ML20205F286
| ML20205F286 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/25/1987 |
| From: | Harbour J, Luebke E, Wolfe S Atomic Safety and Licensing Board Panel |
| To: | MASSACHUSETTS, COMMONWEALTH OF |
| References | |
| CON-#187-2899 82-471-02-OL, 82-471-2-OL, OL-1, NUDOCS 8703310132 | |
| Download: ML20205F286 (16) | |
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DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .
ATOMIC SAFETY AND LICENSING BOARD 1? MAR 25 P4:i5 Before Administrative Judges: OFFICE py Sheldon J. Wolfe, Chairman 00CKETjNGcp ggg 77,ir.
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- NM Emmeth A. Luebke Jerry Harbour SERVED MAR 261987
) Docket Nos. 50-443-0L-1 .
In the Matter of ) 50-444-0L-1
)
PUBLIC SERVICE COMPANY ) (On-Site Emergency Planning 0F NEW HAMPSHIRE, et al. ) and Safety Issues)
)
) (ASLBPNo. 82-471-02-0L)
(Seabrook Station, Units 1 and 2)
March 25, 1987 MEMORANDUM AND ORDER (Denying Mass.' Motion of March 3,1987)
MEMORANDUM On January 12, 1987, the Commonwealth of Massachusetts (Mass.) had filed a motion requesting that the Board admit a late-filed contention,I reopen the record in the on-site emergency planning and safety phase of this proceeding, and refrain from issuing any decision that might 1
The late-filed contention asserted that:
Applicants have failed to comply with the provisions of 10 C.F.R. $50.47(b)(5) and Part 50, Appendix E, iv D.1 and 3, because no administrative or physical means have been established to provide early notification and clear instruction to the populace within the plume exposure pathway located within the Town of Merrimac, Massachusetts.
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authorize the issuance of an operating license for operation not .in excess of 5% rated power. With respect to the last request, in the alternative, Mass._ requested that any decision authorizing the issuance of a low-power license condition the issuance of such a license upon Applicants' compliance with 10 C.F.R. 550.47(b)(5).2 As a basis for its motion, Mass. alleged that, contrary to Applicants' emergency response plans which called for the installation of three sirens, only two sirens had been installed in the Town of Merrimac, Massachusetts, and that these two sirens were not operational. After receiving'the responses of the Applicants and the NRC Staff, in the Memorandum and Order of February 6,1987 LBP-87-3, 25 NRC _, the Board denied the motion.
On March 3, 1987, Mass filed a motion to reconsider the late-filed contention in light of the revised basis and to reopen the record.
Applicants and the Staff respectively filed responses on March 13 and March 20, 1987.
2 10 C.F.R. 550.47 provides in pertinent part:
(b) The onsite and, except as provided in paragraph (d) of this section, offsite emergency response plans for nuclear power reactors must meet the following standards:
(5) Procedures have been established for notification by the licensee, of State and local response organizations and for notification of emergency personnel by all organizations; the content of initial and followup messages to response organizations and the public has been established; and means to provide early notification and clear instruction to the populace within the plume exposure pathway Emergency Planning Zone have been established.
s.
DISCUSSION I. Introduction In a motion filed on June 17, 1986, Applicants, in part, had requested that our Partial Initial Decision should authorize operation of Seabrook Unit I up to and including 5% of rated power. Mass.,
including certain intervenors, filed responses in opposition. Our Memorandum and Order of July 25,1986, LBP-86-24, 24 NRC 132, granted this part of Applicants' motion to the extent that we stated that our Partial Initial Decision would decide whether or not to issue the operating license for operation up to and including 5% of rated power.
The Board closed the record on October 3, 1986,3 the parties have filed proposed findings of fact and conclusions of law, and the Board is preparing its Partial Initial Decision.
Utilizing the identical contration set forth in its previous motion of January 12, 1987, Mass, changes the basis and requests reconsideration.4 It now urges in support of its late-filed contention 3
During the hearing, the Board received evidence upon on-site issues in controversy which involved the classification scheme and emergency action levels, the safety parameter display system, and the environmental qualification of electrical equipment.
4 As stated above, the Board denied the first Mass. motion on February 6, 1987. Since the Board obviously had rejected the contention and its underlying basis, we do not understand why Mass.
requests reconsideration of the instant contention which, while identical to the rejected contention, has an entirely different (FootnoteContinued)
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that, in three populated areas of the Town of Merrimac, the Applicants' alert and notification siren system fails to meet either of the 5
alternative NRC/ FEMA sound level acceptance criteria for providing reasonable assurance that the populace will hear the sirens during an emergency. It asserts that compliance with these criteria requires a showing that either (1) the expected sound level coverage is at least 60 dBC or (2) the expected sound pressure level exceeds the average measured summer daytime ambient sound pressure levels by 10 dB. It states that on January 19, 1987, Applicants' consultant-conducted background noise measurements for three areas in Merrimac using a 1000 Hz octave band for a period of 30 minutes. Via an attached affidavit, Mass.' expert consultant states that, in conducting background noise measurements for these areas in the Town of Merrimac, Applicants' consultant inappropriately used a 1000 Hz octave band for a period of 30 minutes which showed that the measured levels were 40 dB or less and thus that the siren design level of 50 dBC or more provided adequate coverage in those areas. Mass.' expert further attests that because the 680 Hz fundamental frequency of the sirens was outside the 1000 Hz octave band (bandwidth 708 Hz-1410 Hz), a more appropriate band (FootnoteContinued) basis. Accordingly, we will treat the instant motion as being one requesting leave to file an untimely contention and to reopen the record.
5 See NUREG-0654/ FEMA-REP-1, Revision 1, Appendix 3, ilC.3e and f, at pp. 3-10, 3-11; FEMA-REP-10,lE.6.2.1(FixedSirens).
y in which to measure background noise may be the 500 Hz octave band (bandwidth 355 Hz-708 Hz). Mass.' expert also attests that, on February 11, 1987, his measurements in the 500 Hz octave band reflected that the background levels at the Merrimac sites were higher by 3 DB or more than measured in the 1000 Hz octave band. Based on these measurements, Mass. asserts that the 10 dBC above background criterion for the siren sound levels was not met. Further, Mass. alleges that Applicants' sound measurements were faulty in having been taken on an inappropriate, nonrepresentative day, a federal and stale holiday (Martin Luther King, Jr. Day) when both commuter and commercial traffic would be diminished and background noise level presumably lowered.
Applicants in their response concede that they had provided incorrect information on the siren frequency to their consultant and that the first background noise measurenents had been taken in the wrong frequency band. In an affidavit, Applicants' Manager of Emergency Planning attests that their consultant, upon expert advice, retook measurements in the 630 Hz 1/3 octave band (bandwidth 561 Hz-707 Hz),
which affiant states to be the band which includes the 680 Hz siren frequency for background noise measurements, and that this second set of measurements was taken on Tuesday, March 10, 1987, a day representative of a " typical" weekday. Applicants' consultant's letter attached to Applicants' affidavit further states that the measurements were taken during the late afternoon rush hour at sites where traffic noise influence would be greatest and with consideration given to proximity to residences. The consultant's letter further states that measurements
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were taken at five locations in the areas where siren design coverage levels are predicted to be between 50 db and 60 dB, and at one location inside the 60 dB coverage area. In regard to the measurements within the 50 dB-60 dB siren design coverage area, Applicants state that the siren coverage levels will exceed ambient levels by 19 to 30 decibels which is well above the 10 dB ebove ambient noise criterion.
Relying upon the affidavit and attachments attached to Applicants' response, the Staff asserts (a) that it appears that no significant safety issue is raised by the Mass motion, (b) that, s'ince the Merrimac sirens appear to satisfy the applicable regulatory guidance, it cannot be said that the Board likely would reach a materially different result with respect to the on-site emergency planning phase of this proceeding had the evidence now proffered by Mass. been considered initially, and (c) that, although applicants' consultant did not take the background sound measurements during the summer as recommended in FEMA-REP-10, the question of whether the sound pressure level of the sirens exceeds by 10 dB the summer ambient background sound level can be verified by objective criteria; i.e., by taking new measurements in the summer.
II. Re The Request To Admit A Late-Filed Contention With A Revised Basis In order to determine whether to grant Mass.' motion to admit the late-filed contention with a revised basis, we must consider the five
factors set forth in 10 C.F.R. 92.714(a)(1).6 With respect to the first factor, Mass. urges that it could not have filed any contention challenging the adequacy of Applicants' siren system either shortly after May 22, 1986, when the Town of Merrimac had refused to permit the electric hooking up of the sirens, or shortly after the Town had ordered the immediate cessation of all work on the sirens on June 2, 1986. It asserts, in substance, that it could not have filed earlier such a contention because its " Attorney General is not responsible for monitoring resolutions of Massachusetts towns and was not aware until recently of the actions taken by the Merrimac Town Meeting on May 6 and by the Board of Selectmen on June 2,1986." Further, even assuming arguendo that the Attorney General had knowledge of the Town's actions, Mass. urges that it was lulled into inaction because Applicants proceeded to install two of the three sirens and publicly announced in 6
The five factors are:
(1) Good cause, if any, for failure to file on time.
(ii) The availability of other means whereby the petitioner's interest will be protected.
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(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(iv) The extent to which the petitioner's interest will be represented by existing parties.
(v) The extent to which the petitioner's participation will broaden the issue or delay the proceeding.
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f May and October of 1986 that the sirens would be operational prior to initial criticality. Mass, asserts that it was not until the Applicants and the Staff responded in January,1987 to its first motion to admit a late-filed contention that it became clear that the siren system was totally inadequate and in complete disregard of the requirement of NUREG-0654 and FEMA-REP-10.
These two arguments advanced by Mass do not survive scrutiny.
While the Attorney General may not be responsible for monitoring resolutions of Massachusetts towns, as the chief legal officer for the Commonwealth, he most certainly was obligated to check with the Commonwealth's knowledgeable officials who supervise emergency planning activities. Indeed, for example, the Attorney General attached an affidavit of Mr. Charles V. Barry to an earlier submission of July 2, 1986.7 Mr. Barry, as Secretary of Public Safety for the Commonwealth of Massachusetts, attested that he exercises supervisory authority over the Massachusetts Civil Defense Agency and Office of Emergency Preparedness, l
that he serves as the Governor's chief executive officer in the event of l a declaration of emergency in the Commonwealth, and that the Governor had established a process whereby the Civil Defense Agency and other state officials were charged with responsibility for preparing drafts of such plans in consultation with local officials from the EPZ and host 7
Petition of Attorne General Francis X. Bellotti to revoke regulation 150.47(d or in the alternative to suspend its application in the Seabrook licensing proceeding.
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9 communities. In fact, not only did Mr. Barry attest that in the weeks following April 29, 1986, Merrimac (among certain other Massachusetts EPZ communities) had voted in Town Meetings to terminate or otherwise suspend participation in Radiological Emergency Response Planning, but the Attorney General specifically adverted to this attestation in his petition of July 2,1986. We deem significant the fact that Mass. did not attach to the instant motion an affidavit by Mr. Barry asserting that he was unaware of the actions taken by the Town of Merrimac in May and June of 1986. Thus, we give no credence to the Attorney General's disclaimer. Mass.' second argument that Applicants lulled it into inaction will not carry the day especially where, as here, Mass.
obviously has not viewed Applicants as representing its interests. Gulf States Utilities Company (River Bend Station, Units 1 and 2), ALAB-444, 6NRC760,796-97(1977); Duke power Cor.pany (Cherokee Nuclear Station, Units 1, 2 and 3), ALAB-440, 6 NRC 642, 645 (1977); consolidated Edison Company of New York, (Indian Point Unit No. 2), LBP-82-1, 15 NRC 37, 39-40(1982). Mass. should have timely filed a contention by no later than late June 1986 and thereby preserved its challenge to the adequacy of Applicants' siren system. Instead it sat on its hands and waited until after the record was closed and the case was under submission, and assumed the risk that a motion for leave to file a belated contention wculd be permitted by this Board. Thus, we conclude that Mass, has failed to make the " good cause" showing.
With respect to the second and fourth factors, we conclude that there are no means available to Mass. whereby it can assure that tts
o:r interest will be protected other than by the filing of this contention, and that Mass.' interest will not be represented by existing parties i since no other party had proposed such a contention before the Board.
However, these two factors are accorded less weight than factors one, three and five. CommonwealthEdisonCompany(BraidwoodNuclearPower Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 245 (1986); South I
Carolina Electric and Gas Company (Virgil C. Summer Nuclear Station.
l Unit 1),ALAB-642,13NRC881,895(1981). Further, we weigh the third factor in favor of Mass, in that an affidavit attached 'to its motion indicates that it has retained, as a consultant, an expert in the field of acoustics.
Finally, as to the fifth factor, the admission of the late-filed contention with a revised basis would broaden the issues and delay this on-site emergency planning and safety proceeding. Mass, urges that the proceedings would only be minimally broadened and delayed inasmuch as only a short discovery p riod and a one-day hearing would be required, and filings of proposed findings and conclusions of law could occur within two weeks thereafter. It also urges that a motion for sumary disposition could be utilized'to expedite the resolution of the issue.
However, we are not persuaded by Mass.' conclusional statement concerning the short turn around time for the resolution of this matter.
It does not tell us that it has consulted with the other parties and secured their agreement as to the amount of time needed to initiate and complete summary disposition filings or to conduct discovery, to cross-examine and to submit proposed findings. Licensing Boards have ,
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been directed by the Commission to see to it that the process moves along at an expeditious pace, consistent with the demands of fairness, and that decisions will issue as soon as is practicable after the submission of proposed findings of fact and conclusions of law.
Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8,13 NRC452,453,458(1981). We must comply with those directions.
Finally, Mass, argues that a short delay in the issuance of a low-power license decision would not affect the commencement of full power operation, if any, since issuance of a full power opera' ting license is at least one year away. Such an argument ignores the benefits of early low-power testing and has been rejected by the Commission. In Long Island Lighting Company (Shoreham Nuclear Power Station), CLI-85-12, 21 NRC 1587, 1590-91, the Commission stated:
The primary benefit of early low-power operation is that it will allow the early discovery and correction of unforeseen but possible problems which may prevent or delay full-power operation at an enormous expense to LILCO and/or its customers. (Footnoteomitted) Thus, early low-power testing greatly increases the possibility that if and when the plant is ready for full-power operation, the benefits '
of that operation will be realized without delay. This benefit does not require speculation over the outcome of the full-power proceeding. So long as an applicant is willing to invest the substantial effort and money necessary to attempt to obtain a full-power license, the possibility of full-power operation at a future date gives substantial value to low-power testing. Moreover, whenever a low-power motion has been filed where full-power issues are also pending (a common occurrence), there is always uncertainty over the outcome of the full-power proceeding. Delaying the low-power license until that uncertainty is eliminated irretrievably deprives the applicant and its customers of the substantial benefits of early low-power testing.
To refuse to authorize low-power operation whenever there is uncertainty over whether full-power operation will
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I be authorized would ignore Commission regulations which allow low-power operation when there is reasonable assurance that it will present no undue risk to the public health and safety notwithstanding the pendency of full-power issues.
10C.F.R.650.57(c). This regulation is premised on the idea that the inherent benefits of early low-power testing outweigh the uncertainty that a full-power license may be denied. We see no reason to refuse to recognize this premise in this case. In short, the sooner low-power test-ing is begun, the greater the probability that it will serve the purpose for which it is intended, i.e., to facilitate the earliest possible full-power operation of the plant in the event that the Comission finds reasonable assurance that full-power operation will present no undue risk to the public health and safety.
l The Commission has held that the first factor is a' crucial ele ont in the analysis of whether a late-filed contention should be admittid Commonwealth Edison Company (Braidwood Nuclear Power Station, Unitt 1 and2),CLI-86-8,23NRC241,244(1986). Moreover, the Commission has decided that favorable findings on some or even all of the other f tctors in the rule need not in a given case outweigh the effect of inexcusable tardiness. Nuclear Fuel Services, Inc. et al. (West Valley Repros essing Plant),CLI-75-4,1NRC273,275(1975). Here, in addition to th: first factor, the fifth factor must be weighed against Mass., and these two factors overridingly tip the scales against admitting the late-filed contention with its revised basis.
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III. Re The Request To Reopen The Record A motion to reopen a closed evidentiary record is governed by 10 C.F.R. 12.734.8 With respect to the first criterion, we conclude that Mass. has not filed its motion to reopen in a timely manner. We so conclude because the Connission has noted that the first factor in 10 C.F.R. 52.714(a)(1) overlaps the first criterion in 10 C.F.R. 62.734, the former of which as discussed above, is weighed against concluding that good cause has been shown for the failure to file on time. 51 Fed.
Reg.19535,19538(1986). As subsumed in our discussion below, it is clear that we find no exceptionally grave issue involved in the contention which would persuade us to consider the untimely presented motion to reopen the record, 8 Section 2.734 provides in pertinent part:
(a) A motion to reopen a closed record to consider additional evidence will not be granted unless the following criteria are satisfied:
(1) The motion must be timely, except that an 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 environmental issue.
(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.
(d) A motion to reopen which relates to a contention not (FootnoteContinued)
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f We also conclude that the second and third criteria have not been satisfied. While the Applicants concede their own error in furnishing incorrect information as to the siren tone to their consultants, and that the consultant had initially taken background noise measurements in a frequency band that did not include the siren frequency, Applicants have had the background noise It 'el measurements retaken on a representative weekday in a proper band that includes the siren tone frequency of 680 Hz. Results of the second set of measurements, taken in the 630 Hz 1/3 octave band (band width 561 Hz to 707'Hz), indicate that background noise levels in the Merrimac areas of concern are lower by a considerable margin than the 10 dB-below-siren-design level of 50-60 dB in those areas. Thus the siren design coverage in the Merrimac areas meets NRC/ FEMA requirements.9 In regard to the proper band about the siren frequency, in which ambient background noise levels are to be measured, Applicants here rely (FootnoteContinued) previously in controversy among the parties must also satisfy the requirements for nontimely contentions in 62.714(a)(1)(1-v).
9 We agree with the Staff's connent in its response (note 2, at 8) that treasurement of the summer ambient background noise level recontended, (but not required) by FEMA-REP-10 can be accomplished by future measurements, and that Applicants' failure to take backgrcund measurements in the summer does not raise a significant safety issue. We also note that measurements of summer ambient background noise levels are not required by NUREG-0654 nor recommended in FEMA-43.
P 10 which states, "The ambient background noise on lE.6.2.1 of FEMA-43 level should be measured in that one-third octave band (s) containing the predominanttone(s)ofthesiren(s)used." More recent guidance on the II subject is provided in FEMA-REP-10 which, while superseding FEMA-43, indicates that FEMA-43 may be used. FEMA-REP-10 does not specify what band is to be used, but FEMA's announcement specifies that "... FEMA has modified the field survey ambient sound measurement recommendations [of FEMA-43] to permit use of the full octave band in which the predominant siren sound level occurs...". (50 Fed. Reg. 43084,430'85(October 23, 1985)). NUREG-0654, which provides the regulatory requirements for l conducting ambient noise measurements such as these, does require that the measurements be taken in a band about the siren tone frequency, but ,
it is silent on the band width (full or one-third octave) to be used.I2 Thus, it is permissible to use either a one-third octave band or a full
. octave band in the measurement of ambient background noise levels so long as the band used encompasses the siren tone frequency.
In light of the fact that the applicable standards for conducting background noise measurements permit utilization of either a full-octave 10 ,, Standard Guide for the Evaluation of Alert and Notification Systems for Nuclear Power Plants," FEMA-43/ September 1983.
II " Guide for the Evaluation of Alert and Notification Systems for Nuclear Power Plants," FEMA-REP-10/ November 1985.
i I2 " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants,"NUREG-0654/ FEMA-REP-1,Rev.1(November 1980), App.3. ,
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or a one-third octave band, we do not find that Mass.' concern, based on its consultant's measurements in the 500 Hz full octave band p esent a significant safety issue. Mass.' consultant only attested that measurements in the 500 Hz full octave band may be more appropriate than measurements in the 1000 Hz full octave band because the siren frequency, 680 Hz, falls within the 500 Hz full octave band. Also, it follows that since Applicants' second set of measurements, retaken in the optional 630 Hz one-third octave band, meet NRC/ FEMA requirements
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both as ,a proper band width, and the 10 dB-below-siren-design-level criterion, a materially different result would not be or would not l' ave been likely if Mass.' newly proffered evidence had been considered by us initially.
ORDER For the reasons discussed above, Mass.' motion of March 3,1987 is denied.
THE ATOMIC SAFETY AND LICENSING BOARD (1.QM hWo^n ZT6 Tie, chairman ADMINISTRATIVE JUDGE
, Vf hW Uerry Harb6ur ADMIN!STRAT!VE JUDGE
/p .._-m
.rt d.,
Emmeth A. Luebke 4,_
ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland this 25th day of March,1987.