ML20059A946
| ML20059A946 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 08/20/1990 |
| From: | Tompkins B NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#390-10748 ALAB-936, LBP-90-01, LBP-90-1, OL, NUDOCS 9008240174 | |
| Download: ML20059A946 (16) | |
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05NRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION % ALE 20 Pl2 33 ATOMIC SAFETY AND LICENSING APPEAL BOARD
,fnct 3 IECREit,iiY Administrative Judgest iOCMEi f tjrg invict G. Paul Bollwerk, III, Chairman August 20, 1990 Alan S. Rosenthal (ALAB-936)
Howard A. Wilber MMD AU6 201990
)
In the Matter of )
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PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL NEW RAMPSHIRE, at al. ) 50-444-OL
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(Seabrook Station, Units 1 ) (Offsite Emergency and 2) ) Planning Issues)
)
Igslie B. Greer, Boston, Massachusetts, Robert A.
Backus, Manchester, New Hampshire, and Diane curran, Washington, D.C., for the intervenors, Attorney General of Massachusetts, Seacoast Anti-Pollution League, and New England coalition on Nuclear Pollution.
Thomas G. Dianan. Jr., Georae H. Lewald, Jeffrey P.
Trout, and Jay Bradford Smith, Boston, Massachusetts, for the applicants,.Public '
Service Company of New Hampshire, at al.
Lisa B. Clark for the Nuclear Regulatory Commission staff.
DECISION 1
Before us in this operating license proceeding involving the Seabrook nuclear power facility is a joint appeal by intervenors Massachusetts Attorney General, Seacoast Anti-Pollution League, and New England Coalition on Nuclear Pollution from LBP-90-1.1 In that decision, the Licensing Board denied the intervenors' November 9, 1989 i
31 NRC 19 (1990).
9008240174 900820 PDR ADOCK 05000443 Q PDR
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motion (as supplemented on November 22) to reopen the record 1 to admit a new contention addressed to the adequacy of one l
aspect of the facility's emergency response planning. ]
Under the Commission's Rules of Practice, a motion to l-reopen a closed record to consider additional evidence may ;
l not be granted unless, among otrier things, it satisfies each
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of the following criteria: )
(1) The motion must be timely, except that an exceptionally grave issue ;
may be considered in the discretion of '
the presiding officer even if untimely presented.
(2) The motion must address a significant safety or environmental l issue.
(3) The motion must demonstrate l that a materially different result would '
l be or would have been likely had the newlyprofferedevidencebeenconsidered .
initially )
In this instance, the Licensing Board rested its denial of 1
the motion on its finding that none of these criteria had l been met. Being persuaded that, at the very least, the l intervenors failed to establish the safety significance of l
l the new issue they seek to present, we affirm the denial.
A.1. The controversy at bar is rooted in the commission's regulations requiring emergency response plans for nuclear power reactors to " provide early notification 2
10 C.F.R. 5 2.734(a). Subsection (d) provides that, if (as here) it "Lalates to a contention not previcusly in controversy among the parties," the motion must also satisfy the requirements for the admission of untimely contentions set forth in 10 C.F.R. 5 2.714 (a) (1) (i)-(v) .
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and clear instruction to the populace within the plume exposure pathway Emergency Planning Zone ((EPZ))."3 4 Accordingly, applicants for a full-power license are expected to " establish a system for disseminating to the public appropriate information . . . including the i appropriate notification to appropriate broadcast media, i e.g., the Emergency Broadcast System (EBS)."' With respect to the time-in which such notification should occur, the gaverning regulation states that "[t]he design objective of j i
(this) system shall be to have the capability to essentially j l
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3 10 C.F.R. 5 50.47 (b) (5) . See also 10 C.F.R. Part 50, !
App. E., iHIV.D. The Commission and the Federal Emergency j Management Agency (FEMA) jointly issued guidance for '
fulfilling the Commission's emergency planning requirements. l Egg NUREG-0654/ FEMA-REP-1 (Rev. 1), " Criteria for l Preparation and Evaluation of Radiological Emergency l Response Plans and Preparedness in Support of Nuclear Power '
Plants" (Nov. IPAO) (hereinafter NUREG-0654). NRC and FEMA also developed a supplement to NUREG-0654 covering those i situations in which state and/or local governments do not participate in emergency planning. NUREG-0654/ FEMA-REP-1 (Rev. 1, Supp. 1), " Criteria For Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in l Support of Nuclear Power Plants: Criteria for Utility offsite Planning and Preparedness (Final Report)" (Sept.
1988) (hereinafter NUREG-0654, Supp. 1) Both NUREG-0654 and its supplement carry over the terms concerning notification to the public that are found in 10 C.F.R. I 50.47 (b) (5) . ,
Egg NUREG-0654, Criterion II.E. at 43; NUREG-0654, Supp. 1, Criterion II.E. at 11.
NUREG-0654, Supp. 1, Criterion II.E.3. Because the Commonwealth of Massachusetts is not participating in emergency planning, we refer to the supplement to NUREG-0654, rather than to the original document, where appropriate. See, e.a., LBP-89-32, 30 NRC 375, 381 (1989),
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4 complete the initial notification of the public within the
. . . EPZ within about 15 minutes."5 As thus seen, resort to an EBS is one recognized method of providing appropriate public notification. Customarily, ,
an EBS is a network of radio and television stations voluntarily organized, in accordance with and subject to the i regulations of the Federal Communications Commission, to broadcast emergency messages to the public in the event of !
an emorgency.' The Commonwealth of Massachusetts has such a network in place.7 In the event of a radiological emergency at Seabrook, it can be activated through direct communication from the Governor of Massachusetts, the Massachusetts-civil Defense Agency, or other designated state offic.'als to the " originating primary relay" station, WROR-FM in Beston. That station would be responsible for passing the messages on to the various area Common Program Control (CPC) stations, each of which, in turn, would >
5 10 C.F.R. Part 50, App. E, 5 IV.D.3. See also NUREG-0654, which states that the " minimum acceptable design objectives for coverage by the system (include the c)apability for providing both an alert signal and an informational or instructional message to the population on an area wide basis throughout the 10 mile EPZ, within 15 minutes." NUREG-0654, App. 3, at 3-3.
' Egg 47 C.F.R. 55 73.901 .962.
Egg Intervenors' Motion to Admit a Late Filed Contention and Reopen the Record on the SPMC Based Upon the Withdrawal of the Massachusetts E.B.S. Network and WCGY (Nov. 9, 1989), Attach. D, Exh. 1, at 2, 4-5, App. 1, at 1-l 2 (Massachusetts (EBS) Operational Plan (Rev. May 1988))
(hereinaf ter Intervenors' Reepening Motion) .
5 undertake to disseminate the messages to al's participating radio stations within its area. Alternatively, the official (s) activating the EBS might communicate directly with WCGY, the particular CPC station (located in Lawrence, Massachusetts) to which the local radio stations providing broadcast signal coverage in the Massachusetts portion of the EPZ are tuned.8 Quite apart from the general obligations it assumed when it became a participant in the Massachusetts statewide EBS, WCGY entered into an independent agreement with the ,
applicants. That agreement was reflected in a September 14, 1987 letter signed by an official of the lead applicant,and the WCGY station manager. In essence, WCGY assumed the responsibility of activating the state EBS for the Massachusetts portion of the Seabrook EPZ, should it be requested to do so by the applicants' offsite Response Director assigned to carry out the Seabrook Plan for Massachusetts Communities (SPMC) -- the emergency response ;
plan devised by the applicants in the absence of a Commonwealth-sponsored plan.'
s Egg id., Attach. D (Affidavit of Robert Boulay Regarding Voiding of the EBS Letters of Agreement (Nov. 9, 1989)); id., Attach. D, Exh. 1, at 2-4, 6, App. 1, at 1-1,-
6 (Massachusetts (EBS) Operational Plan).
' Egg id., Attach. F, Exh. A (Sept. 14, 1987 Letter of Agreement between Radio Station WCGY and New Hampshire Yankee's Offsite Response Organization). This document is also an attachment to Exhibit III of Applicants' Answer to Intervenors' Motion to Admit a Late-Filed Contention and (continued...)
6 Prior to this agreement with WCGY, the applicants entered into a separate compact with two " sister stations":
WLYT-FM and WHAV-AM, located in Haverhill, Massachusetts.
In an August 12, 1987 letter to an official of the lead applicant, those stations committed themselves "to provide emergency information to the general public in the event of an emergency condition at the Seabrook Station." To this end, the staticns proposed to develop an " emergency communication link (with the applicants' emergency response organization) so that in the event of any emergency (the .
stations) can confirm (the) accuracy of information and minimite the time necessary to alert the public to the 1 circumstances at issue.""
- 2. The development that triggered the reopening motion at bar was an October 20, 1989 letter from the WCGY station manager to an official of the lead applicant, repudiating i the September 14, 1987 Letter of Agreement on the ground that the applicants had failed to supply certain equipment
'(... continued)
Reopen the Record Based upon the Withdrawal of the Massachusetts E.B.S. Network and WCGY (Nov. 15, 1089)
[ hereinafter Applicants' Answer). In addition, the Letter of Agreement is found in Appendix C of the Seabrook Plan for ;
Massachusetts Communities (Rev. O, Amend. 6) at.C-66 to '
-67. The SPMC was admitted as Applicants' Exhibit 42.
" Applicants' Answer, Exh. I, Attach. B (Aug. 12, 1987 Letter from William A. Gould to Edward A. Brown). This letter is also found in Appendix C of the SPMC. Egg SPMC at C-64 to -65.
l 7 that allegedly had been promised." According to the motion, without the cooperation of WCGY, the applicants could not activate satisfactorily the Massachusetts EBS, I with the further consequence that they would be unable to provide adequate public notification of an emergency.
As noted above, the Licensing Board denied the motion on the ground that it met none of the specified reopening criteria. On the matter of lack of safety significance, the Board relied in part upon our Shoreham opinion of last l year," which the Licensing Board took to stand for the -
proposition that the existence of a state EBS is, in and of itself, enough to presume adequate coverage for notification purposes, regardless of the presence or absence of a formal agreement." In this connection, the Board pointed to the !
L intervenors ' acknowledgment that, even without the agreement l between WCGY and applicants, a direct communication from the l
" ERA Intervenors' Reopening Motion, Attach. F., Exh.
C (Oct. 20, 1989 Letter from John F. Bassett to B. Boyd, Jr. ) . This letter is also attached to Exhibit III of Applicants' Answer. Although of no present significance, the applicants dispute the accuracy of the allegation concerning the equipment. Egg Applicants' Answer at a.
" Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-911, 29 NRC 247 (1989). The fact that ALAB-911 was issued as an advisory opinion did not >
preclude the Licensing Board's reliance on its reasoning to the extent here applicable.
" Egg LBP-90-1, 31 NRC at 27-29.
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8 i Governor of Massachusetts or his or her delegate to either that station or WROR could activate the system." l B. Nothing presented to us by the intervenors suggests .)
I that the Licensing Board erred in concluding that the !
reopening motien fails to raise a significant safety issue. .
The nub of their appellate position is that, as a result of ;
t WCGY's repudiation of the Letter of Agreement, the state EBS will be unable to fulfill the regulatory design objective of completing the initial notification of the public in the EPZ "within about 15 minutes."" For a variety of reasons, that. 0
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assertion falls wide of the mark.
To begin with, the fact that WCGY no longer has a separate agreement with the applicants does not perforce I t mean that it will not carry out its assigned EBS role should it be called upon to do so in the event of a radiological l
emergency at Seabrook. On this score, we adhere to our view f in Shoreham: in a nutshell, we are prepared to assume, in the absence (as here) of comoellina contrarv evidence, that no participant in a state-established EBS network will refuse to discharge its communication function in a timely manner upon the occurrence of a genuine emergency requiring public notification -- whether that emergency arises at a i
nuclear power facility or elsewhere." Stated otherwise, we i
" Egg id. at 29 & n.40. I
" Egg gapja pp. 3-4.
" Egg ALAB-911, 29 NRC at 254-55.
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4 see a crucial difference between, on the one hand, WCGY's change of heart respecting its willingness to assume special functions at the applicants' behest and, on the other hand, that station's refusal to perform in time.of emergency a role that it accepted when it became a part of the overall state EBS network. In that connection, such a rofusal would ,
fly in the teeth of the directive of either the Governor or the other state official who would activate the network in his or her stead."
In these circumstances, as part of their endeavor to .
meet the reopening criteria, it was the intervenors' obligation to establish that the fifteen-minute design
" For the situation in which there is a nonpar-ticipating state or local government, ths Commission has
', established a "best efforts presumption." Specifically, it assumes that there will be "some 'best effort' State and County response in the event of'an accident . . . that . . .
would utilize (the utility's). plan as the best source for 9mergency planning information and options." Shoreham, CLI-L6-13, 24 NRC 22, 31 (1986). See also 10 C.F.R.
$ 50. 47 (c) (1) (iii) , which states that "the NRC will recognize the reality that in an actual emergency, state and local government officials will exercise their best efforts to protect tho' health and safety of the public." (This regulation was explicitly upheld in Massachusetts v. United States, 856-F.2d 378 (1st Cir. 1988)). Given this presumption, we cannot doubt that such a directive would be forthcoming from the Commonwealth in the event of an emergency.
For reasons r. kin to those applicable to WCGY, we are similarly confident that the directive of a state official would be honored by the entire state EBS. This is so notwithstanding the attempt by the EBS Co-Chairman to repudiate a special agreement that the EBS had entered into with the applicants allowing them to seek EBS activation in the event of a Seabrook emergency. Egg Intervenors' Reopening Motion, Attach. F, Exh. B (Oct. 13, 1989 Letter from Douglas J. Rowe to R. Boyd, Jr.).
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@ objective'could not be met if WCGY. received the public
. notification message from WROR or a state, official (as called-for by the state EBS plan), rather than directly from !
the applicants' Offsite Response Director (as contemplated by the no'w-vitiated letter of agreement) is This obligation clearly was not met. Even had it been, however, the intervenors' position would not be fmproved.
, ( There is no claim that stations WLYT and WHAV, with which the applicants continue to have an agreement, are 4
, 4ncapable of providing radio broadcast coverage throughout ,
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the Massac w m us portion of the EPZ. . Moreover, in the context of trair reopening motion, the intervenors at least implicitly concede that those stations could supply the messages in conformity with the fifteen-minute design objective. To be sure, as intervenors stress, the stations do not ordinarily enjoy a large audience. It is j not linportant, however, how extensive their established is The sponsors of a reopening motion have the burden of demonstrating'that the criteria for the grant of the ,
requested relief have been satisfied. E.gg Cleveland Electric Illuminatina Ch (Perry Nuclear Power Plant, Units 1 and 2), CLI-86-7, 23 NRC 233, 235 (1986), aff'd sub nom.
, Ohio v. HB.Q, 814 F.2d 258 (6th Cir. 1987); Louisiana Power &
Licht Co . .(Waterford Steam Electric Station, Unit 3), CLI-86-1, 23'NRC 1,' 5, aff'd sub-nom..Ovstershell Alliance v.
t -'HEQ, 800 F.2d 1201 (D.C.:Cir. 1986).
S,gs Intervenors.' Brief in Support of Their. Appeal of
~LBP-90-1 (Feb. 16, 1990) at 31 (hereinafter Intervenors' Brief). The question of timeliness of the applicants' emergency notification system for the Massachusetts portion of the EPZ is one we deal with directly in ALAB-935, 32 NRC
, issued this date.
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11 listenership might be. Rather, of crucial significance is whether measures have-been:taken to prompt persons within the EPZ to tune in those stations when elerted to the emergency (by sirens car otherwise) . To this end, the SPMC 0
[. requires that information on emergency procedures. including M" which stations will carry emergency informatio's, be prcvided to the public from sources such as calendars, fliers, and b g pamphlets.20 This information is to be updated to keep the
-2 public abreast of relevant changes in emergency
procedures.21 We have been given no cause to conclude that ,
these requirements either will not be met or will not serve their intended purpose.22 The short of the matter therefore is that the intervenors have simply failed in their reopening request to demonstrate that the repudiation of the WCGY letter of
_ agreement puts the accomplishment of-the regulatory objective of prompt public notification in substantial 4 r
20 SPMC at 3.7-1 to -4.
21 Egg SPMC 1 7.5.
22 In this regard, at oral argument applicants' counsel assured us that the existing informational materials were r updated to reflect the~ withdrawal of WCGY from the role it assumed under its special' agreement. App. Tr. 151-52.
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peril . 23 That being so, the reopening motion was correctly denied.24 l
4-LBP-90-1, 31 NRC 19 (1990), is affirmed.
It is so ORDERED.
FOR THE APPEAL BOARD w.(Barbara >-n A. Tompkins '
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Secretary to the Appeal Board 23 This conclusion is mandated whether or not the fifteen-minute design objective imposes a rigid requirement, a question we address in ALAB-935.
24 Given our conclusion on the lack of safety significance, manifestly the third reopening criterion (aga suora p. 2) is not satisfied. We need not and do not decide whether the motion to reopen was timely.
We can dispose summarily of intervenors' complaint (Intervenors' Brief at 6) that due process required that the
. Licensing Board address the EBS issue raised by their reopening motion before rendition of the Board's decision in LBP-89-32, 30 NRC 375, authorizing the issuance of a full-power operating license. Whether or notlsuch a due process right exists, our decision that the motion failed to satisfy the Commission's reopening criteria makes the asserted error on the Licensing Board's part harmless at most.
For.its part, intervenors' related allegations of Licensing Board bias ignore the settled principle that claims of that nature may not rest (as apparently does the claim here) merely upon disenchantment with prior Board rulings. See. e.a., Northern Indiana Public Service Co. .
(Bailly Generating Station, Nuclear-1), ALAB-224, 8 AEC 244, ;
246-48 (1974). See also, in the present proceeding, ALAB-
- 748, 18 NRC 1184 (1983); ALAB-749, 18 NRC 1195 (1983); ALAB-l- 751, 18 NRC 1313 (1983)). q l
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UNITED SVATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of ;
i PUBLIC SERVICE COMPANY OF NEW i Docket No.(s) 50-443/444-OL HAMPSHIRE, ET AL. I-(Seabrook Station, Units 1 and 2) :
I i
f CERTIFICATE OF SERVICE ;
i I hereby certify that copies of the foregoing AB DECISION (ALAB-936) - 8/20 have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
Administrative Judge Administrative Judge G. Paul Bollwerk. !!! thomas S. Moore, Chairman Atomic Safety and Licensing Appeal Atomic Safety and Licensing Appeal Boara Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory' Commission .
Washington, DC 20$55 Washington, DC 20555 Administrative Judge Administrative Judge Howard A. Wilber Alan S. Rosenthal Atomic Safety and Licensing Appeal Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Administrative Law Juage Administrative Judge Ivan W. Smith, Chairman Richard F. Cole Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S.' Nuclear Regulatory Commissten U.S. Nuclear Regulatory Commission !
Washington, DC 20555 Washington, DC 20555
- Robert R. Pierce, Esquire Administrative Judge Atomic Safety and Licensing Board Kenneth 4. McCollom U.S. Nuclear Regulatory Commission 1107 West Knapp Street Washington, DC 20555 Stillwater, OK 74075 Edwin J. Reisi Esq. Mitti A. Young i Office of the General Counsel Attorney U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, DC 20555 U.S. Nuclear Regulatory' Commission Washington, DC 20555 n
o- ,
. P Ocekst No.(s)50-443/444-0L A9:DECIS10N.(ALAB-936) -
B/20 '
Diane Curran, Esq. Thomas G. Dignan, Jr., Esq.
Ha r m on ~i Curren-6 Toutley Ropes 6 Gray 2001 S Street. N.W., Suite 430 One International Place Washington, DC 20009 Boston, MA 02110 Robert A. Backus, Esq. Paul McEacherni Esc.
Backus, Meyer & Solomon $haines & McEachern 116 Lowel. Street 25 Maplewood Avenue, P.O. Cox 360 -
Manchester, NH 03106 Portsmouth, NH 03801 Gary W. Holmes, Esc. Judith H. Mirner Esc.
Holmes 6 Ells Counsel for West Neweury 47 Winnacunnet Road 79 State Street Hampton, NH 03942 Newburyport, MA 01950 Barbara J. Saint Andre, Esq.
Suzanne P. Egan Counsel for Amesbury, Newburyport City Solicitor _ 6 Salisbury Lagounts, Hill-Wilton and Rotondi Kopelman and Paige, P.C.
79 State Street 101 Arch Strect Newburyport, MA 01950 Boston, MA 02116 Jane Doughty, Director Seacoast Anti-Pollution League Ashed N. Amirian, Esc. '
5 Market Street 145 South Main-Street, P.O. Box 38 Portsmouth, NH 03601 Bradford, MA 01830 George !verson, Director George W. Watson, fog.
N. H. Office of Emergency Management Federal Emergency Management Agency State House Office Park South 500 C Street, S.W.
107. Pleasant Street Washington, DC 20472 Concord,, NH 03301 Jack Dolan Beorge D. Bisbee, Eso. ,
Federal Energency Management Agency Assistant Attorney, General '
442 J.W. McCoranck (POCH) Office of the Attorney General Boston, MA 02109 25 Capitol Street Concord, NH 03301
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Docket No.(s)50-443/444-OL AB DECISION (ALAB-936) - 8/20 Paul A. Fritzsche, Esq. Suzanne Breiseth Office of the Public Advocate Board of Selectmen State House Station 112 Town of Hampton Falls Augustei.ME 04333 Drinkwater Road Hampton Falls, NH 03844 John Traficente, Esq. Peter J. Brann, Esq.
Chief, Nuclear Safety Unit Assistant Attorney Gene '
Office of the Attorney General Office of the Attorney Gen.
One Ashburton Place, 19th Floor State House Stationi #6 Boston, MA 02100 Augusta, ME 04333 Allen Lampert William Armstrong Civil Defense Director Civil Defense Director Town-of Brentwood Town of Exeter -
20 Franklin Street 10 Front Street Exeter, NH 03833 Exeter, NH 03033 Anne Goodman, Chairman Board of Selectmen Michael Santosuosso, Chairman 13-15 Newmarket Road Board of Selectmen Durham, NH .03B24 South Hampton, NH 03027 R. Scott . Hill-Whilton, Esq. Stanley W. Knowles, Chairman Lagoulis, Hill-Whilton & Rotondi' Board of Selectmen 79 State Street P.O. Box 710 Newburyport,i:MA 01950 North Hamptoni NH 03862 Norman C.-Katner Sandra F. Mitchell
. Superintendent of Schools Civil Defense Director School Administrative Unit No. 21 Town of Kensington Alumni. Drive Box 10,.RR1 Hampton, NH 03842 East Kingston, NH 03B27 L The Honorable Beverly Hollingworth Gordon J. Humphrey 209'Winnacunnet Road ATTN Janet Colt Hampton, NH 03042 United States Senate
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.j s , . Docket No.(sl50-443/444-0L
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AB DECIS10N'(ALAB-936) - 8/20 l 1
The' Honorable Michael C. $1nclair
,g Nicholas. Marvoules Graystone Emergency Management- -l ATTN htchael=Greenstein Associates j 70 Washington Street 13 Summer Street i t Sales.LMA 01970 Hillsboro, NH 03244
,: Dated at Rockville, Md. this l(( 20. day of August 1990 Offic of.the Secretary cf the Commission l
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