ML20197E214

Memorandum & Order (Ruling on Admissibility of Commonwealth of Ma Amended Contention & Bases).* Amended Contention Re Notification Sys & Bases a & B Admitted as Issues in Controversy.Served on 880603

ML20197E214
Person / Time
Site:	Seabrook
Issue date:	06/02/1988
From:	Harbour J, Luebke E, Wolfe S Atomic Safety and Licensing Board Panel
To:	MASSACHUSETTS, COMMONWEALTH OF, NRC OFFICE OF THE GENERAL COUNSEL (OGC)
References
CON-#288-6455 88-558-01-OLR, 88-558-1-OLR, ALAB-883, OL-1, NUDOCS 8806080131
Download: ML20197E214 (12)

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-I 00CKCIED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOAR Before Administrative Judges: OFRll UE R+ 'M '

Sheldon J. Wolfe, Chairman DOCEE g' .fln "CL Emmeth A. Luebke Jerry Harbour SERVED JUN 3 - 1988 Docket Nos. 50-443-0L-1 In the Matter of 50-444-0L-1 PUBLIC SERVICE COMPANY (On-Site Emergency Planning 0F NEW HAMPSHIRE, g a_l,. ) and Safety Issues)

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) (ASLBP No. 88-558-01-OLR)

(Seabrook Station, Units 1 and 2)

June 2, 1988 MEMORANDUM AND ORDER (Ruling On Admissibility of Mass. Amended Contention and Bases)

Memorandum

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I. Background In light of ALAB-883, 2r NRC 43 (1988) and pursuant to this l Licensing Board's Memorandum and Order of March 25,1988(unpublished),

l on April 15, 1988 the Attorney General for Massachusetts (Mass.)

l submitted an Amended Contention On Notification System For Massachusetts. The amended Contention alleges as follows:

l Applicants have failed to comply with the provisions of 10 C.F.R. 550.47(b)(5) and Part 50, Appendix E, IV, D(3). The means they claim to have established to provide l early notification and clear instruction to the populace l of the Towns of Amesbury, Merrimac, Newbury, Newburyport, Salisbury and West Newbury, Massachusetts and Salisbury State Beach Reservation in Salisbury, Massachusetts are i

inadequate, hb bOk PDR 43 $DA i G 1

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In its sub~ission, m as its first basis (Basis A) in support of the proposed amended contention, Mass. alleges that the Applicants' current plan for alerting and notifying the six Massachusetts comunities within the Seabrook emergency planning zone - the "Vehicular Alert Notification System (VANS)" - is inadequate because of fourteen deficiencies. As its second basis (Basis B) Mass, alleges that the "Airborne Alerting System" devised by Applicants as a backup for the VANS lacks certain information and is inadequate because of five deficiencies.1 On April 25, the Applicants filed their response and on May 3, the Staff filed its response. On May 16, 1988, Mass filed a reply.

I We are aware that in an Order of May 4,1988, the Comission stated that on that date it had initiated a public rulemaking proceeding to reexamine and codify what offsite aspects of a nuclear power reactor operating license applicant's onsite emergency plan must be reviewed before fuel loading and low power testing. The Comission also stated that its review time for ALAB-883 was extended until 20 days after a decision in the rulemaking proceeding.

The Commission' , Notice of Proposed Rulemaking stated that:

"Specifically, the Commission is considering amending $50.47(d) to include as prerequisites for low power operation, seven standards with offsite aspects that are believed to be appropriate for fuel loading and low power operation. The capability for prompt notification of the surrounding populace (as distinct from the capacity to keep offsite emergency planning agencies informed promptly of plant accidents) is not included in the rule as a requirement for fuel load and low power operations. However, nothing in this proposed rule is intended to change the emergency planning standards which must be satisfied before operations at full power." We do not know whether or not the Comission will adopt the proposed rule which would revise 650.47(d). In the event the Comission does adopt the proposed rule, it may be that we, as the onsite Licensing Board, will not have jurisdiction to consider any contested aspects of the Applicants' public alert and notification system.

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II. Discussion A. Legal Standards Re The Basis-For-Contention Requirement Section 2.714(b) of the Commission's Rules of Practice requires that the list of proposed contentions must set forth "the bases for each contention...with reasonable specificity." The Appeal Board has provided guidance in two cases.2 It has concluded that the basis-for-contention requirement was intended to ensure that the agency's adjudicatory process was not invoked for impermissible, purposes, such as attacks on statutory requirements or challenges to Commission regulations, and that the issue at hand was appropriate for litigation in the particular proceeding. 'In addition, the Appeal Board concluded that the requirement helped assure that other parties were sufficiently put on notice so that they would know at least generally what they would have to defend against or oppose. Finally, it concluded that the basis requirement, in merely being a pleading requirement designed to make certain that a proffered issue is sufficiently articulated to provide the other parties with its broad outlines and to i

provide the Licensing Board with enough information for determining whether the issue is appropriately litigable in the proceeding, does not require the detailing of admissible evidence as support for a contention.

l 2 Texas Utilities Electric Company (Comanche Peak Steam Electric

! Station, Unit 1), ALAB-868, 25 NRC 912, 930-31 (1987); Philadelphia (Footnote Continued) l l

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B. Admissibility Of The Amended Contention, Basis A, And Certain Of The Deficiencies Advanced In Support Of Basis A Neither the Applicants nor the Staff oppose the admission of the amended contention as an issue in controversy. Further, they do not oppose the admission of certain of the deficiencies which are a part of and are listed in support of Basis A -- these deficiencies are numbered 1, 4, 5, 7, 8 and 14. Upon our review, and as is reflected in the

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Order, infra, we admit the amended contention, Basis A (as modified by the Board),3 and the above-numbered deficiencies submitted in support of Basis A.

C. Admissibility Of Deficiencies Advanced In Support Of Basis A Which Are Opposed By The Applica'nts And/0r The Staff Deficiency 2 alleges that local ordinances prohibit Applicants from operating their six staging areas and their VANS vehicles at the (Footnote Continued)

Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 19-21 (1974).

The Board deletes from Basis A the reference to the helicopter backup system because it is the subject of Basis B. As modified, Basis A reads as follows:

VANS System And Overlapping Siren Coverage The Applicants have indicated in a February 26, 1988 submission to the NRC (NYN-88025) as amended by the April 1,1988 submission (NYN-88042) that their alert and notification system for the six Massachusetts communities within the Seabrook EPZ consists of the VANS vehicles and equipment functioning as fixed sirens and of fixed siren coverage from sirens located in New Hampshire. This system has numerous deficiencies renderinu it inadequate and unable to meet the provision of 10 C.F.R. 950.47(b)(5) and Part 50, Appendix E(IV)D.3.

preselected acoustic locations. Deficiency 3 alleges that the fourteen VANS locations are physically inaccessible to the VANS equipment. The Applicants and Staff- oppose their admission as parts of Basis A because Mass. did not identify any applicable laws and ordinances and did not specify why the staging areas are inaccessible to the VANS equipm'nt.

e We conclude that these two alleged deficiencies have been set forth with reasonable specificity. Staff and the Applicants are sufficiently put on notice so as to be knowledgeable at least generally what they would have to defend against or oppose and Mass. is not required at this stage to detail the evidence in support of its contention. Obviously, the Staff and Applicants may seek further information via discovery procedures.

Deficiency 6 alleges that snow, icy and extreme weather conditions will impede extension of the sirens to their operational position, rotation and oscillation of the sirens during the tone and message modes and operation of the sirens themselves. The Staff opposes its admission as a part of Basis A because of lack of specificity. However, we conclude that said deficiency has been sufficiently articulated so that l

the Staff is at least generally knowledgeable as to what it will have to defend against or oppose. Further, 62.714(b) does not require the l detailing of admissible evidence as support for the contention.

Deficiency 9 alleges that listeners in areas where there is an overlap in sound coverage from two or more sirens, whether both sirens are in Massachusetts or one is in Massachusetts and one is in New Hampshire, will experience severe echo conditions, rendering any voice

i message unintelligible. Deficiency 10 alleges that Applicants have not indicated when and under what circumstances the tone alert mode or the message mode will be used. The Applicants request that these alleged deficiencies be rejected as parts of Basis A because regulations do not

~ require the usage of the message mode on the sirens, and the Staff requests rejection because NUREG-0654/ FEMA REP-1, Rev. I does not require sirens to have a voice mode capability. However, as Mass.

points out, in letters to the Commission,4 the Applicants stated that the sirens will be used or at least are capable for use in the voice mode, and that, in the FEMA-REP-10 Design Report of April 30, 1988, at 2-6, Applicants stated that, along the pub'lic beaches in Massachusetts, sirens have the capability to provide both alerting tones and public address messages. Tnese two alleged deficiencies are relevant and appropriately proffered since the sirens may be used in the voice mode at least in the beach areas.

Deficiency 11 alleges that "Sufficient drivers and backup drivers will not be stationed at the six staging areas to ensure 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> availability of the system. Moreover, the system will work reliably, if at all, only when each vehicle is manned by at least two people." The Staff argues that the deficiency is inadequate because it does not specify why personnel should be stationed at the VANS staging areas on a 4 See NYN-88025 dated February 26, 1988, at 2, 4, 6; NYN-88042 dated April 1, 1988 at Q.7-1.

twenty-four hour basis or why at least two persons are required to operate each VANS vehicle. The Applicants request that the second sentence be rejected because it is an unsupported general assertion. We ccnclude that the alleged deficiency has been sufficiently articulated so that the Staff and the Applicants are at least generally knowledgeable as to what they will have to what they will have to defend against or oppose and there is no requirement that admissible evidence must be detailed in support of the contention. Moreover, absent information to the contrary, we assume that the Seabrook facility, if licensed, will operate on a twenty-four hour basis.

Deficiency 12 alleges that "The syste'm will encounter a substantial failure rate because many drivers will be unwilling to accomplish the assigned tasks during a real radiological emergency. The effect of this will be magnified in terms of system failure if only one person is assigned to each vehicle." The Applicants and the Staff argue that this i "human behavior" issue has been fully litigated before the offsite Licensing Board in the New Hampshire Radiological Emergency Plan phase of the offsite hearings and thus should not be relitigated here. While apparently conceding that a ruling by the offsite Board either favorable or unfavorable to the intervenors on the "human behavior" issue may well l

have an estoppel effect in the instant onsite proceeding, Pass, urges that until such a ruling by the offsite Board is issued, this deficiency is appropriate and should be heard in support of Basis A. In light of I

l this apparent concession, it would not be appropriate to relitigate this l

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matter, and Deficiency 12 is rejected and will not be heard in support of Basis A.

Deficiency 13, in substance, alleges that the bankruptcy court has not to date approved expenditure of funds for the extremely expensive VANS system with its backup airborne system, and that the bankruptcy court's decision is at least many months off. Clearly, Mass. seeks to question Applicants' financial qualifications. However, in the Memorandum and Order of August 20, 1987 (unpublished), this Board denied TH's, NECNP's and SAPL's petition which sought a waiver, under 10 C.F.R. 92.758, of 10 C.F.R. 6550.33(f) and 50.57(a)(4). Thereafter, NECNP, SAPL and TH appealed, and, pursuant to the' Appeal Board's Memorandum and Order of January 29, 1988 (unpublished), on March 7, 1988 as supplemented on May 13, 1988, Mass, filed a petition under 62.758 for a waiver of or exception from the public utility exemption from the requirement of a demonstration of financial qualification. Since the matter is now under submission before the Appeal Board, we are without jurisdiction over this matter and this alleged deficiency must be and is rejected.

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- 9-D. Admissibility Of Basig B and Of The Five Deficiencies Advanced As Part Of That Basis 5

Basis B and the Five Deficiencies read as follows: .

Basis B. Airborne Alerting System The Applicants have not identified the circumstances under which the backup airborne alerting system would be called into operation, the flight path it would take, whether tone or message mode would be used, the time necessary to complete a single operational run, or the areas the helicopter is intended to cover. This lack of information prevents this Board from making a finding that the airborne system meets NRC regulations and standards.

Based on the limited information provided, the system also has the following deficiencies: .

1. One of the circumstances which might give rise to the need for a backup system, poor weather-(and in particu,lar high wind, heavy rain, snow, icy or extreme cold conditions), is equally or more debilitating for the use of a helicopter.

2. The airborne system would not meet regulatory requirements for any sizable area in that it would not provide coverage within 15 minutes (because of the time needed for pilot alert, start-up, warmup, lift-off, travel to the predetermined route, and conducting an operational run), would not both sound a siren and issue a message and would not sound the siren for the required 3 to 5 minutes.

3. A steady 3 to 5 minute tone alert capable of repetition cannot be accomplished with the airborne system for significant numbers of people even within the covered area because the speed necessary to provide that duration of a tone is too slow for extended operation of the aircraft.

4. Any attempted informational messages for the airborne siren will be garbled and unintelligible because of the strength and size of the speaker array and amplifier system, the height of the aircraft and the effect of the helicopter's rotary blades.

! 5. The backup system will be subject to a substantial risk l

of failure because available pilots will be unwilling to accomplish I their assigned tasks during a real radiological emergency.

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Both the Applicants and the Staff argue that Basis B must be rejected because there is no regulatory requirement that backup procedures be set forth in emergency plans. In support of this argument, they cite Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit 1), LBP-84-26, 20 NRC 53, 67 (1984). However, in the Wolf Creek case, the contention was merely generally concerned that the emergency plan failed to provide for backup warning procedures.6 Here, Basis B specifies the inadequacies or deficiencies in the backup airborne alerting system, and at least two Licensing Boards have admitted a contention or heard testimony contesting backup procedures when specific deficiencies or inadequacies were alleged.

Long Island Liahting Company (Shoreham Nuclear Power Station, Unit 1),

LBP-85-12, 21 NRC 644, 758-59 (1985); Consolidated Edison Company of New York (Indian Point, Unit No. 2), LBP-83-68, 18 NRC 811, 938-39 (1983).

Having submitted a plan setting forth specific backup procedures, Applicants cannot be heard to argue for the rejection of bases specifying inadequacies or defects in those backup procedures.

Apparently, the Applicants take the position that, if the Board should rule that Basis B is admissible, Deficiencies 2 and 5 should be I rejected. They do not oppose Deficiencies 1, 3 and 4. Deficiency 2 6 In the Wolf Creek decision at 95, Contention II(e) asserted that "There is no provision about how to make the warning if one of more sirens fail to operate. The evacuation time will therefore be longer than estimated."

t contends that the backup airborne system is deficient because it will not meet the requirements for the primary system that there be the capability for providing 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, and for providing for the sir'en to sound for three to five minutes (NUREG-0654, Appendix 3 at 3-3 and 3-12). Deficiency 2 is not appropriately litigable in this proceeding since requiring the same speed, duration of sounding and voice capability for backup airborne alerting as for the primary system would not make regulatory sense. See Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), LBP-88-2, 27 NRC 85, 96 (1988).

Accordingly, we reject Deficiency 2. We reject Deficiency 5 for the same reason we rejected Deficiency 12 which had been advanced in support of Basis A, supra.

Accordingly, Basis B is admitted, and, upon our review, Deficiencies 1, 3 and 4 are admitted.

ORDER

1. The Mass, amended contention is admitted as an issue in controversy.

2. Basis A (as modified by the Board) is admitted as well as Deficiencies 1 through 11, and 14,

3. Basis B is admitted as well as Deficiencies 1, 3 and 4.

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4. Applicants, Mass. and the Staff shall immediately proceed with and complete discovery by August 1, 1988.7  :

5. By August 15, 1988, these parties shall advise the Board whether or not each intends to file motions for summary disposition, and any motions for sumary disposition shall be filed on or before September 15, 1988. Any answers supporting or opposing a motion for sumary disposition shall be filed pursuant to 10 C.F.R. Q2.749.

THE ATOMIC SAFETY AND LICENSING BOARD  !

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Sheldon J. kt ADMINISTRATI4,1fe, E JUDGE Chliman W/ A Dif. Jerryp rbo~ur ADMINIST_KTIVE R JUDGE Dr. Emmeth A. Luebke ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland this 2nd day of June,1988. l l

7 See our Memorandum and Order of Maren 18, 1988 (unpublished) at 4 and 5).

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