ML20065T953
| ML20065T953 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 12/10/1990 |
| From: | Backus R, Curran D, Greer L, Mceachern P BACKUS, MEYER & SOLOMON, HAMPTON, NH, HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE, SHAINES & MCEACHERN |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#490-11180 ALAB-941, OL, NUDOCS 9012310242 | |
| Download: ML20065T953 (13) | |
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'oD 0~" 11 P 5 :20 UNITED STATES OF AMERICA NUCLEAR REGUIATORY COMMISSION Before the Commission:
Kenneth M. Carr, Chairman Thomas M. Roberts Kenneth C. Rogers James R.
Curtiss Forrest J. Remick
)
In the Matter of
)
Docket Nos. 50-443-OL
)
50-444-OL PUBLIC SERVICE COMPANY
)
OF NEW HAMPSHIRE, EI M.
)
)
(Seabrook Station, Units 1 and 2)
)
December 10, 1990
)
INTERVENORS PETITION FOR REVIEW OF ALAB-941 The Decision Below In ALAB-941,M the Appeal Board ruled on the scope contentions that were filed by the Intervenors, the Massachusetts Attorney General
(" Mass AG"), the Seacoast Anti-Pollution League. ("SAPLn ),
the Town of Hampton ("TOH") and the New England Coalition on Nuclear Po.llution ("NECNP"), in connection with the June 1988 exercise.
The Appeal Board upheld the Licensing Board's disposition of various scope contentions, although not always on the same grounds as V
Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2, ALAB-941,.
NRC
, November 21, 1990),
hereaf ter cited as ALAB-941 and to the slip opinion.
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- o relied upon by the Licensing Board.
The Appeal Board affirmed the Licensing Board's rejection of the scopo portion of SAPL Contention EX-12 on the ground that activation of two of the four Massachusetts reception centers was sufficient to verify the ability to respond in an accident.A/
The Appeal Board also upheld the Licensing Board's threshold rejection of Basis P of Mass AG Contention EX-2.
However, the Appeal Board affirmed the rejection not on the grounds cited by the Licensing Board that American Red Cross
(" ARC")
non-participation precluded testing of congregate care facilities under the Seabrook Plan for Massachusetts Communities (SPMC), but rather on the ground that there t need to test the ARC response since that is a role tr
.4 ARC has traditionally fulfilled.2/
The Appeal Board reversed the Licensing Board's d aposition of Bases (a) and (b) of TOH/NECNP Contention EX-1 as those bases pertained to school administrators.
The Appeal Board held that the failure to elicit sufficient school participation in.the June 1988 exerciso should be corrected in a subsequent exercise, but provided no other remedy far the deficiency in that exercise.d/
2/
ALAB-9 41 at 18-19.
J/
Id. at 15-16.
A/
Id. at 24-26.
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For the raasons provided below the Appeal Beard's affirmance of the Licensing Board's rulings on SAPL Contention EX-12 and Mass AG Contention EX-2 are erroneous.
Furthernore, the limited remedy provided by the Board upon its reversal of the Licensing Board's findings on TOH/NECNP Contention EX-12 constitute error.
The Intervenors, Mass AG, SAPL, TOH, and NECNP all joined in the briefs filed by other intervening parties with the Appeal Board, and now jointly seek review of the Appeal Boaro's erroneous rulinge in ALAB-941.
Where The Matters Were Raised Below All matters were raised-by the parties in briefs below or-by the Appeal Board gun sconte.
Why The Rulinas Were Erroneous 4
I.
The Acceal Board's rulino on SAPL Contention EX-12.
The Appeal Board dealt with the scope portions of SAPL Contention EX-12 in a totally cavalier and trivial manner.
Had the Appeal Board paid the slightest attention to the Brief-filed by SAPL on this issue or glanced at the provisions of the offsite emergency plans as they pertain to reception centers, the Appeal. Board would have quickly realized that the f
contention dealt not. With the reception centers under the SPMC but rather with the reception centers under the New Hampshire Radiological Emergency Response Plan (NHRERP).
Even a cursory reading of the1SPMC'and.the NHRERP would have revealed to the Appeal Board that there are only two reception centers under the Massachusetts plan and the-four reception centers 3
g-i l
l referenced in contention EX-12 are under the New Hampshire plan.
In the Appeal Board's haste to rubber stamp the ruling of the Licensing Board, the Appeal Board completely ignored both the provisions of the emergency plans and the arguments 1
made by SAPL on the issue.
In upholding the Licensing Board, the Appeal Board ignored the standard set forth in 10 CFR part 50, App. E.
IV.F.1. as to what constitutes a full participation exercise.
That standard calls for testing as much of an emergency plan as is reasonably achievable without mandatory public participation.
It is unquestionable that the testing of reception centers in Rochester.and Manchester, New Hampshire was achievable without public participation.-
The Appeal Board did not even attempt to controvert the truth of that proposition.
Rather, the Appeal. Board attempted to circumvent the_ plain
]
language of the standard in that regulation by instead relying
-on language in a footnote to construct its own standard for what constitutes _a-full participation-in an exercise.
The Appeal Board referenced language in Footnote 4 of that regulation and held that a Licensing Board can use its own-judgment as to what constitutes sufficient numbers of personne.
and. resources in deciding whether the mandate of full participation has been met.E/
This ruling ignores the explicit _ language of the regulation as to what constitutes full-participation, and undermines the objective standard in IV Id.'at 18.
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- s I
[E the regulation by making it into a subjective judgment as to what is " sufficient".
In this instance, the Appeal Board held that 50% participation was sufficient to amount to full participation.
Under the subjective standard adopted by the Appeal Board there is no reason why in the future a Licensing Boatd could not conclude that 25% participation, or 10%
participation or 54 participation amounted to full participation.
The Appeal Board's adoption of this subjective standard completely undermines the plain language of the regulation itself as well as the ostensible purpose of the regulation.
II. The Aeoeal Board Erred In Reiectina Bases P of Mass AG Contention EX-2.
Although the Appeal Board apparently agreed with the Mass
~
AG's challenge to the Licensing Board's reasons for rejecting Basis F of Mass AG Contention EX-2,EI the Board still upheld the Licensing Board's exclusion of Basis F.
The Appeal Board reasoned that since it can be assumed that the. ARC will respond in'an emergency, and the role assigned to the ARC under the SPMC is one that it has traditionally fulfilled, there was no need to test the ARC's response.2/
Therefore, the Appeal Board upheld the rejection of the contention challenging the scope of an exercise on the basis of the failure to test the ARC's response at congregate care facilities.
The Appeal Board g/
ALAB-941 at 14 through 15.
2/
Id. at 15 through 16. ;
=)
^ 's attempted to buttress its position by stating that "in the absence of any specific information indicating that the organization lacks the ability to discharge its conventional and oft-fulfilled role,"I/ such a test is unnecessary.
The reasoning of the Appeal Board on this issue contains two flaws.
First, under the Appeal Board's logic in any situation where an emergency responder is cast in a role that he/she usually. fills, there is no need to test that emergency response role.
By following that logic there would be no need to deploy police in an exercise to traffic control positions since that-is a role that they'normally fill, nor would there be a need to test bus drivers, ambulance drivers, siren system operators, civil defense workers, or myriad other types of responding personnel.
Under the logic of the Appeal Board, it could be assumed that all emergency responders who normally have an emergency response role could fulfill their assigned tasks under an emergency plan, and therefore there would be no need to exercise their response capability.
Such logic eviscerates the requirement of holding a full participation exercise.
The second flaw in the ruling of the Appeal Board is that the Board appears to put the burden on an intervenor to make a showing that an emergency-responder will fail in an exercise to
[
get.a. scope contention admitted.
That logic is not only R/
Id. at-16.
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l
L untenable but inconsistant with the Appeal Boards own reasoning in ALAB-941 where it stated l
"of course, in no circumstance can a lack of appropriate scope in an exercise per se establish a fundamental flaw in the plan that is a subject of the exercise.
Rather, the result of an unduly limited exercise, in addition to non-compliance with the Commissions regulations requiring full participation, is an inability to determine whether the plan is, in fact essential respect."2/, fundamentally flawed in some Furthe rmore, in this case it is quite possible that a testing of ARC-response capabilities at the SPMC's congregate care facilities would have demonstrated flaws in the plan.
The I
ARC standards for large congregate care centers fix a maximum size of approximately 1,000 persons per congregate care t
center.
Mass Ex. 63, Tr. 18726.
Under the SPMC there are five congregate care centers in excess of that maximum limit including one that'is twice the maximum number and one that is four : times that number.
Tr. 18730.
Since the ARC is activated on a chapter basis, it is unclear whether the chapters that would be called upon to respond to those unusually congregate care centers would have the personnel'and resources to provide an adequate emergency response.
III._
The Failure To Test School ParticiDation in the NHRERP Comoels Revocation of a License.
Although the Appeal Board held that the potential evacuation of schools is a major. element of emergency planning 1S/ and the June 1988 exercise was so limited in its testing of New Hampshire schools that it is impossible to
_2/
Id. at 30.
l l
19/
Id. at 22.
i
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determine whether adecuate protective measures will be taken for school children.ithin the EP2, the Board did nothing more than order that the deficient school participation be corrected in a subsequent exercise.11/
Such a remedy is totally inadequate where there is an operating nuclear plant on line.
Since there has never been a single demonstration of the capability of the NHRERP to provide adequate protection to school children in the event of an emergency at Seabrook Station, the operating license should be revoked, or at least suspended.-
The regulations on this point are clear and
- uncompromisinti.
Under 10 CFR, Section 50.47 (a) (1), no Loperating license' for a nuclear plant may be issued unless there is a finding that there is reasonable assurance that I
adequate protective measures can and will be taken in the event
- of radiological emergency.
A key element in evaluating whether an emergency plan can and will be implemented is the testing of that plan in a full participation exercise prior to licensure.11/~ Under the holding of the Appeal Board in ALAB-941, there has'never been a sufficient test of the NHRERP's protective measures for school children.
Therefore, while there is a paper plan, there is no assurance that protective measures can be implemented for school children.
11/
Id.-at 26.
_ 11/
SfJit 10 CFR part 50, App E.
IV. F.
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In the absence of such assurance. the issuance of the Seabrook license was illegal under the NRC's own regulations.
Under such circumstances, the appropriate remedy is to revoke the license until the adequacy of protective measurec for sch children is established.
It is unacceptable to continue to operate the plant under circumstances when there is no assurance that protective measures can be implemented for school children in the event of an emergency.
As long as the plant continues to operate, the potential exists for an accident that would pose dire health risks to school children in the New Hampshire EPZ.
This situation is compounded by the fact the Appeal Board did not even order that a remedial exercise take place within a given time framework.
Instead, the Board only ordered that the deficiencies in the scope of the June 1988 exercise be corrected in a subsequent exercise.
The Appeal Board did not even require that the deficiencies be corrected in the next scheduled exercise.
To permit the continued operation of the Seabrook Plant under such circumstances flies in the face of the NRC's own regulations and any conscienced concern for the safety of school children.
CONCLUSIONS The above described errors of the Appeal Board in ALAB-941 merit review of that decision by the commission.
Therefore, the Commission should undertake a review of that decision, 1
g i
reverse the cited holdings of the Appeal Board and revoke, or i
2 at least suspend, the Seabrook operating license until there is l
a remedial exercise demonstrating that adequate protective l
-measures can and will be implemented for school children.
Respectively submitted s
Respectfully submitted, 1
NEW ENGLAND COALITION ON JAMES M. SRANNON NUCLEAR POWER ATTORNEY GENERAL J
litA L Yh l
l.an Diane Curran, Es4(.
Leslie Greer Harmon, Curran & Towsley Assistant Attorney General Suite 430
.N.W.
One Ashburton Place Nuclear Safety Unit 2001 S Street, Washington, DC 20008 Boston, Massachusetts 02108 617-727-2200 SEACOAST ANTI-POLLUTION TOWN OF HAMPTON LEAGUE kkd a us k~l~bh Y
$l h Yk Robert B'ackus, Esg.
Paul McEachern, Escj(
Backus, Meyer & Solomon Shaines & McEachern 116 Lowell. Street 25 Maplewood Avenue P.O. Box 516 P.O. Bcx 360 Manchester,-NH 03106 Portsmot.th, NH 03801 Date December 10, 1990 1061n.. -
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T UNITED STATES OF AMERICA NW H D l'
NUCLEAR REGULATORY COMMISSION Before the Commission:
'90 DEC 11 PS :20 F
Kenneth M. Carr, Chairman Thomas M. Roberts
? c i." M D W<
Kenneth C. Rogers
"*I l.% ? ' W I-James R. Curtiss Forrest J.
Remick a
)
In the Matter of
)
Docket Nos. 50-443-OL
)
50-444-OL PUBLIC SERVICE COMPANY
)
)
)
(Seabrook Station, Units 1 and 2)
)
December 10, 1990
)
CERTIFICATE OF SERVICE I, Leslie Greer, hereby certify that on December 10, 1990, I made service of the within "INTERVENORS' PETITION FOR REVIEW OF ALAB-941" by Federal Express as.1:.dicated by (*) and by first class mail to the following parties:-
Ivan W. Smith, Chairman:
Kenneth A. McCollom
~ Atomic Safety & Licensing Board 1107 W.
Knapp St.
U.S.
Nuclear Regulatory Commission Stillwater, OK 74075 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Dr.-Richard F. Cole Robert R. Pierce, Esq.
-Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission
. East West Towers Building East West Towers Building 4350 East West Highway _
4350 East West Highway Bethesda, MD. 20814 Bethesda, MD 20814
-
- Docketing and Service Thomas G. Dignan, Jr.U U.S. Nuclear Regulatory Commission Ropes & Gray Washington, DC 20555 One International Place Boston, MA 02110 V -Hand delivery was also made on December lith by 10:00am.
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- Marjorie Nordlinger, Esq.
Paul McEachern, Esq.
i U.S. Nuclear Regulatory Commission -Shaines & McEachern E
Office of the General Counsel 25 Maplewood Avenue j
11555 Rockville Pike, 15th Floor P.O.
Box 360 Rockville, MD 20852 Portsmouth, NH 03801 H. Joseph Flynn, Esq.
Atomic Safety & Licensing
[
Assistant General Counsel Appeal Board Office of General = Counsel U.S. Nuclear Regulatory Commission 4
Federal Emergency Management Washington, DC 20555 s
[
Agency 500 C Street, S.W.
3 Washington, DC 20472 i
Robert A. Backus, Esq.
Atomic Safety & Licensing Board i
Backus, Heyer & Solomon U.S. Nuclear Regulatory commission 116 Lowell Street Washington, DC 20555 P.O.
Box 516 f
Manchester, NH -03106 Jane Doughty Diano Curran, Esq.
).
Seacoast Anti-Pollution League Harmon, Curran & Towsley Five Market Street Suite 430 Portsmouth, NH 03801 2001 S Street, N.W.-
Washington, DC 20008 Barbara St. Andre, Esq.
Judith Mizner, Esq.
Kopelman & Paige, P.C.
79 State Street
- 77. Franklin Street Second Floor Boston, MA 02110 Newburyport, MA 01950 r
Charles P. Graham, Esq.
R. Scott Hill-Whilton, Esq.
Murphy &_ Graham Lagoulis, Hill-Whilton & Rotondi 33 Low Street
-79 State Street
[
Newburyport, MA 01950 Newburyport, MA 01950 Ashod N. Amirlan, Esq.
Senator Gordon J. Humphrey 145 South-Main Street U.S. Senate P.O. Box 38 Washington, DC 20510 Bradford, MA. 01835 (Attn Tom Burack)
Senator Gordon J. Humphrey-John-P. Arnold, Attorney _ General one Eagle-Square, Suite 507 office of the Attorney General Concord, NH 03301 25 Capitol Street (Attnt. Herb Boynton)
Concord, NH 03301 Phillip Ahrens,.Esq._
William S.
Lord Assistant Attorney General Board of Selectmen Department of the Attorney General Town-Hall - Friend Street Augusta, ME 04333 Amesbury, MA 01913 -..
-..,, + _
o-h G.
Paul Bo11werk, III, Chairman Alan S.
Rosenthal Atomic Safety & Licensing Atomic Safety & Licensing i
Appeal Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 Howard A. Wilber
- Konneth M.
Carr Atomic Safety & Licensing Chairman Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 11555 Rockville Pike East West Towers Building Rockville, MD 20852 4350 East West Highway Bethesda, MD 20814
- Thomas M. Roberts, commissioner
- Kenneth C.
Rogers, Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852 Rockville, MD 20852
- James R.
Curtiss, Commissioner Jack Dolan U.S. Nuclear Reguaatory Commission rederal Emergency Management Agency 11555 Rockvil30 Pike Region 1 Rockville, MD 20852 J.W. McCormack Post Office &
Courthouse Building, Room 442 Boston, MA 02109 George Iverson, Director
- Edwin Reis, Esquire N.H. Office of Emergency Management U.S. Nuclear Regulatory Commission State House Office Park South Office of General Counsel 107 Pleasant Street 11555 Rockville Pike 15th Floor Concord, NH 03301 Rockville, MD 20852
- Forrest J.
Remick U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, MD 20052 Respectfully submitted, JAMES M. SHANNON ATTORNEY GENERAL
'n Leslie Greer Assistant Attorney General Department of the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200 Dated: -December 10, 1990
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