ML20059A987

NRC Staff Response to Intervenors Emergency Motion to Reopen Record on Adequacy of Staffing of New Hampshire Radiological Emergency Response Plan & for Immediate Shutdown.* Motion to Reopen & for Immediate Shutdown of Plant Should Be Denied

ML20059A987
Person / Time
Site:	Seabrook
Issue date:	08/22/1990
From:	Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC COMMISSION (OCM)
Shared Package
ML20059A990	List: ML20059A987 ML20059A998 ML20059B002
References
CON-#390-10758 ALAB-924, ALAB-932, OL, NUDOCS 9008270088
Download: ML20059A987 (10)

Text

j()$$Y s

• DOLKE1ED

• V5NitC UNITED STATES OF AMERICA ",

NUCLEAR REGULATORY COMMISSION  % AUG 22 P4 :37 BEFORE THE COMMISSION  %[Chh1hNG [bt II[

i31t AliC'i in the Matter of )

) Docket Nos. 54443 OL PUBLIC SERVICE COMPANY OF ) 54444 OL ,

NEW HAMPSHIRE,11 al. ) Off site Emergency Planning

)

(Seabrook Station, Units 1 and l,) )

NRC STAFFS RESPONSE TO INTERVENORS'

• EMERGENCY MOTION TO REOPEN THE RECORD ON THE ADEQUACY OF THE STAFFING OF t THE NHRERP AND FOR IMMEDIATE S)4UTDOWN" l

I Sherwin E. Turk Senior Supervisory l Trial Attorney 1 Dated at Rockville, Maryland

, this 22nd day of August,1990 I

4 I

9008270000 900822 PDR ADOCK 05000443 a O PDR cyl 4

1

l l

UNITED STAES OF AMERICA I NUCLEAR REGULATORY COMMISSION 1 1

BEFORE THE COMMISSION l

In the Matter of ) i'

) Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF ) 50-444 OL l NEW HAMPSHIRE,11 al. ) Off site Emergency Planning l

)  ;

(Scabrook Station, Units 1 and 2) )

NRC STAFFS RESPONSE TO INTERVENORS' -

" EMERGENCY MOTION TO REOPEN THE RECORD ON THE ADEQUACY OF THE STAFFING OF THE NHRERP AND FOR IMMEDIATE SHUTDOWN" l e

On August 7,1990, the Massachusetts Attorney General (Mass AG),

Seacoast Anti Pollution Ixague (SAPL) and New England Coalition on Nuclear  ;

Pollution (NECNP) (hereinafter referred to as "Intervenors") filed an " Emergency Motion" seeking (a) to reopen the closed record of this proceeding on the New ,

Hampshire Radiological Emergency Response Plan ("NHRERP"), with regard to the adequacy of New Hampshire's current NHRERP staffing levels, and (b) to obtain an immediate shutdown of the plant pending the conclusion of any such reopened proceeding.1 The NRC Staff files this response in opposition to t Intervenors' Motion. For the reasons set forth below and in the Affidavits of John C. Dolan and Richard W. Donovan, attached hereto, the Staff submits that

. Intervenors' Motion should be denied, t

2"Intervenors' Emergency Motion To Reopen the Record on the Adequacy of the Staffing of the NHRERP and for Immediate Shutdown" (" Motion"), filed August 7,1990.

P

- ---- - -, . - - - - - , ~ . . . .., - - , , , - , . .

1 2

Background

Litigation on the adequacy of the NHRERP proceeded before the IJcensing Board from 1986 until the issuance of the Board's Partial Initial Decision (PID) on December 30,1988; a considerable portion of that litigation concerned the adequacy of staffing for the NHRERP.2 On November 7,1989, the Appeal Board issued ALAB 924, in which it addressed certain portions of  ;

the PID not including personnel resource issues,8 and on May 31,1990, it issued  ;

ALAB 932, in which, inter alla, it affirmed the Licensing Board's findings on the adequacy of NHRERP personnel resources.' A1.AB 932 became final agency action on July 11, 1990.5

• See generally Public Senice Co. of New Hampshire (Scabrook Station, 1 Units 1 and 2), LBP 88 32, 28 NRC 667, 678 91 (1988); see also id., 28 NRC at 699 724.

'Public Sen' ice Co. of New Hampshire (Seabrook Station, Units 1 and2),  !

ALAB-924,30 NRC 331 (1989), Commission review postponed (Aug.1,1990).

'Public Senice Co. of New Hampshire (Seabrook Station, Units 1 and 2), l ALAB 932, 31 NRC 371, 380 90 (May 31,1990), Commission revier declined (July 12,1990). j In related developments, on November 9,1989, the Licensing P,oard issued its decision on all remaining (SPMC and exercise) emergency pit nning issues,  !

and authorized the issuance of an operating license. Public Sen> ice Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-89 32, 30 NRC 375 (1989).

On November 20, 1989, the Board issued LBP 89 33, explaining why an operating license may be issued pending completion of the remand proceeding.

This determination was upheld by the Commission in its immediate effectiveness decision. Public Sen> ice Co. of New Hampshire (Seabrook Station, Units 1

• and 2), CL190-03,31 NRC 219 (1990).

8 Inasmuch as final agency action has occurred with respect to the personnel resource issues litigated before the Licensing Board, issues raised previously in this; regard may not now be relitigated. See, e.g., Louisiana Power & Light Co.

(Waterford Steam Electric Station, Unit 3), ALAB 792, 20 NRC 1585,1588 89; ld., ALAB 753,18 NRC 1321,1329 30 and n.14 (1983). See also, Philadelphia (continued...)

3 1 On August 7,1990, Intervenors filed the instant Motion, asserting that

• there are serious staffing inadequacies across the board" with respect to the  !

staffing required to implement the NHRERP (Motion at 1). According to Intervenors, this staffing shortage developed after March 1990 and now i approximates 20 25% of the required staffing (/d. at 4). Intervenors base their  !

assertions upon statements contained in an affidavit prepared by Michael C.

Sinclair, a former emergency planning consultant to the State; and Mr. Sinclair's )

affidavit, in turn, relies upon various statements made to him by New Hampshire l

emergency planning personnel, the most notable of which is a purported '

statement made by George Iverson, Director of the New Hampshire Office of Emergency Management, concerning NHRERP staffing shortages experienced in ,

l mid July 1990 (/d.), 1 In addition to seeking to reopen the record on the adequacy of NHRERP staffing to consider these new assertions, the Intervenors claim that existing license conditions (requiring the State to prepare call rosters and personnel lists)

"are not presently met," and they contend that "[o]peration should be halted" pending the outcome of a hearing on these matters (/d. at 7).

DISCUSSION

A. The Motion to Reonen Should Be Denied.

Under the Commission's regulations, a motion to reopen may not be granted unless, inter alia, it satisfies each of the following criteria:

l 5(... continued) -

Electric Co. (Limerick Generating Station, Units 1 and 2), CLI 86 6,23 NRC 130 (1986); Id., ALAB 823,22 NRC 773 (1985).

e .-- _.

+4+ l n l (1) The motion must be timely, except that an l 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 environ.nental issue, t

(3) The motion must demonstrate that a materially different result would is er would have been likely had i the newly proffered evidence been ansidered initially, i 10 C.F.R. t 2.734(a).' Accord, Public Service Co. of New Hampshire (Seabrook i Station, Units 1 and 2), CLI 90-06, 31 NRC _ (slip op., June 8, 1990).

Examination of the instant Motion in accordance with these standards demonstrates that it should be denied.

First, Intervenors' motion to reopen lacks substantial basis, as is apparent upon a comparison of the affidavit filed by Mr. S!nclair with that filed by Gecrge L Iverson, Director of the New Hampshire Office of Emergency Management (NHOEM).7 While Mr. Sinclair may well have been familiar with NHRERP staffing levels while he was employed as an emergency planning consultant by the State of New Hampshire, he does not assert that NHRERP staffing levels were inadequate as of the Fall of 1989 (when he submitted

'In addition,10 C.F.R. 5 2.734(d) provides that if the new matter "rclates to a contention not previously in controversy among the parties," the motion must also satisfy the requirements for admission of late filed contentions, as set forth in 10 C.F.R. t 2.714(a)(1)(i)-(iv).

7 Mr. Iverson's affidavit, dated August 16, 1990 ("Iverson Aff't."), was submitted by the Applicants in support of their response to the instant Motion. I

" Licensees' Response to Intervenors' Emergency Motion To Reopen the Record l

, on the Adequacy of the Staffing of the NHRERP and for Immediate Shutdown" l

(" Applicants' Response"), : Led August 16, 1990. On August 21, 1990, the  ;

Applicants submitted a ferther affidavit prepared by Mr. Iverson, dated l August 21, 1990; this further affidavit provided certain corrections to his earlier affidavit but did not materially alter any of his prior statements and conclusions.

5 I

updated roster lists to FEMA), or prior to the date he ceased working for the State in November 1989 (Sinclair Afft. at2). Rather, Mr. Sinclair expresses concern over current staffing levels based, not upon personal knowledge, but i

upon conversations he had with various State employees following the  !

termination of his employment; and, in particular, he relies upon a conversation I he had with Mr. Iverson in July 1990 in which Mr. Iverson allegedly referred to a 20 25% shortage in staffing.

In contrast to these vague hearsay allegations, Mr. Iversons's affidavit sets forth in detail the efforts expended by the State, upon receipt of Mr. Sinclair's allegation, to verify the adequacy of current NHRERP staffing levels. Thus, following its receipt of these allegations, the State conducted a new study, in cooperation with the Applicants, in which they performed an updated personnel resources analysis for the NHRERP (lverson Afft. at2). Upon initial '

examination,22 positions needed to staff the NHRERP (two shifts) appeared to I

he vacant (/d.); this would have constituted a shortfall of approximately two percent (2%). (Id.). However, as planning efforts progressed and further assignments of personnel were made, the State determined that ohly 3 vacancies ,

existed among the 1263 positions needed to staff the NHRERP. (Id.). Further, the State examined each of the specific areas of deficiency cited by Mr. Sinclair, and found his allegations to be unfounded (Id. at 3 5); and Mr. Iverson avers that shortfalls in staffing "have been or are being filled in an orderly and efficient manner as part of the ongoing resource maintenance program" (Id. at 5). Finally, 'Mr. Iverson disputed Mr. Sinclair's interpretation of the statement attributed to him concerning staffing shortages in mid July 1990 -- and set forth

his opinion that " adequate staff is available to implement the NHRERP in the event of a radiological emergency at Seabrook" (Id. at 6).

The affidavit of George Iverson, together with the State's recent verification of NHRERP staffing adequacy, is sufficient, standing alone, to refute the vague hearsay allegations contained in Mr. Sinclair's affidavit. While Mr. Sinclair may o

have had personal knowledge of New Hampshire's staffing levels while he was employed as a consultant by the State, the instant allegations derive t.olely from statements purportedly made to him after his work for the State had terminated, when he lacked any means of obtaining personal knowledge to ascertain the accuracy of these statements. Similarly, Mr. Sinclair had no personal knowledge-of the purported 20 25% staffing shortage alleged in his affidavit, and in this e regard relied entirely upon a statement purportedly made to him by Mr. Iverson; that reliance cannot be sustained in the face of Mr. Iverson's disputation of that account and the State's newly conducted survey of current NHRERP staffing  ;

which verified the adequacy of the State's emergency response staffing levels.8 Moreover, the Federal Emergency Management Agency (FEMA) has undertaken to verify the continued acceptability of NHRERP staffing levels, and >

has concluded that NHRERP staffing levels are adequate. As set forth in the Affidavit of John C. Dolan, attached hereto, on August 16,1990, FEMA  ;

'It is beyond dispute that the Commission or presiding officer may consider any information submitted in response to any motion to reopen, in determining whether to grant or deny that motion. See, e.g., Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB 138, 6 AEC 520, 523 (1973); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),

LBP 89-4, 29 NRC 62, 73, affd on other grounds, ALAB 918, 29 NRC 473 (1989); Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), LBP 83 41,18 NRC 104,109 (1983).

I l

1 7  !

conducted a review of NHRERP staffing rosters and discussed with the New Hampshire Office of Emergency Management the procedures used to update l i

those rosters. FEMA concluded that as of that date, "there were only three j vacancies among the 1263 positions needed to staff the NHRERP in the Plume Emergency Planning Zone" (Dolan Afft. at2). FEMA prepared a report i

describing its efforts in this regard (a copy of which is attached to Mr. Dolan's l .

affidavit), in which FEMA concluded that " staffing is adequate for i irnplementation of the NHRERP for Seabrook" (/d.).

Finally, Richard W. Donovan, former chairman of FEMA's interagency Regional Assistance Committee for Seabrook Station, has prepared an affidavit 1 (a copy of which is attached hereto), describing his knowledge of Mr. Sinclair's allegations concerning a hiring freeze and personnel cutbacks by the State. As set forth in his affidavit, Mr. Donovan raised these matters with the New Hampshire Office of Emergency Management, and, inter alia, was assured that the freeze was affecting only planning positions (as distinct from emergency response positions); that the freeze did not affect New Hampshire's ability to staff the NHRERP; and that the freeze was expected to be removed within the next two months (Donovan Afft. at 3). Further, Mr. Donovan states that he compared the State's Annual Letter of Certification (and its report on staffing and training levels), submitted on January 31,1990, with his records and a report

. ' submitted to him in Fall,1989. Mr. Donovan concluded that the State's January report " clearly indicated that adequate staff had been designated and trained for their assignments in the NHRERP (/d.). Further, Mr. Donovan concluded, based on his interviews with NHOEM staff and reviews of their records, "that i

, . - . . . ... ., . - - ~ . _ _ _ _ _ _ _______.___.______.m_

t 8 l the small number of vacancies which existed at that time did not affect the i State's ability to staff and implement the NHRERP" (/d.). l Based on the foregoing, it is clear that the Intervenors' Motion falls to i l

raise a "significant safety issue", and further fails to demonstrate that "a materially different result would be or would have been likely had the newly l proffered evit. heen considered initially," as required by 10 C.F.R. I 2.734(a). 1 Accordingly, the mouon to reopen to . consider purported deficiencies in NHRERP staffing should be denied? i B. The Reauest for immediate Shutdown Should Be Denied.

As set forth above, Intervenors' mstion to reopen lacks substanco and fails to disclose the existence of a significant safety issue. For this reason, alone, i insufficient cause has been shown to exist to warrant a shutdown of the plant.

Moreover, the Commission's regulations clearly indicate that deficiencies in emergency planning may be corrected within a four. month period following their -

discovery, without first requiring a shutdov n of the plant. 10 C.F.R.

I 50.54(s)(2)(li). Accordingly, Intervenors' request for an Order compelling an -

t immediate shutdown of the plant should be denied. ,

in note 6 of their Motion, the Intervenors renew their previous assertions that the NRC Staff has somehow failed to perform its responsibilities in -

connection with the licensing of Seabrook. There is no basis for any such

. ' assertion, particularly with respect to the propriety of the Staffs conduct in its prompt transmittal of Mr. Sinclair's allegations to FEMA for investigation nnd ultimate resolution. As to Intervenors' attacks 'on opposing counsel, see Nonhem >

Indiana Public Senice Co. (Bailly Generating Station, Nuclear-1), ALAB-204, 7 AEC 835, 838 (1974).

[ l,

-4 9-  ;

t CONCLUSION  !

L ,

For the reasons set forth above, Intervenors' motion to reopen and for an immediate shutdown of the plant should be denied.

Respectfully submitted, b k i Sherwin E. Turk Senior Supervisory Trial Attorney  ;

i Dated at Rockville, Maryland this 22nd day of August,1990  ;

e I

l t

t 4

i 1

t t

i e-

-- - -