ML19325D572

Intervenors Motion to Amend Intervenors Motions of 890929 & 1013 to Admit Contentions on 890927 Onsite Emergency Plan Exercise.* Moves Board to Accept,Nunc Pro Tunc,Intervenors Further Legal Argument.Certificate of Svc Encl

ML19325D572
Person / Time
Site:	Seabrook
Issue date:	10/16/1989
From:	Brock M MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE
To:	Atomic Safety and Licensing Board Panel
References
CON-#489-9313 CLI-89-19, OL, NUDOCS 8910250060
Download: ML19325D572 (11)

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• 9*3/3 0004 TED UNITED STATES OF AMERICA  !" C NUCLEAR REGULATORY COMMISSION l

ATOMIC SAFETY AND LICENSING BOARD 89 0:117 P1 :47 l Before the Administrative Judgest ,,

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Ivan W. Smith, Chairman '

Dr. Richard F. Cole ,

Kenneth A. McCollom i i

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

) 50-444-OL PUBLIC SERVICE COMPANY )

OF NEW HAMPSHIRE, EI AL.  !

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(Seabrook Station, Units 1 and 2) ) October 16, 1989 l

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lr INTERVENORS MOTION TO AMEND INTERVENORS' MOTIONS OF SEPTtMBER 29, 1989 AND OCTOBER 13, 1989 l TO ADMIT CONTENTIONS ON THE SEPTEMBER 27, 1989 ONSITE EMERGENCY PLAN EXERCISE The Mass AG, SAPL, and NECNP (hereinafter "Intervenors")

mcVe this Board to accept, Nunc Pro Tunc , Intervenors' further l legal argument 1/ for admission of Intervenors' contentions on  :

the September 27, 1989 Onsite Emergency Plan Exercise

(" Contentions")2/ that demonstrates the contentions should be admitted even if this Board determines that Intervenors must  !

satisfy the reopen the record standard of 3 0 C.F.R. 2.734.

1/. This further argument is filed herewith as " Attachment A."

2/ See Intervenors' Motion to Admit Contentions on the September 27, 1989 Emergency Plan Exercise dated September 29, 1989 and Intervenor's Second Motion to Admit Contentions on the September 27, 1989 Emergency Plan Exercise dated October 13, 1989.

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8910250060 091016 PDR g

ADOCK 05000443 hD PDR

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! i In support of this motion, Intervenors state:

1) On October 16, 1989, Intervenors were served with this Board's Memorandum ar.d Order that denied i Intervenors' motions to admit low power testing [

contentions.2/ I t

In that Order this Board, for the first time, ruled that the reopen the record standard is applicable to determine the i

admissability of Intervenors' low power contentions.  !

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2) Interv6nors continue to assert that this ruling I is in error. Egg Mass AG Reply cited in note 4, supra. Nevertheless, Intervenors address the reopen the record standard, as further support >

for admission of their onsite exercise i

contentions, in anticipation that this Board way l further extend application of the reopen the record standard to Intervenors' Onsite Exercise Contentions.d/

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2/ Egg LBP-89-28, dated October 12, 1989, Memorandum End Order ,

(Denying Intervenors' Motions to Admit Low Power Testing Contentions and Bases or to Reopen the Record, and Requests for l Hearing (" Order").  ;

Al Sgt Order at pp. 14-15. Intervenors earlier raised this issue to this Board for decision. Egg e.g. Reply of the Massachusetts Attorney General to the Responses of the Applicants and Staff to the May 31 Motion to Hold Open the l Record, pp. 10-12 (June 21, 1989) (" Reply").

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ATTACKMENT A Intervenors meet the Roopen the Record standard,10 C.F.R. 2.734, for admission of their onsite exercise contentions previously filed September 29 and October 13, 1989 EI as l follows: l Timeliness  :

i Intervenors adopt, and incorporate by reference, their I arguments previously made to this Board that their onsite exercise contentions are timely filed.5/ In substance, these '

arguments demonstrate that the Contentions could not have been .

I filed prior to Intervenors' observation of the conduct of the Exercise or subsequent receipt of the exercise scenario and NRC f Staff Exercise Inspection Report. As further grounds for timeliness, Intervenors assert that this Board, until today, '

had never ruled that the reopen the record standard was ,

applicable to low power contentions, or suggest by implication, '

its applicability to the onsite exercise contentions.

Sionificant Safety Issues By regulation, the Commission has established, generically, '

that successful completion of an onsite exercise, within one year of issuance of a full power operating license, is material ,

i s/ See Note 2, Supra.

f/ Egg Intervenors Motion to Admit contentions on the September 27, 1989 Emergency Plan Exercise (9/28/89) pp. 4-5; Intervenors' Second Motion to Admit Contentions on the September 27, 1989 Emergency Plan Exercise (10/13/89) pp. 3-5.

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. I L and a precondition to licensing. 10 C.F.R. Part 50, Appendix E IV.F.1. providest i

!: If the full participation exercise is conducted more than one year prior to issuance of an i operating license for full power, an exercise i which tests the licensee's onsite emergency plans l shall be conducted within one year before t issuance of an operating license for full power. j Consistent with this view, the Commission has expressly recognized Intervenors' right to litigate exercise results.  !

it is clear that the results of exercises are i litigable in the operating license proceeding, .

irrespective of when those exercises are held, so '

long as the holding of an exercise is a r pre-license requirement l 52 Fed Reg at 16827 (May 6, 1987). l Recently in this very proceeding, the Commission flatly rejected Applicants' request for an exemption from the onsite ,

exercise, partly in recognition of the "public interest which  ;

underlies the safety provisions of the emergency planning  ;

rules." CLI-89-19 (9/20/89) slip. op. p. 4. The Commission thereby underscored the primary safety significance of its t t

onsite exercise requirements and the need for Applicants to ,

fully demonstrate their emergency responce capabilities, by  !

exercise, in advance of licensing.  !

Significantly, the Commission grounded its rejection of Applicants' exemption request "(f)or the reasons stated by the staff...". Id. at p. 3.2/

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l 2/ NRC Staff Response to Applications' Applicantion For An ,'

Exemption From 10 C.F.R. Part 50, Section IV. F.1. (Onsite l Exercise One Year Before Full Power License) ,

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As the staff observed, quoting the Commission in part:

This annual emergency reponse function drill i ensures that the licensee's new personnel  !

are adequately and promptly trained and that  !

existing licenses personnel mainttin their emergency response capability. The existing  ;

requirement of a pre-operational onsite exercise within one year prior to full-power r license issuance is consistent with this philosophy as well as the commission's  !

general desire to have pre-operational

! emergency planning exercises as close as  !

practicable to the time of licensing. And

• since, unlike the situation with offsite  !

exercises, no one has identified any  !

existing response or timing difficulty with  !

the onsite requirement, we find no reason to  ;

revise the requirement.  ;

. . . While the offsite emergency test is  :

important to judge the ability of (State and local emergency reponse organizations) to respond to a particular of a (sic) i radiological emergency, in light of their ongoing responsibility for all types of  ;

emergencies a demonstration of offsite preparedness by such agencies within two i

years prior to licensing affords reasonable  !

assurance of their capabilities at the time '

of licensing. In contrast , as an applicant makes a full-scale shift from a facility j construction to a facility operation mode within the last twelve to eighteen months prior to operation, as a general rule many new operational personnel are retained who must be ready to carry out the utility's onsite emergency response responsibilities.

It is also in recognititon of this '

distinction that the commission find that an onsite exercise should be required within i one year of licensing to provide assurance i that the applicant's onsite response i capabilites are adequate.

52 Fed Reg at 16824-25. (quoting the Commission.) *

(T]he Staff is unable to conclude that Applicants' ERO personnel in important emergency response positions have recently shown adequate emergency resonse capability so as to obviate the

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need for the preoperational, onsite exercise.

For example, the Application shows that over half '

of the 51 identified kcy ERO positions kre staffed by individuals that have not participated i in an exercise in their currently assigned ,

position and almost half of the ERO have not had the opportunity to participate in any of the r i

three onsite exercises. Congol Affidavit at 5.  !

In addition, Staff questions concerning the l performance and weaknesses in control room staff  ;

performance during the June 1988 exercise and  ;

weaknesses in control room staff performance '

during recent low power testing, while not arising to the level of a fundamental flaw, show the importance of continued training. Id. at  !

5-6. The Staff concludes that Applicants have '

not demonstrated that the background and training  :

of the emergency response staff is such that an '

onsite exercise close to the time the full-power license issues is not needed to confirm the adequacy of the onsite aspects of emergency l preparedness. Staff Response p. 12.  ;

As indicated in Intervenors' onsite exercise contentions, Applicante not only failed to " confirm i the adequacy of the onsite aspects of emergency preparedness", Staff Response p 12, Applicants did i

not even attempt to do so. The scope of the Exercise was so limited as to preclude Any test of second shift staffing, PAR procedures, or other fundamentals of emergency preparedness detailed in the i Contentions. Having been rejected by the Commission i in their efforts to obtain an Exercise exemption,  !

P Applicants, in effect, granted themselves an  ;

exemption from demonstrating numerous emergency '

response capabilities.

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o l By regulation, 10 CFR PART 50 Appendix E IV.

F.I., and throught denial of Applicants' Exemption Request, the Commission has recognized the onsite Exercise Requirements as primary " safety {

provisions". CLI 19 At p4. Necessarily the  ;

failure to even attempt to demonstrate compliance with many of these " safety provisions" presents a significant safety issue, and establishes, for purposes of f 2.734, that Applicants are in direct violation of Commission Regulations and CLI-89-19 to ,

demonstrate many onsite emergency response capabilites in advance of licensing.

• Materially Different Results If Intervenors' contentions had been considered initially, no full power operating license would issue. Since Applicants have failed to conduct an exercise of adequate Scope to fairly

• est the onsite plan, Applicants, as a matter of law, are barred from receiving an operating license. 10 CFR PART 50, Appendix E IV.F.I.; CLI-89-19; ALAB-900.

AFFIDAVIT IS NOT REQUIRED ,

Intervenors note that the affidavit requirement of 10 C.F.R. $ 2.734 (b) should not necessarily be an absolute

requirement for a successful motion to reopen. Where, as here, the factual bases for the movants' claims are set forth in NRC l and Applicants' documents (ie Inspection Report and Scenario L

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l attached as bases for the contentions) Intervenors make out  !

sufficient grounds to reopen the record, if they adequately address each of the 3 criteria and identify with particularity the issues they seek to litigate and "the factual and/or technical bases" that they believe support their claim that ,

each issue is timely raised, safety significant and demonstrates that a materially different result would have been likely. 10 C.F.R. $ 2.734(b) (emphasis supplied).II The issues raised by the contentions are identifed with particularity in the contentions themselves which are incorporated by reference into this motion.

3 RESPECTFULLY S TED.

~.x -\ c I Matthew T. Brock' '

Assistant Attorney General

, Nuclear Safety Unit Department of the Attorney General One Ashburton Place Boston, MA 02108 >

(617) 727-2200 October 16, 1989 A/ The movant and not the affiant is to identify the particular issues and specify the factual and/or technical basis for each issue that makes it timely raised, safety signficant and material. Id. The movants make these claims and not the affiants.

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f UNITED STATES OF AMERICA NUCLEAR REGUIATORY COMMISSION 89 OCT 17 P1 :47 [

ATOMIC SAFETY AND LICENSING BOARD I i +-,

at: l Before the Administrative Judges: DNN [,,,3(,

I Ivan W. Smith, Chairman Dr. Richard F. Cole i Kenneth A. McCollom  !

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

) 50-444-OL PUBLIC SERVICE COMPANY )

OF NEW MAMPSHIRE, ET &L. ) '

)

(Seabrook Station, Units 1 and 2) ) October 16, 1989 ,

) ',

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CERTIFICATE OF SERVICE i

I, Matthew T. Brock, hereby certify that on October 16, 1989, I made service of the within INTERVENORS' MOTION TO AMEND INTERVENORS' l MOTIONS OF SEPTEMBER 29, 1989 AND OCTOBER 13, 1989 TO ADMIT CONTENTIONS ON THE SEPTEMBER 27, 1989 ONSITE EMERGENCY PLAN EXERCISE by Federal Express as indicated with (*) and by first class mail tot '

• Ivan W. Smith, Chairman *Kenneth A. McCollom Atomic Safety & Licensing Board 1107 W. Knapp St.

U.S. Nuclear Regulatory Stillwater, OK 74075 Commission East West Towers Building

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

Bethesda, MD 20814 Commission Washington, DC 20555

• Dr. Richard F. Cole Paul McEachern, Esq.

Atomic Safety & Licensing Board Shaines & McEachern U.S. Nuclear Regulatory Commission 25 Maplewood Avenue East West Towers Building P. O. Box 360 4350 East West Highway Portsmouth, NH 03801  ;

Bethesda, MD 20814 I

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• Robert R. Pierce, Esq.

• Thomas G. Dignan, Jr., Esq.

Atomic Safety & Licensing Board Katherine Selleck, Esq.

U.S. Nuclear Regulatory Commission Ropes & Gray

',. East West Towers Building One International Place 4350 East West Highway Boston, MA 02110

, Bethesda, MD 20814

,i. Joseph Flynn, Esq. *Mitzi A. Young, Esq.

Assistant General Counsel Edwin J. Reis, Esq.

i Office of General Counsel U.S. Nuclear Regulatory Federal Emergency Management Commission Agency Office of the General Counsel 500 C Street, S.W. 15th Floor Washington, DC 20472 11555 Rockville Pike Rockville, MD 20852 Atomic Safety & Licensitag Robert A. Backus, Esq.

Appeal Board Backus, Meyer & Solomon U.S. Nuclear Regulatory J16 Lowell 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 Washington, DC 20555 5 Market Street i Portsmouth, NH 03801 Charles P. Graham, Esq. Barbara St. Andre, Esq.

Murphy & Graham Kopelman & Paige, P.C.

33 Low Street 77 Franklin Street Newburyport, MA 01950 Boston, MA 02110 Judith H. Mizner, Esq. R. Scott Hill-Whilton, Esq.

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

Dianne Curran, Esq. Ashod N. Amirian, Esq.

l Harnon, curran, & Towsley 145 South Main Street Suite 430 P.O. Box 38 l 2001 S Street, N.W. Bradford, MA 01835 Washington, DC 20008 Senator Gordon J. Humphrey Senator Gordon J. Humphrey U.S. Senate One Eagle Square, Suite 507 Washington, DC 20510 Concord, NH 03301 (Attn: Tom Burack) (Attn: Herb Boynton)

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John P. Arnold, Attorney General Phillip Ahrens, Esq.

Office of the Attorney General Assistant Attorney General i

25 Capitol Street Department of the Attorney Concord, NH 03301 General Augusta, ME 04333 l William S. Lord Board of Selectmen Town Hall - Friend Street Amesbury, MA 01913 COMMONWEALTH OF MASSACHUSETTS JAMES M. SHANNON ATTORNEY GENERAL

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Matthew T. Brock Assistant Attorney General Nuclear Safety Unit  :

Department of the Attorney General one Ashburton Place -

Boston, MA 02108-1698 (617) 727-2200  ;

DATED: October 16, 1989 1

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