ML19325D562

Memorandum of Intervenors in Support of Motion for Summary Disposition of Scope Contentions Filed in Response to 890927 Onsite Exercise.* W/Supporting Info & Certificate of Svc

ML19325D562
Person / Time
Site:	Seabrook
Issue date:	10/18/1989
From:	Brock M MASSACHUSETTS, COMMONWEALTH OF
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19325D548	List: ML19325D547 ML19325D562
References
OL, NUDOCS 8910250042
Download: ML19325D562 (46)

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'89 OCT 19 P3 54.

i UNITED STATES OF AMERICA  ;

NUCLEAR REGULATORY COMMISSION gg1 , j, 00cti. . m . 4, i r a.- r

-ATOMIC SAFETY AND LICENSING BOARD PE O C-Before the Adininistrativo Judges:

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, Ivan W. Smith, Chairman 4 Dr. Richard F. Cole Kenneth A. McCollom

) .

In the Matter of ) Docket Nos. 50-443-OL

) 50-444-OL PUBLIC. SERVICE COMPANY ) (On-Site EP)

OF'NEW HAMPSHIRE, ET AL. )

)

(Seabrook Station, Units 1 and 2) ) October 18, 1989

)

MEMORANDUM OF THE INTERVENORS IN SUPPORT OF-

' THEIR MOTION FOR

SUMMARY

DISPOSITION OF THE SCOPE CONTENTIONS FILED IN RESPONSE TO THE

'SEPTFMBER 27, 1989 ONSITE EXERCISL' _

INTRODUCTION Pursuant to 10 CFR 52.749, Intervenors file this memorandum of law in support of their motion for summary disposition on p their contentions challenging the scope of the September 27 onsite exercise (" September exercise") at Seabrock and asserting that that exercise was too < uncated to meet the requirements of 10 CFR Part 50, Appendix E, IV.F. 11.

Intervenors filed a contention on September 29,1/ 1989 based l* on information they had gained through their 1/ This pleading is dated September 28 but was filed on l

L September 29 1989.

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efforts to observe the September exercise.A/ Upon receipt of (

the scenario documents from the NRC on October 10, 1989 l pursuant to an earlier-filed FOIA request, the Intervenors l filed on October 13 an additional contention which, like the September 29 filing, also challenged the scope of the September exercise.2/ As discussed in some detail in Intervenors' October 13 2/ Although the Intervenors had requested observational I status, the Applicants refused to accomodate this request. Egg correspondence attached hereto as Exhibits 1 and 2. Indeed, the Applicants prevented an Assistant Massachusetts Attorney General from observing exercise activities at the Media Center even though that Center was located in a public building which '

remained open to the public throughout the exercise. Egg correspondence attached as Exhibit 3. '

2/ The October 13 pleading also amended the earlier contention clarifying, by means of the procedural vehicle of amended

, bases, the nature of the omissions in the scope and design of the exercise as disclosed by the scenario document. For example, direct observation had led the Intervenors to conclude that no field monitoring teams had been dispatched offsite and that therefore the exercise failed to test portions of the l Lasite plan that are required by 10 CFR 50.47(b) (9) which requires "(a]dequate methods, systems, and equipment for I assessing and monitoring actual or potential offsite consequences. . . .

The scenario document reveals that ons team was dispatched offsite but no plume monitoring took place. Egg Scenario at 3.1-2, 3.1-8. The Applicants did nor i test their capacity to locate a plume, track its course and measure its content. Neither did they exercise this capacity as it is related to proper offsite protective action i decision-making. (The Staff's Inspection Report 50-443/89-10, I

dated October 2, 1989 but not received by Intervenors until October l'. as Appendix 1 to Applicants' October 11 Response to the Intervenors' September 29 motion, at 8 asserts that field monitoring teams were dispatched and that " sample control and L analysis including surveys . . . were effectively I' demonstrated.") However, as the Scenario makes clear there was no plume to track (4.1-6) in light of the limited development of the accident chosen and no mini-scenario was used to test plume monitoring and tracking capabilities "out of sequence" or outside the logic of the accident scenar!3. Egg Scenario at 8.0 " Mini-Scenarios" and 10.4 "Onsite Out of Plant Data" and 10.5 "Offsite Data."

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4 Motion, there appear to be no impediments to summary i disposition of these contentions because they raise (and are intended to raise) the purely legal question whether the .

September exercise, deccribed by the Staff in IR 50-443/89-10 at 2 as a " partial-participation" licensee-only exercise, complies with the regulatory requirements of App. E. IV.F.11.

As demonstrated below, the " partial-participation" September exercise does not comply with the regulatory requirements and, therefore, no full-power license may issue at this time.

This memorendum is structured as follows:

I. Status of Motion for Summary Disposition and this Memorandum II. Legal Issues A. What is the required scope or extent of the- >

pre-licensing one-year onsite exercice required by App. E.

IV.F.11?

B. What portions of an onsite plan must be tested in order to: 1) " test [] as much of the licensee . . . emergency plan [] as is reasonably achievable without mandatory public participation" F.11; and 2) " test [] the major observable portions of the onsite . . . plan ()"? F.11, n.4. What type of exercise and, correspondingly what level of mobilization is t necessary to ver.'.fy that " licensee personnel and other resources" have the " capability to respond to the accident scenario."? Id.

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r C. Did the September exercise sufficiently test the onsite plan to meet the requirements for the pre-licensing ,

one-year onsite exercise?

I. STATUS OF MOTION FOR

SUMMARY

DISPOSITION AND TH2S SUPPORTING MEMORANDUM A. Intervenors are aware that their onsite exercise contentions have not yet been admitted in this proceeding.

Nonetheless, in light of the purely legal nature of the issues.

raised-by these contentions and the need for prompt resolution,A' summary disposition in appropriate in these particular circumstances. Summary disposition under NRC procedural law tracks Fed. R. Civ. P. 56. Egg Alabama Power '

CQ& (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210, 217 (1974). Summary judgment pursuant to Rule 56 may be brought by a plaintiff even before the filing of an answer. Intervenors A/ Obviously, Intervenors believe that another onsite exercise will be necessary before full-power licensing based on the failure of the Applicants to meet the regulatory requirement.

(It goes without saying that another exemption request would'be fatuous.) In any event, resolution of Intervenors' contentions in this regard must orecede full-power licensing in light of UCS v. NRC. Since the September exercise is litigable by Intervenors and they have chosen to challenge it basad on its insufficient scope as expressly provided by NRC law, gag

'ALAB-900, 28 NRC 275, at 286, no full-power license can be authorized until the matters raised by Intervenors with regard to this material licensing issue are addressed. Intervanors have a right to litigate the September exercise before licensing and in these circumstances, this translates into a right to have this Board decide whether the September exercise complied with the regu]1 tory requirements. As discussed above, there is no meaningful distinction between deciding this issue as a matter of the admissibility of the contentions or as a matter of summary disposition after they are admitted.

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L have found no NRC law prohibiting the filing of a motion for summary' disposition on a contention before a determination has been unde to admit that contention.

1 B. In the alternative, this memorandum should be considered by the Board in ruling on the admissibility (and l then on the merits) of the Intervenors' onsite exercise '

contentions for several additional reasons.

1. First, this memorandum sets forth the legal analysis that supports the Intervenors' claim that a pre-licensing one-year onsite exercise must be a " full participation" exercise which tests all the major observables of the onsite plan. To this extent, it provides additional legal basis for thosa contentions. Again, noting this Board's September 26 " Unauthorized Pleadings" Order, the Intervenors believe that legal argument in support of a contention is not I properly characterized as " basis" and should not be set forth within the four corners of a contention and bases statement.

Nor did Intervenors have to file this memorandum with their .

September 29 and October 13 motions to admit these late-filed contentions. Legal argument supporting a contention is not relevant to the 5-pronged late-filed standard. (The fact that Intervenors believe that QD).Y legal araument is necessary to prevail on these contentions, expladns why they have identified fact-witnesses in thair September 29 motion (who were only needed until the Scenario became available) and no witnesses in their October 13 Motion (instead incorporating the Scenario.))

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Notwithstanding this, this Board may view the legal analysis set forth here as necessary basis to the earlier-filed contentions. If so, as the Board indicated in its September 26  !

Order, this pleading itself should again separately address the {

late-filed standards or it will be striken. Intervenors therefore state that if this pleading is viewed as an amended -

basis to the earlier filed onsite contentions it meets the i late-filed standards for such an amended basis as follows:

1) This legal analysis of the failure of the September exercise to comply with the regulatory requirements of App. E. IV. F.11 could not have been done (and would not ,

have been even imagined) before the scope of that exercise became clear. This analysis is filed 14 businass days after the exercise, 12 business days after the September 29 filing and 3 business days after the October 13 filing. This'is a '

reasonable time in light of the fact that further alleged significant omissions, in addition to those pleaded in the September 29 filing, provide the factual basis for this legal analysis and the motion for summary disposition. Moreover, the legal analysis and regulatory history is couplex and has taken time. Finally, the Staff's own characterize 4 tion of this exercise as a licensee-only " partial-partict.pation" exercise was not available until October 12, 1989.  !!otwithstanding the Staff and Applicants' representations that t.he third factor is the "most important" (Staff Response at 15; gas also Applicants' Response at 8) good cause for late-filing is the

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, most crucial. As the Appeal Board stated in ALAB-918 at 21  !

(slip opinion):

It is well established that the first factor is -

the most crucial and, when the proponent of a i contention fails to demonstrate good cause for not filing the contention in a more timely >

fashion, the movant must make a comoelling showing on the other four factors, a

(citation omitted). ,

2) and 4) Intervenors adopt their statements on these two standards as set forth in their September 29 Motion at 5 '-

and 7 respectively.

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3) This legal analysis establishes that the onsite exercise contentions are meritorious and that the September exercise does not comply with the regulatory requirements.

This analysis thereby indicates in what fashion Inta.rvenors will contribute to the development of a sound record by setting forth the precise issues raised. Intervenors again assert, .

however,.that no witnesses are necessary to resolvo these contentions and that therefore no obligation exists to identify witnesses or summarize their testimony.

5) This legal analysis, if viewed as an amended basis, does not further broaden the issues raised by the earlier contentions. To this extent, Intervenors rely on their statements as to this standard as set forth at 7 of their H September 29 Motion and at'8-9 of their October 13 Motion. In fact, this legal analysis, set forth as it is in a memorandum 1'

of law supporting a motion for summary disposition, is designed L

i to shorten whatever delay is necessary as a consequence of l

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Applicants' decision to conduct a " partial-participation" licensee-only onsite exercise, by having the issue of the alleged insufficient scope of that exercise addressed immediately. ,

To the extent the motion to reopen standardE/ is applied  ;

to this memorr.ndum (viewed an an amended basis) that standard l is met as well: s

1) Intervenors adopt the timeliness responce set '

forth above with regard to the first prong of the late-filed contention standard.

2) Intervenors incorporate by reference their  !

statement regarding the safety significance of an incomplete  ;

onsite exercise set forth on pages 3-7 of their October 16, 1989? Motion to Amend September 29 and October 13 motions.5/

5/ The Board in its October 12 low power decision (LBP-89-28) I (received by the Mass AG on October 16, 1989) applied the record reopening standard to Intervenors low power contentions distinguishing UCS v. NRC (slip opinion at 14-15). To the

extent the Board recognizes a difference between the

" materiality" of low power testing as compared to the

" materiality" of the September exercise, it may not view i LBP-89-28 as dispositive of this' question for these onsite exercise contentions. Intervenors on October 16, 1989 in '

response to LBP-89-28'have sought to amend their September 29 and October 13 motions to address the motion to reopen standard.

Intervenors continue to assert that UCS v. NRC and Mothers for Peace'and ALAB-918 are controlling law on this issue.

s/ Intervenors note that " incorporation by reference" was i recently criticized by this Board (LBP-89-28 at 47 calling it an " unskilled approach to legal pleading"). In these circumstances the Intervenors nevertheless do so for the following reasons: 1) Intervenors do not believe that this memorandum is an " amended basis" and therefore do not believe that they need to address these standards at all. They do so only because this Board's " Unauthorized Pleadings" order (footnote continued)

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3) Intervenors also incorporate by reference their- ,

f discussion of'the third factor at 7 of their October 16 motion .

to amend earlier onsite contention filings. Intervenors state further'that if this Board finds that the record reopening l standards have not been met (and as a consequence do not reach the merits of Intervenora' scope challenge) because there is no f safety significance to a pre-licensing exercise even if it is

• p too truncated to meet the regulatory requirements, then the e ,

i Applicants have obtained an exemption from the App.E. IV. F.11 '

requirement da facto even though the Commission in CLI-89-19 denied them such an exemption da iure.

2. Second, the Applicants, in their October 11, 1989 Response at 8-16, claim that the September 29 contention (and ,

one would expect'similar arguments to be made by Applicants in response to the October l'.t filing) fails for lack of basis.2/

(footnote continued) indicates that the Board may view this memorandum in that light- [

and it required that all pleadings meet the NRC's requirements l in " form and substance"t-2) Intervenors do not simply reproduce  !

.the actual text of pages 3-7 of their October 16, 1989 motion dealing with the significant safety issue because this Board has also indicated that restating arguments is not permitted.

(LBP-89-28 at 45 noting that Second Motion seeking admission of low power contentions dated August 28, 1989 "is devoted to I restating and glossing arguments in the first (July 21) motion, although the Attorney General is fully aware that the practice is not authorized by the rules.") Thus, Intervenors understand that in order to fully protect their rights in this case, they '

must Eat Qut a response to both the late-filed contention and L record reopening standards, but D21 receat arguments made L earlier as to those standards and also D2t incoroorate by

reference such arguments into their present pleading, Unsure l how to proceed in these circumstances, Intervonors have chosen l to explain in this footnote the factors that have produced the i particular form of this pleading.

2/ On October ~17, 1989, the Mass AG received the Staff's l (footnote continued) 1 l;

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l The Applicants assert that App. E. IV. F.11 does not require a " full participation" licensee-only onsite exercise that tests ,

all major observable portions of the onsite plan. This .

memorandum is also appropriate for consideration by this Board as a reply by Intervenors to the response of the Applicants to 4

these contentions. Intervenors have a right to some form of reply to responses to contentions.E/

II. LEGAL ISSUES A. What is the necessary scope and extent of the one-yee.r prelicensing onsite exercise required by App. E. IV. F. 11?

Turning to the regulatory language, we find the following:

1. A full participation exercise which tests as much of the licensee, State and local emergency plans as is reasonably achievable without mandatory public participation shall be conducted for each site at which a power reactor is located for which the first operating license for that ,

site is issued after July 13,. 1982. This exercise shall be conducted within two-yoars before the issuance of the first operating licence for full power (one authorizing operation  ;

above 5% of rated power) of the first reactor and shall include participation by each State and local government within the plume exposure pathway EpZ and each State within the ingestion exposure pathway EPZ. If the full participation exercise is conducted more than one year prior to issuance of an operating licensee for full power, an exercise which tests the licensee's onsite (footnote continued)

Response to Intervenors' September 29 Motion. Having originally intended to file this memorandum on behalf of Intervenors on October 17, the Mass AG has deferred that filing one day to consider and reply to the Staff's Response. At pages 2-6 of its Response, the Staff also argues that this contention fails for lack of basis. Thus, this pleading is also Intervenors' reply to the Staff's Response, t

H/ Intervenors note the difference between having no right to reply to an answer to a motion as compared with a right to reply to a response to a contention.

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? emergency plans shall be conducted within one n- year beforo issuance of an operating license for full power. This exercise need not have State or local gover. ament participation. . .;

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_ i A/ " Full participation" when used in conjunction .

with emergency preparedness exercises for a particular site means appropriate offsite local and State authorities and licensee personnel )

physically and actively.take part in' testing their integrated capability to adequately assess '

4 and respond to an accident at a commercial  ;

nuclear power plant. " Full participation" includes testing the major observable portions of the onsite and offsite emergency plans and mobilization of State, local and licensee personnel and other resources in sufficient numbers to verify the capability to respond to theLaccident scenario.

t The correct analysis of this language is as follows:

1. The phrase "tull participation" is used here in two L

different although related ways. The first four words - ~"a full participation exercise" -- begins (but only becins) to ,

define the initial offsita exercise required within two years r

of the first full-power operating license at a site. At first .

. glance, the phrase that follows the first four words - "which tests as much of the licensee, State.and local emergency plans o

as is reasonably achievable without mandatory public L participation" -- seems to define the nature of such a " full participation" exercise. But immediately it becomes clear that there are two variables at play in 11: 1) exercises are being defined by the scope, level or extent of the participation of the participants (the "how" of participation in an exercise);

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and 2) exercises are being defined by what entity or entities h

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I must participate (the "who" of such participation). Standing alone the first sentence of 11 does dst completely define the i requirements for this initial offsite exercise because it defines the "how" - ".. acs as much of'the licensee, State and -

local emergency plans as is reasonably achievable without public participation" -- but'does nat define thR Eh2 That the first sentence of 11 defines.the "how" and not the "who" of a " full-participation" exercise is also clear from the fact that footnote 4 reinforces the definition of " full participation" as to scope and extent (the "how") and says ,

nothina about the "who". Footnote 4 defines " full participation" aenerically ("when used in conjunction with emergency preparedness exercises") and indicates that it requires "acorooriate" personnel from the licensee, State and local governments to take part. Footnote 4 also expressly develops the' scope or "how" aspects of " full-participation":

it requires testing " major observable portions" and a certain ,

I level of mobilization. But footnote 4 does dst delineate thg oarticioants in such a " full-participation" exercise. In other i

words, the following phrase in footnote 4

" Full participation" includes testing the major I observable portions of the onsite and offsite emergency plans. "

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l means that whatever entities are fully participating must test all major observable portions of their plans but it does n21 1

i mean that all entities must carticipate for an exercise to be a 1

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" full participation" exercise.E/

The reason why the firat sentence of 11 and footnote 4 define the "how" and not the "who" of an exercise is based on i

the overall structure of paragraphs 1, 2, and 3 of subpart F. [

In 13 it is expressly stated that a " full participation" exercise is required at certain times even though nnt all States cr q!1 local governments with relevant emergency plans must be i cry participating.1E/

In fact, 13 requires all plume EPZ states.plus any ingestion pathway states to participate in one big exercise only every seven years after licensing. 13(c). (This kind of exercise is actually called a " joint exercise" in 13:- " State and local governments that have fully participated in a joint exercise. . . . ").

Thus, a post-licensing biennial exercise of the New Hampshire plan in which the licensee " fully participates", the l

L 2/ In short, footnote 4 further defines only the "how" and not the "who" of an exercise. This is the reason it begins L

with the phrase "' Full participation' when used in conjunction l with emergency preparedness exercises. . . . "

l 12/ To see this, imagine the following configuration: A tsulti-site State and a local government in that state that is a single-site local government. Assume that the State has three sites and all three exercise in the same month in 1990. The State must " fully participate" in only one of these three exercises. In 1992, when all three sites have their next biennial offsite exercise, the State must " fully participate" again. Assume that in 1990 the State " fully participated" at Site 1, and in 1992 at Site 2. This means that at Site 3 in both 1990 and 1992 there was a " full participation" exercise (as defined in footnote 4) which tested all major observable portions of the licensee and local government's plans but did not fully test the State's plan for this site. Thus, " full-participation" defines the "how" and not the "who".

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l New Hampshire local governments " fully participate," the New Hampshire State government " partially participates," and Massachusetts.and Maine do not participate at all is still in compliance with 33. I Thus, it is obvious that " full. participation" as defined in the first sentence of 11 and in footnote 4 delineates the "how" and not the "who" of an exercise and that, as a consequence, a

" full-participation exercise" should not be understood as requiring any particular kind or specific number of participants. Thus, it now becomes clear that a licensee-only <

onsite exercise must still be a " full-participation" exercise in the sense that it would test as much of the licensee onsite plan as is reasonably achievable without mandatory public participation, test the major observable portions of that plan l

t and otherwise meet the requirements of footnote 4. ,

l Returning to the remaining portions of 11, it is now clear what the purpose of the second sentence of 11 is. The second l sentence identifies "who" the participants must be in the l

exercise required within 2 years of licensing. This' exercise:

shall include participation by each state and local government within the plume [EPZ] and each j state within'the ingestion (EPZ).

l Thus, the second sentence of 11 requires within 2 years of licensing a ioint exercise in which all relevant entities fylly L

1 particioate, just as 13(c) requires such a big joint exercise l post-licensing every 7 years. But such a joint exercise is D21 the same as a " full participation" exercise which is also

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l required by 11 and 13 under different circumstances and with 1 differentLfrequencies and which only reouires, pursuant to footnote 4, that'whoever is obligated to participate, participate in a particular way. As the Shoreham Licensing Board-noted: "Thus, it appears that the definition of " full participation" found in footnote 4 applies to both initial and biennial exercises. . . .

Shoreham, 26 NRC 479, 485 (December 7, 1987).

Now the last 2 sentonces of 11 are also clear because they f

too define the "who" and not the "how" of the prelicensing exercise requirements. The onsite exercise required within 1 year must still be a " full-participation" exercise even though ,

i the only necessary patticipant is the licensee. The "how" of i the pre-licensing exercise requirements - the.2 year offsite.

and the 1 year onsite - is set forth and described in the first i.

sentence of 11 and footnote 4. The "who" is set forth for the j offsite exercise in the second sentence and for the onsite exercise in the third and fourth sentences.

l 2. Further support for this interpretation of 11 is found I l

in the developmental history of the pre-licensing and

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l post-licensing exercise requirements.

l The 1980 Scheme Each licensee shall exercise at least annually ,

the emergency plan for each site at which it has one '

L or more power reactors licensed for operation. Both  ;

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' full-scale and small-scale exercises shall be conducted and shall include participation by L

appropriate State and local government agencies as l follows:

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1. A full-scale exercise which tests as much of  !

the 1.icensee, State and local emergency plans as is  ;

, reasonably achievable without mandatory public  ;

participation shall bt conducted: '

a) For each site at which one or more l power reactors are located and licensed for l operation, at least once every five years and at  !

a frequency which will enable each State and  ;

local government within the plume exposure l pathway EPZ to participate in at least one. t full-scale exercise per year and which will .

enable <aach state within the ingestion pathway to  !

participate in at least one full-scale exercise  :

every three years.  !

b) For each site at which a power reactor  ;

is located for which the first operating license i for that site is issued after the effective date l of this amendment, within one year before the i issuance of the operating license for full power,

' which will enable each State and local government  ;

within the plume exposuro IPZ and each state within the ingestion pathway EPZ to participate.

l 45 Fed. Reg 55402 at 55413 (August 19, 1980).

As review of this scheme makes clear, the commission  !;

required in 1980 (just as today) a pre-licensing ioint offsite ,

exercise (11.b.) and post-licensing exercises. Both were ,

annual requirements and, as the atructure of the regulation t indicates, the "how" was set out separately frca the "who":

the "how" was defined as ,

a full scale exercise which tests as much of the i licensee, State and local emergency plano as is reasonably achievable without mandatory public  !

participation . . . .

The "who" varied (again as today) depending on whether the exercise was a pre-licensing or post-licensing requirement. ,

1 Section a) makes clear that an annual exercise in which at i l

least the licensee fully participated was required

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post-licensing.11/ Section (b) required a big joint exercise l

with every participant (including the licensee) fully -

participating within one-year of licensing.

, In. sum, then, the 1980 scheme required the licensee to t

annually exercise its onsite plan tg the full extent possible without public participation both pre- and post-licensing.

t obviously, for the Applicants and Staff to prevail in any ,

L defense of a orse year pro-licensing " partial participation" r licensee-only exercise (like the September exercise) the I commission must have intended is relax this requirement on the licensee's annual exercise wnen it modified the post-licensing '

frequency of the exercise of State and local government plans (in 1984) and the timing requirement of the pre-licensing  !

exercise of these governmental plans (in 1987). In fact. 'hg )

Commission reaffirmed in these rule makinas that the licensee was to continue to fully Darticioate or fully test its onsite olan each year.

t 11/ To see why Sla of the 1980 rule permitted the post-licensing annual exercise requirement to be met with a full scale licens.ga-only exercise, posit a multi-site State and a multi-site local government. Although each licensee had to conduct a " full-scale" exercise annually, the state and local government had to part!cipate at any given site only once every five years. So long as both the 3 tate and the local government  :

participated in and at other sites' full-scale exercises each  ;

year, they did not have to participate in any particular

• l licensee's annual full-scale exercise. In their absence the

licensee still had to " test (: as much of the licensee . . .

plan () as is reasonably achievable without mandatory public participation," precisely the requirement that continues to exist today for licensee-only annual exercises.

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e In July 1983, the Commission proposed a rule change the intent of which was to modify the post-licensing frequency of the exercise of State and local government plans fres each year to a biennial schedule. 48 Fed. Reg. 33307 (July 21, 1983).12/

In discussing these changes to post-licensing exercise frequency, the commission noted that

[t)he proposed rule would not relax 1D ADX EI' Angi the onsite exercise that each licensee is required to conduct which includes exercising control room, technical support centet and emergency operating facility functions. A partial or full-participation exercisell/

12/ As noted, the 1980 scheme did nnt require an annual post-lfcensing exercice of the state and local government plans for each site but only that each state and local government in a plume EPZ fully participate At RAEA site each year.

Similarly, the proposed biennial requirement did not require state and local government participation and the exercise of governmental plans at each site every two years but only At 12EA site every two years. Egg 48 Fed. R99 33307, at 33309 (charts setting forth effects of new rula on frequency and scope of governmenta: participation in exercises at each site depending on number of sites in state).

12/ Under the 1983 proposed scheme every two years At gyary site the local governments would " fully participate" in the licensee's annual exercise. (Footnote 4 was added at this time to further define the "how" of an entity's participation.) A State could partially participate at any give site overy two years so long as it was fully participating at some site every two years and at every site within seven years. Egg proposed language of 111, 2, and 3 at 48 Fed. Reg. at 33310. Thus, the post-licensing biennial exercise at any given site in a multi-site State could involve: 1) partial participation of the State; 2) full participation of the local government; and

3) full participation of the licensee. Nothwithstanding that such an exercise included the full participation of the local governments and the licensee, the Commission called it a

" partial-participation" exercise, no doubt defining it by the level of involvement of the State (although not the other l' participants).

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L would satisfy the licensee's annual reuuirement j for an onsite exercise as full licensee  ;

narticination is reuuired for either tvoe of l exercise.

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48 Fed. Reg. at 33308 (emphasis supplied). The Commission made j thr,ce statements at the same time it defined in the proposed ,

rule (and in the final rule, 193 49 Fed. Reg. 27733 at 27736 (July 6, 1984)) " full participation" as follows:

" Pull participation" includes testing the major '

observable portions of the onsite and offsite emergency plans and mobilization of State, local and licensee personnel and other resources in sufficient toimbers to verify the capability to respond to the accident scenario. '

48 Fed. Reg. at 33310.1SI The Commission could not have MQIA clearly stated that although it was modifying the frequency of I the post-licensing exercise of State and local government offsite plans, the licensee's emergency plan still was to be  :

exercised annually and that this annual exercise had to continue to involve " full-participation" by " licensee personnel and other resources."1E/ ,

1.4/

?

4.

This definition is identical to the current form of footnote >

15/ "other resources" that have to be mobilized to verify their capability in a licensee-only annual full-participation i excrcise include the non-licensee personnel under contract to supply emergency services pursuant to an onsite plan. At Seabrook, this would include medical support, rescue teams and -

the outside support hospital. Egg $8.8 of the SSRERP identifying the other emergency response organizations (non-government since the State and local governments do nQt i have to participate pursuant to the fourth sentence of 11) and '

Appendix D of the SSRERP containing some (but not all) of the Letters of Agreement with these various resources. The Intervenors' onsite contentions challenge the scope of the i September exercise, in part, based on the failure to mobilize and verify the capability of these resources.

I

)

i l

1 Thus, before the post-licensing annual exercise requirement j was modified in 1984, the licensee at a given site had to fully j test its emergency plan aach year even when the State did not j test its plan for that site. When the frequency r! the exercise of the State and local government plans was changed to i two years (noting again that State participation at any given site need not be " full" even every two years), the Commission clearly stated that the licensee had to continue to fully test its emergency plan each year and that in the biennial year

[

since the licensee would he fully participating in the

(" partial or full") exercise of the offsite governments' plans,  !

this annual requirement would be met by the licensee in those '

biennial years by this participation. Obviously, then, in the ,

off-year W licensee-only post-licensing annual exercise (which after 1984 occurs at every site) the Commission continued (and continues) to require a full-participation  ;

t licensee-only exercise. As the Commission stated in its Statement of Considerations in support of the final 1984 rule The proposed rule 51151 n21 relax 1D Amt manner the annual requirement for onsite exercises that each licensee is required to conduct. . . . ,

49 Fed. Reg. 27733 (July 6, 1984)(emphasis supplied).

iff "Off-year" referring to those years when the State and local governments do not exercise at any level of participation their plans for a given site. Obviously, in that year, a i multi-site State and a multi-site local government would probably be exercising their plans at some site (either " fully" or " partially").

.__ . _ _ _ __m -~ _ _ _ . . __ _.. ,. _

1, l

l l

Three years later in May, 1987, the Commission modified the timing requirement for the full participation exercise prior to full-power licensing in which all relevant governmental f entitles had to fully test their plans. The 1980 regulation,  !

as amended, required this big joint exercisw within one year of licensing. (A similar joint exercise, as noted, was required i post-licensing every five years pursuant to the 1980 l amendment.) The 1987 rule change relaxed this timing i requirement to two years. Egg 52 Fed. Reg. 16823 (May 6, 1 1987). As discussed above with regard to the 1980 scheme, this one-year joint exercisa prior to licensing ha6 required the i

" full participation" of all entit.ies involved, including the licensee. Thus, when the Commission relaxed the timing  ;

requirement for this " joint exercise" from one year to two I years while at tha same time continuina 12 reauire a licensee-only exerciso within one-year of full-power licensing,  ;

t it is obvious that that licensee-only one-year prelicensing exercise (like its post-licensing annual exercise equivalent) {

was to be a " full-participation" exercise 12/ l l

I 12/ Again, as defined in the first sentence of 11 and footnote-4, the words " full-participation" control the "how" and not the r "who" of an emergency plan exercise. This is also clear from the fact that footnote 5 defines " partial participation" .

obv husly in terms of "how" and not "Who". Either a multi-site State or a multi-site local government or both could " partially i l participate" depending on the circumstances. Thus, the '

language in footnote 5 that partial participation "means '

appropriate offsite authorities" clearly and with good reason '

omits ADX reference in partial licensee carticioatl2D. There l is simply no such regulatory thing as a " partial participation" i licensee-only exercise that could meet the requirements for emergency plan exercises set out in 111, 2, and 3 of App. E.

IV. F. " Full participation" "means appropriate offsite local (footnote continued) ,

• / -

l l

I I

just as it had always bGen unless the Commission expressly l relkxed the scope of that one ycar pre'.icensing exercise. l Not only did the Commission D21 re_ax the required scope of the one-year prelicensing licensee-only exercise in the 1987 l

rulemaking, but it again affirmed that that exercise was to be i l

understood as requiring the same level of licensee involvement  !

as the licensee's annual post-licensing requirement. And that I i

annual obligation, as just noted, was expressly characterized by the Commission as requiring " full licensee participation."

48 Fed. Reg at 33308. The Commission in its Statement of i l

Consideration in support of the final 1987 role quoted its earlier statement in support of the proposed rule as follows*  :

Moreover, in accord with the Commission's  ;

reaulations for sites with operatina licenstgt  !

auplicants will still have tn conduct annual  ;

exercises, i.e., if the full participation exercise is held more than one year before  ;

issuance of the operating license, then the i applicant must conduct an exercise of its t emergency plan before license issuance.

52 Fed. Reg. 16823 (May 6, 1987) at 16826 cuotina 51 Fed. Reg. 43369 (December 2, 1986) (emphasic supplied). Moreover, i acknowledging that the 1980 prelicensing scheme had required an .

exercise in which all entities (including the licensee) had  !

" ully participated" within one-vaar of licensing, the l Commission stated: '

(footnote continued) '

and State authorities (appropriate in light of the regulatory

• basis for the exercise (11 or 13)) and licenEtt eersonnel."

Footnote 4. Thus, licensee-only fully-participation exercises are just as " normal" as the " full-participation" exercises which fully test various combinations of governmental plans as well as the licensee's plan.

.- 1 f

fd {

I An exercise which tests the licensee's onsite f waergency plan, but which need not include State ,

or local government participation is still required to be held within one year. . . .

f 52 Fed. Reg. 16823 (emphasis supplied). Thus, whatever I one-year prelicensing requirement had existed for exercising {

the licensee's plan na unchuged by the 1987 rule. And as i discussed, the 1980 scheme required full-participation by the licensee (fully testing its plan) within one year of licensing. As the Commassion stated in 1987, l Licensees are not being granted any additional .

'fraedom' by this rule. '!

11,,at 16825. ,

i Indeed, had the Commission intended in 1984 or 1987 to '

modify the scope of its annual licensee exercise requirement .

which had clearly required since 1980 a full-scale i

exercise of at least the licensee's emergency plan at each site  ;

it would have provided expressly for licensee " partial- f participation" as it did after 1984 for governmental entities.

The absence of such language anywhere in til, 2, and 3 indicate t that at least annually every licensee at every site must fully i, test and exercise its emergency plan. l h

w As noted, in 1980 " full-scale" (defining the "how" of an exercise) meant an exercise which " tests as much of the ,

licensee, State and local emergency plans as is '.easonably achievable without mandatory public partifipation." 45 Fed.

Reg. 55402 at 55413 (August 19, 1980).

12/ " Partial-participation" by a licensee during a "

licensee-only exercise obviously is not prohibited. Such an  :

abbreviated exercise (more akin to a drill) simply does not -

satisfy NRC regulatory requirements. The Sep_,mber exercise ,

was such an abbreviated exercise. ,

i ,

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3. It is clear that in 1980 the Commission required

{

full-scale licensee emergency plan exercises at least annually, }

pre- and post-licensing. Although the frequency at which State and local government plans were to be exercised was changed for  ;

exercines conducted post-licensing (1984) and the timing of the i

joint exercise of all such governmental plans before licensing  ;

L was relax 9d (1987), the Commission made it clear that it was -

not celaxing in any manner the nature of the annual licensee i exercise requirement

• to fully test as much of the licensee's [

plan as is reasonably achievable without public participation.

If the Commission had intended to permit a licensee-only

" partial participation" exercise to satisfy either the one year i pre-licensing onsite requirement of 11 or the annual i r

requirement of 12, it would have said so.AE/ j The regulatory history snould be considered in interpreting 11 because that paragraph does not directly state the necessary ,

scope and extent of the licensee-only onsite exercise required by the third sentence. (Neither do the regulations directiv f

state the necessary scope and extent of the annual exercise I r

r l required by 12. Egg Staff's October 16, 1989 Response to '

i Intervenors' September 29 Motion at 2-3.) The Appeal Board has j stated with regard to intcrpreting App. E. IV. F. 11: i i

12/ Significantl),theannuallicenseeexerciseissetoutfor the first time in a different paragraph (12) as a result of the l

1984 rulemaking. {

49 Fed. Reg. 27733 at 27736. It was also in j that rulemakina that the Commission first defined " partial ,

participation" which, as noted, does ant run to the licensee. '

Finally, it was in the 1983 proposed rule that the Commission stated thet the licensee's annual requirement is met by full licensee participation. 48 Fed. Reg. 33307 at 33308.

4 4 l

l Because the commission's requirements for i

?

emergency exercises have been amended several  :

times since 1980, however, the (Shoreham '

Licensing) Board also considered the parties' e arguments based on the administrative history of l the regulation at issue. . . . As is the case i with statutory construction, interpretation of I any regulation must begin with the language and  !

structure of the provision itself. . . .

Further, the entirety of the provision must be i given effect. . . . Although administrative history and other available guidance may be consulted for background information and_the i resolution of ambiguities in a regulation's  !

language, its interpretation may not conflict i with the plain meaning of the wording used in -

that regulation.  :

ALAB 900, 28 NRC 275, 287-288 (omitting citations).AAI l

4. In reply to the Staff's arguments set forth in their' October 16, 1989 Response the Intervenors state briefly: '

a. The Staff is simply misinterpreting the necessary sc pe and extent of the licensee's annual exercise requirement  !

both pre- and post-licensing.2EI 11/

The Appeal Board at 289 also noted ambiguity in footnote 4 (calling the " principal ambiguity" the issue of what the major .

observable portions of plans are, an issue it then decided as a  ;

mattar of law, Egg inirg) and at 295 n. 20 the Appeal Board '

stated:

We are inclined to think that careless drafting  !

accounts for this change. . . . There is also other evidence of a lack of precision in the drafting of the rule. For instance, section IV.

F. 1 pertcins only to pre-license exe cises, yet it refers to the licensee's (rather tua- the applicant's) emergency plans.

Although Intervenors do not see an ambiguity in the rule as to  ;

the proper scepe of the licensee's annual exercise (no partial participation by a lice.nsee or an applicant is expressly provided for) it is quite clear that the administrative history provides important " background information" that clarifies the commission's " lack of precision."

22/ Intervenors object to the Staff's affidavits because they (footnote continued)

L., j i

, I i

l l

There is no regulatory basis at all for a licensee-only i

" partial participation" exercise understood as an exercise !.n  ;

which the licensee tests something less than the major f observable portions of its plan. To the extent that the i

September exercise is characterized by the Staff as a " partial- {

participation" exercise because the State of New Hampshire [

participated in a limited way (agg IR 50-443/89-10 at 2 i i

attached as Appendix 1 to Applicants' October 11 Response and Kantor Affidavit, 15 n. 1.), the Staff is ignoring the definition of partial participation set forth in footnote 5: i appropriate offsite authorities shall actively i take part in the exercise sufficient to test i direction and control functions, i.e., (.1) i protective action decision making related to f emergency action levels, and (b) communication -

capabi.11 ties among affected State and .'ocal  ;

authorities and the licensee. ,

obviously, the September exercise was tot a partial- i i

t participation exercise in the ser.ce that the State of New  !

Hampshire " partially-participated" as pgI the regulations. .

(footnote continued)  !

set out leaal arguments and interpretation of the regulatory  ;

requirements which need not, and indeed can not, be sworn to. i To the extent that Staff affiants are describing NRC Staff custom and past practice, this is irrelevant to the legal questions raised here. As the Appeal Board noted in ALAB-900 at 298-299:

I custom is not dispositive, par;icularly when the regulations clearly require r herwine. . . .

The fact that the NRC Staff .dvised FEMA to focus ,

on plume EPZ activities is, as the Licensing '

Board described it, unfortunate, but is also of little aid to LILCo. As the applicant for an operating license, LILc0 is ultimately responsible t

for analyzing the Commission's regulations and determining its obligations thereunder.

'. )

a l

b. There is no regulatory baitis at all for j

,; , exercising a licensee's onsite plan at a given site over a period of years instead of fully testing all the major j observable ~ portions of that plan during each annual exercise.

Egg Inspection Procedure 82302 attached as Exhibit 2 to the i

Incervenors September 29 Motion at 2-3. All major observable

{

portions of an onsite plan (and as much as is reasonably achievable without public participation) must be exercised i annually alone or together with some combination of offsite plans. The NRQ Staff has simply adoptod this cyclical pattern from FEMA without determining whether " partial participation"  !

be the licensee is permitted under the regulations. Egg ,

ALAB-900 at 290.

c. Although Inspection Procedure 82301 which was  ;

attached as Exhibit 1 to the Intervenors September 29 Motion was revised, the revised IP 82301, attached as Exhibit 2 to the Applics. tits October 11 Response, was not issued until after the Scenario was received by the NRC and approvef. More I significantly, the new IP 82301 makes reference at 3 .

(182301-03/03.01) to an Appendix I also issued on August 21.

1989. Neither the Staff nor the Applicants make any reference to this Appendix, which is attachud hereto as Exhibit 4. This '

Appendix actually providez definitions of the various types of ,

emergency preparedness exercises and the " conditions under which each is held." Exhibit 4 at AI-1. After defining the

" full-participation," the "first-full-participation" and the L

', . I I

i

" partial-participation" exercises, Appendix I defines the l

" Licensee-only Exercise" as follows: -

)

" This exercise is conducted onsite to fulfill the i licensee's annual exercise requirement during c  !

year when neither a full-participation nor a l partial-participation exercise is held. 11 l normally involver. full carticiottien 12np ths '

licensee with little ce no participation n statt )

and local governments. I Exhibit 4 at AI-1-2.22!

(emphasis supplied)

5. Finally, in order to preserve such arguments for appeal (if necessary), Intervenors assert that sound regulatory policy supports a " full-participation" pre-licensing l licensee-only onsite exercise within one year of licensing in j order to provide a basis for the necessary " reasonable assurance" findiag. Intervenors incorporar.e arguments set out by the Staff and themselvas in opposition to the Applicants'  :

5 August 11, 1589 Request for an exemption. As noted in LBP-89-28 (slip opinion at 20)t As with any test program, it is expected that, in spite of adequate construction and pre-operational testing and extensive training of personnel, occasional problems may be identified  :

and personnel errors may occur. This is part of  !

the testing process. This seems very reasonable to the Beard. Indeed any testina crocram that 12/ The Staff's IPs are thus directiv contradictory. IP 82301 and Appendix I define the licensee-only annual exercise as ,

requiring " full-participation" which tests, inter al.ia the major observable portions of the onsite plan as required by footnote 4. Contrariwise, IP 82302 permito certain major ,

observable portions to be cycled at a given site over a '

five-y2a'e period. In addition, NRC Information Notice No. 87-54, attached to the Falk Kantor Affidavit, cleLrly states at 1 that " suggestions contained in this information notice do not  ;

constitute NRC requirements. . . .

28 -

l

n!.

Si

e .

fails to reveal any oroblems or norsonnel errar would be_blahlv musoect as an undemandino ta111 (emphasis supplied).

B. What portions of an onsite plan must be tested in a

" full-participation" onsite exercise?

Ap,'.icants were required to test all " major observable portions" of the onsite emergency response plan in the September Exercise. Appendix E IV. F.11, first sentence and footnote 4. The regulation, however, does not further define the " major observable portions" of the onsite plan.

The Appeal Board however, has provided guidance on this issue in ALAB-900, which identified the " major observable portions" of emergency response plans that must be tested pursuant to Appendix E. IV. F.1. The Appeal Board noted that

" FEMA.Obiectives can orovide an anorocriate measure for determining Ebether an exercise meets the reaulations' maior.

observable nortions of the nians' cri';t;;ign for full carticioation." ALAB 900 at 291. (Emphasis Supplied). A revis.w of the content and reach of the FEMA Objectives therefore is appropriate.

FEMA itself identifies NUREG 0654 FEMA-rep-1, Rev. 1 (NUREG 0654) as the basis for its Exercise Objectives. Egg FEMA Exercise Report for Seabrook Station, Applicants' Exhibit 43f, at 253 (New Hampshire); at 261 (Massachuset'.c), Appendix B at B-3 (corrective actions). Indeed, in the FEMA Report, each exercise objective is expressly identified with, and designed to test, a designated planning standard identified in NUREG

(.

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i 0654.AS/ NLREG 0654, in turn, adopts verbatim the language  !

et the commission's planning standards in 50.47(b) (1)-(16) .

NUREG 0654 II. A.-P. Manilestly, therefore, the FEMA objectives that represent "the major observable portions" of an

• emergency plan, in substance, restate the commission's planning 3

standards of 10 CFR 50.47 (b) (1)-(16) .

Consistent with this view, the Appeal Board in ALAB-900 recognized that the Commission's 50.47(b) standards, as -

reflected in the FEMA objectives, define the " major observable pc2 P ins" of emergency plans that must be exercised. For  !

example, the Appeal Board noted that "public alert and notification is unquestionably a major element of emergency planning," ALAB-900 at 294, and cited to both the FEMA f Objective 13, add 10 CFR 5 50.47 ;b) (5) , and (0) for support. Id.  :

Again the Appeal Board observed that "the potential evacuation of schools . . . is a major element of offsite [

emergency planning", ALAB-900 at 297, citing both to the FEMA Objective and 10 CFR 550.47 (b) (10) . It is apparent that the Appeal Board, by expressly embracing FEMA Objectives as the basis to measure the appropriate scope of an exercise, ALAB-900 at 291, also understood this as identifying the major observable portions of emergency plans with the standards .

23/ For example, as set out in the FEMA Report, Exercise Objective No. 1 (Emergency Classification Levels) is expr9ssly referenced to Planning Standard D of NUREG 0654, citing r evaluation criteria D.3 and D.4 appearing thereunder. Egg App. ,

Ex. 43F at 253. -

Y '

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identified in 10 CFR 550.47 (b) (1)-(16) .  !

t ALAB-900 therefore established that the " major observable n

portions" of an emergency plan are, at bottom, the Commission's  !

t 50.47(b) standards, as further explicated by NUREG-6654. By  !

regulation the (b) standards, for purposes of full-power licensing, are squally applicable to both onsite and offsite  !

emergency plans.

(b) The onsite and, except as provided in I paragraph (d) of this section (Jow power) offsite emergancy response plans for nuclear power reactors must meet the following standards . . . -

10 CFR 50.47(b) i In these circumstances, it is clear that the (b) standards '

therefore represent the " major observable portions" of both the  ;

onsite and offsit9 plcas which must be tested under ,

pre-licensing exercise requirements. 10 CFR Part 50 Appendix E IV. F. 11. Indeed, given the need for coordinated response between onsite and offsite response organizations, and the [

applicability of the (b) standards to coth, the logic of ALAB 900 should equally control in defining the " major observable  !

portions" of the onsite plan that must be exercised.

As farther support for JI-Onsite Ex-2, which asserts, intAI alia, that the scope of the onsite exercise was inadequate for  !

)

failure to test the public notification system, .atervenors cite to commission rulemakings that specifically discuss the ,

place of public notification requirements, 10 CFR 50.47 (b) (5) ,

in the regulatory scheme for emergency planninc In its 1982 rulemaking concernAng the standards for issuanco .

i' l

of a low-power operating license, the commission stated:

P The proposed rule change in AS FR 61132 provided  !

that in orderto grant a low-power license, only a  :

finding as to the adequacy of onsite emergency planning an( preparedness is required; . . . ,

While the proposed rule would eliminate the race  !

r to have any flRC or FEMA review, findings, or determinatiors on the adequacy of offsite ,

agencier' elaergency planning and preparedness, the NRC r,g,'3Jgy of the licensees' onsite resoonse mechanirm i.ould necessarily include asoects of  !

some offsite elements: Communications,  !

notification, assistance agrJements with local  !

F law enforcement, fire protectior,, and medical  !

organizations, and the like. Some examoles. but ,

not an exclus[ve list, where review of an  ;

anolicant's emeraenev olan would involve aspects t gf some__offsite elements may be found in sertinent nortions of 10 CFR 50. 47 (b) (3) , ill, I (6), (9), and (12). . . . Prior to issuing an [

operating license authorizing low-power testing and fuel loading, the NRC will review the t followino offsite elements _of the anolicants' emeraency c1RDI '

(b) Section 50.47(b)(5). Procedures have been established for notification, by the licensee, of i State and local response organizations and for i notification <' emergency personnet by all  !

organizations; the content of initial and l

followup messages to response organizations and

• the public has bJen established; and means to  :

provida early notification and clear instruction  :

to the populace within the' plume exposure pathway  ;

Emergency Planning Zone have been established.  !

47 Fed. Reg. 30232, 30234 (July 13, 1982).  !

Manifestly, therefore, the Commission determined that the public notification requirement for emergency planning is part j of Applicants' gnsite emergency plan, i.e., an "offsite 1

element [] of the Applicants' emergency plan." Id. at 30234.

Equally clearly, the public notification requirement is '

l- mandated by one of the Commission's (b) standards, 50. 4 7 (b) (5) .

l Subsequently, in remanding for further proceedjngs prior to i

- 32 -

i m

??

l low-power operation based upon an inadaquata public notification system, the Appeal Board expressly quoted the Commission's comments in the rulemaking thut, pursuant to

50. 4 7 (b) (5) , "(p)rior to issuing an operating license authorizing low-power testing and fuel loading, the NRC will review the followina offsite elements of the Aeolicant's emergency olan." Public Servjce Co. of New Hampshire (Seabrook Station, Units 1 and 2) , 7. LAB-883, T.7 NRC 43, 33 (1988).

The Commission subsequently modified the requirement for an approved public notification system prior to low-power operations. 53 Fed. Reg. 36955 (September 23, 1988).

Newhere in its 1988 rulemaking, however, did the Commission disturb its conclusion from the 1932 rulemaking that public notification romains a prinary corponent of onsite energency planning.

The Nuclear Regulatory Commission is amending its regulations to establish more clearly what emergency planning .snd preparedness requirements are needed for fuel loading and low-power testing of nuclear power plants. . . . the rule will also change the prior practice, never included in the prior ru.'? itself, of reviewing plans for prompt public notification in the event of In

! accident. This practice of reviewing an ofisite element of licensee emergency plans that has no l onsite application is being discontinued at not l necessary for public safety. The rule does not l change the emergency planning requirements that l

must be satisfied before full power operation can j be authorized. No new requirement 3 are being l imposed by the rule beyond those that have been previously required by rule and by prior NRC practice. The rule makes clear that no offsite elements of the applicant's emergency plan, other than those set forth in this revised rule need be considered in connection with low-power licensing. 53 Fed Req 36955 (Septanber 23, 1988).

l l

i l

Since the public notification system represents an aspect I P

of Applicants' onsite emergency plan, and is a " major [

i observ& Lie portion" of the plan since mandated by the "b  :

standards" under 5 50.47 (b) (5), Applicants were required, yet i failed, to test that system during the September 27, 1989 onsite exercise, i C. Did the applicants fail to test certain major t l

ebservable portions of the onsite emergency plan duris.q the September Exercise?

Intervenors' contentions JI-Onsite Ex-1 and JI-Onsite Ex-2 '

specifically identify those " major observable portions" of the ,

onsite plan, as defined by the planning standards in i

550.47 (b) (1)-(16), that Applicants failed to test during the  !

September 27, 1989 Exercise. In summary, these are:

1) insufficient protective action decisionmaking; l 5 50. 4 7 (b) (10) ; NUREG-0654 II.J;

2) no plume monitoring procedr.res or correlative accident assessmont activities were tested even by mini-scenario; 550.47 (b) (9) ; NUREG-0654 II.I;

3) nn invnivement by a medical team from a local support t

services agency (the Seabrook Fire Department pursuant to the Seabrook RERP) or an offsite medical treatment facility (Exeter Hospital according to the SSRERP) ; 5 50. 4 7 (b) (12) , (14), (15);

NUREG-0654 N.2.c; L.1, L.4, 0.4.h; t

l 4) no testing of the personnel monitoring and i

r

[

e, i

('. t i

4 9*' i l

j, , decontamination capacities at the offsite locations planned for that purpose (the Seabrook Dog Track and the " Warehouse" on Route 107); $ 50. 47 (b) (10) ; NUREG-0654 J. 3, J. 6;

5) no demonstration of an actual shift change or the l capability to provide staffing for continuous (24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />) operations for a protracted period or for second shift  ;

staf fing; E LO;47 (b) (1) ; NUREG-0654 II. A.4 ; and i

5) no demonstration of the capability for early notification and clear instruction to the populace within the ,

pluma exposure EPZ. $ 50.47 (b) (5) ; NUREG-0654 II.E. The i Exercise did not test the public notification system, in  :

violation of 10 CFR Part 50, Append 3x E IV.F, or require Applicants to demonstrate in an exercise that administrative and physical means have been established for alerting and ,

providing prompt instruction t o the public within the EPZ, in ,

violation-Of 10 CFR Part 50 Appendix E. IV.D.3.

The contentions thereby specifically identify those " major observable portions" of the onsite plan, defined by the (b) standards that were required to be tested in the onsite exercise.

As further support for summary disposition, Intervenors ,

have annexed to their motion Intervenors' statement of Material Facts Not in Discuta (" Statement"). This Statement is grounded  ;

in the Scenario document, and the NRC Exercise Inspection Report, which provide the primary factual basis for i

Intervenors' motion.

• i' j I

CONCLUSION i Intervenors assert that there is no genuine issue of I material fact in dispute as to the scope of the onsite l Exercise. As a matter of law, and as requested through their [

motion, Intervenors are entitled to summary disposition on i JI-Onsite Ex-1 and JI-Onsite Ex-2 since the Exercise failed to test the identified major observable portions of Applicants' onsite emergency plan, did not test as much of that plan as is

>: i reasonably achievablo without public participation and was not in compliance with the regulatory requirements of 10 CFR

50. 4 5 (b) (14 ) and App. E. IV F. and F. 11.

COMMONWEALTH OF MASSACHUSETTS JAMES M. SHANNON ATTORNEY GENERAL r i

@ s, John Traficonte '

l Chief, Nuclear Safety Unit Matthew Brock l

Assistant Attorney General f Nuclear Safety Unit

• Department of the Attorney General One Ashburton Place Boston, MA 02108-1698 (617) 727-2200 l

y DATED: October 18, 1989 t

\.

l t t 36 -

l l

t

[..' $\ i I

THE COMMONWEALTH OF MASSACHUSETTS  ;

g 9 DEPARTMENT OF THE ATTORNEY GENERAL '

JOHN W McCoRMACK STATE oUiCE BUILDING ff' oNE ASMBUAToN PLACE. BOSTON 02108 1698

- t,

', JAVES M SHANNON a"ca%gv otsana6 j

.. i i

September 18, 1989 BX Eh5 Thomas Dignan, Esq.

l Ropes & Gray One International Place i Boston, MA 02110 '

i RE: 0.hatrvational St a t us_Durio,q_Egotember_ EKercise .

Dear Tom:

On behalf of the Mass AG and other Intervenors, I would like to request observational status for Intervenor observers at all relevant facilities at which Applicant '

petsonnel's performance will be evaluated by the NRC Staff, including the Technical Support Center (TSC), the Operational Suppott Center (OSC), the Emergency Operations Facility (EOF),

and t.he Media Center. Obviously, I am prepared to discuss any ,

rensonable constraints and conditions on such access at your earliest convenience. '

In addition, I would like the Applicants to_ provide '

me, at the earliest possible time after the conclusion of the onsite exercise, all relevant documents generated before and

• during the exercise, including the scenario, the exercise objectives and all other material of a kind similar to that ,

pertaining to the June, 1988 onsite exercise which was ir.cluded '

in the 7-volume scenario document you made available to us at Seabrook Station sometime after the June, 1988 exercise. In addition, I reque t access to player-and-controller-ganerated ,

materials as well. ,.

Thank you for your cooperation.

Be t,

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ohn Traficonte ,

Chief, Nuclear Safety Unit

• Public Protection Bureau (617) 727-2200 '

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cc: Service List ATTACHMENT 1 '

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't Ropts & GRAY oNE INTERNATIONAL PLACE BO$70N. MASSACHUSETTS o2tio+2624 so as ce. ... a ,,,; , g ,, , g e n .ee ec u s s. . .<c%.c

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PECEIVED John Traficonte, Esq. g{p g 1 jgM Chief, Nuclear Safety Unit Public Protection Bureau l Office of The Attorney General gg g, , ,,,jf l One Ashburton Place ,

Boston, MA 02108-1698 '

Ret t observational Status Durina Seetember Exercise  !

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Dear John l

l the aboveThis will reply to subject.

referenced yours of September 18, 1989 regarding-l As you are undoubtedly aware '

under NRC Rules of Practice there is no right to discovery o,f l any nature in order to assist in the formulation of future ,

contentions and no discovery may be had in the absence of .

t L admitted cont <ntions. This means that the only way your office and the other intervenors will be permitted the  !

i L

E observation and documents you requested in your letter is  !

through the voluntary cooperation of my clients.

l

.In the past, such cooperation has been forthcoming.

• However, inasmuch as The Attorney General of The Commonwealth ,

has made it clear that his desire with reference to the upcoming exercise is agt to assist in the design of a plan which will best protect the health and safety of the citizens i

of The Commonwealth, but rather is simply to further his announced goal of delaying operation of the Seabrook Plant, I i r see nothing to be gained on the part of my clients or the public interest in acceding to your requests. .

Very truly ypurs, '

?w cc: Service List i

TGD/tgd :owaxonsa.ss 1.

j. ATTACHMENT 2  !

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.. [-.- THE COMMONWEALTH OF MASSACHUSETTS I  : h DEPARTMENT OF THE ATTORNEY GENERAL f 6

j' .;oHN W McCoAMACK STATE oF* ICE BUILDING

[ oNE AS*BUAtoN PLACE Bo37oN 021081698

.s.,

i 7 ", ," September 27, 1989 J.

V BY FAX i

Thomas G. Dignan, Jr., Esq.

Ropes & Gray [

One International Place  ;

Boston, MA 02110 t Dear Mr. Dignant I must express my extreme displeasure with actions taken by your clients at the Newington Town Hall on the morning of September 27, 1989. The facts are theset *

1. As_you are aware, on September 18, 1989 on behalf of the Massachusetts Actorney General e_nd other intervenors, I requested eccess to various locations; for purposes of ,

observina the on-site emergency plan exercise held on  ;

September 27, 1989.

On September 20, you responded stating '

that your c13snt; would not cooperate with intervenor  ;

efforts to observe the exercise. -

2. Upon receipt of your letter, an attorney in this t office contacted the Newington Town Hall inquAre whether the Town Hall remained open to the public . ring its use as a " Media Center" for emergency plan exercises. We stated that27, we1989.

wanted to observe exercise activities on September We were told by the Town Secretary that the Town Hall does indeed remain open to the public -

and that there was no reason we could not observe the activities.

l

3. On the morning of September 27, I arrived at the Town Hall with an associate who was prepared to videotape i appropriate portions of the exercise events. I was told initially by consultants to New Hampshire Yankee and then ,

by the Emergency News Director (after he arrived) that I would not be permitted anywhere in the building. A <

police of ficer from the Newington Folice Depart. ment escorted me to the exit. In my efforts to assert my right to enter the Town Hall and remain there, I contacted by phone the Town Counsel for Newington, Attorney Peter Loughlin. During discussions between myself, the police officer, the Yankee consultant and a Yankee spokesperson (Rob Williams), your clients asserted that they had a written agreement with ATTACMENT 3

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f Thomas G. Dignan, Jr., Esq.

Page Two i

I September 27, 1989

' the Town of Newington that permitted them to bar me from h the premises during the exercise. (Town Counsel was not aware of such an agreement.) Indeed, at one point a Yankee security guard communicated to the police officer that '

yott had been contacted and that "Mr. Dignan said keep the Massachusetts Attorney General out."

4. During this entire period - from approximately 9:15 until 9:50 a.m. (and for the entire day) - the Town Hall remained open to the public and no effort was made to prevent other members of the public from entering the Obviously, if the Town Hall remained open to ouilding.

the public, the public had a right to enter and (if so  :

inclined) observe the exercise, as long as such observational act.ivities did not interfere with the conduct of the exercise.

Restricting my access to this public facility was inappropriate and discriminatory and I object to these actions in the strongest terms.

Yours, f

N c^

John Traficonte '

Chief, Nuclear Safety Unit (617) 727-2200 Ji'/ je cc: Newington Town Counsel Newington Board of Selectmen Newington Chief of Police Seabrook Service List I

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APPENDIX 1 LEVEt, 0F IN!,PECT10N EFFORT AND $1?E OF IN5PECTION TEAMS R  !

FDP WERGENCY PREPAREDNE55 EXERCISE OR$ERVATION A. PROGRAM APPLICABILITY

, n to programs specified in Manual Chapters 2513, B.  !

DEFINITION 5 '

The following are descriptions of each type of emergency prepared-ne6s (EP) exercise and the conditions under which each is held F 111 Participation Lxercise.

o This exercise is conducted onsite and' Tsite to test as much of the licensee, state, and local emergenty ,

plans as reasonably' achievable without mardatory public partici-pation. It is normally conducted bienniall -

or more operating reactor units are located.y at all sites where ont ,

l- the First F t 11-Partietoation Exercise. This is the first exercise '

conducted s", a reactor site ans involves full-participation by the licensee and participation by each state and local gnvernment l' within the 10-m11e piu'ne exposure pathway emergency planning zone L (EPZ) and each state within the 50-mile ingestion exposure pathway  :

EPZ.

' This exercise is nomally required to be held within 1 year before the first full-power operating license is issued and before operation above 5% of ratet power of the first reactor at that 1

site.

litigationHowever, because of a 1904 court decision perettting of exercise findings at a license hearing, many app 1Leants request an initial exercise earlier than required to pemit timely completion of a hearing prior to licensing. Another 7 exercise may be required in order to fulfill the 1 year provision.

,Pjetial-Particioation Exercise. This exercise involves full-parti-cipation ny the Itcensee, but state and local participation may be partial  :

because

' within their of involvement' with more than one reactnr tita

, jurisdiction. Normall and state participation is partial.y.As local participation a minimum, is full this exercise tests implementation of the licensee's ensite emergency plans, coor-

• dination and communication between the licensee and offsite authori- ,

ties, and protective action decisien making, !t is nomally con-ducted biennially.

Licensee-0n12 . Exercise. This exercise is conducted onsite to ful- '

fill De TFcensee'r annual exercise requirement curing a year when neither a full particioation nor a partial participation exercise i

ATTACHMENT 4 1500 Al.1 Issue Date: C8/21/89

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n isheld. It norsally involvH full Nrt1CIMtion from the licantet with little or no participation by state one local governments.

Rese61ah Exercise. This exercise is generally held at the request of ram to semenstrate the correction of specific deficiencies identified during the exercise in offsite emergency platining an8 nomally does not directly involve the licensee. However, there may be instances when poor licensee performance curing the annual exercise would require a remedial exercise.

C. LEVEL 0F INSPECT 10N EFFCRT FOR EXERCISE OBSERVATION With the exception of the first full. participation exercise at i single unit sites, the level of inspection effort and correspon- I

- ding team sfFe for exercise observation should be based en past '

licensee perfomance, recent EP inspection findings and SALP ratings, and regional assessment of the current status of the:

licensee's emergency preparedness program. For exemple, '

favorable SALP ratings coupled with consistently good perfom- '

ance in trees of observetter may result in decreased inspection effort in those areas. Conversely. if licensee perfemence in i the EP area appears to be eac11ning or if. Specific aspects of exercise perfomance are repeatedly substandard, intensification  ?

of inspection effort is warrantes. It is espected that more l

total time will be' expended for some facilities then others. i 1

D. REC 0fMNDID S!!E OF INSPECTION TEAMS The region will detemine the team site, establish the team and g provide the team leader for all exercise inspections. Where specific resource allocations for a particular phase of nuclear L power plant cperation are included in en inspection procedure, they should be followed.

I

1. The First Full-Participation Exerci be. Up to 7 or 8 team mee.

bars are nomally sufffelent to colerve the first full partici.

pation exercise. The toss generally consists of the team leader, one or more regional inspectors, one Needquarters EP licensing representative, several contractors and may include one or more resident inspectors.

2. F411- and Partial. Participation Eaarcisei

. Inspection teams for tuse ty' pes of exerc'ses nomally cors1 Lt of the regional team i leader, one resident inspector and one contracter. In addition, one Needevarters observer is generally provided for one half of the exercises conducted.

3. Licensoe Only Exercises. Up to 3 team members are normally -

suffic ent "o ooserve a licensee only exercise. Resident inspectors should be included in the inspection team.

1

4. Remedial Exerciis

u. Regional inspectors do not norina11y observe remedial exer-cises requested by FEMA for the correction of Eff}j,)g

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deficiencies identified during the exercite. Hewever,  !

deperding be observed by upcn inspection the resident prioriti66, inspector s) when the (onsite licenseeactivities m ,

i elects to participate in a remedici exercise requested by  :

FEMA.

b. When a remedial exercise is required by Ge NRC, team size  !

will depend on the. number and nature of the problems icentified during the previous exercise. Depencing on the nature of the problets identified and inspection priori.

ties, the resicant inspectors.

some onsite drills iney be limited to observation by

(

END i

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6 Usur l1 Mb UNITED. STATES OF AMERICA ,

j _ NUCLEAR REGULATORY COMMISSION N *89 OCT 19 P3:51 l 3 ATOMIC SAFETY AND LICENSING BOARD orr: ..s. .

}, . Before the. Administrative Judges: # dj g '

u Ivan W. Smith, Chairman

'N ,

Dr. Richard.F. Colo Kenneth A. McCollom' '

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~1n the Matter of ) Docket Noa. 50-443-OL'

) 50-444-OL .

PUBLIC SERVICE COMPANY )

OF NEW HAMPSHIRE, ET AL. )

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j < (Seabrook Station, Units 1 and 2) ) October 18, 1989

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I -t CERTIFICATE OF SERVICE

• I, Matthew.T. Brock, hereby certify that on October 18, 1989, I made service of the within INTERVENORS' MOTION FOR

SUMMARY

DISPOSITION ON CONTENTIONS JI-ONSITE EX-1 AND JI-ONSITE EX-2 AND

' MEMORANDUM OF THE.INTERVENORS IN SUPPORT OF THEIR' MOTION FOR

SUMMARY

DISPOSITION OF THE. SCOPE CONTENTIONS FILED IN RESPONSE TJ THE 4 SEPTEMBER 27, 1989 ONSl'iE EXERCISE by Federal Express as indicated I with (*) and by first class' mail to: ,

, *Ivan~W. Smith, Chairman *Kenneth A. McCollom Atomic Safety & Licensing Board 1107 W. Knapp 3'r. ,

U.S. Nuclear Regulatory Stillwater,.oh 74075  :

Commission East West Towers Building

• Docketing and Service 4350LEast West Highway U.S. Nuclear Regulatory  !

Bethesda, MD 20814 Commission Washington, DC 20555

'*Dr.. Richard F. Cole Paul McEachern, Esq. j

. Atomic Safety & Licensing Board Shaines & McEachern U.S.. Nuclear Regulatory Commission 25 Maplewood Avenue East Dest Towers Building P. O. Box 360 4 3 5 F- Eact West Highway Portsmouth, NH 03801 Betnesda, MD 20814 A t

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• Robert R. Pierce, Esq.

• Thomas G. Dignan, Jr., Esq.

Atomic Safety & Licensing Board Katherino Selleck, Esq.

U.S. Nuclear Regulatory Commission Ropes & Gray East. West Towers Building One International Place 4350 East West Highway Boston, MA 02110  ;

Bothesda, MD 20814 H. Joseph Flynn, Esq. *Mitzi A. Young, Esq.

Assistant General Counsel Edwin J. Reis, Esq.

Office'of General Counsel U.S. Nuclear Regulatory Federal Emergency Management Commission Agency Office of the Gene.al Counsel 500 C Street, S.W. 15th Floor Washington, DC 20472 11555 Rockville Pike i Rockville, MD 20852 '

Atomic Safety & Licensing Robert A. Backus, Esq.

Appeal Board Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lovell Street '

Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03106

, Atomic Safety & Licensing Board Jane Doughty U

'.S. Nuclear Regulatory Commission Seacoast Anti-Pollution League L

, Washington, DC 20555 5 Market Street Portsmouth, NH 03801 u Charles P. Graham, Esq. Barbara St. Andre, Esq.

Murphy & Granam Kopelman & Paige, P.C.

33 Low Street 77 Franklin Street Newburyport, MA 0.350 Boston, MA 02110 Judith H. Mizner, Esq. R. Scott Hill-Whilton, Esq.

79 State Street Lagoulis, Hill-Whilton 2nd Floor' & Rotondi L Newburyport, MA 01950 79 State Street l

Newburyport, MA 01950

- Dianne Curran, Esq. Ashod N. Amirian, Esq. i 1

Harmon, curran, & Towsley 145 South Main Street Suite 430 P.O. Box 38 2001 S Street, N.W. Bradford, MA 01835 L Washington, DC 20008 L

Senator Gordon J. Humptcey Senator Gordon J. Humphrey U.S. Senate One Eagle Square, Suite 507 Wachington, DC 20510 Concord, NH 03301 (Attn: Tom Burack) (Attn: Herb Boynton)

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John'P. Arnold, Attorney General Office of the Attorney General Phillip Ahrens, Esq.

25 Capitol Street Assistant Attorney General Concord, NH 03301-Depar tment of the Attorney General Augusta, ME 04333

' William S. Lord Board of Selectmen

. Town Hall - Friend Street Amesbury, MA 01913 4 COMMONWEALTH OF MASSACHUSETTS JAMES M. SIIANNON 1 ATTORNEY GENERAL I

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. John Traficonte ~

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Chief, Nuclear Safety Unit Matthew T. Brock Nuclear Safety Unit .. l Assistant Attorney General I Departntent of the Attorney General One Ashburton Place Boston, MA 02108-1698 'i (617) 727-2200 -

DATED: ' October 18, 1989 9

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