ML20056B220

Intervenor Emergency Motion to Reopen Record on Adequacy of Staffing of State of Nh Offsite Emergency Response Plan & for Immediate Shutdown.* Commission Should Reopen Record on Adequacy of Staffing

ML20056B220
Person / Time
Site:	Seabrook
Issue date:	08/07/1990
From:	Backus R, Curran D, Traficonte J BACKUS, MEYER & SOLOMON, HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE
To:	NRC COMMISSION (OCM)
Shared Package
ML20056B221	List: ML20056B220 ML20056B225
References
CON-#390-10708 ALAB-924, LBP-88-32, OL, NUDOCS 9008150223
Download: ML20056B220 (8)

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00CKETED e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .y -

l AUG - 71990 '

Before the Commission: DOCKEDNG&

Y SERVICE BAANCH Kenneth M. Carr, Chairman SECMRC 'j

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Thomas M. Roberts /b

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Kenneth C. Rogers d l James R. Curtiss l l

Forrest J. Remick  !

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

) 50-444-OL PUBLIC (1RVICE COMPANY )

OF NEW HAMPSHIRE, ET AL. ) l

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August 7, 1990 (Seabrook Station, Units 1 and 2) )

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INTERVENORS' EMERGENCY MOTION TO REOPEN THE RECORD ON THE ADEQUACY OF THE STAFFING OF THE NHRERP AND FOR IMMEDI ATE SHUTDOWN The New England Coalition on Nuclear Pollution ("NECNP"),

the Seacoast hiti-Pollution League ("SAPL") and the -

Massachusetts Attorney General (" Mass AG") (collectively, the "Intervonors") move the Commission to reopen the record on the State of New Hampshire's offsite emergency response plan

.("NHRERP"), specifically in regard to the adequacy of the staf fing supporting that plan pursuant to 10 CFR 50.47(b)(1),

(2), (3) and (10). In addition, based on the prima facie showing made out in this motion and the accompanying affidavit of Michael C. Sinclair that there are serious staffing inadequacies across the board in New Hampshire, the Inta venors move that'the Commission rescind its "immediate effectiveness" 900BibO223 9M ADOCK O MOO 443 b PDR PDR g G

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finding pursuant to 10 CFR 2.764(f). In short, the Intervenors {

move that the permission granted on March 1, 1990 to the  ;

Applicants to operate Seabrook Station at full power be l revoked.1/ l l

DISCUSSION  ;

Intervenors challenged the adequacy of the State of New Hampshire's staffing of the NHRERP. Their contentions in this l 1

regard were admitted and litigated before the Licensing Board.A/ LBP-88-32, 28 NRC 667, 678-691, 717-721. The Appeal Board affirmed these rulings in ALAB-924, 30 NRC 331, ,

s 1/ Intervenors do not reiterate their position concerning the "f.inality" of the NRC's licensing action at Seabrook.

Notwithstanding that Intervenors believe the " final curtain" has fallen in this proceeding as a result of their petition for judicial review filed after the Commission's March 1, 1990

. action, it is obvious that the Commission believes that the l last act has not ended. Thus, in the commission's view no

" final" licensing action has been taken. There are two consequences to.this view in these circumstances: 1) Seabrook is presently operating pursuant'only-to a nonfinal

" reasonableness" finding made pursuant to 2.764(f). Once the instant motion to reopen is granted, it will-no longer be  !

" reasonable" to permit operation pending the completion of these reopened hearings and the resolution of the staf fing issue. (Indeed, such a conclusion is inescapable in light of ,

the f act that a prima f acie case supportlag record-reopening i must set out sionificant safety issues.) 2) 10 CFR 2.206 is  !

not relevant to Intervenors' present ef forts to have the Commission revisit the NHRERP staffing issues since the Seabrook " proceeding" is not yet " final" according to the Commission's interpretation of its own regulations.

2/ For example, SAPL Contention 8 reads as follows:

The New Hampshire State and local plans fail to meet the requirements that there be adequate manpower and 24-hour I per day emergency response, including 24-hour per day manning- of communications links, as required by 10 CFR 5 50. 47 (a) (1) , 5 50. 4 7 (b) (1) , $50.47(b)(2), and NUREG-0654 II.A.1.e, II.A.4. andII.F.g.a.

363 n. 123 (November 7, 1989) and ALAB-9 32, slip opinion at 3-26 (May 31, 1990). Included among the staffing issues already litigated was the Intervenors' charge that there were inadequate personnel at the State level to carry out the protective action responses called for by the State's direct as well as compensatory responsibilities under the NHRERP. Egg LBP-88-32, 28 NRC 667 at 691. Indeed, the Licensing Board found as follows: 4 Notwithstanding Colburn's confidence that sufficient numbers of DHHS workers would be a','ailsble to respond to an emergency at Seabrook, the Board believes that SAPL's concerns regarding the availability of DHHS volunteers have merit. The Board finds that further efforts should be made 1 by state officials to develop a list of workers who, in l fact, nay reliably be called upon to staff the reception centers regardless of the time of day. The Board also notes that the FEMA witnesses indicated that call-list rostars for local personnel should be made available. FEMA ,

Dir., ff. Tr. 5091, at 80. The Board finds that similar J rosters should be prepared for the DHHS workers who are depended upcn for reception conter duty.

Id. at 719-720. Moreover, the Licensing Board established as a condition for the issuance of an operatina_11 cense 2 / that:

j (a) The Director of Nuclear Reactor Regulation, in l i

consultation with the Federal Emergency Management Agency, shall confirm that the State of New Hampshire has provided for FEMA. review satisfactory personnel rosters and call lists of compensatory plan and reception center emergency l workers, as discussed in 55.

Id. at 804. I 2/ Again, the Commission found the Licensing Board's rulings

" reasonable" and allowed a license to issue in March 1990 pending the completion of the assertedly not-yet-final adjudicatory proceeding. Thus, present operation is manifestly dependent on continuing compliance with the very licensing .

conditions established by the Licensing Board which this Commission " approved" in March 1990. ,

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The Intervenors' af fiant, Michael C. Sinclair, had responsibility for the creation of these personnel rosters.

Sinclair Aff't, 13. (Sinclair Aff't is attached as Exhibit 1.) As such, Sinclair is particularly knowledgeable about the i

j capacities of the State of New Hampshire in meeting and maintaining its staffing obligations. As the attached Sinclair af fidavit makes clear, sometime after March 1990 (the date this Commission allowed the license to issue) the State no longer  ;

had the staffing sufficient to implement the NHRERP. Indeed, I l

according to Sinclair, the Director of the New Hampshire Office of Emergency Management, George Iverson, believed by mid-July  ;

I 1990 that there was as much as a 20-25% staffing deficiency in the NHRERP across the board.

Sinclair Af f't,18. A/

These facts mandate that the record should be reopened on the adequacy of staffing the NHRERP. It appears that the State i of New Hampshire does not now have sufficient personnel to fully implement its plan in the event of an accident.

Sufficient personnel is an express licensing condition and on .

this ground alone the record should be reopened to conai. dor i

these developments.E/ Moreover, the standards for reopening

) &/ Attached as Exhibit 2 is a July 18, 1990 Memorandum from l- the Director of Public Health in New Hampshire which provides ,

independent verification that the staffing shortages alleged by i

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Sinclair exist.

5/ In the absence of such reopening the concerns expressed by Sinclair in his July 20, 1990 le'ter to Judge Ivan Smith

'(Exhibit A to Sinclair Aff't) will be a reality: ,

(footnote continued) -

i a record set out in 52.734(a) are met in this instance as follows:

(1) Timelinegg. Intervenors received a copy of Sinclair's letter to Judge Smith on July 30, 1990 by service on the Seabrook service list. They have acted within one week of ,

their knowledge that serious and persistent staffing .

ina+.qu.2:!:s now exi st.

(2) Safety Sianificance. A 20-25% across-the-board staffing shortage is a significant safety issue because in the event of an accident the NHRERP could not be implemented.-

Sinclair Aff't, 111. Indeed, trc significance of the issue is reflected by the fact that the Licensing Board made sufficient staffing a licensing condition, a ruling this Commission found

" reasonable".

Materially Different Result. Sinclair prepared the-(3) very personnel rosters required by the Licensing Board as a licensing condition. Based on facts and information available

.to him he now asserts that sufficient personnel no longer are available to meet the staffing. roster requirements.

Inescapably, a different result would have been likely had this (footnote continued)

My purpose in bringing this issue to your attention is that I believe it involves the int agrity of the licensing process . . . . As a witness in the proceedings, I the accepted, as the Board did, the assurances of FEMA, state and the applicant utility that the emergency response capability reflected in the plans would be constantly I am no longer confident that monitored and maintained. Obviously the system the commitment is being kept . . . . 1 is flawed when it allows a situation such as this to arise and go unaddressed.

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newly profferred evidence been considered initially. Indeed, l had the Commission been apprised of the fact I/ that just as it was approving the issuance of a full power license for j

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Seabrook Station, the State of New Hampshire's capacity to i staff its emergency plan was deteriorating markedly, it would have had no basis for finding the then existing adju.icatory record sufficient to support its " reasonableness" judgment ]

which undergirds current operation.

CONCLUSION This Commission should reopen the record on the adequacy of l NHRERP st af fing. Licensing conditions are not presently met.

FEMA and the NRC Staff obligationc to police these conditions have been ignored. Absent a public hearing, there is no basis _

for asserting that the NHRERP can be implemented. Present operation of Seabrook Station is based only on the

" reasonableness" of the underlying adjudicatory record as viewed by this Commission. In light of the marked g/ It is unclear who, aside f rom the Intervenors, would have apprised the Commission of these facts. As the Sinclair letter to Judge Gmith makes painfully obvious, his efforts to get FEMA involved in reviewing staffing issues was unsuccessful. As to

~the independent obligation resting upon the Director of Nuclear Reactor Regulation and the NRC Staff to police the express licensing condition set out by the Licensing Board in December 1988, it should no longer surprise the Commission that the NRC Staf f has no regard whatever for the adequacy of emergency planning at Seabrook. Indeed, the NRC Staff has had little or Egg, no regard for the facts or law at all in this proceeding.

gtg2, Intervonors' January 22, 1990 Brief to the Appeal Board in Support of their Appeal of LBP-89-38 at 23-24 n. 30 (setting forth partial record of Staff misrepresentations of fact and law). As the NRC's Inspector General's July 23, 1990 T rport on Staff misrepresentations concerning emergency planning at Pilgrim makes clear, the Staff's failure to keep the Commission correctly informed at- Seabrook is hardly unique. >

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l deterioration of NHRERP staffing coincident with this l Commission's " approval" of full power operation, serious and ,

fundamental doubts now exist as to the actual nature of the NRC's emergency planning regulations and the purpose and function of litigation on such issues. Only a public hearing on the record can adequately address these matters. Operation should be halted pending the outcome of such a hearing.

Respectfully submitted, ,

COMMONWEAITH OF MASSACHUSETTS NEW ENGLAND COALITION ON JAMES M. SHANNON NUCLEAR POWER ATTORNEY GENERAL

' Adf _ W h' _

Diane Curran, Esq. "

~~n Traficon(e Harmon, Curran, & Towsley lef, Nuclear Safety Unit Suite 430 ne Ashburton Place 2001 S Street, N.W. ' Boston, MA 02108 Washington, DC 20008 (617) 727-2200 SEACOAST ANTI-POLLUTION LEAGUE

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Robert Backus, Esq.

Backus, Meyer, & Solomon "

116 Lowell Street P.O. Box 516 Manchester, NH 03106 Dated: August 7, 1990

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