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)

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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.

{ ,

A-63

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

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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