public, the Appeal Board concludes
there is no basis for reversing that finding.
RULES OF PRACTICE: IMMEDIATE EFFECTIVENESS
REVIEW (EFFECT ON APPEAL BOARD DECISIONS)
A Commission observation in its immediate effectiveness
review concerning the adjudicatory record is not binding upon
the Appeal Board. See 10 C.F.R. § 2.764(g).
EMERGENCY PLANNING: EVACUATION TIME
ESTIMATES
EMERGENCY PLANS: CONTENT (PROTECTIVE
MEASURES)
Planning officials are required to develop “[g]uidelines for
the choice of protective actions during an emergency.” 10
C.F.R. § 50.47(b)(10). To this end, planners also are to “pro-
vide an analysis of the time required to evacuate and for taking
other protective actions for various sectors and distances
within the plume exposure pathway EPZ [(i.e., emergency
planning zone) ] for transient and permanent populations.” Jd.
Part 50, App. E. § IV.
EMERGENCY PLANNING: EVACUATION TIME
ESTIMATES; REGULATORY GUIDANCE (NUREG-0654)
An evacuation time estimate (ETE) should be prepared
“based on a dynamic analysis (time-motion study under vari-
ous conditions) for the [EPZ].”” NUREG-0654 Criterion II.].
10.1. See also Appendix A to NUREG-0654.
A-7
EMERGENCY PLANNING: EVACUATION TIME
ESTIMATES
“(T]he [ETE] analysis is intended to reflect a realistic time
for completing an evacuation.” Philadelphia Electric Co.
(Limerick Generating Station, Units 1 and 2), ALAB-845, 24
NRC 220, 244 (1986); see also Limerick, ALAB-836, 23 NRC
479, 486 (1986). With this information in hand, “emergency
coordinators can then decide what protective actions (e.g.,
sheltering or evacuation) are warranted in the circumstances,
if a radiological emergency occurs.” Limerick, ALAB-845, 24
NRC at 244; see also Limerick, ALAB-836, 23 NRC at 486.
EMERGENCY PLANNING: EVACUATION TIME
ESTIMATES
The ETE is only a planning tool; as such, Commission regu-
lations establish no particular time limits for completing an
EPZ evacuation. See Limerick, ALAB-845, 24 NRC at 244;
Limerick, ALAB-836, 23 NRC at 486.
EMERGENCY PLANNING: REQUIREMENTS;
RESPONSE PERSONNEL
There is no regulatory requirement that the State perma-
nently assign existing police resources to a particular location
to ensure that there are no staffing delays in the event of a
radiological emergency. Simply because additional police
resources will be needed in a particular location in the event of
a radiological emergency and will require some period of time
to arrive, this potential for delay does not require that perma-
nent police staffing in that area be “beefed up” to a degree
beyond what is otherwise required to provide adequate law
enforcement protection under normal circumstances. See
Southern California Edison Co. (San Onofre Nuclear Gener-
ating Station, Units 2 and 3), CLI-83-10, 17 NRC 528, 536
A-8
(1983), rev'd in part on other grounds, GUARD v. NRC, 753
F.2d 1144 (D.C. Cir. 1985).
RULES OF PRACTICE: OFFICIAL NOTICE
The Appeal Board may take official notice of the State of
New Hampshire Traffic Management Manual accompanying
the New Hampshire Radiological Emergency Response Plan.
See 10 C.F.R. § 2.743(i).
EMERGENCY PLANNING: REQUIREMENTS
If a particular accident sequence requires that protective
action be taken when state and local emergency response
efforts are not fully mobilized, response officials would have to
weigh whatever increased risks may be attendant upon taking
a particular protective action (such as an evacuation) without
having the planned response personnel in place.
EMERGENCY PLANNING: EVACUATION TIME
ESTIMATES; REGULATORY GUIDANCE (NUREG-0654)
In producing ETEs, planners should include “[e]stimates of
transient populations ... such as peak tourist volumes.”
NUREG-0654, App. 4, at 4-3.
EMERGENCY PLANNING: EVACUATION TIME
ESTIMATES; REGULATORY GUIDANCE (NUREG-0654)
For the ocean beach area within the EPZ, NUREG-0654’s
guidance to calculate the ETEs on the basis of “peak tourist
volumes” is well served by the use of the “reasonable expect-
able occupancy” method (i.e., a method that uses an estimate
of parked vehicles, as well as vehicles in transit, on a peak rep-
resentative day).
A-9
EMERGENCY PLANNING: EVACUATION TIME
ESTIMATES
When the vehicle count used in calculating the ETE for the
beach population was based on an estimate of the actual num-
ber of vehicles on a representative peak day and when “con-
vincing unrebutted testimony” had been presented that there
were “hidden vehicles,” i.e., vehicles not observable from
aerial photographs (and such number of vehicles was set forth
in the Licensing Board’s findings), the Board erred in not re-
quiring that those hidden vehicles be incorporated within the
appropriate ETE calculations.
EMERGENCY PLANNING: EVACUATION TIME
ESTIMATES; REGULATORY GUIDANCE (NUREG-0654)
EMERGENCY PLAN(S): STATE AND LOCAL
GOVERNMENT RESPONSIBILITIES
REGULATIONS: INTERPRETATION (10 C.F.R.
PART 50, APP. E)
While there may be an independent responsibility on the
part of the State to incorporate revised ETEs into an emer-
gency plan, see NUREG-0654 Criterion II.J.10./-m, the appli-
cant rather than the State is responsible for preparing an
amended set of ETEs, see 10 C.F.R. Part 50, App. E, § IV;
NUREG-0654 Criterion II.J.8.
RULES OF PRACTICE: APPEAL BOARD DECISIONS
(EFFECT ON LICENSE AUTHORIZATON)
When full-power authorization has been made effective, in
remanding matters, the Appeal Board must consider the im-
pact of its action upon that authorization. Limerick,
ALAB-845, 24 NRC at 234; Limerick, ALAB-836, 23 NRC at
250; see CLI-90-3, 31 NRC at 230.
alee
A-10
RULES OF PRACTICE: APPEAL BOARD DECISIONS
(EFFECT ON LICENSE AUTHORIZATION)
When additional calculations mandated by the Appeal
Board to correct an ETE deficiency do not require significant
time or resources to complete and are not likely to result in a
profound change in the present ETEs, an existing licensing
authorization need not be vitiated. See 10 C.F.R. § 50.47
(c)(1).
EMERGENCY PLANNING: MEDICAL SERVICES
ARRANGEMENTS
REGULATIONS: INTERPRETATION (10 C.F.R.
§ 50.47(b)(12))
When, in conformance with a Commission policy state-
ment, applicants (1) had provided a list of local medical facil-
ities capable of administering care to contaminated individ-
uals, and (2) had committed to comply fully with any addi-
tional Commission requirements that might be imposed in
response to a judicial determination overturning the Commis-
sion’s previous interpretation of the scope of necessary medical
services arrangements under 10 C.F.R. § 50.47(b)(12), the
Licensing Board properly rejected an intervenor’s contention
challenging applicants’ compliance with the requirements of
10 C.F.R. § 50.47(b)(12).
RULES OF PRACTICE: MOTIONS FOR SUMMARY
DISPOSITION
When a party fails to controvert material facts as established
by another party in support of a motion for summary disposi-
tion, they are effectively admitted. See 10 C.F.R. § 2.749(a).
A-11
ATOMIC ENERGY ACT: INTERPRETATION
EMERGENCY PLANNING: BASIS FOR REQUIREMENT
Emergency planning is an “adequate protection” standard
under section 182 of the Atomic Energy Act (AEA). CLI-90-2,
31 NRC at 210-13.
EMERGENCY PLANNING: BASIS FOR REQUIREMENT;
REQUIREMENTS
To determine whether an emergency plan provides “ade-
quate protection,” the plan must be assessed in terms of
whether it meets the sixteen planning standards of 10 C.F.R.
§ 50.47(b). CLI-90-2, 31 NRC at 213, 217.
APPEARANCES
John Traficonte, Boston, Massachusetts (with whom Allan
Fierce, Boston, Massachusetts, was on the brief), for the
intervenor James M. Shannon, Attorney General of
Massachusetts.
Diane Curran, Washington, D.C., for the intervenor New
England Coalition on Nuclear Pollution.
Robert A. Backus, Manchester, New Hampshire, for the inter-
venor Seacoast Anti-Pollution League.
Paul McEachern, Portsmouth, New Hampshire (with whom
Matthew T. Brock, Portsmouth, New Hampshire, was on
the brief), for the intervenor Town of Hampton.
Thomas G. Dignan, Jr., Boston, Massachusetts (with whom
George H. Lewald, Kathryn A. Selleck, Jeffrey P. Trout,
Jay Bradford Smith, and Geoffrey C. Cook, Boston,
A-12
Massachusetts, were on the brief), for the applicants
Public Service Company of New Hampshire, et al.
Sherwin E. Turk for the Nuclear Regulatory Commission
staff.
DECISION
In ALAB-924,' we addressed a number of issues raised by
intervenors Attorney General of Massachusetts (MassAG), the
New England Coalition on Nuclear Pollution (NECNP), the
Seacoast Anti-Pollution League (SAPL), and the Town of
Hampton (TOH) in their appeal from the Licensing Board’s
December 30, 1988 partial initial decision on emergency plan-
ning for the New Hampshire portion of the plume exposure
pathway Emergency Planning Zone (EPZ) for the Seabrook
Station.? In this decision, we address the balance of those mat-
ters raised by intervenors’ appeals regarding the New Hamp-
shire Radiological Emergency Response Plan (NHRERP).°
Specifically, we confront those issues advanced concerning the
portions of the Licensing Board’s decision entitled “Response
Personnel Adequacy,” “Human Behavior in Emergencies,”
and “Evacuation Time Estimates (ETEs).” In addition, we
address a number of other issues raised by intervenors and in-
clude a further explanation regarding several matters in light
of CLI-90-2,4 the Commission’s recent decision in which it dis-
cussed whether emergency planning requirements are ‘“ade-
quate protection” standards within the meaning of section 182
of the Atomic Energy Act of 1954, as amended (AEA).°
' 30 NRC 331 (1989), petitions for review pending.
? LBP-32, 28 NRC 667 (1988).
3 Unless otherwise indicated, all citations in this decision to the NHRERP
are to Revision 2 issued in August 1986.
* 31 NRC 197 (1990), petition for review pending sub nom. Massachusetts
\ v. NRC, No. 90-1132 (D.C. Cir. filed Mar. 7, 1990).
5 42 U.S.C. § 2232.
A-13
I. RESPONSE PERSONNEL ADEQUACY
Intervenors asserted before the Licensing Board that, in
contravention of a number of regulatory standards including
10 C.F.R. § 50.47(b)(1) and Criterion II.A of NUREG-0654/
FEMA-REP-1 (NUREG-0654),® the NHRERP planning pro-
cess had failed to provide for adequate personnel resources
from the State of New Hampshire and local governments to
respond in the event of an emergency.’ The Licensing Board
found these charges to be without merit.* Before us, inter-
venors NECNP and SAPL have raised a variety of concerns
relative to the Board’s determination, including challenges to
its findings on the adequacy of the-survey process utilized to
identify the response personnel resources, the need for findings
by the Federal Emergency Management Agency (FEMA) on
personnel resource adequacy prior to any Board hearing and
decision on the subject, and the need for additional response
personnel resources to relieve local workers who will require
replacement under the plan’s radiation exposure limitations.°
Applicants and the staff urge that the Licensing Board’s find-
ings be affirmed on all counts.'® In each instance, we find
intervenors’ complaints unpersuasive.
In response to FEMA concerns about whether there were
sufficient State and local personnel resources for implementing
the NHRERP and with the aid of State emergency planning
officials, applicants’ planning personnel conducted a survey
® NUREG-0654/FEMA-REP-1 (Rev. 1), “Criteria for Preparation and
Evaluation of Radiological Emergency Response Pians and Preparedness in
Support of Nuclear Power Plants” (Nov. 1980).
’ See LBP-88-32, 28 NRC at 678.
* Id. at 691.
* New England Coalition on Nuclear Pollution’s Brief in Support of Inter-
venors’ Appeal (Mar. 24, 1989) at 15-26 [hereinafter NECNP Brief}; Seacoast
Anti-Pollution League’s Brief on Appeal (Mar. 21, 1989) at 28-34 [herein-
after SAPL Brief].
'© Brief of Applicants-Appellees (Apr. 24, 1989) at 34-38 [hereinafter
Applicants Brief], NRC Staff's Brief in Response to Intervenor Appeals (June
5, 1989) at 10-20 [hereinafter NRC Staff Brief).
A-14
intended to demonstrate staffing capability.'! This survey pro-
cess — the results of which ultimately were recorded in a
document entitled the “Summary of Personnel Resource
Assessment for the [NHRERP]” (SPRA) — was intended to
provide an evaluation of personnel resources required to fulfill
both the State and local emergency response duties.'* Included
is a resource appraisal for the six (out of seventeen) communi-
ties in the New Hampshire EPZ — Hampton, South Hamp-
ton, Hampton Falls, Kensington, Rye, and North Hampton —
that declined to participate in emergency planning efforts.'*
As part of that process, the planners’ initial efforts were
directed to identifying, by position and functional responsibil-
ity, all tasks that are required to be performed in fulfilling
State or local emergency response functions.'* Included were
those duties for which two twelve-hour shifts are necessary to
provide the twenty-four hour operational capability in accord-
ance with planning guidance.'* This “walk-through,” as it was
termed by the parties, was accomplished by having emergency
planners review the provisions of the NHRERP for all State
agencies and local governments with respect to each emer-
gency response function to ensure that all assigned primary
and secondary responsibilities were addressed.'* Thereafter,
the planners sought to identify every task required to carry out
these responsibilities by agency, position, and function.'”
Using the walk-through information, the planners then
endeavored to identify “available” personnel resources to fill
the necessary emergency response positions.'* For municipal
positions within the eleven communities participating in emer-
"Tr, 3191-92.
'2 See Applicants’ Direct Testimony No. 3 (Personnel Resources), fol. Tr.
3228, at 3-10. See also Applicants’ Exhs. 1 & 1-A (Summary of Personnel
Resource Assessment for the [NHRERP]).
'S Applicants’ Exh. 1, at 2-4 to -33.
'* Applicants’ Direct Testimony No. 3, at 3, 9.
'S Id. at 3-4, 9; Tr. 3290-93. See generally ALAB-924, 30 NRC at 362
n.125.
'€ Applicants’ Direct Testimony No. 3, at 3, 9.
'7 [bid.
'§ Id. at 4, 9.
A-15
gency planning, this was done by analyzing background data
sources (including town plan appendices, town annual
reports, and records of the New Hampshire State Police and
Fire Standards and Training Commissions, the Bureau of
Emergency Medical Service, and the New Hampshire Fire-
man’s Association) and by conducting survey interviews with
various local municipal personnel (including town selectmen,
town managers, civil defense directors, police and fire chiefs,
and health officials).!* For the six communities that decided
not to participate, the background data sources were utilized
(generally without conducting a survey interview with local
officials) to construct an organization chart illustrating how
municipal personnel might be assigned to response positions.”°
In addition, key emergency planning responsibilities in these
nonparticipating communities were catalogued, and State
personnel who would fulfill those responsibilities in the event
there was no local participation were identified.?! For those
positions within State agencies, personnel identification assess-
ment efforts consisted primarily of interviews with principal
emergency response personnel in each State agency with as-
signed responsibilities under the NHRERP, supplemented by a
review of agency resource appendices in volumes 4, 4A, and
4B of the NHRERP and currently available State directories
and other public records.”
A. Relying principally upon the direct and rebuttal testi-
mony of professional personnel resource planner Clifford J.
Earl,* intervenors NECNP and SAPL renew before us their
assertions, which the Licensing Board rejected, that various
critical deficiencies existed in the survey process. According to
© Id. at 4.
20 Id. at 5.
*! Applicants’ Exh. 1, at 3-3, 3-5 to -6.
#2 Applicants’ Direct Testimony No. 3, at 9-10.
*3 Testimony of Clifford J. Earl Regarding Contentions NHLP-2, SAPL-8,
SAPL-8A, and [TOH] Revised Contentions IV and VI, fol Tr. 3776, Re-
buttal Testimony of Clifford J. Earl Regarding Contentions NHLP-2,
SAPL-8, SAPL-8A, and [TOH] Revised Contentions IV and VI, fol. Tr. 8915
{hereinafter Earl Rebuttal Testimony].
A-16
intervenors, these include failure (1) to provide a definition of
the term “available,” and (2) to organize and supervise the
survey process properly, which in turn resulted in other defi-
ciencies in the survey. In addition, intervenor SAPL argues
that the survey is insufficient to address the adequacy of re-
sponse personnel resources in communities that have declined
to participate in emergency planning.
1. Intervenors allege that a central shortcoming in the sur-
vey process is the failure to define, or the incorrect definition
of, which State and local personnel are “available” to par-
ticipate in emergency planning matters. In testimony before
the Licensing Board, planning personnel declared that, for
purposes of the survey and emergency response planning, indi-
viduals were considered to be “available” to provide services if
they were within an organization or “pool” that was a candi-
date to perform a particular function.* For example, if a func-
tion was to be undertaken by fire department employees in a
particular community, then the entire fire department staff
generally was considered to be available as response person-
nel.?> Intervenors, on the other hand, assert that availability of
response personnel for planning purposes should be defined to
include two components: (1) “temporal” availability, based
upon each individual’s ability to participate on a twenty-four
hour basis, taking into account such factors as transportation
resources, other responsibilities during off-duty hours, and the
time required to get from home or work to an assigned emer-
gency response post, and (2) “volitional” availability, based
upon each individual’s willingness to participate.”® In its deci-
sion, the Licensing Board endorsed the “pool” concept utilized
by planning officials in preparing the survey, stating that
* Tr. 3254, 3314, 3317, 3323, 3332.
** Tr. 3316. Planning officials indicated that, as part of the survey process,
they did attempt to identify those individuals whose other job responsibilities
might result in double-counting, such as a full-time fireman in one commu-
nity who also serves as a volunteer fireman in another community. Tr.
3316-17.
2° See NECNP Brief at 18; SAPL Brief at 29.
A-17
“(t]he issue of whether and when people will be there is an
issue of planning and implementation, not personnel re-
sources.”*”7 We find no error in the Board’s conclusion in this
regard.
With respect to the issue of temporal availability, as the
Licensing Board noted, it is clear that no emergency respon-
dent will be available at all times.”* Health problems, business
or pleasure travel outside the Seabrook area, and a variety of
other factors could make an individual unavailable for a por-
tion or all of the time of an emergency response. This, how-
ever, does not invalidate the “pool” concept upon which the
SPRA is based. Rather, in viewing the matter as one of “plan-
ning and implementation,” it is apparent that various
measures are incorporated into the NHRERP planning scheme
— e.g., cross-training of individuals within some personnel
resource pools,”® overstaffing for various emergency response
functions,®® and early mobilization of certain personnel?! —
that help ensure that the absence or delayed availability of
particular individuals will not significantly impair emergency
planning efforts.** Moreover, as FEMA witnesses observed
before the Licensing Board, a judgment about the effect of
*7 |_BP-88-32, 28 NRC at 681-82.
28 Id. at 682.
2 Tr. 3325-27. For instance, in many local fire departments (which gener-
ally provide between one-third and three-quarters of the personnel for the
response personnel pool for participating municipalities, see, e.g., Appli-
cants’ Exh. 1, at 2-58, 2-70, 2-74), individuals within that organization are
being cross-trained so that they can be assigned a variety of tasks as they
report for duty during an emergency. See Tr. 3326-27.
© Applicants’ Exh. 1, at 3-7.
3! See Tr. 3492 (State incident field office staffed at Alert stage); Tr. 4099-
100 (State police traffic control staffing at Alert stage).
92 On the matter of temporal availability, intervenors NECNP and SAPL
also raise concerns about the ability of response organizations (i.e., the New
Hampshire State Police and the National Guard) to have personnel in place
to provide an “immediate” response to a fast-breaking accident sequence.
NECNP Brief at 8, 18 n.6; SAPL Brief at 31-32. As we discuss more fully in
responding to a similar challenge to “availability” in relation to time esti-
mates for evacuation, these concerns have been considered and adequately
addressed in the planning basis for the NHRERP. See infra pp. 412-13.
A-18
“temporal” availability upon emergency response generally
would be made in reviewing plan implementation, i.e., in the
context of a full-scale exercise during which state and local
personnel must be mobilized to a degree sufficient to verify
response capability.*
Similarly, for the matter of “volitional” availability, FEMA
witnesses stated that it would not be that agency’s normal
practice to have state emergency planning officials inquire as
to who within the various state and local response personnel
“pools” is “willing” to participate in emergency planning.™
Rather, the agency would expect state planners generally
would address this issue of “availability” through a gradual
process of staff identification, including monitoring of partici-
pation in training sessions and drills, with the ultimate FEMA
evaluation on the matter being made “during the course of an
exercise in terms of people turning out.”**
The Licensing Board’s (and FEMA’s) conclusion that any
determination about the temporal and volitional “availability”
of response personnel is more properly addressed and eval-
uated as part of the “planning” and “implementation” process,
including the full-scale exercise, is a reasonable one that is not
at odds with any existing regulatory requirements.** Conse-
33 Tr. 4072, see NUREG-0654 Criterion II.N.1.b.
% Tr, 4087-88.
35 Tr. 4074; see Tr. 4055, 4088, 4096-97.
% Citing 10 C.F.R. § 50.47(b)(1), id. Part 50, App. E, § IV.D.3, and
Criterion I1.A.4 of NUREG-0654, intervenors assert that a general showing
of “availability,” as they define it, is mandated by regulations and planning
guidance. NECNP Brief at 15-18; SAPL Brief at 32-33. We find no basis in
these provisions for such a requirement.
The declaration in section 50.47(b)(1) that each principal response organi-
zation must have “staff to respond and to augment its initial response on a
continuous basis” and the guidance in NUREG-0654 Criterion II.A.4 that
“[ejach principal organization shall be capable of continuous (24-hour)
operations for a protracted period” do not require cr suggest any particular
time by which a response organization must be “fully staffed” or any particu-
lar method by which staffing adequacy must be demonstrated. Similarly,
section IV.D.3 of Appendix E to 10 C.F.R. Part 50, while mandating that
the licensee must have the capability to notify state and local officials within
15 minutes of declaring an emergency and that the capability must exist to
A-19
quently, in the absence of any compelling showing by inter-
venors that significant segments of those in the response per-
sonnel “pools” being relied upon as a principal planning basis
to establish personnel resources adequacy are for one reason or
another likely to be “unavailable,” which has not been made
in this instance,*” we find no need for NHRERP planners to
notify the public of a situation requiring urgent action within 15 minutes of
notifying state and local officials, does not require any particular time for
full staffing or any particular method by which staffing adequacy must be
demonstrated. Indeed, this requirement may well provide for a public notifi-
cation capability that will in some instances exceed the ability of all response
personnel to be in place. If public notification and activation of an emer-
gency response will precede complete mobilization, however, that could be a
factor to be weighed in determining what response action is appropriate. See
infra pp. 412-13.
37 Intervenor SAPL does attempt to make a showing in this regard based
upon two instances in which State officials conducted surveys intended to
provide information on the availability of personnel from the State Depart-
ment of Health and Human Services (HHS) to respond to emergency situa-
tions, including an accident at Seabrook. SAPL Brief at 34, 45-46. Whether
considered separately or together, however, these situations fail to provide a
basis for drawing a negative inference about all response personnel sufficient
to mandate additional inquiry into the issue of “availability,” as intervenors
desire.
SAPL first points to a questionnaire circulated to employees of the HHS
Division of Public Health Services (PHS) to gauge whether enough PHS
employees would be available to perform Seabrook-related emergency
response duties in the State emergency operations center, the State informa-
tion field office, and in evacuee reception centers. Some employees did re-
spond to the survey by indicating they declined to participate in emergency
response activities; nonetheless, enough workers stated they would partici-
pate to fulfill the division’s staffing responsibilities. See Tr. 3410-11. This
example thus provides no support for intervenor’s position.
Likewise unavailing is SAPL’s reliance on the results of an additional sur-
vey of employees in the district offices of several HHS divisions other than
PHS. This survey was intended to identify the reasons why more of the
approximately 645 employees in the district offices were not volunteering to
participate in the Emergency Service Units (ESUs) that provide State re-
sponse support in emergency situations generally, including manning evac-
uation reception centers for Seabrook. Tr. 4780-81, 4797. Survey results indi-
cated that approximately 43% of those responding were not willing to pro-
vide emergency assistance as part of an ESU, with approximately 28% of
that group giving the reason for their nonparticipation as possible involve-
ment in Seabrook emergency response activities. Tr. 4784-85; see SAPL
A-20
have made a separate “availability” showing as part of the
process undertaken to identify those “pools.”**
2. In addition to rejecting intervenors’ arguments about
“availability,” as part of the survey process, the Licensing
Board’s finding regarding response personnel resources reflects
a judgment that, notwithstanding intervenors’ challenges, the
survey was otherwise adequate to identify the personnel re-
sources (i.e., the “pools”) needed to carry out emergency plan-
ning functions. Before us,.intervenors again press their posi-
tion that this is not, in fact, the case.
Principally on the basis of Mr. Earl’s testimony, intervenors
assert that the survey’s methodology generally was inade-
quate, focusing particularly on what they counted was defi-
Exhs. 3-5. Putting aside the fact that the Licensing Board determined, and
we have agreed, that SAPL’s particular concern regarding a shortfall of HHS
volunteers as it impacts on the adequacy of reception center operations is
effectively addressed by maintaining rosters of available individuals, LBP-
88-32, 28 NRC at 719-20, aff'd, ALAB-924, 30 NRC at 361 n.121, and the
fact that the 43% nonparticipation figure was never statistically validated,
when this figure is applied to the entire complement of approximately 980
HHS workers from the district and headquarters offices of the divisions in-
volved, all but a few of which could be called upon in a Seabrook emergency
response, Tr. 4802-04, there still would be in excess of 500 employees that
could be expected to participate. This is more than sufficient to meet the ESU
planning basis requirement of 430 responding employees. See Applicants’
Exh. 1-A.
8 It may well be that in specific instances, the response role played by a
particular individual or group will give additional import to concerns about
planning for the “availability” of those who will fill those roles. See Metro-
politan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1),
CLI-83-22, 18 NRC 299, 302, 307-08 (1983) (despite proposed compensatory
measures, licensee proposal not to have fully activated Emergency Opera-
tions Facility (EOF) within one hour of site emergency determination due to
four-hour travel time necessary for Emergency Support Director to arrive at
EOF does not provide same degree of public health and safety protection).
See also NUREG-0654 Criterion II.1.8 (appropriate response organizations
shall provide for “rapid” assessments of offsite radiological hazards resulting
from accident, including equipment and estimated manpower deployment
times). Intervenors, however, have not raised such particularized concerns in
challenging response personnel resource adequacy under the NHRERP.
A-21
cient supervision and coordination.*® As the Licensing Board
noted, however, the evidentiary hearing record supports the
conclusion that the survey process was properly designed and
supervised and that it provided accurate data.*° In contrast,
despite obtaining extensive discovery relating to the survey
and an opportunity to present witnesses, intervenors’ evidence
(in the form of Mr. Earl’s testimony) was wholly lacking in any
%° Relying on the previously mentioned testimony of Mr. Earl, intervenors
also contend that the survey was inadequate because there was a failure to
calculate properly the workload for the response positions. A central reason
given is the failure to weigh “timing” considerations in setting workloads.
In a variation on their arguments about the importance of “temporal”
availability, referring particularly to the arrival of traffic control personnel
at their posts during an evacuation, intervenors suggest that the survey was
inadequate because, in determining how many people were needed to do a
task, one must take into account when particular individuals will arrive to
perform those duties. See NECNP Brief at 7-8, 19-20; SAPL Brief at 29,
31-32. For the reasons stated in our discussion concerning “availability” as a
factor in time estimates for evacuations, see infra pp. 412-13, we find these
assertions unpersuasive in this context as well.
In addition, declaring that the applicants’ testimony concerning the walk-
through process indicated only that it involved a “reading of the procedure,”
NECNP maintains that this would not reveal enough information about the
procedure and the time necessary to carry out the procedure, thereby adding
to the uncertainty over how many people were required to perform that task.
NECNP Brief at 7, 20 n.8. As the Licensing Board noted, however, appli-
cants’ witness Anthony Callendrello testified that there was in fact more, in-
cluding “‘a reading of the procedure, an analysis of each step, and a deter-
mination against objective criteria as to whether there was one person, more
than one people /sic], whatever the number needed to perform this step.’”
LBP-88-32, 28 NRC at 683 (quoting Tr. 3278). More to the point, and con-
trary to intervenor’s assumption, in conducting the walk-through, planners
need not undertake a “mini” emergency drill for each response procedure.
The fact that emergency planning professionals making the analysis may
have made certain assumptions about response actions (such as how long
telephone calling procedures would take), rather than actually conducting
and timing each of the activities, does not present any basis for declaring
their analysis inadequate. This is particularly so in the face of intervenors’
failure to present any convincing evidence that any specific assumptions were
substantially flawed. Moreover, as with “availability” issues, it seems appar-
ent that a full-scale emergency exercise generally will verify (or show the
inadequacy of) many of the assumptions that have been made.
“© LBP-88-32, 28 NRC at 684.
A-22
convincing evidence of actual deficiencies arising from the
process.
This lack of any specific, meaningful evidence of deficien-
cies is epitomized by the example from Mr. Earl's testimony,
highlighted by intervenor NECNP in its brief,*! that apparent-
ly was posited to establish that emergency planners were not
provided with proper criteria for defining the type of infor-
mation they were to obtain. Mr. Earl refers to Question 2 on
the survey form used for interviewing local officials to deter-
mine local personnel needs, which directs the interviewer to:
Ensure there are primaries and alternates for each [Emer-
gency Operations Center] position designated in the plan
as 24 hour staffing. Attach a list/roster identifying posi-
tions which require primary and alternate staffing.
(Interviewer to obtain 24 hour staffing information.
Refer to Section III, Selectman’s Emergency Prepared-
ness Responsibilities and Appendix A.)*
According to Mr. Earl, this instruction was deficient because it
failed to indicate how the intervenor should obtain twenty-
four hour staffing information, how he or she should deter-
mine the staffing needs for each position, or what it means to
“ensure” the existence of primaries and alternates for each
position. * -
Review of the referenced section of the NHRERP for each
particular locality makes it apparent exactly what is expected.
The “selectman’s” portion of section III, found in subpart B,
includes a listing of the positions for which there is to be a “‘pri-
mary and alternate,” and Appendix A gives a call list of the
individuals who are to fill these positions.** To follow this in-
struction, therefore, the interviewer merely had to ensure that
in Appendix A there is an individual listed as a primary or
*! NECNP Brief at 11.
*? Earl Rebuttal Testimony at 22-23.
® [bid.
* Eg... NHRERP (Town of Seabrook), Vol. 16, at III-2, A-1.
A-23
alternate for each designated position in subpart B and then
prepare a roster from this information. Moreover, once the
results from this and other survey questions were assembled,
they were reviewed for consistency and accuracy before being
utilized in the SPRA.** In this case, the survey process resulted
in a table for each municipality designating the twenty-four
hour staffing positions,** the accuracy of which have not been
specifically challenged before us. Accordingly, we fail to see
how Mr. Earl’s concern is illustrative of any deficiency in the
survey process. *’
As the Licensing Board observed, Mr. Earl’s testimony is
more a statement of how the survey might have been done dif-
ferently (and, in Mr. Earl’s opinion, better) than an attempt to
address the more pertinent issue of how the process that was
used resulted in data that are insufficient or inaccurate.** The
Board properly concluded that the testimony of Mr. Earl was
*S See Tr. 3240-43, 3246-48, 3290-93.
“© E.g., Applicants’ Exh. 1, at 2-73 (Figure 2.3-10, Seabrook Emergency
Response Organization).
‘7 Also unpersuasive in this regard is SAPL’s assertion, based upon the
testimony of William Renz, applicants’ consultant who had responsibility for
preparation of the assessment summary, that the survey process was deficient
because of a purported failure of management personnel to interview sys-
tematically those individuals who collected the data and to establish common
terminology for use by survey officials as they conducted their interviews
with local officials to get input on community response personnel. SAPL
Brief at 30. Like the Licensing Board, see LBP-88-32, 28 NRC at 684, we
find such complaints unavailing in light of the overall record support for the
efficacy of the survey process and intervenor’s failure to present any firm evi-
dence establishing how these alleged operational deficiencies produced
incomplete or incorrect results.
We also do not agree with SAPL’s complaint that the survey process was
deficient because, in assigning a response task, no consideration was given to
a person's competence to do that task. SAPL Brief at 30. As senior planning
personnel testified, in certain instances when it was necessary because of the
response duties involved, individual assignments were made on the basis of
the person's present duties and responsibilities; in other instances, individuals
within a particular personnel pool would be cross-trained to fulfill any of a
number of duties that were assigned to the pool. See Tr. 3325-27.
** LBP-88-32, 28 NRC at 684.
A-24
inadequate to establish material failings in the survey
process. *®
3. The other major intervenor challenge to the survey’s
validity is based upon the testimony of police and other local
officials from several of the nonparticipating communities.”
The officials testified that the planning basis for these local
communities, devised without their cooperation or input,
failed to reflect adequate personnel resources. SAPL asserts
that the Licensing Board erred in failing to credit properly the
*° Intervenor NECNP also takes umbrage at the Licensing Board’s refusal
to credit Mr. Earl’s testimony on personnel resource planning based, in part,
on the ground that his expertise and experience were not in the field of emer-
gency planning. NECNP Brief at 21-22. Mr. Earl’s failure to back up his
discourse on the weaknesses of the survey with any specific evidence of inac-
curacies resulting from the process is, to our mind, more crippling to inter-
venor’s position than his lack of specific emergency planning experience.
Nonetheless, it is apparent that, especially when compared to planners
Anthony Callendrello, Paul Frechette, and William Renz, who had prin-
cipal responsibility for the resource assessment program, including the survey
process, Tr. 3198, 3203-04, 3238, Mr. Ear] is lacking in that respect. Com-
pare Qualifications of Anthony M. Callendrello, fol. Tr. 2790; Qualifica-
tions of Paul R. Frechette, Jr., fol. Tr. 2791; Resume of William F. Renz,
fol. Tr. 3185 with Resume of Clifford J. Earl, fol. Tr. 3776.
Although NECNP’s attempts on appeal to bolster Mr. Earl’s expertise by
now arguing that he had crisis management experience that would have been
revealed if he had been cross-examined, NECNP Brief at 21 n.9, we find this
assertion frivolous. We are not aware of any civil law principle that permits
a party, having failed to put forth allegedly relevant information on direct
examination, to claim that information nonetheless should be considered
because the information was not elicited during cross-examination.
Finally, we reject SAPL’s assertion that purported deficiencies relating to
letters of agreement also strengthen Mr. Earl’s testimony. SAPL Brief at 29.
In ALAB-924, 30 NRC at 345, we found those allegations were without
substance.
* Corrected Prefiled Testimony of Dona Janetos on Behalf of [TOH]
Regarding TOH Revised Contentions III, IV, VI, fol. Tr. 3597 [hereinafter
Janetos Testimony]. Corrected Prefiled Testimony of Sergeant Victor
DeMarco and Detective William Lally on Behalf of [TOH] Regarding TOH
Revised Contentions III, IV, VI, fol. Tr. 3659 [hereinafter DeMarco and
Lally Testimony]; [SAPL]’s Testimony of Suzanne Breiseth on SAPL Conten-
tions 8 and 8A Relative to the Town of Hampton Falls, fol. Tr. 3739,
[SAPL]’s Testimony of Andrew Christie, Jr. on SAPL Contentions 8, 8A, 16,
31 and 37 Relative to the Town of Hampton Falls, fol. Tr. 3740; Prefiled
—
A-25
testimony of these local officials.*! We find these arguments
without merit as well.*?
On the matter of adequate resources for local emergency
response organizations in nonparticipating communities, the
issues upon which intervenor would have us focus are, in light
of the record here, of no relevance to the adequacy of emer-
gency planning. While these witnesses sought to call into ques-
tion some of the determinations made by planners in establish-
ing the numbers and assignments for local response personnel
in those municipalities, intervenors failed to present any evi-
dence effectively countering applicants’ showing, embodied in
the SPRA,® that there are adequate State personnel available
to fulfill the key emergency response duties within the nonpar-
ticipating communities.** Thus, intervenor’s complaints fail to
negate the Licensing Board’s finding that there will be ade-
Testimony of Walter F. Shivak on [SAPL]’s Contentions 8 and 8A and Town
of South Hampton Contentions 2, 3 and 8 Relative to the Town of South
Hampton, fol. Tr. 3780; Direct Testimony of Sandra Fowler Mitchell on
SAPL Contentions 8 and 8A and Town of Kensington Contention 1 Relative
to the Town of Kensington, fol. Tr. 3805 [hereinafter Mitchell Testimony];
Amended [SAPL] Testimony of David P. McDonald on SAPL Contentions 8
and 8A Relative to the Town of Rye, fol. Tr. 3867; Testimony of Richard W.
Ingram on SAPL Contentions 8 and 8A Relative to the Town of North
Hampton, fol. Tr. 4479.
5! SAPL Brief at 31.
52 In line with intervenors’ general concern about “availability” of re-
sponse personnel, several of these officials also suggested that it would take
too long for State resources, particularly State police, to respond to make up
for inadequacies resulting from local nonparticipation. See id. at 31-32. Our
response to a similar concern with respect to estimates of evacuation times
addresses this matter as well. See infra pp. 412-13.
Local officials also testified that resource deficiencies would result because
some local emergency response personnel would not respond. See SAPL Brief
at 58. We deal with the issue of emergency worker response infra under the
heading of “Human Behavior in Emergencies.”
53 See Applicants’ Exh. 1, § 3.
** By way of example, we note the testimony of one local witness whose
assertion that there would be personnel deficiencies in an emergency was
apparently based upon a misapprehension of the number of personnel re-
quired for 24-hour manning. Compare Mitchell Testimony at 2 with Appli-
cants’ Exh. 1, at 2-7 to -8.
A-26
quate personnel to respond in the nonparticipating commu-
nities .*°
B.1. Finally on the issue of response personnel adequacy,
intervenors make two arguments that can be dealt with in
short order. First, intervenor NECNP asserts that the Licens-
ing Board violated the precepts of 10 C.F.R. § 50.47(a)(2) by
holding hearings and rendering a judgment concerning the
adequacy of response personnel resources under the NHRERP
prior to submission of planning information sufficient to allow
FEMA to make findings concerning that issue. Specifically,
NECNP contends that any Board consideration of the matter
of response personnel resources adequacy had to await FEMA
review of several items, including the SPRA and FEMA’s “pri-
mary tool for evaluating the adequacy of personnel resources,”
the full-scale exercise.
Previously, in response to a similar assertion in the Zimmer
proceeding, we observed that “[s]lection 50.47(a)(2) does not
require deferment of any hearing on State and local govern-
ment emergency response plans to await FEMA’s issuance of
final findings on those plans. Rather, what that [s]ection con-
templates is a licensing decision based on the best available
*5 In this regard, we agree with the Licensing Board that the complaints
lodged by local officials about the SPRA’s provisions for local personnel re-
sponse seem largely to arise from matters directly attributable to their own
nonparticipation, rather than to fundamental deficiencies in the survey pro-
cess. See LBP-88-32, 28 NRC at 687-88. For instance, the potency of one
town official's complaint that the duties assigned to particular response posi-
tions were too burdensome is substantially diminished by the apparent lack
of effort on her part to bring the matter to the attention of State officials so
the alleged deficiencies could be corrected. Compare Janetos Testimony at
4-5 with Tr. 3342-47. The same is true for the complaints of several local
police officers about the use of local part-time special officers based on their
belief that these special officers did not have the proper skills. See DeMarco
and Lally Testimony at 12-13. As FEMA witnesses stated, with proper train-
ing these individuals could perform the assigned responsibilities, FEMA Pre-
filed Testimony, fol. Tr. 4051, at 45, making this a matter that undoubtedly
could be rectified readily if the community were to participate in emergency
planning efforts after all.
% NECNP Brief at 22-24.
A-27
current information on emergency preparedness.”*? In Zim-
mer, we also noted that it is for the Licensing Board to judge at
exactly what stage a plan is sufficiently developed to allow for
hearings and a decision, taking into account the evidence on
the current state of the plan.
While FEMA officials had not had an opportunity to review
the personnel response survey at the time of the hearing and
indicated at the hearing that they could not make any final
adequacy determination until New Hampshire had incorpo-
rated the survey as part of its planning basis, they did declare
that the survey, in and of itself, represented “substantial prog-
ress” towards remedying FEMA’s previous cuncerns about re-
sponse personnel resource inadequacies.*® Given this FEMA
recognition of the central role of the survey in addressing its
concerns, we cannot say that the Licensing Board abused its
discretion in proceeding with hearings on the issue and in
making findings without awaiting further FEMA review of
the matter.®
57 Cincinnati Gas & Electric Co. (William H. Zimmer Nuclear Power Sta-
tion, Unit No. 1), ALAB-727, 17 NRC 760, 775 (1983) (citation and footnote
omitted). See also Pacific Gas and Electric Co. (Diablo Canyon Nuclear
Power Plant, Units 1 and 2), ALAB-776, 19 NRC 1373, 1379 (1984);
Southern California Edison Co. (San Onofre Nuclear Generating Station,
Units 2 and 3), ALAB-717, 17 NRC 346, 379-80 (1983).
In Zimmer, we also expressed concern that an interpretation of section
50.47(a)(2) requiring a final FEMA finding would be at odds with the then-
existing FEMA/NRC Memorandum of Understanding, which provided that
FEMA will offer its preliminary views on the state of offsite emergency pre-
paredness based on the plans currently available to FEMA. 17 NRC at 775 &
n.21 (citing 45 Fed. Reg. 82,713 (1980)). Although that memorandum of
understanding subsequently was revised, see 50 Fed. Reg. 15,485 (1985), we
see nothing in the amended version to change our conclusion in that regard.
58 Zimmer, 17 NRC at 775.
° Tr. 4098, 4109, 4166.
* We fail to see why the Board's findings relative to the personnel re-
sources adequacy had to await a FEMA finding on the results of a full-scale
exercise, which in this proceeding was subject to challenge in a later hearing.
See LBP-89-32, 30 NRC 375, 615-50 (1989), appeals pending. Moreover, as
applicants and the staff point out, Applicants Brief at 37; NRC Staff Brief at
15 n.14, FEMA did make final findings of adequacy on this issue, albeit after
the conclusion of the hearing on the NHRERP.See Applicants’ Exh. 43D, at
A-28
2. The second matter, raised by intervenor SAPL, con-
cerns the adequacy of replacement workers for local personnel
who may be withdrawn from emergency response activities
because they have reached radiation exposure limits. Under
the NHRERP, the specified limit for local emergency workers
in 5 roentgens (R) rather than the 25R limit allowed by the
Environmental Protection Agency’s Protective Action Guides
(PAGs). This 5R limit for local emergency workers also is the
same as the highest value for whole body dose established by
the PAGs for the general population.*! SAPL asserts that the
5R exposure limit “could be delivered to a large number of the
1300 State and local emergency workers relatively quickly
under certain scenarios,” thereby resulting in severe personnel
shortages because of a lack of an adequate backup pool of
trained workers. °?
SAPL’s argument fails to acknowledge several important
points concerning the planning basis upon which the 5R ex-
posure level rests. Management of emergency worker exposure
based upon tracking and reporting procedures incorporated in
the NHRERP would include rotation of assignments among
local emergency response workers or assignment removal for
any individual whose radiation exposures indicate a trend
toward the 5R limit.® It is not expected, however, that this
generally will be necessary. Because local emergency worker
exposure limits fall within the range established by the PAGs
for the general public and because local response personnel
have no emergency assignments to perform after protective ac-
tions for the public have been completed, these workers would
take the same protective actions at the same time as the last of
the general public, thereby restricting their exposure to the
30-31 (FEMA Review and Evaluation of the State of New Hampshire Radio-
logical Emergency Response Plan for Seabrook Station (Dec. 1988)). Al-
though the option was open to them, see Zimmer, 17 NRC at 776, none of the
intervenors sought at that time to reopen the record or to file late contentions
regarding the adequacy of FEMA's findings.
*! Applicants’ Direct Testimony No. 3, at 14-15.
*2 SAPL Brief at 33.
*} Applicants’ Direct Testimony No. 3, at 14.
A-29
same level as that incurred by the public.“ Those post-protec-
tive action activities that must be undertaken, such as access
control to excluded area, field monitoring, plume tracking,
and environmental sample collection are to be undertaken by
State emergency workers, who under the NHRERP are subject
to the specified emergency worker PAG of 25R.®* Through this
mechanism, the State’s goal of limiting local worker exposure
to that of the general public is to be met, although it is not in-
tended that local emergency responsibilities will be allowed to
go unmet prior to the public’s completion of any prescribed
protective actions.® In the absence of any convincing showing
by intervenors contravening this planning basis, the Licensing
Board properly concluded that, even with the lower local
worker exposure levels, there will be adequate State and local
response personnel available to carry out their duties in the
event of a radiological emergency.
II. HUMAN BEHAVIOR IN EMERGENCIES
Again relying upon the Commission’s criteria relative to
adequate emergency response personnel resources, as well as
its requirements and guidance regarding such matters as the
preparation of protective action guidelines, before the Licens-
ing Board intervenors challenged the NHRERP’s purported
failure to consider and to compensate adequately for what
they assert will be nonresponsive or disruptive behaviot by
emergency personnel and others.® The Licensing Board found
these challenges to be meritless. The Board’s decision in this
regard is now contested by the MassAG, SAPL, and TOH.
Their concerns center on two areas: (1) whether behavior by
the general public, especially automobile drivers, will disrupt
significantly the evacuation process; and (2) whether those
* Id. at 15-16.
®° Id. at 15.
Id. at 16.
*’ See Applicants’ Direct Testimony No. 7 (Evacuation Time Estimate and
Human Behavior in Emergencies), fol. Tr. 5622, at 2-9.
A-30
with emergency response duties, particularly school teachers,
will respond to fulfill their responsibilities in the event of a
radiological emergency at Seabrook. With respect to the first
matter, we find that the adjudicatory record supports the
Licensing Board’s finding that behavior by the general public
will not prevent an adequate emergency response under the
NHRERP. Our review of the record relevant to the second
concern had led us to conclude that those expected to provide
assistance under the NHRERP, including school teachers, will
respond to perform those duties necessary to ensure an ade-
quate emergency response.
A. In its December 1988 decision, the Licensing Board
concluded that, in the event of a radiological emergency at the
Seabrook Station, panic and disruptive behavior on the part of
the general public, and particularly on the part of those using
automobiles as a means of evacuation transportation, will not
seriously impede response to protective action recommenda-
tion.®* Intervenors MassAG and SAPL maintain that signifi-
cant aberrant behavior will occur and that planners have
failed adequately to factor it into emergency planning efforis
with regard to matters such as evacuation route blockage and
providing for a sufficient number of traffic control personnel
on area highways.”
As support for their position that such behavior will be a sig-
nificant factor, intervenors cite testimony by local police offi-
cers, town officials, and residents describing disorderly driver
behavior, particularly during the summer tourist season when
traffic is heavy, that has included refusal to follow established
traffic patterns and driving on the roadway shoulder or in on-
coming lanes.”° Also, referencing testimony from these wit-
nesses concerning traffic blockages and delays that have arisen
in the past from accidents, breakdowns, and stalled vehicles
during heavy summer traffic periods, intervenors assert that
°° L.BP-88-32, 28 NRC at 747, 749-50.
*® Massachusetts Attorney General’s Brief on Appeal (Mar. 24, 1989) at
4-5, 20-24 [hereinafter MassAG Brief], SAPL Brief at 62-63.
70 MassAG Brief at 21-24; SAPL Brief at 62-63.
A-31
the same types of behavior and problems are likely to arise
(and be much worse) during a summertime evacuation from
the beach area. These problems, in conjunction with disor-
derly driver behavior, assertedly will hinder the flow of traffic
out of the area and the progress of response personnel and
emergency vehicles (e.g., tow trucks) into the area so as to ren-
cer effective emergency response an impossibility under the
NHRERP.
As additional support for the proposition that disorderly
behavior will be a significant factor in an evacuation, the
MassAG relies upon the “beach blanket” survey of over 580
beachgoers conducted for intervenors by sociologist Dr. Albert
E. Luloff.”! In this regard, the MassAG notes that the evidence
before the Licensing Board concerning the survey showed that
slightly more than a fifth of the surveyed beachgoers indicated
they would not follow a policeman’s instructions on which
evacuation routes to use; another twenty percent said compli-
ance would depend on the circumstances and the instructions;
and nearly forty percent indicated they would abandon their
cars during an evacuation if they had not moved very far after
three hours in the vehicle — factors that the MassAG contends
demonstrate a grave potential for traffic disorderliness. The
MassAG also asserts that the Licensing Board failed to give
proper consideration to the testimony of his traffic expert, Dr.
Aveshai Ceder, who declared that accident rates in the con-
gested flow traffic conditions during a summertime evacuation
would be substantially higher than under normal conditions.”
Added to this, intervenor SAPL contends, is the Board’s failure
to give appropriate weight to the intervenor-sponsored testi-
mony of social geographers Drs. Donald J. Zeigler and James
H. Johnson, Jr., and radiologist Dr. Donald L. Herzberg re-
garding the general population’s fear of radiation, and to
testimony of local residents concerning the specific conditions
at the Seabrook site, including the visibility of the plant to
™! MassAG Brief at 24.
72 Id. at 25-26.
A-32
drivers attempting to exit the beach area.” This testimony,
intervenors assert, provided substantial additional support for
their position that, notwithstanding the efforts of planners em-
bodied in the NHRERP, there will be panic and aberrant be-
havior in the event of a radiological emergency that will have
the effect of impeding seriously emergency response efforts.
Both the applicants and the NRC staff support the Licensing
Board’s determination that intervenors’ concerns about aber-
rant, disorderly behavior and its effects are greatly exag-
gerated. They further assert that, in reaching this conclusion,
the Board properly relied upon the testimony of applicants’
witness Dr. Dennis S. Mileti, a sociologist and Director of the
Hazards Assessment Laboratory at Colorado State Univer-
sity.”
As they impact upon human behavior generally, Dr. Mileti
declared that emergencies are unique situations.”> He also
stated that mass emergencies (such as might arise at Seabrook)
that could pose a collective threat to an entire community are,
in terms of behavioral effect, in a class by themselves.” Al-
though acknowledging that there is some dispute on the
issue,’”7 on the basis of empirical research accumulated over
three decades regarding public behavior in geological, clima-
tological, and technological emergencies, Dr. Mileti asserted
that mass emergencies transform both group and individual
goals and objectives in a singular manner:
The first priority for virtually all people who find them-
selves in such a collective threat situation becomes the
collective safety of people and the community at large.
73 SAPL Brief at 59-61, 63.
™* Applicants Brief at 28-30, NRC Staff Brief at 32-37. Although the appli-
cants presented direct testimony on the issues of evacuation time estimates
and human behavior through a panel, Dr. Mileti was solely responsible for
the human behavior portion of the testimony. See Tr. 5627, 6304.
75 Applicants’ Direct Testimony No. 7, at 94.
76 Ibid.
7 Tr. 6382-83, 6414-17.
A-33
People abandon personal forms of identification and per-
sonal interests, and they identify with the entire human
collective or community that is threatened. This “shift” in
the human character has come to be known by many
names, for example, the “therapeutic community.”
The change or “shift” in the social psychological com-
plexion of social life and human behavior results in a vari-
ety of principles that emerge to document the character
of emergency behavior. This includes, for example, a
dramatic decline in activities and behavior that run coun-
ter to the good of the collective and those that are based
in individual or personal interests, and a dramatic in-
crease in acts and behavior that bring people together
and help one another.”
Dr. Mileti also declared that this shift would “undoubtedly”
occur in an emergency at the Seabrook plant, as it has oc-
curred in every mass emergency that has been the topic of
investigation (and has been evident even in emergencies where
it was not specifically investigated).”° As a consequence, Dr.
Mileti rejected the notion that the “thin-veneer of civilization”
is stripped from human behavior during mass emergencies,
declaring instead that “[p]Jublic behavior is rational, and the
emergency goals of helping themselves as well as others take
precedence over almost all else; the character of human spirit
is strong when faced with mass emergencies and most people
rise to the occasion.”®° He concluded, therefore, that concerns
that aberrant driver behavior (e.g., accidents, misuse of in-
coming lanes and highway shoulders, abandoned vehicles)
78 Applicants’ Direct Testimony No. 7, at 94-95 (citation omitted). See also
id. at 105. Dr. Mileti further testified that the concept of the “therapeutic
community” was not tied to a situation in which the individuals involved
knew each other; instead, it would apply in any situation in which people
experience a common threat from a rapidly developing external! force. Tr.
6438, 9426-27.
7° Applicants’ Direct Testimony No. 7, at 95.
*° Id. at 96.
ential
A-34
would create substantial emergency response impediments
were unfounded.®!
Dr. Mileti also refused to accept the thesis that the “unique”
nature of radiological accidents renders general behavioral
principles such as the “therapeutic community” concept inap-
plicable. Dr. Mileti declared that, while the descriptive ac-
counts of how people respond to emergencies will vary from
one emergency to the next, the determinants of human be-
havior — the reasons why people respond in different ways to
an emergency — are transferable across emergency types.®® As
a result, he was unwilling to accept the argument that, by
their very nature, radiological events are so unique that they
are subject to a unique set of behavioral precepts.® This
assumption, according to Dr. Mileti, contradicts the basic
social science premise that there are knowable reasons and
patterns in human behavior that are discoverable through sys-
tematic scientific inquiry.*
In addition, Dr. Mileti disputed the alternative formulation
of the radiological “uniqueness” argument, which recognizes
that there are knowable determinants of human behavior but
nonetheless concludes that “fear” of radiation based upon its
allegedly “unique” characteristics (e.g., invisibility) is so pro-
nounced that human behavior in radiological emergencies will
be radically different from behavior in nonradiological emer-
gencies.*° Dr. Mileti acknowledged that there are differences
between radiological emergencies and nonradiological emer-
gencies, including a difference in the way the public, on aver-
age, perceives the risks involved in a radiological emergency.*
*! Id. at 101-05. By way of example, Dr. Mileti noted that, although the
NHRERP calls for the use of tow trucks to remove vehicles that might be
stalled or abandoned in the course of an evacuation, it was also reasonable to
assume that the public will act on its own to aid in the evacuation by pushing
abandoned or stalled vehicles out of the way. Id. at 102-03. See also Tr. 6396.
82 Applicants’ Direct Testimony No. 7, at 137-38.
83 Id. at 138; see Tr. 6426.
*¢ Applicants’ Direct Testimony No. 7, at 138.
85 [bid.
8° Ibid.
)
‘
A-35
He declared, however, that these differences do not negate the
efficacy or “quality” of the behavioral determinants that have
been recognized as applying generally to mass emergency sit-
uations.®’ Instead, the relevance of these differences is in terms
of their impact on the “value” or “quantity” that the deter-
minant should be afforded when analyzing its influence on
human behavior.** In developing an emergency plan, there-
fore, what is important in Dr. Mileti’s view is to identify the
applicable behavioral determinants, to account for the deter-
minant “values” or “quantities” that are applicable in that
emergency situation, and, to the degree they produce undesir-
able effects or constraints on emergency response behavior, to
take appropriate compensating measures. *®
In examining the particular issue of the public’s perception
of risk as invoking detrimental behavioral responses in a radio-
logical emergency, Dr. Mileti noted that for most people in an
emergency, “situational perceptions of risk” are a leading
determinant of behavioral response.” According to Dr. Mileti,
in an emergency people do not undertake a “knee-jerk” re-
sponse; rather, they react on the basis of their perception of
the risk, which is derived from their understanding of the sit-
uation as it is being experienced.*' One element of situational
risk perception could be pre-emergency risk perception or
“pre-emergency fear” — that is, how the individual perceived
the risk prior to the emergency.® In the case of radiological
emergencies, Dr. Mileti acknowledged that the data collected
so far “would lead one to conclude that in general the mean of
hazard risk perception is higher for radiological hazards than
for natural hazards.”®* In his opinion, however, this “fear”
"7 Ibid.
* Id. at 139.
8 Tbid.
* Applicants’ Direct Testimony No. 7, at 151; Tr. 6340.
*! Applicants’ Direct Testimony No. 7; see Tr. 6324. Thus, according to
Dr. Mileti, situational risk perceptions are based upon what people “perceive
is the risk and what to do about it, and it is those perceptions which are
formed during the emergency that guides their behavior.” Tr. 6324.
® Tr. 6339.
*® Tr. 6430.
A-36
element, as well as others that potentially could impose con-
straints on sound emergency public response,** can be over-
come by utilizing properly what he perceives as the key deter-
minant of situational risk perception formulation — emer-
gency information. In this regard, he declared:
[I]n the context of good emergency planning addressing
the key determina[nt] of situational risk perception for-
mation, which is emergency information, we can pre-
sume that the EPZ in the future is filled with totally
fearless people and/or totally fearful people, or what's
most likely the case, a range of people along that con-
tinuum, and design the emergency information that goes
to the public in such a way that we can help the fearless
* In addition to pre-emergency fear, Dr. Mileti noted that age and gender
also can play a role in constraining sound situational risk perception. Appli-
cants’ Direct Testimony No. 7, at 151-52. According to Dr. Mileti, research
findings indicate that, in the face of less-than-desirable emergency informa-
tion, women are likely to perceive risk to be higher than men and are more
likely to engage in protective actions, id. at 152, and that older people gen-
erally have a harder time coming to believe they are at risk so that, in the
face of infrequent warnings, they are less likely to engage in protective
actions than younger persons, Tr. 6355-57.
In the context of his “therapeutic community” concept, Dr. Mileti also was
unwilling to endorse the notion that “panic” would be a critical factor in
public response to a radiological emergency. He described panic as “persons
so concerned about themselves that they step on the persons’ [sic] next to
them’s [sic] face and not notice it in an attempt to flee what they consider to
be a life and death situation [in which] if they don’t act immediately death
will come to pass.” Tr. 9411; see Applicants’ Rebuttal Testimony No. 5, fol.
Tr. 9408, at 3. He declared further that the circumstances in which panic
might result, which generally would involve fear for immediate physical sur-
vival with escape routes blocked (such as might exist in a major fire at a
crowded theater or nightclub), are not present in a radiological-emergency
because people would be leaving an open geographic space, whether by car
or otherwise, and accordingly would not perceive that their escape was
“blocked” so as to make death imminent. Applicants’ Rebuttal Testimony
No. 5, at 3-4; see Tr. 9415-16. Further, although Dr. Mileti acknowledged
that “in the world of all human possibilities” some individuals might panic in
a radiological emergency, he also stated that he was unaware of any empir-
ical evidence to support the proposition that human behavior in collective
emergencies is characterized by panic. Tr. 9413.
' | —
A-37
and the fearful come to form accurate risk perceptions in
the emergency, and help them make good decisions about
how to behave.*
Thus, providing “good” emergency information is of central
importance in neutralizing factors that might otherwise retard
a positive response to an emergency situation by the “thera-
peutic community.” Further, on the basis of his review of the
proposed Emergency Broadcast System (EBS) messages for the
NHRERP, which he considered should and would be the focus
of public attenticn in a radiological emergency, Dr. Mileti
concluded that these messages, with some modifications,
should provide “the listening public a most solid footing from
which to base sound decision-making.”
As further support for the proposition that aberrant
behavior will not be a factor in an emergency response, both
applicants and the staff direct our attention to the testimony of
the staff's traffic expert, Dr. Thomas Urbanik.® Dr. Urbanik’s
testimony that there is no evidence that aberrant driver be-
havior has been a factor in any evacuation in the history of the
United States was found by the Licensing Board to be persua-
sive and uncontradicted by intervenors.”
After reviewing the positions of the various parties and the
record evidence upon which they rely, we find that the Licens-
ing Board acted reasonably and in accordance with its role as
the Commission’s primary fact-finding tribunal in concluding
that aberrant behavior on the part of the general public, par-
ticular'v automobile drivers, will not be a significant impedi-
ment in the event of an emergency at Seabrook. Anyone who
has ever been behind the wheel of, or been a passenger in, an
* Tr. 6342.
* Applicants’ Direct Testimony No. 7, at 155-56, 159.
*” Applicants Brief at 29 (citing Testimony of Dr. Thomas Urbanik II on
Behalf of the NRC staff on [TOH] Contention III, and SAPL Contentions 18,
31, 34, and 37, fol. Tr. 7372, at 17; Tr. 7485-86); NRC Staff Brief at 33-34
(same). Dr. Urbanik’s credentials are described in more detail infra at note
220.
** LBP-88-32, 28 NRC at 746.
=
A-38
automobile no doubt can relate a tale of aberrant driver be-
havior similar to (or worse than) those told by the intervenors’
police and civilian witnesses. Indeed, human nature being
what it is, we entertain no illusions that a radiological emer-
gency at Seabrook will engender no “aberrant” behavior on
the part of drivers and others. The critical point, however,
and one that Dr. Mileti’s expert testimony on the “therapeutic
community” addresses directly, is that such behavior will not
be the norm or, indeed, a sufficiently significant consideration
so as seriously to impede effective emergency response under
the NHRERP.'® This conclusion is further bolstered by Dr.
Mileti’s testimony concerning the role of emergency informa-
tion in countering the public’s “pre-emergency fear” and the
adequacy of the Seabrook emergency information for that pur-
pose, as well as by Dr. Urbanik’s unrebutted observation that
there is no evidence that aberrant driver behavior has ever
played a significant role in an evacuation situation.
To be sure, intervenors have presented testimony challeng-
ing these conclusions. Much of their expert evidence is, how-
ever, of questionable probative value.'®! The same can be said
® In fact, as SAPL notes, SAPL Brief at 62, making reference to his own
father, Dr. Mileti recognized it is possible in an emergency evacuation situa-
tion that some individuals will engage in individual, rather than community-
oriented, behavior. Tr. 9432. He was not, however, willing to characterize
this behavior as “probable” or “the behavior of most people.” Ibid.
— °° See Applicants’ Rebuttal Testimony No. 2, fol. Tr. 9407, at 2-3; Tr.
9432-33. In this regard, although Dr. Mileti stated that he was not an expert
on “driver behavior,” contrary to intervenors’ assertions, see MassAG Brief at
28, SAPL Brief at 63-64, the Licensing Board’s conclusion that he demon-
strated sufficient expertise in human behavior in emergency situations to be
qualified to testify on driver behavior in such situations was reasonable.
Given his expertise, Dr. Mileti’s testimony is certainly more probative than
that of Dr. Herzberg, whose testimony on disruptive behavior is championed
by intervenor SAPL. See SAPL Brief at 59, 60-61. Indeed, the latter’s exper-
tise in diagnostic radiology and nuclear medicine and the very limited nature
of his experience in radiological emergency response (i.e., as a participant in
a medical facility’s portion of an emergency drill) provide a wholly insuffi-
cient basis for affording Dr. Herzberg’s opinions the weight intervenor
asserts they should have. See LBP-88-32, 28 NRC at 713.
‘0! For instance, the validity of Dr. Luloff’s “beach blanket survey,” upon
which the MassAG relies (as does SAPL in the context of its argument con-
A-39
for the testimony of their lay witnesses.'°? Nonetheless, even if
we accept the crux of intervenors’ position that others, includ-
cerning reception centers, see SAPL Brief at 50) as problematic. Applicants
have identified a number of alleged deficiencies in the survey that they assert
were revealed in cross-examination of Dr. Luloff and their own rebuttal tes-
timony challenging the external and internal validity of the survey. See
Applicants Brief at 28 n.7 (citing Applicants’ Rebuttal Testimony No. 4, fol.
Tr. 9155, at 13-15 and Tr. 8220-65 (cross-examination of Dr. Luloff)). Rely-
ing on the applicants’ discrediting of Dr. Luloff's survey, the Licensing Board
thus described the survey as “flawed.” LBP-88-32, 28 NRC at 747.
The MassAG challenges this Licensing Board conclusion on the basis of the
Board’s refusal to permit him to file surrebuttal testimony addressing these
criticisms of the survey. MassAG Brief at 27; see Offer of Proof ([MassAG]
Proposed Surrebuttal Testimony to Applicants’ Rebuttal Testimony Nos. 3
and 4) (Feb. 26, 1988). The admission of surrebuttal testimony is a matter
within the discretion of the Board, particularly in instances such as this in
which the party sponsoring the testimony reasonably should have anticipated
the attack upon its evidence (i.e., the validity of the methodology used in
conducting the survey and interpreting its results). See Cellular Mobile
Systems v. FCC, 782 F.2d 182, 201-02 (D.C. Cir. 1985).
The MassAG also contends that compelling evidence supporting his traffic
disorderliness thesis is found in the testimony of his transportation science ex-
pert, Dr. Aveshai Ceder. MassAG Brief at 25-26. Dr. Ceder averred that the
extent and duration of traffic congestion indicates a high probability, indeed
a virtual certainty, that serious, injury-producing accidents will occur during
an evacuation. See Corrected Testimony of Aveshai Ceder on Behalf of the
[MassAG] on SAPL 31 and TOH III (Evacuation Road Capacities), fol. Tr.
5169, at 24-27; Tr. 5374-75. As applicants and the staff point out, however,
Applicants Brief at 24; NRC Staff Brief at 36-37, the MassAG does not
acknowledge that he (like SAPL with regard to its reception center argument
noted supra, see NRC Staff Brief at 29) failed to present this assertion tu the
Licensing Board. See [MassAG]’s Proposed Findings of Fact and Rulings of
Law (May 19, 1988). The MassAG’s argument is thus foreclosed by the “set-
tled principle of appellate practice that an appellant is ordinarily precluded
from pressing issues or advancing arguments not presented to the trial tri-
bunal.” ALAB-924, 30 NRC at 358. Nor do we find any reason here to invoke
the narrow “serious substantive issues” exception to this principle. Ibid. This
is particularly so because Dr. Ceder’s conclusions rest in large part on the
questionable premise that research concerning traffic incidents at highway
construction zones, which would include “work zones” (i.e., an area with
barricades, cones, and traffic guides) situated along stretches of open road-
way, can be equated profitably with the circumstances that will exist during
an evacuation in which the “work zone” (i.e., the traffic control point or ac-
cess control point, see infra note 174) will be at an intersection and in a traf-
fic flow expected to attain, on average, speeds in the vicinity of 10 miles per
hour. See Tr. 5338-45, 5362.
102 The lay testimony referred to supra at pp. 391-92, was offered by inter-
venors to establish that the “unique” character of the Seabrook site enhanced
A-40
ing recognized experts, legitimately hold conflicting views
about the likelihood and effects of aberrant behavior in a
radiological emergency, “the possibility that inconsistent or
even contrary inferences could be drawn if the views of the
[intervenors’] experts were accepted does not prevent the trial
board’s findings from being supported by substantial evi-
dence.”!® In this instance, after giving the Licensing Board’s
factual findings the probative force they intrinsically com-
mand,'™ we find no occasion to gainsay the Board’s findings
on aberrant behavior by the general public.
B. In addition to challenging planning assumptions con-
cerning the general public’s behavior in an emergency, before
the Licensing Board intervenors attacked the planning premise
the likelihood that in the event of an emergency there would be serious dis-
ruptive behavior, particularly by drivers during a lengthy evacuation. Coun-
tering intervenors’ assertions on this score, however, is the testimony of staff
expert Dr. Urbanik who declared:
Certainly Seabrook is unique, but there have been extensive periods of
congestion where people have been stuck in their cars for hours and
hours before they have arrived at their destination. So, it is not black
and white. I mean it is not that we have got one just like Seabrook. But
on the other hand, it is not like there is not anything that is not like it
at all.
Tr. 748. Further, citing as an example the extensive evacuation in the early
1960s of 200,000 people from the Texas coast brought on by Hurricane Carla
during which evacuees were in traffic “for hours and hours,” Dr. Urbanik
concluded that for “major, large-scale evacuations” there was “no experience
with accident problems; no experience with aberrant behavior. Nothing em-
pirically that would lead us to the conclusion that people are going to act out
of the way that we want them to act, if they are stuck in traffic for hours.”
Tr. 7489-90. We find nothing in intervenors’ lay testimony that is sufficient
to demonstrate that the actions of those involved in an emergency situation at
Seabrook would be significantly different from those described by Dr.
Urbanik.
We also fail to see how the 1972 “youth riot” in the beach area referenced
by SAPL as evidence of potential disorderliness, see SAPL Brief at 61, has
much of anything to do with human behavior during natural or
technological emergencies.
103 Northern Indiana Public Service Co. (Bailly Generating Station,
Nuclear 1), ALAB-303, 2 NRC 858, 866 (1975) (citations omitted).
104 See ALAB-924, 30 NRC at 367 & n.165; Bailly, 2 NRC at 867.
Weal
A-4]
that emergency workers would react appropriately in the
event of a radiological emergency at Seabrook. Specifically,
intervenors asserted that abandonment of emergency response
roles by both professionals and volunteers, including law en-
forcement officials, school personnel, and bus drivers, would
create significant deficiencies in emergency response efforts.
Intervenors maintained below that the testimony of Drs.
Zeigler and Johnson established that significant numbers of
emergency workers would abandon or delay performing their
response duties in an effort to protect themselves and their
families.'°° As support for their position that emergency
worker role abandonment would be a serious problem in a
radiological emergency, these witnesses relied upon a number
of different sources. Among them were sociological research
suggesting that in times of disaster families tend to want to be
together and to evacuate together; “disaster literature” assert-
edly establishing that those in emergency response roles who
experience a conflict because of their family responsibilities
inevitably will abandon their emergency worker roles; several
recent studies purporting to show emergency role abandon-
ment during the 1979 accident at Three Mile Island (TMI);
surveys of school bus drivers, volunteer firefighters, and teach-
ers within the vicinity of the Shoreham and Diablo Canyon
nuclear facilities indicating a strong concern for the welfare of
their families in the event of an emergency; and a telephone
survey of local residents in which some forty percent of the
individuals who identified themselves as having emergency re-
sponse roles in the event of a Seabrook emergency stated that
they would delay reporting for duty until they had assured
themselves of the safety of their families.'
105 See LBP-88-32, 28 NRC at 735. In addition, as will be seen later,
intervenors presented other witnesses who addressed specifically the likely
response of schoolteachers to a Seabroox radiological emergency.
‘6 Testimony of Donald J. Zeigler, James H. Johnson, Jr., and Stephen
Cole on Behalf of the [MassAG] on SAPL Contention 7, SAPL Contention
8A, SAPL Contention 15, SAPL Contention 25, SAPL Contention 31, [TOH}
Contention III and [TOH] Contention IV, fol. Tr. 7849, at 40-53.
A-42
To counter intervenors’ presentation, applicants again prof-
fered testimony by Dr. Mileti. He acknowledged that individ-
uals play many different societal roles with different rights and
obligations.'°’ He also observed that, while there may be in-
stances in which an individual’s different roles will appear to
“conflict,” this does not necessarily mean that the person will
engage in behavior that constitutes abandoning one of those
roles entirely.'°* Rather, the individual is more likely to experi-
ence “role strain,” in which he or she is subject to a mental
state of concern and uneasiness.' Dr. Mileti maintained that
such role strain is a permanent feature of social life and some-
thing with which people must cope in most societal
situations.''°
Dr. Mileti conceded that some of the early literature on dis-
asters and emergencies describes behavior that appears to
demonstrate that an emergency worker’s role conflict between
family responsibilities and emergency response duties inevit-
ably will be resolved in favor of the family role, thereby con-
tributing at least initially to disorganization in disaster re-
sponse efforts.''' It was his assertion, however, that this re-
search failed to take into account a significant factor: the indi-
vidual’s pre-emergency conception of the role he or she should
be playing in response to an emergency.''* According to Dr.
Mileti, other research that has focused on this factor demon-
strates that when an emergency worker’s role is clearly defined
prior to the emergency — “perhaps through training and plan-
ning’ — emergency workers will not abandon their response
roles.''* In this regard, Dr. Mileti stated that pre-emergency
training and planning measures can be effective in combatting
the possibility of role abandonment because they give the
'07 Applicants’ Direct Testimony No. 7, at 106.
108 Id. at 106-07.
1 id. ak 107.
"0 Tbid.
"Td. at 107-11.
12 See id. at 112-17.
"3 Id. at 117-19.
- read s
A-43
worker a clear idea of his or her responsibilities and of the de-
gree to which the community and other emergency workers
are depending upon him or her in an emergency.''* These
measures also provide information that will make the worker
aware of the nature of the risk involved and the utility of fam-
ily contingency plans to ensure that the emergency worker can
fulfill his or her responsibilities without concern for the safety
of family members.'!®
On this latter point, Dr. Mileti also declared that, if an
emergency worker has not already made advance plans for
someone (a spouse, relative, neighbor, or other appropriate
person) not involved in emergency response to take measures
to protect his or her family, in seeking to alleviate any mental
“role strain” he or she will act by in:provising measures to
ascertain whether family members are safe.''® His judgment
thus was that “emergency workers who know of their emer-
gency roles in advance of an emergency perform their emer-
gency functions in the event of an emergency.”'!’ Finally,
summarizing the data concerning emergency worker role
abandonment, Dr. Mileti concluded that “a large body of his-
torical evidence shows the functioning of emergency organiza-
tions is not hampered by failure of emergency workers to per-
form their jobs” and that, “[wJhile role abandonment may be
theoretically possible, it is certainly extremely rare, and conse-
quently it does not reduce organizational effectiveness.”''*
In reviewing the conflicting expert testimony, the Licensing
Board found “very persuasive” Dr. Mileti’s interpretation of
the research or emergency response phenomena and his con-
clusions concerning the central function of emergency worker
role certainty in negating role abandonment.''* The Board
also determined that the intervenors’ evidence concerning role
4 Id. at 124.
"5 [bid.
6 Id. at 120-21.
"7 Id. at 124-25.
"6 Id. at 125.
'% T. BP-88-32, 28 NRC at 739
A-44
abandonment during the TMI accident provided little support
to counter Dr. Mileti’s conclusions. Its determination in this
regard was based principally on the Board’s conclusion that,
because there was no effective radiological emergency re-
sponse planning and few emergency role assignments with re-
spect to TMI, there was no reliable evidence of the existence of
the type of worker role certainty that Dr. Mileti’s analysis indi-
cated would significantly deter role abandonment.'!*° The
Board additionally found that, even if it accepted intervenors’
survey evidence on local emergency worker responses as statis-
tically reliable (which applicants asserted it was not), the sur-
vey nonetheless was unpersuasive. The Board noted that the
survey's significance for intervenors’ witnesses rested on their
assumption that, because overloaded switching equipment
would make telephone contact impossible during an emer-
gency, the one-third of emergency worker survey respondents
who declared they would check on their families by telephone
before reporting for emergency duty would become frustrated
and ultimately would abandon their duties to seek out their
families.'* The Board concluded, however, that this premise
was faulty because the record concerning telephone communi-
cation during a radiological emergency at Seabrook estab-
lished it was very unlikely that an emergency worker (or any-
one else) would experience lengthy delays in successfully com-
pleting telephone calls.'*® The Board declared further that,
with this assumption discarded, the survey results in fact sug-
gest that some ninety percent of the emergency workers ques-
tioned would either report immediately or after a short delay
while checking upon their families, thereby demonstrating
widespread role acceptance rather than role abandonment.'”
Thus, accepting the analysis of Dr. Mileti in preference to that
120 Td. at 741.
'21 Id. at 736.
122 Ibid. The Licensing Board’s findings regarding the availability of tele-
phone service in the event of an emergency, see id. at 727-28, have not been
challenged before us by intervenors.
'23 Id. at 736.
A-45
put forth by the intervenor witnesses, the Licensing Board
concluded that role abandonment by those with emergency re-
sponse duties under the NHRERP generally would not con-
stitute a serious obstacle to an effective emergency response in
the event of a radiological accident at Seabrook.'!*
Before us, intervenors do not challenge the Licensing
Board’s conclusions concerning role abandonment by emer-
gency workers generally.'*> Instead, intervenors SAPL and
TOH have mounted a narrower attack, asserting that the evi-
dence before the Board did not support its conclusion that
schoolteachers would fulfill their particular emergency re-
sponse role under the NHRERP.'”°
With respect to school teachers, a major focus before the
Licensing Board was on the weight and effect to be afforded to
the sworn testimony of thirteen teachers concerning their own
response, and the response of teachers generally, in the event
of a Seabrook emergency. ,The Board described teachers’ re-
sponsibilities under the NHRERP as including accounting for
the students in their direct care, taking those students to a cen-
tral place in the school in order to allow for a school-wide ac-
counting to be made (and to engage in sheltering if that is the
recommended protective action), and accompanying the stu-
dents on school buses to the reception centers that would be
the students’ destination in the event of an evacuation.'*” The
'24 Id. at 749. For the reasons addressed in our discussion concerning be-
havior of the general public, see supra pp. 394-97, the Licensing Board also
rejected an intervenor assertion that fear of radiation would result in role
abandonment by emergency workers. See LBP-88-32, 28 NRC at 741-42.
'25 Although SAPL notes that the Licensing Board, citing the “realism/best
efforts” presumption regarding state and local governmental nonparticipa-
tion in emergency planning, refused to credit the testimony of local officials
that they and other public officials would not respond in the event of a radio-
logical emergency, see id. at 728-29, 732-35, it does not contest that deter-
mination. SAPL Brief at 58.
126 See SAPL Brief at 58-61, Town of Hampton’s Brief in Support of
Appeal (Feb. 10, 1989) at 36-42.
127 | BP-88-32, 28 NRC at 729-30. Under the terms of the NHRERP,
teachers’ duties also would extend to staying at the reception centers until the
children are claimed by their parents or legal guardians or the teachers are
relieved by other personnel. E.g., NHRERP (Hampton Special Facilities
Plans), Vol. 18A, at F.3-6.
A-46
teachers, however, testified that, acting upon the belief that in
the event of a Seabrook emergency their own children and
other dependents would be in grave danger because of the un-
workability of the NHRERP, they would promptly leave their
students without performing any of these duties in order to
care for their own families.'!2* Further, on the basis of their
attendance at meetings and conversations with other teachers,
the teachers predicted that almost all of the teachers in the
Seabrook EPZ would act similarly in the event of an emer-
gency.'?° Also in support of this point, the teachers described
the results of a survey they and other teachers conducted that
indicated that, for nearly all the teachers in fifteen schools
within the EPZ, only four percent were willing to implement
the NHRERP.!* In addition, intervenors introduced into evi-
dence a petition signed by 597 teachers from schools within the
EPZ that stated “[w]e DO NOT accept the conflicting duty
which the Emergency Response (Evacuation) Plan assigns us.
We believe it is inappropriate to expect us to provide emer-
gency support for our students during a nuclear accident
which would simultaneously place our families in danger.”!*!
In considering the teachers’ testimony, the Licensing Board
described twelve of the thirteen teachers as “serious, fair-
minded, and ... sincere” and declared it had “no reason to
believe that the teachers appearing before us have any less
commitment to their pupils than do other teachers.”!*? The
Board also stated that it accepted the central theme of the
teachers’ testimony that they believe “that in a radiological
emergency at Seabrook ... there will be chaos; there will be
'28 See Corrected Prefiled Testimony of [Thirteen Teachers] Regarding
[TOH] Revised Contentions IV and VI and [SAPL] Contentions 8, 8A, and
15, fol. Tr. 3945, at 3, 8-9 [hereinafter Teachers’ Direct Testimony].
129 Id. at 5.
130 Id. at 5-8.
31} TOH Exh. 10.
132 | BP-88-32, 28 NRC at 731. The Licensing Board rejected the testi-
mony of the thirteenth teacher on the basis that her views were “hopelessly
biased” because of her activities, including attempted disruption of the
Board’s hearings, as an official of an anti-Seabrook organization. Ibid.
A-47
an unworkable plan in effect, protective information will be
unreliable, and their pupils will be in danger.”'** The Board
found that essential to the teachers’ prediction of pupil aban-
donment was “the belief that their own children and depen-
dents will simultaneously be in danger — their children’s
teachers having also abandoned their pupils.”'* In this re-
gard, referencing testimony by Dr. Mileti to the effect that
role conflict is not generally a concept applied critically to one
facing a choice of roles, the Board concluded that the teachers
“believe that they will select the role of parent rather than that
of emergency worker, having rejected the latter status.””!*°
Despite these findings, the Board discounted the teachers’
testimony and the other intervenor evidence on teacher role
abandonment. The Board found the petition and the survey
unconvincing because they failed to provide a basis for con-
cluding that the teachers involved actually believed that a
radiological emergency at Seabrook would place their depen-
dents in danger or that those signing the petition were told
they would be abandoning their students.'** In addition, it
concluded that the dozen educators who testified were not
representative of teachers in general because “[e]ach had his or
her own reasons for volunteering to appear at the hearing,”
and “[h]undreds of teachers did not volunteer to testify.”!%”
The Board also found that the teachers’ expressed doubts
about the workability of emergency planning~ under the
NHRERP were groundless because “(t]he teachers do not
claim to be experts on emergency planning” and “provide no
reasoned basis for their assumption” that chaotic conditions
will prevail after a Seabrook emergency.'* Further, the
Licensing Board rejected the notion that not enough teachers
“would accept evacuation with their pupils” or at least “see
193 [bid.
| ‘4 [bid.
198 [bid.
198 Id. at 731-32.
137 Id. at 732.
198 [bid.
A-48
their pupils to the school buses” based on its expectation that,
while not all teachers will engage in “heroic behavior,” they
nonetheless will “perform better than the general population
in an emergency.”'*® Declaring that schoolteachers’ reactions
would be mixed, the Board concluded that “[s]chool teachers
and school officials, as a group, will not abandon their pupils
in the event of a radiological emergency at Seabrook.’”’!*°
Intervenors SAPL and TOH assert that, in light of the
twelve teachers’ testimony, the Licensing Board’s general con-
clusions that it expected teachers to perform better than the
general public and to carry out the duties assigned to them in
the NHRERP are baseless. Applicants and the staff urge that
the Board’s decision regarding teacher behavior be af-
firmed.'*! We do so, although for reasons that, at least in part,
differ from those put forth by the Board in its December 1988
decision.
Given the subject matter involved — the safety of school-
children — the sworn testimony by these dozen “serious, fair-
minded, and ... sincere” teachers is disquieting. Their dec-
larations that, notwithstanding the tasks attributed to them by
the NHRERP, in the event of an announcement of a Seabrook
emergency they promptly would leave their students in order
to take care of family members and other dependents are par-
ticularly troubling when viewed in conjunction with the peti-
tion signed by 597 other teachers and the survey, both of
which suggest similar actions would be undertaken by a
number of other teachers. '** Thus, it undoubtedly is an under-
138 [bid. (emphasis in original).
‘40 Id. at 749.
‘41 Applicants Brief at 13-14, NRC Staff Brief at 31-32.
'42 In concluding that the dozen teachers who testified were not “represen-
tative” of other teachers, the Board made particular reference to the fact that
“(hundreds of teachers did not volunteer to testify.” Id. at 732. The signifi-
cance the Board apparently attributes to the number of teacher witnesses is
questionable, however, for it fails to account for the testimony of one teacher
witness who stated that, as the president of the 350-member Portsmouth
Teachers Association, he was speaking for the association and he was confi-
dent that the testimony of the teachers on the panel was in agreement with
A-49
statement to characterize this evidence, as the Licensing Board
did with respect to the petition, as “demonstrat[ing] that
many teachers are concerned about having a role in the school
emergency plans.”!*%
Nonetheless, we conclude that, at least insofar as teachers
are performing duties corresponding to those they generally
undertake in connection with their normal duties and respon-
sibilities, the Licensing Board was correct in its ultimate con-
clusion that teacher role abandonment does not pose a sub-
stantial barrier to an adequate emergency response under the
NHRERP. In arriving at the conclusions critical to its deter-
mination concerning teacher response, the Licensing Board
chose to “ponder the testimony of the teachers on our own,
free from the advice of experts.”'** We find, however, that
various aspects of Dr. Mileti’s expert testimony on human be-
havioral responses in emergencies, particularly his testimony
on emergency worker responses, provide substantial addi-
tional support sufficient to assure us that the intervenor-spon-
sored evidence concerning emergency response by teachers
does not warrant a different result.'*
In reviewing the teachers’ testimony, we find relevant Dr.
Mileti’s conclusion, discussed supra in the context of be-
havioral responses of the general public, that pre-emergency
perceptions of risk, and of one’s response to that risk, provide
that of the association’s members. Tr. 4024-25. The Board’s reference also
does not recognize that, as intervenor counsel observed in introducing the
teacher petition, “by reason of sheer numbers” the 597 signatories could not
appear to testify. Tr. 3938. Indeed, it is doubtful, given the logistical consid-
erations involved, that if all 597 had sought to testify, that would have been
permitted. Finally, the Board’s statement does not acknowledge that there
apparently was no testimony presented from even one teacher to the effect
that he or she would carry out the role assigned by the plan.
‘3 LBP-88-32, 28 NRC at 730.
44 Td. at 731.
'#5 In this regard, we note also that SAPL asserts that the Licensing Board
erred in its treatment of teacher behavior by stating that the “realism/best
efforts” presumption embodied in 10 C.F.R. § 50.47(c)(1)(iii) “should apply
to teachers as well as to other government leaders.” LBP-88-32, 28 NRC at
731. Given the doubtful role of New Hampshire public and private school-
A-50
an uncertain guide to behavior in an actual emergency.'* In
this instance, the teachers’ declarations that in an emergency
they would leave their students in the classrooms in order to be
with their own families, apparently without taking any
measures to provide for the children’s safety, are like those re-
sponses Dr. Mileti declared would not be the norm for the
public in emergency situations and, in any event, would seem
unlikely for professional educators.
We also find Dr. Mileti’s testimony on “role certainty” for
emergency workers pertinent to our conclusion that there will
be a sufficient emergency response on the part of school per-
sonnel. As we previously described in some detail, it is Dr.
Mileti’s expert judgment that awareness of a response role and
familiarity with the particular responsibilities and duties of
that role impart certitude to the action of those being relied
upon to respond in an emergency and deter role abandon-
ment.'*” The teachers’ responses to the survey and the petition
leave no doubt that teachers generally are aware that under
the NHRERP they have responsibilities,'** teachers’ emer-
gency responsibilities parallel in great measure those duties
teachers as government officials, see ALAB-924, 30 NRC at 344 n.25, SAPL’s
point is not without merit. Nonetheless, as the staff suggests, see NRC Staff
Brief at 31, because there is adequate record support for the Board's ultimate
conclusion, particularly in view of Dr. Mileti’s testimony concerning human
behavior, it is not apparent that the rule’s presumption was (or need be)
utilized in a manner having any substantive effect upon this aspect of the
proceeding. Thus, even if mistaken, the Board's “best efforts” statement was
harmless error.
46 See supra p. 395.
'*7 See supra pp. 399-400.
'*® See supra p. 402. See also Tr. 3977, 4014. The teachers’ testimony sug-
gests that they were unable or unwilling to receive training concerning the
exact nature of their Seabrook-related emergency duties. See Teachers’
Direct Testimony at 9-10; Tr. 4013-14. Nonetheless, given their experience
with procedures for regular and early dismissals (i.e., for snow stcrms and
other occurrences), both of which generally involve accounting for their stu-
dents and supervising them until their transportation home arrives, see Tr.
3950, 4009-11, we find this of littke moment in terms of the teachers’ role
certainty.
'® Tr. 4030-31.
ee
A-51
they perform as part of their normal, daily, on-the-job activ-
_ ities. Hence, consistent with Dr. Mileti’s general emphasis on
familiarity with response duties as a factor in role certainty, it
is reasonable to conclude that their familiarity with and accep-
tance of their day-to-day responsibilities creates a high degree
of “role certainty” and a correspondingly high probability that
in an emergency teachers will act in sufficient numbers to per-
form their usual roles.'*
In our previous discussion in ALAB-924 concerning the need
for letters of agreement (LOAs) to confirm the participation of
school personnel in response activities, we suggested that
some, but not all, of the responsibilities assigned to teachers by
the NHRERP correspond to their normal, everyday duties. In
this regard, we observed that, as part of its discussion of
human behavior issues relating to teachers, the Licensing
Board found teachers’ bus escort duties (which the Board de-
clared rendered them emergency “service providers’) different
from their other NHRERP responsibilities to account for the
children in their care and to see that they are safely aboard
transportation.'®' The apparent basis of the Board's finding
was that their bus escort duties go beyond those for which
teachers ordinarily are responsible.'**? Subsequently, we con-
cluded that this “service provider” designation, in conjunction
with the lack of any evidence in the record to show that the
bus escort duty was one for which teachers normally were
responsible, indicated a need for confirmatory LOAs to cover
that escort activity and remanded the matter to the Board for
further consideration.'* Now, in reviewing the Board’s
'% Recause of the potential for “doubling up” on supervisory and other
roles among school personnel, role abandonment generally would become a
concern only if it occurs with sorne frequency. Cf. Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), ALAB-832, 23 NRC 135, 151
(1986) (intervenor evidence regarding teacher role abandonmeat insufficient
because it failed to establish there would not be the minimum number of
teachers needed for proper supervision), rev'd in part on other grounds,
CLI-87-12, 26 NRC 383 (1987).
'S! ALAB-924, 30 NRC at 342-43.
'S* See LBP-88-32, 28 NRC at 730.
'SS ALAB-924, 30 NRC at 343-44.
A-52
human behavior findings relating to teachers, we find that Dr.
Mileti’s “role certainty” principle also supports the view that
teachers will perform many of their NHRERP-assigned duties
(including accounting for and supervising the children and
assuring their safe boarding of evacuation buses) because those
responsibilities correspond sufficiently to their usual duties.'*
But, by the same token, even with Dr. Mileti’s testimony, we
remain troubled about whether this can be said with respect
their role as escorts on the student evacuation buses.'*> This
role may necessitate the teachers’ traveling for indefinite peri-
ods of time considerable distances from their school and very
'5¢ Consistent with its earlier determination that teachers generally are not
“providers” of emergency services for purposes of determining whether LOAs
are required, see LBP-88-32, 28 NRC at 673, the Board did not rely heavily
upon Dr. Mileti’s expert testimony concerning the responses of “emergency
workers” in resolving the human behavior issues relative to teachers. See
supra note 144 and accompanying text. We have no reticence in this respect,
however, because we find that Dr. Mileti’s expert analysis concerning emer-
gency worker responses, as described supra, is consistent with our analysis, as
expressed in ALAB-924, 30 NRC at 342-44, of the need for confirmatory
LOAs to encompass certain aspects of participation by school personnel in an
emergency response.
‘85 In this regard, we are aware that in its discussion of emergency worker
role abandonment, referencing testimony of Dr. Mileti at Tr. 6(6)25-26, the
Licensing Board declared that Dr. Mileti’s “role certainty” principle “pro-
vides excellent support for the Board’s own view that teachers as a group are
highly unlikely to abandon their schoolchildren in an emergency.” See LBP-
88-32, 28 NRC at 740-41. While the cited testimony could be seen as covering
all duties assigned to teachers under the NHRERP, without regard to
whether the duties correspond to teachers’ normal responsibilities, we ques-
tion this interpretation on two counts. First, in denoting in his testimony the
specific emergency duties that teachers would perform, Dr. Mileti stated that
“I perceived that [teachers’] role in a radiological emergency would be to get
the school children on to evacuation buses and/or sheltered, depending upon
the type of recommended protective action.” Tr. 6625. These, however, are
the type of on-the-school grounds, accounting/supervisory activities we have
concluded teachers can be counted on to perform. Further, although Dr.
Mileti subsequently stated that “I don’t know of one emergency in the history
of this country where teachers have abandoned their children and not done
what they needed to do,” ibid., we find this seemingly broader statement of
teachers’ duties of questionable relevance in determining whether they will
act as bus escorts given the evidence, discussed infra, indicating that teachers
are not “needed” for that role.
A-53
Oo als ce
likely their homes and families. Moreover, if a teacher em-
barks on a bus for the potentially lengthy trip to a reception
center, the teacher’s opportunity to engage in actions designed
to alleviate “role strain” (e.g., calling home to check upon
family members) could be severely hampered, if not fore-
closed, thereby adding to the possibility that role abandon-
ment might occur.
In the circumstances, however, we need not resolve this sec-
ond matter. In providing its explanation in LBP-88-33 of why
our remand of the LOA issue in ALAB-924 was not cause to
delay the effectiveness of its November 1989 decision author-
izing issuance of a full-power license for Seabrook, the Licens-
ing Board considered the issue of whether the “bus escort”
activity of teachers was necessary for effective emergency re-
sponse and concluded that it was not.'® In appraising this
Licensing Board explanation in its own decision on whether to
make the Board’s full-power authorization immediately effec-
tive, the Commission declared:
[I]t does not appear that there is any reason why the evac-
uation of schoolchildren will be delayed or will not occur
even if no teachers or other school personnel agree to
accompany the children on evacuation buses. The
Licensing Board noted that Richard Strome, then New
Hampshire’s Director of Emergency Management, while
hoping that teachers would participate, stated that their
participation is not “key to the process” and observed that
schoolchildren usually get on school buses without assis-
tance and that teachers do not regularly travel on the
buses. !57
Made, as it is, in the context of the Commission’s immediate
effectiveness decision, this observation is not binding upon
186 30 NRC 656, 660, supplementing LBP-89-32, 30 NRC 375 (1989), ap-
peals pending.
'87 CLI-90-3, 31 NRC 219, 234-35 (1990) (emphasis in original), petition
for review pending sub nom. Massachusetts v. NRC, Nos. 90-1132, 90-1218
(D.C. Cir. filed Mar. 7 and Apr. 27, 1990).
A-54
us.'*§ Indeed, the need for teachers as bus escorts was not an
issue the parties placed before us in any of the matters raised
on appeal concerning LBP-88-32 or in a motion to reconsider
our determination concerning LOAs for school personnel in
ALAB-924. Nonetheless, in the present context of our review
of intervenors’ appeals regarding human behavior issues, we
cannot disregard the record evidence identified by the Licens-
ing Board and the Commission indicating that, insofar as the
NHRERP provides for teacher escorts on evacuation buses,
those provisions are not necessary for the safety of the school-
children involved.'* The State planners’ conclusion in this
regard is apparently based upon their not unreasonable judg-
ment that bus drivers will be able to transport the students
safely to reception centers, where the students will be cared
for and supervised by the personnel already assigned to staff
the centers until such time as they are reunited with their
parents or guardians.'® Because State planning officials have
concluded that the role of teachers as bus escorts is largely
superfluous, we perceive no purpose in considering further
whether teachers will fulfill those roles under the plan.'®!
We thus conclude that, with respect to those duties neces-
sary to provide for the protection of schoolchildren in the event
of a radiological emergency, the Licensing Board was correct
in its determination that under the NHRERP, teacher role
abandonment is not a significant concern.
Ill. EVACUATION TIME ESTIMATES
Under NRC emergency planning requirements, planning
officials are required to develop “[g]uidelines for the choice of
158 See 10 C.F.R. § 2.764(g).
1 See Tr. 3388-89.
10 Cf. Shoreham, 23 NRC at 152 (evacuation of schoolchildren to be
accomplished by bus drivers).
'©! We would suggest, however, that, so as not to mislead those involved in
or relying upon emergency response efforts by school personnel, State plan-
ners may wish to revise the plan to reflect their judgment about the precatory
nature of teacher participation as escorts on student buses.
.%
A-55
protective actions during an emérgency.”'® To this end, plan-
ners also are to “provide an analysis of the time required to
evacuate and for taking other protective actions for various
sectors and distances within the plume exposure pathway EPZ
for transient and permanent populations.”'® NUREG-0654
guidance on fulfilling these requirements provides that an
evacuation time estimate (ETE) should be prepared “based on
a dynamic analysis (time-motion study under various condi-
tions) for the [EPZ].”'* As we have noted previously, “the
[ETE] analysis is intended to reflect a realistic time for com-
pleting an evacuation. ”'® With this information in hand,
“emergency coordinators can then decide what protective ac-
tions (e.g., sheltering or evacuation) are warranted in the cir-
cumstances, if a radiological emergency occurs.” The ETE
is, however, only a planning tool; Commission regulations
establish no particular time limits for completing an EPZ
evacuation.!® —
For emergency planning purposes, the New Hampshire EPZ
has been divided into seven Emergency Response Planning
Areas (ERPAs).'® In turn, ten regions, each consisting of one
or more ERPAs, have been established on the basis of direction
(i.e., north, south, or west) and spatial extent (i.e., beach
area, two miles, five miles, EPZ boundary) relative to the Sea-
brook Station.'® In accordance with NUREG-0654 guidance,
the NHRERP sets forth a series of ETEs intended to cover dif-
ferent evacuation scenarios. The scenarios encompass different
162 1() C.F.R. § 50.47(b)(10).
63 Jd, Part 50, App. E, § IV.
'6 NUREG-0654 Criterion II.J.10./. Further detailed guidance on how to
prepare an ETE is provided in Appendix 4 to NUREG-0654.
'65 Philadelphia Electric Co. (Limerick Generating Station, Units 1 and
2), ALAB-845, 24 NRC 220, 244 (1986), see also Limerick, ALAB-836, 23
NRC 479, 486 (1986).
106 Limerick, ALAB-845, 24 NRC at 244, see also Limerick, ALAB-836, 23
NRC at 486.
'67 See Limerick, ALAB-845, 24 NRC at 244; Limerick, ALAB-836, 23
NRC at 486.
166 NHRERP (Seabrook Station Evacuation Time Study), Vol. 6, at 10-5.
' Id. at 10-3.
A-56
different seasons (summer or off-season), days (weekend or
mid-week), times (mid-day, evening, or all day) and weather
conditions (good, rain, or snow).'” For each scenario, the
ETE for each region was calculated using the Interactive
Dynamic Network Evaluation (I-DYNEV), a computer model
developed by government consultants.!7!
The Licensing Board concluded that the ETEs put forth by
applicants, as modified by the Board on the basis of the record
established during the hearing on intervenors’ ETE conten-
tions, were sufficiently accurate to fulfill all applicable re-
quirements.'”? Before us, intervenors MassAG and NECNP
assert that several deficiencies exist in the ETEs that were gen-
erated for the New Hampshire portion of the Seabrook EPZ.
Principally, they contend that (1) traffic management efforts
have failed to recognize and compensate for the effects upon”
evacuation times of delayed staffing of the seventy traffic con-
trol posts (TCPs) for the New Hampshire EPZ, and (2) the
number of vehicles at the beach on a summer “peak” day was
inaccurately determined, thereby affecting the accuracy of the
ETEs for the beach population.'” Although we find no basis
for the first assertion of error, we conclude that some addi-
tional modification is necessary for ETEs involving the beach
area.
A. The Licensing Board recognized that in a fast-breaking
accident there might not be sufficient time to have State or
local police personnel at all TCPs before an evacuation is to
'70 Id. at 10-2.
‘71 Id, at 10-1, 10-6 to -11; see LBP-88-32, 28 NRC at 781.
'72 LBP-88-32, 28 NRC at 803-04.
'7) MassAG Brief at 29-32, NECNP Brief at 27-41. Before the Licensing
Board, intervenors also raised a concern about whether sufficient considera-
tion had been given to the effect upon the ETEs of New Hampshire EPZ
residents who commute to work outside the EPZ but who, in returning home
during an evacuation, would create additional traffic congestion. The Licen-
sing Board deferred resolution of this issue pending further submissions by
the parties. See LBP-88-32, 28 NRC at 789. The Board subsequently ad-
dressed the matter in its November 1989 final partial initial decision on emer-
gency planning matters. See LBP-89-32, 30 NRC at 423-34.
A-57
begin.'’* In this regard, the focus was on the New Hampshire
State Police, which will provide personnel for at least forty
percent of the TCPs.'” In testimony before the Board, New
Hampshire State Police Captain Sheldon Sullivan described
the mobilization of State Police both from Troop A in Rocking-
ham County, where the Seabrook plant is located, and from
other troops across the rest of the state.'"® Captain Sullivan
estimated that from the time State Police troopers are told to
respond within the EPZ, four troopers could reach TCPs
within fifteen minutes, three more officers could respond
within the next forty-five minutes, and in the next hour six
more troopers would arrive at TCPs.'”’ Thereafter, additional
troopers would arrive so that within five hours after notifica-
tion, approximately 100 troopers would be on duty.'”* Captain
Sullivan also stated that ultimately 185 New Hampshire uni-
formed troopers would be available for service within the
EPZ/™
In an effort to address intervenors’ concerns about the effect
of delayed staffing upon ETEs, particularly in light of the
delays about which Captain Sullivan testified, applicants
made three different I-DYNEV computer calculations that
'74 _BP-88-32, 28 NRC at 789. In addition to the 70 TCPs designed to
facilitate traffic flow out of the EPZ, police also are to staff 19 access control
points (ACPs) to restrict entry into the EPZ. Id. at 790. As the Licensing
Board noted, for the issue of ETE accuracy, the importance of ACPs is that
they take up available police resources. Ibid.
‘75 Jd. at 790-91. In the event of local nonparticipation, the number of
State Police needed for traffic control would be somewhat higher. See infra
note 192.
'76 See Tr. 4676, 4679-80, 4696. State-wide mobilization is necessary be-
cause planners called for the use of 48 troopers to staff TCPs and 26 State
Police officers at ACPs. See LBP-88-32, 28 NRC at 791. At the time of appli-
cants’ personnel response survey, Troop A had only 36 troopers, of which 12
to 14 would be on active duty or on call at any given time. See Tr. 4676-78.
'7 Tr, 4714-15.
8 Tr, 4715.
‘7° The total figures cited by Captain Sullivan were as of August 1987, the
time of the applicants’ SPRA. Tr. 4729-30. Captain Sullivan stated that at
the time he testified in November 1987, the number of uniformed officers
had increased by 21. Tr. 4700, 4729-30. He also noted that the potential
A-58
assumed there would be late or no staffing of TCPs.'® As de-
tailed by the Licensing Board, for the first calculation, the
applicants assumed that the important State Police-staffed
TCP at the New Hampshire Route 51 overpass at Interstate 95
would not be manned for one hour after beach closure; that
the TCP at the intersection of State Routes 1 and 101C would
not be staffed by State Police until two hours after beach clos-
ure; and that a planned State Police TCP at Hampton Harbor
Bridge to discourage traffic from traveling south from the
Town of Hampton Beach toward the Town of Seabrook would
not be established for two hours.'*! The second calculation
was made to determine the sensitivity of the ETE model to a
two-hour delay in the staffing of the Route 51 overpass
TCP.'®? For the third calculation, it was assumed that none of
the capacity-enhancing TCPs in the Massachusetts portion of
the EPZ was established.'** The first calculations showed a
twenty-minute decrease in the ETE for the entire EPZ.'** The
second calculation showed an ETE increase of five minutes.'**
An ETE increase of two hours resulted from the third calcula-
tion.'** The Licensing Board concluded that these additional
sensitivity calculations adequately reflected the effect of de-
layed staffing upon ETEs.'®’.
existed for calling into service an additional 40 State Police officers who nor-
maily serve as plain clothes detectives as well as 3300 officers from surround-
ing states who, in accordance with the New England State Police Compact,
are to respond at the request of the Governor of New Hampshire. Tr. 4698-
99, 4730-31.
'8© See Applicants’ Direct Testimony No. 7, at 44-48.
'8! | BP-88-32, 28 NRC at 792.
182 Ibid.
183 [bid.
‘8 Td. at 793. The reason for this decrease is that permitting movement
south over the Hampton Harbor Bridge expedites evacuation. See Applicants’
Direct Testimony No. 7, at 47.
'85 |. BP-88-32, 28 NRC at 793.
186 Tbid.
'87 Id. at 794.
A-59
Before us, the MassAG does not directly contest the Board’s
findings concerning the effects of delayed staffing on ETEs.'*®*
Instead, as he did before the Licensing Board, the MassAG
uses the applicants’ admission that staffing delays may occur in
some circumstances as a springboard to question TCP staffing
adequacy. The Licensing Board rejected this line of attack, de-
claring that (1) New Hampshire had committed all of its avail-
able State Police resources to evacuation traffic control and
was not required to hire more State troopers in anticipation of
a radiological emergency, and (2) the MassAG’s argument im-
properly isolated a particular, rapidly developing accident se-
quence during the peak summer population and involving the
entire EPZ in order to attack overall planning adequacy.'*
The MassAG asserts the Board’s analysis is wrong on both
counts. Applicants and the staff both support the Licensing
Board’s analysis.
To begin with, the MassAG questions the Licensing Board’s
conclusion that all available New Hampshire State Police have
been committed to evacuation traffic control, pointing to the
fact that, of the 185 uniformed officers identified as “‘avail-
able” in the applicants’ SPRA, only seventy-four are com-
mitted to traffic control.'*° He also suggests that the Licensing
Board’s declaration that no further officers need be hired was
tantamount to an improper holding that by providing all
'8§ Citing a Licensing Board finding in its discussion of “Human Behavior
in Emergencies” that the I-DYNEV model “utilized a 15% reduction in
capacity factor on all roads to account for driver uncertainty and short-term
disruptions which can disrupt capacity,” id. at 747, intervenor NECNP
asserts that this finding is, in fact, related to TCP staffing delays and that the
15% figure is too low to account for such delays. NECNP Brief at 36-38. As
applicants point out, Applicants Brief at 24, NECNP’s argument concerning
the validity of the 15% figure is misplaced because its premise that this find-
ing by the Board was intended to address delays arising from TCP staffing is
wrong. If this figure was intended to address the issue of TCP delays, there
seemingly would be no reason to conduct the additional I-DYNEV runs
described supra.
18 LBP-88-32, 28 NRC at 795.
190 MassAG Brief at 29-30.
A-60
available resources, the State has undertaken its “best efforts”
and thus need do no more.
These arguments miss the mark. While the MassAG cor-
rectly states that only seventy-four of the 185 uniformed offi-
cers have been “committed” to traffic control, this ultimately
is irrelevant to the issue of whether this staffing level is ade-
quate. The MassAG has not called our attention to any record
evidence establishing either that more than seventy-four offi-
cers are needed to service the TCPs now designated under the
NHRERP or that additional TCPs (staffed by additional offi-
cers) should be designated at particular locations.'*! Moreover,
the MassAG’s argument fails to account for the fact that all
but twelve of the “available” officers who are not committed
to controlling traffic (i.e., nearly 100 officers) have not been
given other specific assignments in the SPRA and thus presum-
ably could undertake traffic control duties if called upon to do
so. 192
The real issue, and the one the MassAG seemingly attempts
to frame by his reference to “best efforts,” is whether there has
'*! Although asserting that traffic control staffing in the New Hampshire
portion of the EPZ generally is inadequate because of the congested traffic
flow throughout the EPZ, as proof of this inadequate staffing the MassAG
references only the lack of traffic guides along a one-mile stretch of road in
Hampton Beach. Id. at 15. He fails to point to any evidence in the record
establishing where more staffing is needed for this (or any other) particular
stretch of roadway, much less how much more staffing would be required.
Given that the number of state troopers who can be called upon for traffic
control is well in excess of what is presently utilized under the NHRERP, see
Applicants’ Exh. 1-A; supra note 179 and accompanying text, even accepting
the MassAG’s premise that traffic congestion and the disorderly driver be-
havior it will foster mandate some additional traffic control, see MassAG
Brief at 19, 20, it is not apparent that there are insufficient resources to pro-
vide the necessary personnel. In any event, as we have indicated previously,
the Licensing Board acted appropriately in rejecting the MassAG’s central
thesis that driver behavior will seriously impair evacuation efforts under the
existing traffic control scheme. See supra pp. 391-98.
'®2 See Applicants’ Exh. 1-2; supra note 179 and accompanying text. The
number of officers without formal assignments could be further decreased by
11 if it is necessary for the State Police to compensate for local nonparticipa-
tion, see Applicants’ Exh. 1, at 3-7, but this still would leave almost 90 extra
officers available.
A-61
been an appropriate allocation of these otherwise adequate
State Police resources. The Licensing Board dismissed the
MassAG’s challenge by citing the lack of any regulatory re-
quirement that the State recruit more troopers. Relative to the
MassAG’s concern, however, an equally compelling answer,
consistent with the Commission’s guidance in its San Onofre
decision,'® is that there is no regulatory requirement that the
State permanently assign existing police resources to a particu-
lar location simply to ensure that there are no staffing delays in
the event of a radiological emergency. Put another way, simp-
ly because additional police resources will be needed in a par-
ticular location in the event of a radiological emergency and
will require some period of time to arrive, this potential for
delay does not require that permanent police staffing in that
area be “beefed up” to a degree beyond what is otherwise re-
quired to provide adequate law enforcement protection under
normal circumstances. We thus find no basis for intervenor’s
challenge.
The MassAG also contends that an incorrect premise under-
girds the Board’s determination that his arguments violate the
general principle that emergency planning not be based upon
an isolated accident sequence. Citing the Board’s findings that
the delay problems he envisions will arise only for a particular
accident scenario (i.e., a fast-breaking accident) with a par-
ticular beach population size (i.e., peak) and a particular type
of evacuation (i.e., one involving the entire EPZ), the MassAG
contends that because the staffing delays can occur in other in-
stances as well, the Board was incorrect in resolving his con-
cerns on this basis.'™
Assuming that the MassAG is correct in this regard, which is
not at all apparent,'® nonetheless this does not lead us to a
'°3 Southern California Edison Co. (San Onofre Nuclear Generating Sta-
tion, Units 2 and 3), CLI-83-10, 17 NRC 528, 536 (1983), rev'd in part on
other grounds, GUARD v. NRC, 753 F.2d 1144 (D.C. Cir. 1985).
16¢ MassAG Brief at 30-32.
'®5 For instance, although the MassAG asserts that staffing delay problems
will occur in instances other than fast-breaking accidents, ibid., because the
A-62
different conclusion about the adequacy of the State’s traffic
management plan. Planners have recognized that the poten-
tial for delayed TCP staffing exists and have compensated for
this in the NHRERP by prioritizing TCPs.'® As a result, once
a determination is made to staff the TCPs, available officers
are to be assigned first to those TCPs that are considered most
critical to expediting traffic flow.'®’ -It also is apparent, as
FEMA witnesses made clear, that in any emergency situation
responding officials must take into account the state of existing
resources, including mobilization status, in making protective
NHRERP calls for State troopers to be mobilized to staff TCPs at the Alert
stage of any radiological emergency prior to any evacuation actually being
ordered, see supra note 31, seemingly only in those instances in which a
radiological emergency progresses in less than five hours from an Alert stage
to a General Emergency stage, when an evacuation would be ordered, is
there any serious concern about delays resulting from traffic control staffing.
The MassAG nonetheless tries to minimize the positive impact of this early
mobilization policy, declaring there still would be substantial traffic conges-
tion and delays because the beaches also may be closed at the Alert Stage,
putting many additional cars on the highway. MassAG Brief at 32. His argu-
ment, however, fails to recognize that even if an early beach closing results in
traffic congestion, this in no way has an adverse impact on radiological
safety for the general public unless the accident is a relatively fast-breaking
one. Although inconvenient, the delays that people may encounter leaving
the area because of either traffic congestion or TCP staffing delays due to
early mobilization at the Alert stage have no adverse effect in terms of radio-
logical safety, at that early response stage plant conditions should not have
an impact on the radiological safety of persons outside the plant’s boundary.
See ALAB-924, 30 NRC at 363.
'°© NHRERP, Vol. 6 (Seabrook Station Evacuation Time Study), at 7-2.
'87 See Tr. 4704-05, 4731. The MassAG complains that, as of the time of
his appeal, there was no staffing sequence for TCPs. MassAG Brief at 3]
n.22. Adraft staffing sequence was in existence at the time of the hearing and
was provided to intervenors. Tr. 5801-02, 5804. Moreover, as is apparent
from the State of New Hampshire Traffic Management Manual accompany-
ing the NHRERP, of which we take official notice, see 10 C.F.R. § 2.743(i),
implementing details have been finalized. See State of New Hampshire Traf-
fic Management Manual § 2.0 (Rev. 2, Dec. 1989) [hereinafter NHTMM].
In this regard, we note that for the New Hampshire TCPs asserted by staff
witness Dr. Urbanik to be the most critical in terms of their capacity to
enhance vehicle flow, see Tr. 7722-23 (referencing TCPs A-HB-03, A-HB-04,
and D-HA-02), under the NHTMM they have been given top staffing pri-
ority in the event of a general evacuation, see NHTMM at 2.1-3.
{ ,
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action determinations.'** If a particular accident sequence re-
quires that protective action be taken when State and local
emergency response efforts are not fully mobilized, officials
would have to weigh whatever increased risks may be atten-
dant upon taking a particular protective action (such as an
evacuation) without having the planned response personnel in
place. Thereafter, they would make a determination about
what is the best course in the circumstances. By incorporating
this sensible approach,'* in conjunction with assigning priori-
ties to staffing, the NHRERP provides the requisite assurance
that traffic control delays will not have an adverse impact on
emergency response under the NHRERP.
NECNP also challenges the Licensing Board’s conclusion
regarding the effect of staffing delays on ETEs by questioning
the assumption about the availability of the Hampton Harbor
Bridge, which was incorporated in the supplemental
I-DYNEV calculations, described above.?® According to
NECNP, by permitting evacuees to move south over the
bridge, they are being allowed to move “closer” to the Sea-
brook facility.2°' As a result, permitting evacuation in this
direction requires that the State make a choice involving “both
pros and cons” and, therefore, involves a change that the State
cannot be presumed to make.” There thus being no “assur-
ance” that this “fix” will be put into place by planning offi-
cials, NECNP requests that we remand the matter for “further
review by the State of New Hampshire.”*°
The State already has given further consideration to the
“pros and cons” of TCP staffing at the bridge. It has assigned
'6 Tr. 4077-79. See also FEMA Pre-filed Testimony at 52 (capacity exists
to implement protective actions such as sheltering without local response
organizations being fully staffed).
1 See NHRERP, Vol. 4, at F-36.
29 See supra note 181 and accompanying text.
201 NECNP Brief at 38-40. The Licensing Board described this as a move-
ment “not very much” in the direction of the Seabrook facility. LBP-88-32,
28 NRC at 795. NECNP asserts it involves moving traffic perhaps eight- or
nine-tenths of a mile closer to the plant. NECNP Brief at 40.
202 Id. at 39.
203 Jd. at 40.
A-64
that TCP a staffing priority that would allow for movement to
the south for a period of up to several hours if an evacuation
starts before full TCP staffing has been accomplished by State
troopers.2* The State thus has done what NECNP seeks, i.e.,
studied the problem and made a determination about what is
the proper course to implement. In the circumstances, a re-
mand for further consideration would serve no_ useful
purpose.*°
\
4 In the NHTMM, during the peak beach season of May 15 to September
15, State Police staffing for the Hampton Bridge TCP (which is designated in
the NHTMM as TCP “A-HB-01,” see NHTMM at 3.0
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