ML19354D526
| ML19354D526 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 11/08/1989 |
| From: | Matt Young NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19354D527 | List: |
| References | |
| CON-#489-9421 OL, NUDOCS 8911160073 | |
| Download: ML19354D526 (19) | |
Text
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11/8/89
- M :i:
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l UNITED STATES OF AMERICA i
NUCLEAR REGULATORY COMMISSION
'89 NOV -8 P4 :17 i
BEFORETHEATOMICSAFETYANDLICENSINGBOAkdbc.
i
.e
- Nu i
In the Matter of i
Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF 50-444 OL NEW HAMPSHIRE, et M.
Offsite Emergency Planning (Seabrook Station, Units 1 and 2)
NRC STAFF RESPONSE TO INTERVENORS MOTION FOR
SUMMARY
DISPOSITION 0F PROFFERED CONTENTIONS JI-ONSITE EX-1 AND J1-ONSITE EX-2 INTRODUCTION By motion dated October 18, 1989, the Massachusetts Attorney General, Seacoast Anti-Pollution League, and New England Coalition on Nuclear Pollution ("Intervenors") asked the Board to grant summary disposition cf l
contentions proffered on the September 27, 1989 exercise of the Seabrook i
Station Radiological Emergency Plan ("SSREP" or "onsite plan").1/ Those contentions, JI-Onsite Ex-1 and Ex-2, allege that tha onsite exercise was not a " full-scale onsite exercise of the Seabrook ec.c.mency plan" in that it "did not test either all or... a significant number of the major 5
1/
Intervenors' Notion for Summary Disposition on Contentions JI-Onsite Ex-1 and JI-Onsite Ex-2, October 18, 1989 ("SD Motion").
This filing was accompanied by a Memorandum of the Intervenors in Support of Their Motion for Summary Disposition of the Scope Contentions Filed in Response to the September 27, 1989 Onsite Exercise, dated
,0ctober 18, 1989 (" Memorandum").
8911160073 891108 PDR ADOCK 05000443 0
} 907
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2 observableportions"oftheonsiteplan.El Intervenors contend that the motion is based on (1) their two motions seeking admission of onsite exercise contentions, (2) the NRC inspectio i report on the exercise, f
(3) the exercise scenario, (4) the Applicants' October 11, 1989 response r
to their Motion, and (5) the statement of 15 material facts, affidavit and j
Memorandum filed with the SD Motion.
The procedure Intervenors propose is extraordinary in NRC l
practice and Intervenors point to no NRC proceeding where summary i
disposition was considered prior to a ruling on the admissibility of a contention. For the reasons discussed below, the Staff opposes the motion f
on both procedural and substantive grounds.
l DISCUSSION i
t A.
The Motion Does Not Lie 10 C.F.R. $ 2.749(a) provides, in relevant part, that:
f I
Any party to a proceeding may move, with or without supporting i
affidavits, for a decision by the presiding officer in the party's favor as to all or any part of the matter involved in i
2/
Intervenors' Motion to Admit Contentions on the September 27, 1989 Emergency Plan Exercise, September 28,1989 (" Motion"), at Attach-ment A; Intervenors' Second Motion to Admit Contentions on the i
September 27l,atAttachmentA. Emergency Plan
- Exercise, October 13, 1989 l
1989
("2dMotion" i
The Staff twice stated its opposition to the reopening the record to admit the late-filed contentions in response to these motions because i
Intervenors failed to make the requisite showing for a motion to
]
reopen, to provide an adequate basis for the proffered contentions and to meet the five-factor balancing test for late-filed contentions.
NRC Response to Intervenors' Motion to Admit Contention on September 27, 1989 Exercise, October 16, 1989 (" Staff Response"),
at 1; NRC Staff Response to Intervenors' Second Motion to Admit Contentions on the September 27, 1989 Emergency Plan Exercise, October 27, 1989 (" Staff 2nd Response"), at 3.
1 I
the proceeding.
There shall be annexed to the motion a separete, short and concise statement of the material facts as 1
to which the moving party contends that there is no genuine issue to be heard.
Motions shall be filed within such time as may be fixed by the presiding officer. [Emphasisadded.]
Because no contention has been admitted on the onsite exercise, the regulation is not applicable and sumary disposition may not be granted.
In other words, as there is no matter in controversy, there is no matter j
on which to grant sumary disposition. M further, there is no absolute right to be heard on any issue in NRC proceedings, particularly proceedings related to the issuance of operating j
licenses.
The only accepted means for placing matters in controversy before the Comission is delineated in the regulations that govern petitions to intervene and the filing of contentions.
10 C.F.R. I 2.714; Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19,17 NRC
- 1041, 1045 (1983); see BPI v. AEC, 502 F.2d 424 (D.C. Cir.
1974);
Easton Utilities Com. v. AEC, 4?4 F. 2d 847 (D.C. Cir. 1970).
In an i
operating license proceeding, only those issues that are properly placed l'
1 3/
Intervenors argue that NRC procedure tracks Rule 56 of the Federal
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Rules of Civil Procedure and thus, the motion is appropriate since sumary judgment in judicial proceedings may be brought by-a i
plaintiff before an answer is filed.
Memorandum at 4, citing Alabama Power Co. (Joseph M.
Farley Nuclear Plant. Unit 1 ana z),
ALAS-182, 7 AEc 210, 217 (1974).
However, in the words of the Appeal Board:
Judicial proceedings and adrainistrative adjudicatory proceedings such as ours are, of course, not fungible; and any endeavor to fit one into precisely the same mold as the other could be productive of serious mischief.
Even in procedural areas where the Comission's rules find ana-logues in the Federal Rules of Civil Procedure, there must be room for some divergence in mode of application.
7 AEC at 218.
0 4
O in cohtroversy, either by admitted contentions or board issues, are proper for consiceration for sumary disposition as any other issues are not " matters in controversy."
lee 10 C.F.R. Il 2.714, 2.740, 2.751a, 2.760a; Texas Utilities Generating Co.
(Comanche Peak Steam Electric Station, Units 1 and 2), LBP-81-25,14 NRC 241, 243 (1981).
A motion concerning contentions proffered, but not admitted, cannot be considered under the NRC rules of practice. M lt is readily apparent that Intervenors seek by piecemeal means to gain admission of their contentions by now providing arguments they should have made in their initial motions to admit their contentions.
Intervenors assert that "tnere is no meaningful distinction between deciding this issue as a matter of the admissibility of the contention or as a matter of sumary disposition af ter they are admitted."
Memorandum at 4 n.4 It is clear that these arguments are offered to bolster their contentions and should have been included in the earlier motions seeking (Limerick Generatin 4/
In philadelphia Electric Co.681, 725 (1985) (1985)g Station, Units 1
~
and 2), ALAU-819, 22 MRC
, the Appeal Board stated:
The Licensing Board essentially recognized this by conditionally admitting the contention, subject to greater specif1 cation in the future.
See LBP-82-34A, 15 NRC at 1518 A short time later, 7 owever, we held the conditional admissinn of any contention to be unauthorized under the Comission's rules.
Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), Alb -ec?, 16 NRC 460, 467 (1982).
On review of that decision, the Comission held further that the admission of cor.tentions after the time specified in the Rules of Practice was to be determined by balancing)(the five " late contention" factors in 10 C.F.R.
I 2.714(a 1).
Ld., CLI-83-19,17 NRC 1041,1045 (1983).
Although the Limerick case dealt with the conditional admission of a contention to gain ciscovery, the reasoning is applicable here where the Intervenors seek, in essence, to gain the conditional admission of a contention for the purpose of suwnary disposition.
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admission of the onsite exercise contentions. M Their arguments, if considered at
- all, should only be considered in ruling on the j
admissibility of the proffered contentions. O i
B.
Intervenors Wrongly Conclude That A " Full Participation Exercise Was Required Apart from the procedural infirmity discussed above, the SD Motion and Memorandum are without merit.
~/
While Intervenors' legal argument might not consititute a " basis" for 5
i their contentions (see Memorandum at 5), that argument should have accompanied the prior motions to add spec)(icity to their contentions and bases.
Intervenors argue that the " bases" provided in the Memorandum for the p(reviously filed contentions (1) could not have been filed earlier,
- 2) indicates how Intervenors will contribute to the record and (3) does not broaden issues raised by the contentions since it will avoid a hearing.
Memorandum at 6-8.
A balancing of the five-factor test in 10 C.F.R.
I 2.714 does not favor consideration of the recent filings.
Most of the information discussed in the "<worandum was available prior to the filing of the 2nd Motion on October 13, 1989.
Legal arguments supporting proffered contentions are properly raised at the pleading stage and should have accompanied the contentions.
Intervenors, as early as June 1989, expressed their intention to mount a challenge regarding the onsite exercise and, presumably, have been formulating the basis for such a i
challenge since that time.
Thus, there is no good cause for raising legal arguments at this time.
While factors 2 and 4 -- other raeans and other parties to protect the Intervenors' interest -- may weigh in Intervenors' favor, their insistence that no witness need be presented fails to demonstrate their contribution to the development of a sound record.
- Also, acceptance of their arguments will brcaden and delay the proceeding since it continues to divert the Board's attention away from the resolution of the closed record by the issuance of an initial decision.
Thus, factors 3 and 5 also weigh heavily against them.
6/
An opportunity to respond to licensee and Staff objections to contentions has bee.1 provided in other NRC proceedings.
Allens Creek, ALAB-565,10 NRC 521, 524-25 (1979).
Such response, Tiowever, is not expressly provided in the rules.
See 10 C.F.R. 6 2.714
l 1.
The scope of an onsite exercise is not judged by the " full participation" standard i
Intervenors seek to persuade the Board through a lengthy and contorted interpretation of 10 C.F.R. Part 50, Appendix E, 6 IV.F.1., that the necessary scope of the one-year pre-licensing onsite exercise was required to include:
(1) a General Emergency (with a postulated offsite release) and protective action decisionmaking for offsite populations-(2) the dispatch of field monitoring teams to engage in assessment and monitoring activities; (3) an offsite medical emergency team or medical treatment facility; (4) onsite personnel monitoring and decontamination at offsite locations; (5) a shift change or continuous 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> staffing by onsite personnel; and (6) activation of the public notification system (the vehicular alert and notification system (VANS)). U In sum, they l
contend these areas are major observable portions tf the onsite emergency plan that were achievable without mandatory public participation.
Memorandum at 34-36.
Intervenors manipulate Appendix E, i IV.F.1 and its footnote and l
argue that the two explain the "how" and "who" of participation ir. an exercise. See Memorandum at 10-11.
Intervenors claim the reputation sets forth two distinct notions defining exercises by the " scope, level or 1
extent of the participation of the participants (the "how" of participation in an exercise);" and by "what entity or entities must participate (the "who" of such participation)."
Memorandum at 11-15.
7/
Memorandum at 34-35. The exercise of the listed items purportedly is
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l-necessary to demonstrate or evaluate primary procedures, persons, organizations, facilities, or equipment essential to implement the SSREP, 2nd Motion, Attachment A at 2-3.
,.__.-..-~
C..
The rationale behind this protracted discussion is far from self-evident l
and obscures the plain meaning of the regulation.
If licensee, state and local emergency plans are exercised -- a full participation exercise -- it is self-evident that these entities would participate as they are directly responsible for provi Hg a response to a radiological E.nergency.
If the exercise is of the or.% v an only, however, the extent of participation warranted by other organizations is not comparable to a full participation exercise, nor is it require ( by Appendix E, i IV.F.1.
Intervenors argue thct the wording of the regulation regarding " full participation exercises" applies equally to offsite and onsite exercises.
Memorandum at 14-15.
This strange argument ignores the plain meaning of the Appendix E, 6 IV.F.1.
The regulation clearly states that when a full participation exercise -- defined by both the 1st and 2nd sentences of the regulation and note 4 -- is held more than one year prior to issuance of an operating license, an exercise which tests a licensee's onsite plan shall be held and that exercise need not have state and local government participation.
The regulation is clear.
While a full participation exercise is one requiring state and local authorities and licensee personnel to physically and actively take part in tasting their integrated capability to assess and respond to an accident, an onsite exercise is primarily a Iicensee-I only exer ;ise, and is not by definitton a full participation exercise.
Any attempt to equate a full prticipation exercise, defined in note 4 as " testing the major observaN1e pori;fons of the onsite and off:4m emergency plans and mobilization of state, local and licensee pe' r.,e l l
l and other resources," with an onsite exercise failt. on its face.
the 1
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e
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! i two exercists were the same, there would be no reason to set forth any distinctionintheregulation.El Intervenors also argue that the history of the promulgation of regulations concerning pre-and post-licensing exercises supports their view that full participation means exercising major observable portions of a plan 'that are achievable without mandatory public participation.
Memorandum at 14-15. That history, however, does not support Intervenors' construction of the regulation. The original rule used the language " full scale and small scale exercises." 45 Fed. Reg. 55402, 55413 (August 19, 1980).
The wording
" full scale exercise" was changed to " full participation exercise" in the 1984 rule change which relaxed (to biennially) the frequency of state and local participation in exercises held after the issuance of a full power license.
49 Fed. Reg. 27733 (July 6, 1984); see also Proposed Rule, 48 ' Fed. Reg. 33307 (July 21, 1983).
However, the definition of a full scale exercise was the same as L
the definition of a full participation exercise in the new rule, that is, 1
L it defined wha was to participate (i.e.,
licensee, state and local l
l authorities)inajointexercise.
l Intervenors are correct that licenseen have always been required to conduct an annual cmsite exercise, which consists of " exercising control
- room, technical support center and emergency operating facility 1
g/
As the Appeal Board has said, "As is the case with statutory construction, interpretation of any regulation must begin with the language and structure of the provision itself. IA Sutherland, Statutory Construction K31.06 (4th Ed.1904); Lewis v. United States, l
445 U.S. 55, 60 (1980)." Lonc Island Lighting Co. (shorenam Nuclear l-Power Station, Unit 1), ALAB-9]O, 28 NRC 275, 287 (1988).
l l
1 i
i e' functions."
Memorandum at 18-19.
However, the one time the Comission used the term " full participction" with respect to licensee activities in 1
an onsite exercise, it indicated that the three areas listed comprised the minimum scope of an onsite exercise. As the Comission stated:
The proposed rule would not relax in any manner the onsite exercise that each licensee is required to conduct which includes exercising control room, technical support center, and emergency operating facility functions.
A partial or full-participation exercisc would satisfy the licensee's annual requirement for an onsite exercise as full licensee participation is required for either type of exercise.
48 Fed. Reg. 33308. The statement of consideration accompanying the final rule also reiterated that licensees would still be required to conduct an onsite exercise that tested these three areas, 49 Fed. Reg. 27733 (July 6, 1984),
- however, the Comission did not associate the words
" full j
participation" with the onsite exercise or the activities of the licensee.
Also, the term is only defined in the regulations as usntifying the extent of state and local participation in an exercise.
- Thus, Intervenors' attempt to associate the term with the scope of an onsite l
exercise is not supported by the final rule as promulgated.
10 C.F.R. Part 50, Appendix E, 9 IV.F.2 requires that each licensee l
"shall annually exercise its emergency plan."
It is clear, however, that the purpose of a pre-license, onsite exercise differs from a full participation exercise and its scope is limited.
As the Comission stated:
This annual emergency response function drill ensures that the licensee's new personnel are adequately and promptly trained and that existing licensee personnel maintain their emergency response capability.
The existing requirement of a
pre-operational onsite exercise within one year prior to full-power license issuance is consistent with this philosophy j
as well as the Comission's general desire to have
- 10 l
pre-operational emergency planning exercises as close as practicable to the time of 11cer. sing....
Moreover, to uandate an onsite exercise within one year of operation while requiring an offsite exercise within two years is a recognition of the distinct nature af the participants i
involved in each ir. stance....In contrast [to State and local emergency planning organizations), as an applicant makes a full-scale shift from a facility 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 recognition of this distinction that the Commission finds that an onsite exercise should be required within one year of licensing to
+
provide assurance that the applicant's onsite response
_ capabilities are adequate.
52-Fed. Reg. 16823,16824-25 (May 6,1987) (emphasis. added).
Thus, the underlying purpose of the rule, therefore, is to confirm emergency preparedness as close as practicable to the issuance of a fL11-power license in order to assess the preparedness of operational staff.
l In 1984, the Commission f' st separated the "onsite" and "offsite" p
porcions of exercises by retaining the annual frequency for onsite exercises and initiating a " biennial" frequency for the offsite exercises held after the issuance of a full power license.
In 1
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- 1987, the Commission changed the timing requirements for the 1
" pre-licensing" full participation exercise for power reactors and stated:
The amendment requires a full participation exercise, including State and local governments, to be held within two years before the issuance of a full-power operating license, as opposed to the current requirement of within one year.
An exercise which tests the licensee's onsite emergency plan, but which need not include State or local government participation, is still L
required to be held within one year before issuance of a full-power operating license."
52 Fed. Reg. 16823 (emphasis added).
The Commission also stated that its decision to separate the "offsite" and "onsite" portions of the
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pre-licensing exercises was based upon its experience with post-licensing i
exercises that emergency preparedness can be adequately tested by a full participation exercise held biennially:
Since the promulgation of its emergency planning requirements in 1980, both the Comission and the Feoeral Energency Management Agency (FEMA) have gained much experience in assessing the results of, and the requirements
- for, full-participation exercises. Most of these exercises have been the post-licensing exercises that NRC and FEMA regulations now require to be held every two years.
In setting the two-year requirement for operating plants in 1984, prior NRC and FEMA experience-demonstrated that the reasonableness of emergency planning at a nuclear power plant can be fairly tested and adequately assured by a full-participation exercises which are held every two years rather than on a more frequent basis.
(49 FR 27733-27735, July 6,1984).
Similarly, the Comission has concluded that no safety requirement mandates a full-participation exercise within one year prior to plant licensing.
To the extent that an offsite pre-licensing exercise is intended to reveal whether an emergency plan has fundamental flaws, that purpose can be achieved at least as well by an exercise held within two years of. licensing as within one year.
To the extent that the exercise is designed to test the preparedness of those individuals and organizations that must participate in offsite 1
emergency planning, NRC and FEMA experience with post-licensing exercises has convinced us that exercisec every two years, including remedial exercise. when necessary, perform this function satisfactorily. Exercises on a more frequent basis are not necessary to enable the Comission to determine whether an l-emergency plan provides " reasonable assurance that adequate l
protective measures can and will be taken in the event of a radiological emergency." 10 CFR 50.47(a).
The Comission further stated that, "to mandate an onsite exercise within one yerr of operation while requiring an offsite exercise within two years is a recognition of the distinct nature of the participants involved in each instance."
Id_. at 16825.
Thus it is clear that the Comission intended that full participation, rather than onsite, exercises would be broad enough in scope to reveal a fundamental flaw.
In addition, it is evident that post-licensing experience in emergency
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preparedness exercises is pertinent to a determination of the proper scope of a'prelicensing, onsite exercise.
Intervenors agree that the necessary scope and extent of a licensee i
onsite exercise is not directly stated in the regulations.
Memorandum at24.El However, Connission guicance concerning the scope of an onsite exercise, which was set forth in the final rule in 1984, has been incorporated in Staff guidance.
That is, licensee performance in the control room, technical support center and emergency operations facility functions are areas identified for inspection and are activated in order for the Staff to evaluate the major elements of an onsite plan on an annual basis. Fox Affidavit at T 10. E /
Intervenors also assert that the Appeal Board's ruling that FEMA objectives are an " appropriate measure for determining whether an exercise meets the regulations ' major observable portions of the plans' criterion 9/
Intervenors seek solace in the fact that Appendix I to IP 2500
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describes an onsite exercise as one that "normally involves full participation from the licensee with little or no participation by state and local governments."
Memorandum at 28.
The Staff's practice, however, has been to determine such participation by reference to Inspection Procedure (IP) 82302 which lists the major aspects of licensee plans.
Affidavit of Edwin F. Fox, Jr. (" Fox Affidavit"),at16.
10/ Intervenors argue the Staff interpretations of regulations, even if they describe custom and past practice, are " irrelevant." Memorandum at 25-27, n.22, citing ALAB-900, supra at 298.
That decision only states that " custom is not dispositive," particularly where the regulations require otherwise, ALAB-900, supra at 298, and does not dictate that evidence concerning Staff practice must be su:m.ar -
rejected.
Intervenors also rely on Staff guidance documents they belir n or "
consistent with their view of the scope of a prelicu sing, t:.
exercise. M Memorandum at 27-28.
3 l 1 for. full participation [for offsite exercises]"
(Memorandum st 29,
)
i quoting Al.AB-900, 28 NRC at 291) is equally applicable for determining j
what constitutes the " major observable portions" of a licensee's onsite l
plan.
Intervenors, however, misapply both the Appeal Board's ruling and FEMA objectives.
FEMA is charged with reviewing state and local offsite plans, and itility offsite plans that compensate for a lack of state or local participation.
FEMA objectives are primarily established to test the offsite response capability of participating organizations, states and loca11 tics and cannot blindly be applied to establish standards for the evaluation of an_ onsite emergency response plan.
NUREG-0654/ FEMA-REP-1, Rev.1, "11. Planning Standards and Evaluation Criteria," also indicates the applicability of the evaluation criteria for the planning standards to licensee, state and local emergency preparedness organizations.
Further, it is the NRC, not FEMA, that reviews the licensee's onsite plan. Staff guidance in IP 82302 concerning the scope of onsite exercises is appropriate for determining those elements of an onsite plan that must be exercised in order to comply with the requirement for annual onsito energency plan exercises, whether those exercises are held before or after the issuance of a full-power license.
Moreover, Commission regulations only contemplate that an extensive, full participation exercise of a plan occur only once every two years.
Thus, in the off-years, the exercise need not be as extensive in scope. No basis exists for the claim that the onsite exercise was required to be a " full participation" exercise.
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4.
2.
The cited " deficiencies" are not material to a determination of whether the Seabrook onsite exercise was adequate in scope The Staff does not dispute that the standards estabitshed in 10 C.F.R. Il 50.47(b)(1) through (16) are applicable to the content of both onsite and offsite emergency plans.
Yet, such standards do not dictate which plan elements may be tested during an annual onsite exercise versus biennial exercises, separate drills or other testing.
An onsite exercise need not progress tuyond a site area emergency in order to demonstrate the capability for PAR decisionmaking.
Kantor l
l.
. Affidavit at 1 6; Fox Affidavit at 11 9-11.
This capability may be demonstrated by a licensee following its PAR decisionmaking procedure and discussing projected plant and weather conditions within its response l
organization and/or with representatives of state or local governments.
Fox Affidavit at 11 9-11.
l The public alert system (sirens or VANS system in the case of Seabrook) is an element of an offsite plan and is tested throughout the
. year.
Kantor Affidavit at 1 2.
Since onsite exercises need not progress to a general emergency in order to test a licensee's decisionmaking capability, there is no requirement that offsite PARS be issued or that the siren system be activated to accomplish public notification during the i
onsite exercise.
Kantor Affidavit at 11 2-4, 6;
Fox Affidavit at 11 10-11.
Even under Intervenors' " full participation" standard, such activatios, would not be rJquired since the 'ystem can only be A.Ctivated with the participation of state and local governments, including I
nonparticipating government authorities.
Kantor Affidavit at 1 2.
l o
Also, routine activities such as field monitoring and assessment need not be part of an onsite exercise, but may be demonstrated in a five-year period.
Fox' Affidavit at 1 12.
Similarly, onsite personnel monitoring and decontamination is a routine activity at nuclear power plants and use of off site facilities for this purpose need not be part of an onsite exercise. Fox Affidavit at 1 14; see IP 82302 at 2-3.
Review of offsite medical treatment facilities and local medicai support service agencies is also done during annual drills that are periodically evaluated by the NRC or FEMA, or during the biennial exercise, and is not required to be part of the annual onsite exercise.
Kantor Affidavit at 1 7.
Testing of medical support / services n n be effectively conducted apart from an exercise and, when included in an exercise, it is often performed as part of a " mini-scenario" that is not directly related to the principal exercise scenario. H.
A demonstration of an actual shift change is not material to the scope of an onsite exercise because the capability for 24-hour staffing is evaluated by the Staff during the routine core inspection program using i
IP 82701 and is not identified as a major element in IP 82302.
H.
at 1 8.
In sum, the purpose of the prelicensing onsite exercise is to ensure the prompt and adequate training of new licensee personnel and to maintain the response capability of other licensee ercergency response personnel.
52 Fed. Reg. at 16825.
The elements enumerated by the Intervenors in their contentions are not required to be tested and evaluated during an onsite exercise.
An exercise need not progress beyond an SAE in order to o
effectively test a licensee's PAR decisionmaking capability.
The other iteais Intervenors claim are essential to an onsite exercise, are covered by inspections, drills or testing on an annual basis (i.e., medical support / services, personnel and fiald monitor n,
shift staffing, VANS o
. system) and are evaluated by NRC or FEMA.
Performance problems related to these items are correctable by additional training or through equipment replacement or maintenance.
Fox Affidavit at 11 8, 13, 15. Consequently, such activities are not material to the scope of an onsite exercise as they are not required to be part of, and need not be denunt,trated in, an onsite exercise.
C.
Summary Disposition is Not Appropriate Assuming,'for the sake of argument, that 10 C.F.R. I 2.749 applies in' the instant proceeding. Intervenors are not entitled to the relief they seek.
The Comission's Rules of Practice provide that sumary disposition of any matter involved in a licensing proceeding shall be granted if the moving papers, together with the other papers filed in the proceeding, show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law.
10 C.F.R. 5 2.7491d).
The proponent.of a motion for sumary disposition has the burden of proof to establish the absence of a genuine issue of material fact.
Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant.
Units 1and2),ALAB-443,6NRC741,753-54(1977).
The record filings on sumary disposition are to oe viewed in the light most favorable to the opponents of the motion.
See Public Service Co. of New Hampshire
.*.e w.
-a ua
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y (Seabrook Station, Units 1 and 2), LBP-74-36, 7 AEC 877, 879 (1979), and cases cited therein.
Intervenors argue they are entitled to summary disposition because there is no genuine issue as to the material facts filed with their motion.
SD Motien at 1-2.
As the attached affidavits of Falk Kantor and Edwin Fox, Jr. demonstrate, the metters identified are not material to the scope of an onsite exercise and the moving papers fail to show the absence of disputed facts.
- Thus, Intervenors are not entitled to sumary disposition.
Intervenors claim that the scope of the exercise did not require or include a demonstration of the capability of Applicants' on;ite emergency i
personnel to actually formulate or communicate PARS to off tite officials.
Fact 11 (Material Facts at3).
- However, Inspection Report No. 50-443/89-10 (" Report") indicates that pc sible protective actions were discussed with offsite officials representing the New Hampshire Yankee Offsite Response Organization (NHYORO) and State of New Hampshire and Applicants considered projected weather n ndit'ons, plume projections, and worsening plant conditions.
Report et 7; Fox Affidavit at 119-11.
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Thus, Intervenors show no basis for the contention in the first instance.
The public notification system is related to offsite planning.
Kantor Affidavit at 12.
Because the issuance of offsite PARS is not required in an onsite exercise, the VANS system did not have to be l
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activated during the onsite exercise. M.at112-4.
Te. ting of the VANS l
system is conducted separately throughout the year.
H.
at i 2.
Moreover, FEMA found there was an adequate demonstration of the VANS system during the 1988 exercise; anu the Staff will verify the capability 1
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of the system before a full power operating license can be granted to Seabrook.
Kantor Affidavit at 14 Since the reliability of the VANS system for offsite planning can be confirmed by testing conducted apart from an onsite exercise, Intervenors have failed to meat thair burden that the inclusion of this item is meterial to an onsite exercise.
Similarly, Intervonors claim that the scope of the exercise did not require or include a demonstration of field monitoring or plume tracking.
F Fact 14 (Material - Facts at 3).
Here again the report of the exercise shows that (1) field monitoring team rMmbers were assembled and dispatched and (2) sample control and analysis were effectively demonstrated at the E0F.
Report at 8.
Once again, Intervenors show no basis for the contention in the first instance.
Intervenors further claim that the scope of the exercise did not include a demonstration by onsite response personnel of personnel monitoring and decontamination at offsite locations.
(Fact 15, Material L
Tacts at 4).
The exercise report states that personnel monitoring and a decontamination station were estabiished using effective procedures for l
contiol of eccess and egress.
Report at 8.
This was done at an offsite
\\
location, the EOF, as shown by the inspection report on which Interverors rely, and Applicants demonstrated the capability to establish a control L
point and monitor nersonnel offsite.
Fox Affidavit at f 14.
- Again, Intervenors show no basis for the contention let alone establish the material facts necessary for the grant of suninary disposition.
L In sum, the issues raised by Intervenors do not establish facts material to a finding that the onsite exercise was not a meaningful test y
4 y
.c
5
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of the or. site plan and do not establish a fundamental flaw would have been revealed had tl.e areas complain.!d of been tested.
CONCLUSION Intervenors' motion for summary disposition should be reje:ted.
The l
Board should only consider the pleading, if at all, in the context of a response to'.the objections of the other parties to the admission of the proffered onsite exercise contentions.
The instant pleading fails t'o r
demonstrate that the plan elements purportedly not exercised are either required to be exercised in the onsite exercise, or are major observable portions of the onsite plan.
Thus, Intervenors do not establish facts material to summary disposition.
Similarly, the motion fails to add eny material support to the earlier motions to admit contentions on the September 1989 exercise and must be denied.
Respectfully submitted,
.44V%
Mitz%A. Young Counsel for NRC Staff Dated at Rockville, Maryland this 8th day of November 1989
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