ML20205F797

Memorandum & Order (Denying Seacoast Anti-Pollution League Motion of 870206).* Motion Re Onsite Emergency Planning & Safety Issues Denied.Served on 870325

ML20205F797
Person / Time
Site:	Seabrook
Issue date:	03/23/1987
From:	Harbour J, Luebke E, Wolfe S Atomic Safety and Licensing Board Panel
To:	SEACOAST ANTI-POLLUTION LEAGUE
References
CON-#187-2917 82-471-02-OL, 82-471-2-OL, OL-1, NUDOCS 8703310296
Download: ML20205F797 (11)

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, 1117 00CKETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION 87 !N 24 P4:10 ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: OFFICE OF 3ECRETi nv Sheldon J. Wolfe, Chairman 00CKETmc A SERvict.

Emmeth A. Luebke BRANCH Jerry Harbour SERVED MAR 25190 l

) Docket Nos. 50-443-OL-1 In the Matter of 50-444-OL-1 PUBLIC SERVICE COMPANY (On-SiteEmergencyPlanning 0FNEWHAMPSHIRE,etal. and Safety Issues)

(Seabrook Station, Units 1 and 2) -

March 23, 1987 MEMORANDUM AND ORDER (Denying SAPL's Motion of February 6,1987)

MEMORANDUM On February 6,1987, Seacoast Anti-Pollution League (SAPL) filed a motion requesting that the Board admit a late-filed contention.1 reopen the record in the on-site emergency planning and safety phase of this 1

The late-filed contention asserts that:

Applicants have not complied with the provisions of 10 C.F.R. 650.47(b)(5) and Appendix E, SIV, D.1 and 3 and Part 50 of the Commission's regulations and NUREG-0654 II.E.6 and Appendix 3 because the siren system for public alerting and instruction is unreliable, not properly audible, and does not convey properly intelligible messages and does not, therefore, ensure prompt alerting and notification of the public. Furthermore, the installation of the siren system has been found illegal by a New Hampshire Superior Court.

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_2 b proceeTing, and refrain from issuing any decision that might authorize the issuance of an operating license up to 5% of rated power until its contention is resolved so as to provide for adequate notification to the public as required by regulations. With respect to the last request, in the alternative, SAPL requests that any issuance of a low-power license condition the issuance of such a license upon Applicants' compliance with 10 C.F.R. 650.47(b)(5).2 On February 23, 1987, Applicants responded and on February 26, the Staff responded. -

DISCUSSION I. Re The Request To Admit A Late-Filed Contention In a motion filed on June 17, 1986, Applicants, in part, had requested that our Partial Initial Decision should authorize operation of Seabrook Unit 1 up to and including 5% of rated power. SAPL, 2 10 C.F.R. 650.47 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.

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including certain other 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.

SAPL asserts that a test of sirens on January 31,-1987, in the Town of East Kingston, New Hampshire raises serious questions regarding the reliability of the siren system, the audibility of that system and the intelligibility of the messages broadcast over the system. Relying upon the affidavit of a newspaper reporter, SAPL alleges that, during the test, (1) an attempt to carry out a voice notification remotely from the Rockingham County Dispatch in Brentwood, New Hampshire failed, (2) the attempt to activate the sirens from the same location resulted in only one of the sirens working, (3) the activation of the sirens from the East Kingston Emergency Operations Center (EOC) was flawed by one of the four sirens being inoperable, (4) the audibility of the sirens to alert citizens in their homes was questioned by a local official, and (5) 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.

e while Applicants' crew was able to make the inoperable siren sound off, the succeeding voice announcement from the local EOC was not heard at six monitoring locations and was scratchy and unintelligible at the two i

locations where heard. Further, with respect to a suit brought by the Towns of Rye and Hampton Falls, SAPL states that, on January 22, 1987, the Rockingham County Superior Count found that the licenses, permitting Applicants to install poles with sirens on the Towns'-maintained and/or the state-maintained highways, had been granted by the Towns and by the New Hampshire Department of Transportation without statutory authority and were therefore null and void.

In order to determine whether to grant SAPL's motion to admit the late-filed contention, we must consider the five factors set forth in 10 t

C.F.R.92.714(a)(1).4 With respect to the first factor, SAPL urges that it could not have filed its contention earlier because the Rockingham 4

The five factors are:

(i) Good cause, if any, for failure to file on time.

(ii) The availability of other means whereby the petitioner's interest will be protected.

(iii) The extent to which the petitioner's participation may i reasonably 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 l

broaden the issue or delay the proceeding.

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Superior Court's Order was not issued until January 22, 1987 and because the test of the East Kingston sirens was not conducted until January 31.

Under these circumstances, we agree with SAPL and the Staff that SAPL  ;

has shown good cause for the failure to file on time.

With respect to the second and fourth factors, we conclude, and Applicants and Staff concede, that there are no means available to SAPL ,

whereby it can assure that its interest will be protected other than by the filing of this contention, and that SAPL's interest will not be repiesented by existing parties 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. Commonwealth Edison Company (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC241,245(1986); South Carolina Electric and Gas Company (Virgil C.

Summer Nuclear Station, Unit 1), ALAB-642,13 NRC 881, 895 (1981).

With respect to the third factor, we agree #ith the Staff and the Applicants that SAPL has failed to demonstrate that it has special expertise on the subjects which it seeks to raise and thus it would not assist in developing a sound record. SAPL states that it can call as a witness a newspaper reporter, but, after reading his affidavit and in light of SAPL's own appraisal that the reporter could only be a fact witness, we conclude that he could testify only as a fact witness.

Although it should have done so, SAPL did not identify other prospective witnesses and summarize their proposed expert testimony. SAPL states it is looking into the possibility of securing an expert witness and merely generalizes as to that which the expert witness would testify to. Thus,

W this third factor cannot be weighed in favor of SAPL. Comonwealth Edison Company (Braidwood Nuclear Power Station, Units 1 and 2),

CLI-86-8, 23 NRC 241, 246-47 (1986).

Finally, as to the fifth factor, SAPL concedes that the. admission of its late-filed contention would "necessarily result in broadening and delay of the proceeding since the record would have to be reopened."

Thus, this fifth factor cannot be weighed in SAPL's favor.

As discussed above, factors one, two and four weigh in favor of admitting SAPL's late-filed contention, while factors three and five must be weighed against admitting it. We need not resolve this matter because, as discussed below, the request to reopen must be denied.

II. Re The Request To Reopen The Record A motion to reopen a closed evidentiary record is governed by 10 C.F.R. 92.734.5 51 Fed. Reg. 19535,19539(1986). With respect to the 5

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 (FootnoteContinued) l

O first criterion, we conclude that SAPL has filed its motion to reopen in a timely manner. We so conclude because the Commission has noted that the first factor in 10 C.F.R. 62.714(a)(1) overlaps the first criterion in 10 C.F.R. 92.734, the former of which, as discussed above, is weighed in favor of concluding that good cause has been shown for the failure to file on time. 51 Fed. Reg. 19535, 19538 (1986).

With respect to the second criterion, we have read the affidavits attached to Applicants' and the Staff's responses and conclude that each affiant is an expert in emergency alert and notification matters. The Staff's affiant noted initially that:

1. The-test was conducted by the Town of East Kingston, and was not intended to be a test of the entire Seabrook alert and notification system. Because of the nature of the test, it was conducted by this town without an approved Seabrook test procedure. As a result, the location of the observers stationed to listen for the sirens was not controlled in a manner to ensure that they were located in an area intended to be covered solely by the East Kingston sirens in the event of activation of the complete alert and notification system. Part of the town of East Kingston is covered by sirens in neighboring towns. It was never the intent to cover all of East Kingston with the four sirens located within its borders.

2. Moreover, the sirens were apparently not activated long enough for the test to be valid. Specifically, a complete rotation of a siren requires approximately 30 seconds, and during the test sirens were activated for approximately 15 seconds. Consequently, sirens were not activated long (FootnoteContinued) the newly proffered evidence been considered initially.

(d) A motion to reopen which relates to a contention not previously in controversy among the parties must also satisfy the requirements for nontimely contentions in

$2.714(a)(1)(1-v).

enough to cover all the intended area and could very well have been pointed away from the observer during the test.

3. Severe, aut not unexpected weather conditions existed just prior to the siren testing. A heavy wet snow with driving wind and subsequently falling temperatures had occurred the night before the test. The sirens were installed with the sirens facing north, allowing the snow and ice to build up on the siren grates and throats. The snow also accumulated on the plates attached to the bases of the activation antennae (these plates serve as a " ground plane" which is necessary for the efficient transmission of the radio activation signal).

The Staff's affiant then stated as follows:

1. Any tests conducted in the future will be conducted in accordance with a procedure which has been reviewed for adequacy to assure the validity of the test results.

Specifically, the purpose of this procedure, the location of the observers, and the planned duration for sounding the sirens, will be specified.

2. The sirens have been reoriented so as to be pointed in a southerly direction when not in use, as this is out of the prevailing winds for this area, thereby substantially lessening the likelihood of snow or ice being forced into the siren cones or building up on the grates in a manner which could attenuate the sound from the sirens.

3. The sirens are being coated with an application of an anti-icing product which will further lessen the likelihood of ice building-up during storms.

4. The activation antennae have been modified by replacement of the flat horizontal plate " ground planes" with one consisting of radial wires, which will eliminate the problem of snow or ice build-up on the " ground plane" plates. The modified antennae have been tested satisfactorily.

Both the Applicants' and the Staff's affiants stated that the above set forth corrective actions are being undertaken to assure that these problems will not take place in the future. We conclude that SAPL has failed to show that the test of the sirens at East Kingston presents a significant safety issue to warrant reopening of the record. At most

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SAPL's affiant, the newspaper reporter, tells us factually what occurred during the testing -- he does not tell us, nor does he have the expertise to so advise us, that the problems encountered are insurmountable or incapable of solution.

Further, with respect to the second criterion, the New Hampshire Superior Court's decision does not present a significant safety issue.

In the first place, we are advised by Applicants and the Staff that this decision, appealed to the New Hampshire Supreme Court on February 13, 1987, stays the lower court's decision. Thus, while steyed, the decision does not currently preclude the sirens from being used to notify the public, there is no issue to litigate at this time, and there is no current safety significance attached to the Superior Court's decision. Moreover, if the New Hampshire Supreme Court dces affirm and the sirens are removed after a license has been issued, the safety of the public is assured by 10 C.F.R. 550.54(a)(2)(ii).6 Finally, with respect to the third criterion, we conclude that SAPL has not demonstrated that a materially different result would be or f

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Section 50.54(a)(2)(ii) provides in pertinent part that:

(ii) If after April 1,1981, the NRC finds that the state of emergency preparedness does not provide reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency...and if the deficiencies...

are not corrected within four months of that finding, the Commission will determine whether the reactor shall be shut down until such deficiencies are remedied or whether other enforcement action is appropriate.

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would have been likely had the newly proffered evidence been considered initially. Since the lower court's decision as stayed then (as now) would have no immediate legal significance, a materially different result would not be and would not have been likely had this newly proffered evidence been considered initially. Moreover, since the affidavits of the Applicants' and the Staff's experts satisfy us that certain corrective actions are being taken to assure that the problems experienced in the siren testing will not again occur and since NECNP has not told us that these problems are incapable of solution, a materially different result would not be and would not have been likely had this newly proffered evidence been considered initially.

We deny the request to reopen the record.

III. Re The Request That The Board Refrain From Issuing A low Power License In light of our denial of the request to reopen the record, which effectively moots the request to admit the late-filed contention, we deny the request that we refrain from issuing any decision that might authorize the issuance of an operating license up to 5% of rated power, and we deny the alternative request that any issuance of a low-power license condition the issuance of such a license upon Applicants' compliancewith150.47(b)(5).

6 ORDER For the foregoing reasons. SAPL's motion of February 6,1987 is denied.

It is so ORDERED.

THE ATOMIC SAFETY AND LICENSING ROARD m>. < ag Sheldon J. l 51fe. Ehairman ADMINISTRATIVE JUDGE LL// es defry Harcour ADMINISTRATIVE JUDGE h.--AA.b-4a~ 7L.A A L/

Emmeth A. Luebke ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland this 23rd day of March, 1987.

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