ML20133Q325

Reply Rebutting NRC & Applicant 851015 Responses to Proposed Emergency Planning Exercise Contentions.Certificate of Svc Encl

ML20133Q325
Person / Time
Site:	Harris
Issue date:	10/28/1985
From:	Eddleman W EDDLEMAN, W.
To:	Bright G, Carpenter J, Kelley J Atomic Safety and Licensing Board Panel
References
CON-#485-986 82-468-01-OL, 82-468-1-OL, OL, NUDOCS 8511010493
Download: ML20133Q325 (10)

Text

UNITED STATES OF AMERICA October.-28 M ,.

NUCLEAR BEGULATOBY COMMISSION 8, c'

]

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD' i OCT31'" " r l

Glenn O. Bright ' '

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l Dr. James H. Carpenter James L. Kelley, Chairman ,

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In the Matter of Docket- 50 400 OL CAROLINA POWER AND LIGHT CO. et al. )

(Shearon Harris Nuclear Power Plant' ASLBP No. 82-h68-01 Unit 1) )

) OL Wells Eddleman's Reply on Emergency Planning Exercise (EPX) contentions Ob 10-15-85 Staff and Applicants filed responses to the proposed EPX contentions. Per oral order of the Board, Wells Eddleman now replies to those resoonses, as follows:

The Staff position is illogical. They atate (Staff response, hereinaf ter " Staff", p.11) that I have not alleged that PEMA 's findings are incorrect. They then say for virtually every contention that PEMA (or NRC Staff) did not consider the cited problems major, or significant deficiencies. By assorting these cont entions , I an actually rebutting FEMA's clains and " findings" in 12 areas.

My basic noint is that the facts showing problems with training, notification, emergency broadcast, radiation monitoring , connunications, etc , rebut FEMA 's findings. It doesn't natter how the State or FEMA characterize them, whether they use certain "nagic words", because the ndequacy of the plan is a matter of law for the Board to decide.

The sane is true of what is a " fundamental flaw" (not that the court imposed such a standard: see below). The significance of the flaws rests en the facts, r.ot on FEMA's or the State 's characterization of then 8511010493 851028 PDR ADOCK 05000400 0 PDR D SOS

It is the facts about the problems that are relevant as basis for these contentions. The Staff (p.11) and Applicants (Response, herein-af ter " Applicants", p.12) misinterpret the Union of Concerned Scientists case (735 F 2d 1437, D.C. Circuit, 1984). The Court only said the Commission was free to adopt a "fundanentally flawed" requirement --

not that the Commission had adopted such as standard. Neither Staff nor Applicants appear to have cited anything showing the Comninsion has.

What the Court kIstinguished from " fundamentally flawed" however, i was " minor or ad hoc problems occurring on the exercise day".

(735 F2d at 1147-h8 as quoted in Applicants, p.12).

If Staff or Anplicants wish to apply this standard, they have to show the problems are minor or ad hoc. This they have not done.

Indeed, only as to EPX-11 does the Auplicants ' response even attennt to show a p=oblem was ad hoc (Anplicants at 27-28). There is no definition of what is a "ninor" problen, and apparently no detail on this in the UCS oninion (735 F2d 1h37, sunra). This is logical since the UCS challenged NRC's unwillingness to allow any litigation of emergency planning exercise problens, and the nain issue was whether NRC should be reversed (which it was), not the exact scono of contentions to be allowed.

However, it is clear that an emergency response is fundamentally flawed when a major part of it fails or has significant problems.

! EPX-1 alleges failure to notify of a radiation release for a time

longer than the prompt notification time required; EPX-2 alleges widespread communications inadequacies; EPX-3, inadequate equipment and ability to provide a high level of care to injured contaminated persons; EDX-4, use of untrained decontaminators; EPX-5, delays of about h0 m3nutes in siren activation, sirens not sounding, no method of assuring that sirens have been activated (NB this is different fron saying people didn't hear the sirens); EPX-6, inadequate rumor control l

and failure to announce a general emergency and an early evacuation of a lake near the plant, both of which could cause Danic -- there is a specific requirenent for rumor control in NU9FG-065h, II.J. & II.EI see, e.g. at 63-6h,etc; EPX-7, failure to nromntly communicate radiation dose assessnents and data files, failing to ranidly compute allowable "stgy times" at traffic control points (obviously

, vital to good traffic control which is vital to evacuation); EPX-8, E

incomplete, ineffectively managed amergency broadcast Systen use, with numerous inadequacies; EPX-9, weak training of radiation survey teams in use of anticontanination clothing and/or respirators; EPX-10, deficient calibration of low-volume raSionuclide air samplers l

emergency radio-l and inadequate neasures to Drotect workers fron iodine exnosure;

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EPX-11, numerous deficiencies in hard-copy data transmission; EPX-12, inadequate ability to assist and evacuate neonle along the Cane Fear River in Zone 'H'.

All these are serious. Allegations tha t these proble ma can be fixed go to the merits (as do the vast majority of Annlicants '

s specific connents on the contentions, Aunlicants at ih-29) and are not pro er reasons for not admitting a contention.

The Staff argues there is no allegation of regulatory nonconnliance (Staff at 10-11); however, a logical linkage is also adequate basis for alleging noncompliance with annlicable standards. It is clear

that ingdequate communications, training, etc. etc. as shown in contentions EPX 1 thru 1P and their bases do not conply with reasonable assurance that adequate protective measures can and will be taken in an energency. In fact, given that everyone knew when the test was going to happen, the existence of this nany deficiencies clearly indicates that if an accident came (as it almost surely would) without long advance warning, e.g. weeks or months notice being long advance 1

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4 warning, accidents arising usually within hmrs, then nore eroblems would be likely, since there would be less oreparedness. Moreover, 4

the cited sections of the evaluations show what areas are found to have problems based on the facts shown therein.

The contentions are in fact highly soecific to sections of the State of NC evaluation and FEMA " interim findings". Anplicants fault me (Apps Fn 6, pp 8-9) for not supplying the basis documents of the contentions, but in fact I presented these contentions at a hearing where Applicants, Staff and the Board were present, and I had with ne then the State evaluation (the main basis document not cited with extra specificity, since State message logs were cited by message numbers).

I do not recall the Applicants asking for a copy of the information.

)

I would have supplied it for copying if they had requested it.

As to the Staff's arguments on the individual contentions, Staff at 12-20, they seen to assune that FEMAB conclusions carnot be i

challenged based on facts in eidner FEMA's or the State's evaluati on, (false), and tha t if FEMA doesn't declare something to preclude adequate protective measures being taken, then that FEMA statement i

is an unrebuttable presunntion (contrary to the rules, which say 1

it is a rebuttable cresunction). Their other arguments go to the merits, i

! nostly, and anpear to say that .I have to have already rebutted FFMA's l findings conclusively in order to get a contention adnitted. Where

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there are facts (as shown in the bases of EPX - daru 12) to provide j basis for contentions rebutting FEMA's findings, or lack thereof, that is sufficient to admit the contentions.

Staff also alleges that the F3MA-recort-based contentions are late f since FEMA allegedly made its report available under FOIA on August 7.

l I have no knowledge of this, and received some FOIA docunents from (with the words "I just Nina BellAon 8/28 or /29,1985,got which thisunder in") the 30 day rule would still make the filing deadline September 30 . I should not be

. . . - - - _ - _ _ _ - - - . - - - - . _ ~ - ._.

i penalized for naking extra efforts to obtain relevant infomation on the Energency Planning Exercise when the information was no t in ny hands until within 30 days (and a weekend fron 89/28-30) of {

I

{ the date of filing the contentions. I would note tha t I had to nove in this period also, not by ny choice (ny forner hone is being i converted to offices), and I did not use the information I got fron 1

i Bell, but rather the FEMA interin findings received 8/30 (the day I began noving), as the copy I worked fron. The slightly different time that the other informnesh copy cane into my hands makes no difference.

The Staff 8s further argunents on the 5 factors (staff at 9,10) are flawed in that the basis documents identify all the State evaluators by nane, and it is their factual testinony, together with j any additional testifr.on) which discovery provides, which would be j presented (Factor 3), and these issues cannot help but be raised j in such a time as to risk delay of the nroceeding since the exercise date and the release of information were set by federal or state j agencies and/or CP&L, not by ne. Where others control the tining, j

allowing Factor 5 (broadening issues or delaying the troceedings)

{ to weigh v,*!,',";t s' against ne would be viola ting the public's

} right to hearing under the Atonic Energy Act, as established in the j UCS case, suora.

As to other matters addressed by Annlicants (where they echo i the Staff, the above should be taken as ny ren11es on the is sues and facts), they allege (p.6) that the 3-part test of CATAWBA , CLI-93-19 -

applies, i.e. the contentions nust be wholly deoendent on the l

content of a particular' document, could not be advanced with any 4

degree of specificity in advance of the public availability of that docunent, and is tendered with the reouisaite degree of nronntness i once the docunent becomes available.

i

, Since the basis of these contentions are specific facts found l in evaluators ' reports fron the State of NC and FEMA, that basis I,

-h-obviously could not have been supplied without the documents.

In a handful of cases, Anplicants argue the information was earlier available (besides being in the FEMA Interin Findings, covered on pp 4-5 above). For exanple, at page 32, they argue the need for nore telephones at the Harnett EDC was known, citing the nublic i

i critiques session transcrint at Ifhm524metnahauh 89.

On that page anpears the following:

(... )And this is the botton line, what it's all about.

i Some of our shortcomings: Our E.O.C. -- like I say, i our county has never onened un a E.O.C, so we used the

{' hallway of the courthouse in 11111ngton -- Lillington, not Littleton, as I said a while ago. But on Friday, court was going on. We had sone oroblens with security, noise, whatnot and connunications, the number of telephones in the E.O.C and connunications as a whole. (...)

That's all I can find about telenhones on page 89. I can 1

readily inagine the objections Applicants could raise on vagueness, lack of specificity, etc, (even nehhaus saying that this doesn't 1

say there weren't enough phones, which it doesn't), if this section

had been advanced as basis for a contention. Moreover, this contention's basis is a whole host of connunications deficiencies, not just this one.

It is clear the transcript does not nrovide the basis for EPX-2;

it's arguable whether it even provides basis for the part of EDX-2 's basis j Applicants cite to.

Similarly on the same nage, re EPX-h, Aunlicants cite the same transcrint at 91 for revealing need for additional training of Lee County radiation monitoring / decontamination personnel. On nage 91, it says::

(,.. )We do need a little more training nerhaus, as has already been mentioned in nonitoring (...)

and goes on to say "which we'll take care of". This cannot connare

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with the snecificity of the basis of EPXGh, which exclains in detail what was found factually to be wrong with the traibing and perfornance.

l The ' iffy' statenent in the transcript cannot provide this basis.

. i Applicants nake similar absurd assertions while mischaracterizing EPX-5 (Applicants at 33). The contention is about siren activation = delay and means of assuring that activation can be verified. It is not about people not hearing sirens, nor is it covered in the news articles Applicants cite and supply. They also cite Transcrint hl-h? from the i public critique. This reads:

Mr. Willis: I believe there was a problem on Friday, in that the sirens may not have been activated when we thought. But Saturday, I believe they were activated.

This is not definite about the activation nroblen one way or 4 another. It certainly doesn't address the delays and is dubious at 1

best ("may not have been activated when we thought") on verification.

l They also cite to pp 64-65, which concerns the sirens not operating, and working through the night to repair then. However, delay again is not nentioned, and activation in the wrong (silent) node is the problem. These things are not the sane as the basis of EPX-5.

A different contention night have been advanced based on these statements, but the vagueness of the statenent on nages k1-h2 and the lack of specifics about the problems generally on nages 6h-65 would not crette this contention.

Applicants also argue (35-36) that other narties will renresent my interests. " Willingness to address identified nroblen areas" (id, 36)

! is not the same as representing my interests. Anyone who has observed FEMA's resnonses and affidavits on contentions can see that this suggestion is ridiculous an regards FEMA; there is no evidence the State has made specific connitments on these natters, but in any event the resolution of the Droblens is a matter to either be documented i

(if it's been fixed) against admission of the contention, or for the contention nrocess.

As to setting out the issues with narticularity (factor 111,

Applicants at 37), the references to the State evaluation ni report and FEMA 's Interin findings show where the relevant facts are in the basis. It is clear that these are quite particular, and in i

many cases they are detailed to highly specific points (e.g. questions asked about lack of training, srecific incidents of comnunications problems). As to not identifying the witnesses by nane, they (the State evaluators ) are named in the source documents. As to summarizing testinony, the facts as stated in the evaluations are the only summary easily available, and it is nore detailed than that of witnesses like the Wake County Sheriff's Department officers in the recent drug abuse contention hearing (who had no prefiled at all). As to what they'd testify to, they would uresent facts. There is no evidence that they have 2&ammt nade any famlse statements in the evaluations as to matters of fact, that I an aware of.

Applicants fail to address the different circunstances of this ,

haamir tine as distinct from last fall (e.g. I an health 6er and have

, much less to do in this case now) which weigh in favor on factor (iii)Jh()

As to Factor (v)fh)I have addressed above the reasons why delay and broadening issues are by definition alnost inevitable in c ontentions on energency planning exercises, and thus cannot be held against these contentions without violating the right to a hearing under the Atomic Energy Act. Applicants also say (p.Sh0) that it is unattractive to them to have contentions pending during low nower testing, though this has been practice in other licensing proceedings, esnecially I re emergency n1anning, and Applicants' convenience is no reason to l reverse the interpretation of the Atomic Energy Act given in UCS (735 P2d 1h37) that the nublic has a right to a hearing on issues l

raised in the emergency planning exercise, before a full power license is finally granted.

l

i Applicants earlier argue (pp 9-10) that these contentions may go beyond the Commission's requirements. But there is no specific showing that any of the contentions do so. In fact, the contentions sinoly requent what the rules require -- that when the energency plan is activated, it will work, as planned. Given that an exercise happens at a known time, failures in training, connunication, radiation monitoring, decontamination etc, as ski stated fron facts in the bases of these contentions, are more serious because they happened even l

when it was known when the test was coming and there was not the stress of a real accident. It is likely that nove failures, not less, would occur in an accident occurring wi thout a warning.

The Staff, as noted above, keeps saying " FEMA didn't find this an insolvable problen or najor defect." or words to usat effect, which shows how these contentions rebut FEMA's findirgs (contrary to Arolicants' statements at the too of page 12).

They also say (p.1h) I haven't shown these problems cannot be (the problen) c orrec ted. Nor should I have to. "Innossible to correct"4 is not a standard for admission of any contention describing a croblem.

Applicants' srecific connents go mainly to the merits. The nessage they cite re EPX-1 (#207) in fact includes the time 12kh in the attached text, which text therefore cannot have been comoleted as of the message time, nor transmitted dhen.

He EPX-3, Apelicants (p.18) cite the Staff report. There is no ac presunption in favor of staff findings, even if unrebutted. The adequeay 1

or accuracy of Staff conclusions, is a natter for discovery or hearing.

re EPX-h, Lee County's "Connetnent" (necting Tr. 91) is vsFue at best and says nothing about the facts cited.

re EPX-5 (p.20) the transcript says only that "we would expect that these problems would be corrected befora the planned testing of those sirens is passed upon (Tr. 77-78 at 78). That doesn't say the flaws cired in the contention don't exist, nor that they are being fixed, on EPX-6, they ignore the facts of delay in announcing the general emergency. .

Cn EPI-7, the FEMA exercise report (interin findings, e.9) never says that the systen "was operating snoothly on the second day."

EPX-8 and 9 resoonses are going to the merits.

On EPX-10 they say "This natter is obviously readily rec tifie d."

(p.25) So why hadn't it been in advance of a known test?????

Likewise, why wasn't the radiciodine training adeounte (p.26). This is all discute about the merits.

On EPX-12 the Apelicants' statennnte dhow it took 5h minutes to dispatch help af ter it was requested. They never show when help r . ed.

On EPX-11 they don't show why the copter problens happened, or that they could not recur at any time.

For the above reasons, these contentions should be admitted.

if#'~-

29 October 1985 Wells Eddlenan

UNITED STATES OF AMDICA WDCLTAR RILUIATORY C0f0CSCICN In tr.e matter of CAROL!hA POWEP. & LIstiI CG. Et al. )) Docket 50-h00 Sheaven Harris Nuclear Power Plant. Unit 1* 0.L.

CEICIFICATEOF SDV!CE 2 hereby certify that sopies of Wells Eddlenan's Reolv en l Davennev Plannine Exercise (E*X) eententions NAVE been served this g day of October 192K_ , by deposit in the US Mail, first-class postage prepaid, upon all parties whose names are listed below, except those whose names are erked with ar} asterisk, for when service was accenplished by excrens nail under en extenslor6 cf time agreed to by Apolicants and Starf f qq g

, JudEes Ja9es Kellev, 01onn Bright and Jams Carpente* (1 egy each)

Atenic Safety and Licensing Board US Nuclear Megulatery Co-rtissien Washington DC 20555 George F. Trowbridge (atterney for Applicants)

Shaw, Pittman, Fotts & Trowbr.dge M.uthanne G. Miller 1600 M St. 3rd ASLB Fanel WashinEten, DC 20036 USNRC Washington DC 2C55 5 Office of the Etecutive Legal Directer Spence W. Ferry

• n Ibeke ts 50-1,00/L01 0.L. pp[.e QCSt.s$"

Wash [ngtonDC20555 u d Washinston DC 207h0 Dan Read Docketing and Service Section (3x) C}:A!LT/FLP Attn Decke ts 50-h00/LC1 0.L. .

Office of the Secretary Waleigh,9 07 WaverosNC 27606 USMC Dr. Linda V. Little afashir4 ton DL, 20555 c ,,7nor , v.,g,ygg, 33, John Runkle CCNC s $C FE!'.A-tuite 700 h  % uh611 Raleigh, NC t.

307 Oranv111e Rd 1371 Feachtree st.rE Chapel Hill Rs 2751h Atlanta GA 30309 Bra dley W. Jon e s Robert Gruber USKRC Region II Travi.s Payne Exec. Director 101 Marietta St.

Edelstein k Payne Public Staff Atlanta GA 30303 hex 12607 gex 991 Raleigh NC 27605 Raleigh NC 27602 Richard Wilson, M.D. Certified by _fe'h 729 Nunter St.

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