ML20148D007

NRC Staff Response to Contention of Atty General,Jm Shannon & Motion to Admit late-filed Contention & Reopen Record.* Ruling Should Be Deferred Until Applicant Submits Alternative Notification Plans.W/Certificate of Svc

ML20148D007
Person / Time
Site:	Seabrook
Issue date:	01/14/1988
From:	Berry G NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#188-5395 OL-1, NUDOCS 8801250307
Download: ML20148D007 (12)

Text

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UNITED STATES OF AMERICA ,88 2 21 N0:52 NUCLEAR PEGULATORY COMMISSION

' BEFORE THE ATOMIC SAFETY AND LICENSING APPEA rkhAkdffh][,'/f' on4Nea In the Matter of ) Docket Nos. 50-443 OL-1

) 50-444 OL-1

) Onsite Emergency Planning PUBLIC SERVICE COMPANY OF and Safety issues

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(Seabrook Station, Units 1 and 2) )

NRC STAFF RESPONSE TO CONTENTION OF ATTORNEY GENERAL JAMES M. SHAH'NON AND MOTION TO ADMIT LATE-FILED CONTENTION AND REOPEN THE RECORD L

4 Gregory Alan Berry 3 Counsel for NRC Staff

. January 14, 1988 .

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFOP.E THE ATOMIC SAFETY AND LICENSING APPEAL BOARD in the Matter of )

) Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF ) 50-444 OL-01 N EW H AMPS H I R E , et _a_I_. ) Ori-site Emergency Planning

) and Safety issues (Seabrook Station, Units 1 and 2 )

NRC STAFF RESPONSE TO CONTENTION OF ATTORNEY CENERAL JAMES M. SHANNON AND MOTION TO ADMIT LATE-FlLED CONTENTION AND REOPEN THE RECORD INTRODUCTION On November 13, 1987, the Attorney General for the Commonwealth j of Massachusetts ("AG") filed with the Appeal Board a "Motion To Admit Late-Filed Contention And Reopen The Record" ("AG Motion") In which he requests the Appeal Board to reopen the on-site emergency planning l

i phase of this proceeding and admit a late-filed contention which alleges that "Applicants have failed to comply with the provisions of 10 C.F.R.

s 50.47(b)(5) and Part 50, Appendix E, 9 IV(D)(1) and (3), because no l means have been established to provide early notification and clear instruction to the populace of the City of Newburyport, Massachusetts."

l AG Motion at 9. Applicants filed a response opposing the AG's motion on December 18, 1987,. See Applicants' Opposition To Motien Of Attorney i .

General Of Massachusetts To Reopen The Record And Admit Late-Filed Contention (December 18, I F') ("Applicants B rie f") . Pursuant to the

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NRC Staff's requests, the Appeal Board granted the Staff an extension of time until January.18,1988 to file this response to the AG's motion.

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b me e 2-BACKGROUND The asserted basis for the late-filed contention which the AG requests the record be reopened to consider is that six of the eight sirens situated in the City of Newburyport which Appilcants planned to use to notify the populace in the event of an emergency at the Seabrook Station have been removed at the direction of the Mayor of Newburyport pursurnt to an ordinance passed by the Newburyport City Council on June 30, 1986. See AG Motion at 9 and attached Affidavit of Peter J.

Vatthews at 5 4 (September 18, 1987); Affidavit of Peter J. Matthews at

! 3, attached to Supplemental Memorandum of Attorney General James M.

Shannon in Support Of Motion To Admit Late-Filed Contention (December 31, 1987) ("Supplemental Memorandum"). The remaining two sirens "will be used for the City's fire alarm system" and "will not be used for Seabrook emergency planning purposes." Matthews Affidavit, supra, at S 5. Accordirm to the AG, these developments Indicate that Applicants do not now have in place an adequate alternative means of providing early notification and clear instruction to the residents of Newburyport as required by 10 C.F.R. 9 50.47(b)(5), as it must before a low power operating license may be issued. AC Motion at 10.

In its response, Applicants oppose the AG's motiori, arguing, inter alla , that the r$10 tion to reopen the record does not set forth a "significant safety issue" as is required by 10 C.F.R. 6 2.734(a).

According to Applicants, an alternative alert notification system was

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developed to compensate for the unavailablilty of the Newburyport sirens.

Applicants Brief at 4-5. This alternative system is described in a document entitled "Alternative Alerting System Design Description for the

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. City of Newburyport, Massachusetts" (Newburyport Plan") . See Attachment to Affidavit of Travis N. Beard, attached to Applicants Brief.

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Essentially, the Newburyport Plan provides that in the event of an emergency at the Seabrook Station, the people of Newburyport will be r.otified prcmptly by " fixed sirens in neighboring communities and an airborne alerting system with a route alerting back-up system."

Newburyport Dlan at 3. According to the plan, "approximately 60 percent of the city is adequately covered by these fixed sirens," id. , which are located in the neighboring Massachusetts towns of Amesbury, Newbury, Salisbury, and West Newbury. ,l d, at 4 . A copy of the plan also was submitted to the Staff for its review as to whether the plan compiled with 10 C.F.R. 5 50.47(b)(5) .

On December 30, 1987, and prior to the completion of the Staff's review of the Newburyport Plan, Applicants issued a press release which states that Applicants have "offered to give its 32 siren poles in five northeastern Massachusetts towns to each of the respective town governments, saying the Massachusetts sirens will no longer be part of the plant's licensing efforts. See Attachment to Letter from Edwin J.

Reis to Members of the Appeal Board and Licensing Board Panels (January 7,1988). Accordino to the press release, if the towns involved 6ccept the siren potes, Applicants "will disconnect all equipment used by

. Seabrook personnel to activate sirens." I d,. Four of the towns to whom this offer was made -- West Newbury, Amesbury, Newbury, and Salisbury

-- are the same "neighboring communities" upon whose fixed sirens Applicants' Newburyport Plan indicates will be used to notify 60 percent of t'he residents.of Newburyport in the event of a'n emergency. Compare, I

,ld_. at 1, with, Newburyport Plan at 4. Thus, it appears that the sirens

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situated in the towns bordering on Newburyport will not be utilized by Applicants in its program to provide early netl0 cation to the residents of Newburyport in the event of an emergency at the Seabrook Station.

-DISCUSSION A. Legal Standards

1. Motions to reopen a closed record in NRC proceedings, motions to reopen a record are governed by 10 C.F.R. 5 2.734. Paragraph (a) of this regulation provides:

(a) A motion to reopen a closed record to consider additional tvidence will not be granted unless the following criteria are satisfied:

(1) The motion must be timely, except that an exceptionafly 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 ist Je.

(3) The motion must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially.

In addition, a motion to reopen which reirtes to a late-Gled contention must also meet the standards governing late-filed contentions sat forth in 10 C.F.R. 5 2.714(a)(1) . Se 10 C.F.R. 5 2.734(d) . Reopening a closed record is, as the Commission has noted, an "extraordinary action" and thus requires the movant to bear a "heavy burden." See 51 Fed. Reg.

. 19535, 19538 (May 30, 1986); accord Kansas Gas and Electric Company (Wolf Creek Cenorating Station, Unit 1), ALAB-462, 7 NRC 320, 328 (1970). The reason a motion to reopen is not to be granted lightly is because of the publ.c interest in ensuring that "once a recor'd has been

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closed and all timely-raised issues have been resolved, finality will attach

'to the hearing process." 51 Fed. Reg. at 19539.

2. Alert Notification Systems 10 C.F.R. 6 50.47(b)(5) states, in pertinent part, that an emergency response plan must provide that-

[M]eans to provide early not!fication and cicar instruction to the populace within the plume expoppre pathway Emergency Planning Zone have been established Generally, the Staff has interpreted section 50.47(b)(5) to require that an applicant have installed and operable a means of notifying the affected poptalations in the event of an emergency. See NRC Staff Response To Appeal Board Order Of July 30, 1987 Regarding Merrimac Sirens at 4, n.3 (October 6,1987); NRC Staff Supplemental Response To Appeal Board Order Of September 17, 1987 Regarding East Kingston Strens at 3, n.3 (October 6,1987) . The Applicant, of course, certifies that the alert notification syrtem employed is designed to be in accordance a

w!th NUREC-0654/ FEMA R E P-1, Rev . 1, Appendix 3. Section ,

50.47(b)(5), however, does not mandate that an applicant use sirens or m

any other particular method to notify the public, rather it leaves it to the applicant in the first instance to devise and employ the "means" capable of doing so. See NUREG-0654, Rev.1, Appendix 3.

In view of the foregoing , were Applicants to have in place and

. operable an alternative means of notifying the residents of Newburyport in the event of in emergency, they would be in compliance with

. 1/ See also 10 C.F.R. Part 50, Appendix E, 6IV(D); NUREG-0654, Rev.1, Supp.1, 6 il(E) and Appendix 3 to' Rev.1

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reguiatory requirements notwithstanding the unavailability to AppIlcants of

, the Newburyport sirens. It therefore follows that the removal of the Newburyport sirens alone would not necessarily present a "significant

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safety issue" to warrant a reopening of the record.

B. A Determination As To Whether Applicants' Alert Notificaticn System For Newburyport Presents A d'Significant Safety issue" Should Be Deferred Pending Additional Information From Appilcant As noted above, to compe.nsate for the removal of Newburyport sirens by town officials, Applicants devised an alternative notification system which relied upon the availability of sirens in the towns bordering Newburyport to provide notification to 60 percent of Newburyport and an C airborne alerting system (a helicopter able to deliver siren signals and voice messages) . See Newburyport Plan

• 3. Subsequent to the development of this system, the First Circuit United States Court of Appeals issued an opinion which paved the way for the town of West Newbury and others to dismantle and remove the alert sirens located within their jurisdictions. See Public Service Company of New Hampshire

v. Town of West Newbury, F.2d (No. 87-1395) (1st Cir.

December 16, 1987). Shortly thereafter, each of the towns bordering Newburyport notified Applicants of their intent to remove the alert strens located therein. See AG's Supplemental Memorandum at 4 and Exhibit 2.

In response, Applicants offered to donate the siren poles in question to

. the towns and stated that it would not rely upon any of those sirens before the NRC. See December 30, 1987 Press Release at 1, supra, attached to January 7,1988 letter from Edwin Reis to Members of Appeal Board and Licensing Board Panels . Applicants stated that they were

r "taking steps to provide alternative methods to notify residents of a plant

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emergency, as required by federal law. " ,l d . (emphasis in original).

As of this writing, the Staff has not been informed by Applicants whether -the "alternative methods" referred to above have been developed and reedy to be reviewed by the Staff. When Applicants develop an alternative method to notify the residents of Newburyport in the event of an emergency at the Seabrook Station, Intervenors would be able then to determine whether the alternative plan raises any "significant safety issues" which they believe should be the subject of new contentions in c reopened proceeding. The Staff wcu!d also complete its review of that plan and be in a position to address whether the plan meets the requirements of 10 C.F.R. 6 50.47(b)(5). - At that time it can be ascertained whether the removal of the Newburyport sirens presents "a significant safety issue" as required by 10 C.F.R. 6 2.734 to warrant a reopening of the record. U The Appeal Board should therefore defer ruling upon the AC's motion to reopen the record until after App!! cants

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The Staff has bet a preparing a Supplemental Safety Evaluation Report (SSER) addressing Applicants' Newburyport alert notification plan. Howeyer, in view of Applicants' announced intention to modify again their alprt notification plans, the subject SSER no longer is germane to the. proceeding and the Staff does not Intend to issue it.

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A reopening of the record would not in itself preclude the issuance of a low power license, tinder 10 C.F.R. 9 50.57(c), in determining whether low power operations should be authorized before all contentions are resolved , the Board is to consider, Inter alla ,

whether any of the admitted contentions are relevant to the "activity to be authorized" and whether there is reasonable assurance that low power operations can be conducted without endangering the p:a blic health and safety. See also,10 CFR S 50.47(c)(1) and (d).

submit their alternative plans and the Intervenors submit their

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contentions, if any, on such plans. U CONCLUSION For the reasons stated in this response, the Appeal Board should defer ruling upon the Massachusetts Attorney General's motion to reopen the record to admit his late-filed contention until after Applicants submit their alternative plans for notifying the residents of Ncwburyport in the event of an emergency at the Seabrook Station and intervenors file their contentions, if any, to Applicants' alternative plans.

R Ictfully submitted, v i b  %

Grego lany erry y Counse 'r NU Staff [

Dated at Bethesda, Maryland this 14th day of January 1988 h

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The Staff notes that in Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), C Li-8 7-05, 25 NRC (June 12, 1987), the Commission, upon agreement of the parties. reop<tr.cd the l .

record to reconsider the adequacy of the applicant's emergency public notification procedures occasioned by the withdrawal of the principal emergency broadcast system station from participation under the Shoreham plan. The Commission delayed the submission of contentions addressing this development until after the applicant provided updated information regarding its alternative pub!!c rotification procedures.

e DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '88 JAN 21 40:52 REFORE THE ATOMIC SAFETY AND LICENSING APPEAL @d%DhQ/.y

[ BRANCH in the Matter of )

) Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF ) 50-444 OL-01 NEW HAMPSHIRE, et al. ) On-site Emergency Planning

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) and Safety issues (Seabrook Station, Ui.its 1 and 2) )

CERTIFICATE OF SERVICE i hereby certify that copies of "NRC STAFF RESPONSE TO CONTENTION OF ATTORNEY GENERAL JAMES M. SHANNON AND MOTION TO ADMIT LATE-FILED CONTENTION AND REOPEN THE RECORD" in the above-captioned proceeding have been served on the following by deposit in the United States '

mall, first class or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system or, as indicated by double asterisks, by express mall, this 14th day of January 1988.

Sheldon J. Wolfe, Esq. , Chairman

• Atomic Safety and Licensing Administrative Judge Board

• Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Dr. Jerry Harbour Docketing and Service Section*

Administrative Judge Office of the Secretary Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Dr. Emmeth A. Luebke Thomas G. Dignan, Jr., Esq.**

Administrative Judge, Robert K. Cad, lit, Esq.

5500 Friendship Boulevard Ropes & Gray Apartment 1923N 225 Franklin Street Chevy Chase, Maryland 20815 Boston, MA 02110 Atomic Safety and Licensing H. J. Flynn, Esq.

Appeal Panel

• Assistant General Counsel U.S. Nuclear Regulatory Commission Federal Emergency Management Agency Washington, DC 20555 500 C Street, SW

. Washington, DC 20472

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Philip Ahren, Esq. Calvin A. Canney Assistant Attorney Ceneral City Hall-C Office of the Attorney General 126 Daniel Street State House Station Portsmouth, NH 03801 Augusta, ME 04333

• Mr. Angie Machiros, Chairman Carol S. Sneider, Esq.** Board of Selectmen Assistant Attorney General 25 High Road Office of the Attorney General Newbury, MA 09150 4 One Ashburton Place,19th Floor Boston, MA 02108 George Dana Bisbee, Esq. Allen Lampert Assistant Attorney General Civil Defense Director Office of the Attorney General Town of Brentwood 25 Capitol Street 20 Franklin Concord, NH 03301 Exeter, NH 03833 Ellyn R. Vielss, Esq. William Armstrong Diane Curran, Esq. Civil Defense Director flarmon 6 Weiss Town oF Exeter 2001 S Street, NW 10 Front Street Suite 430 Exeter NH 03833 Washington, DC 20009 Robert A. Backus, Esq. Gary W. Holmes, Esq.

Backus, Meyer S Solorron Holmes & Ellis 116 1.owell Street 47 Winnacunnet Road Manchester, NH 03106 Hampton, NH 03842 Paul McEachern, Esq. J. P. Nadeau Matthew T. Brock, Esq. Board of Selectmen Shaines & McEachern 10 Central Street 25 Maplewood Avenue Rye, NH 03970 P.O. Box 360 Portsmouth, NH 03801 Judith H. Mizner, Esq.

Charles P. Graham, Esq. Silverglate, Gertner, Baker, McKay, Murphy & Graham Fine S Good 100 Main Street .

88 Board Street Amesbury, MA 01913. Boston, MA 02110 Sandra Gavutis, Chairman Robert Carrlgg, Chairman Board of Selectmen Board of Selectmen RFD #1, Box 1154 Town Of0ce Kensington, NH 03827 Atlantic Avenue North Hampton, NH 03870

1 William S. Lord Peter J. Matthews, Mayor Board of Selectmen City Hall e Town Hall - Friend Street Newburyport, MN 09150 Amesbury, MA 01913 t .

l . Mrs. Anne E. Goodman, Chairman Michael Santosuosso, Chairman l Board of Selectmen Board of Selectmen 13-15 Newmarket Road South Hampton, NH 03827 Durham, NH 03824 Hon. Gordon J. Humphrey l United States Senate

! 531 Hart Senate Office Building Washington, DC 20510 t

. Grebbr7 ALd nleg9 -

Counsel fo d NRCwtaff t

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