ML20206C368
| ML20206C368 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 11/09/1988 |
| From: | Jonas S HAMPTON, NH, MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20206C372 | List: |
| References | |
| CON-#488-7473 OL-1, NUDOCS 8811160251 | |
| Download: ML20206C368 (13) | |
Text
14A CDCkE1EU von c UlITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION TO NOV 10 M1:07 ATOMIC SAFETY AND LICENSING BOARD
.,7 F '
Before Administrative Judges:
CCCri m.,
Sheldon J. Wolfe, Chairman R I
Emmeth A.
Luebke Dr. Jerry Harbour
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In the Matter of
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PUBLIC SERVICE COMPAtlY OF
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Docket No.(s)
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50-443/444-OL-1 (Seabrook Station, Units 1 and 2)
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On-site EP
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November 9, 1988
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MEMORANDUM OF JOINT ItifERVENORS IN RESPONSE TO OCTOBER 25. 1988 ORQER OF LICENSillG BOARD T; tis memorandum, and the accompanying Second Affidavit of Robert D.
Pollard, are filed by the Messachusetts Attorney General, the flew England Coalition of Nuclear Power, the Seacoast Anti-Pollution League, and the Town of Hampton ("Joint Intervenors") in response to this Board's October 25, 1988 Order directing further briefing and affidavits on their Motion to Admit Exercise Contention.
At the request of the Board, this brief and the Second Pollard Affidavit address the affi, davits filed by Messrs. Kline. Sessler and MacDonald and pages 8-10 of the t3RC Stafi Inspection Report tb. 50-443/88-10.
The Order also calls upon the parties to considet whether a l
significant safety issue has been raised and whether a l
mat.erially dif f erent result would have been likely had the newly proferred evidence been considered initially, two mMBBs Si!!$r 3)
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l standards for reopening a closed record under NRC practice.
The Joint Intervenors respectfully submit that the Board's direction to the parties proceeds from an erroneous premise.
The decision in Union _oLConcerned_Scientista 1_11RI., 735 r.7d i
1437 (D.C. Cir. 1989) precludes the Board from applying the j
standards to reopen a closed record under 10 CFR S 2.734 o<
to admit late-filed contentions under 10 CFR S 2.714.1#
Because 5
the June 27-29, 1988 exercise is "material" to si determination l
of whether reasonable assurance exists imposition of either of these standards would unreasonably limit tha Joint Intervenors' i
hearing rights in violation of Section 189(a) of the Atomic Energy Act.
The Joint Intervenors respectfully urge the i
Board not to apply either of the heightened standards but i
instead simply admit the contention for litigation.
Even if the reopening standard is applied here, it is l
easily met.
The first NRC Inspection Report No. 50-443/88-09, in conjunction with the first Pollard Affidavit, demonstrated a
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significant safety issue and presented evidence which would
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have led to a materially difforent result in the low-power 1/
The Joint Intervonors made their arguments on this point in t
their October 7 reply to the Applicants' and Staf f's respotises to the contention and will not repeat them at length here.
Although the Applicants and Staff, in their October 12 responses to the Joint Intervenors' reply, ttrged the Board not l
to consider the reply, it appears from the Board's Orde: that L
it has done so.
Therefore, the Joint Intervenors do no more than incorporate by ref erence the argu'nents here.
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Indeed, the Statf accepts this reasoning for the reopening
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standard, which the Board apparently seeks to impose hete, but j
inexplicably rejects the conclusion for the late-filed i
contention standard.
See Staff Response of October 3, 1988 at 2 n.l.
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1 proceedings had it been considered initially.
The Applicants have now offered the affidavits of two Technical Support l
Centers ("TSC") Coordinators and an Emergency Operations Facility ("EOF") Coordinator to explain their actions and the actions of their staff which had been criticized by the team of NRC inspectors who witnessed the exercise.
The NRC Staff, apparently dismayed by the prospect that their earlier criticism of the Applicants might become an issue for liti gation, elected to take another look at the issue.
The Stat,f replaced its first team of inspectors with a single inspector who i.nterviewed TEC and EOF personnel, apparently i
including the Applicants affiants, and reversed the findings l
of the earlier report.
Notwiths'.anding this extraordinary and complete "about face" by the Staff, the issues have not disappeared.
As the Second pollard Affidavit shows, the Applicants' and Staff's explanations are confused, inconsistent f
and ultimately unpersuasive on all five issues.
The i
contentions must be admitted and until these important safety 1
issues are resolved low-power operation should not take place.
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ARGUMEtlI i
A.
The Board May Not Resolve llimEuteGLEKts_In_thisCordert.
l The Board has indicated that additional briefs and affiilavits will be used "to determine whether a significant i
safety issue has been raised and whsther a materially different result would be or would have been likely had the newly I
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proffered evidence been considered initially."
October 25, 1988 Order at 1.
So long as the movant meets the requirements of 10 CFR S 2.734, the Board is not to resolve disputed factual issues.
Yarmont_ Yankee _Hucleat_P.ower_Corporiti_on (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973).1#
The reason for this rule is straightforward -- in
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i applying reopening standards the Board is to determine whether l
truly important issues would be litigated if the record were reopened.
The Board is not to resolve those issues in a i
summary f ashion once the threshold showing has been made that the evidence, if assumed to be true, presents a significant sa'9ty issue.
l Yet, by directing the Joint Intervenors to respond with an i
additional affidavit to the Applicants' Affidavits and the j
second NRC report, the Board appears to be prepared to resolve sharply disputed facta by means of evaluating conflicting affidavits.
What is left of the Joint Intervenors' hearing j
rights after applying the heightened standard to reopen a l
t closed record is severely eroded by the Board's apparent I
l decision to conduct an inappropriate "on-the-merits" j
i adjudication in a very preliminary procedural context.
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See also, PSUH, htAB-865, 25 NRC 430, 442.
The "materially l
l different result" factor was first addressed in NattheIn ludiana_Public_Setylc.e_Co. (Bailly Generating Station, Nucle a 1), ALAD-227, 8 AEC 416 (1974)
Sec 5 Fed. Reg. 19535, l'1536 (May 30, 1986) (codifying and refining reopening standard).
The Appeal Board likened the factor to one that exists for
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obtaining a new trial for newly discovered evidence -- whether j
newly discovered evidence made a pr.ima facie showing that a l
different result should have been reached initially.
Northern insil.ana, supla, 8 AEC at 418 (ci t i ng UnaLeo_Ind., Inc.
v.
Eyans P.toduct_Co., 403 F.
2d 638, 639 (7th Cir. 1968)).
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B.
Neither The Applicants' Affidavits UnL_The Second__NRC..Repor t Ate _.Cr. edible.
l Without even reviewing the substance of the Applicants' I
affidavits or the second NRC report, the Board should disregard them as not credible.
Messrs. Kline and Sessler were the first shift TSC Technical Services Coordinator and TSC Engineering i
Coordinator at the June 1988 exercise, respectively.
Mr.
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MacDonald was the EOF Coordinator at the exercise.
The first NRC report, roundly criticized the performance of these f
individuals and their staff and concluded that they had "displayed questionable engineering judgement and/or did not
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f recognize or address technical concerns.
The report
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also stated, "Ltlhe_licensen_cnnducted an ade.quate_sc1C t
c tili q u e_oL_ the_e xe1.chte._t h a t_ a lsn_in d en t ifie_d_.the s e_a te a s. "
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NRC Report 88-09 at 5 (emphasis added).
The affidavits are not l
f only inconsistent with the NRC's first report but also with the Applicants' own self critique.
While these individuals
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undoubtedly were stung by the criticism leveled against them
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they are hardly independent observers and their obvious self-interest severely undermines their post-facto justifications.S#
The second NRC Inspection Report should fare even worse because of the unusual circumstances under which it was l
l written.
The exercise was held on June 27-29, 1988 at l
l Seabrook.
The NRC Inspection teaa was led by E.
Fox, Senior
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While the Applicants may wish to offer the testimony of I
l Messrs. Kline, MacDonald and Sessler at the hearing, it would be particularly inappropriate for the Board to credit their testimony in the preliminary context in which their affidavits have been offered.
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Emergency preparedness Specialist and consisted of six other individuals, three of whom were Emergency planning Specialists.
NRC Report 88-09 at 1.
After the inspection E.
Fox presented the findings, presumably including the exercise weaknesses st issue here, to George Thomas of New Hampshire Yankee ("NHY") and members of the NHY staff.
See July 7, 1988 Cover Letter to NRC Report No. 88-09.
The report was prepared and signed by both E.
Fox and W.J.
Lazour, Chief of Emergency planning Services.
On September 16, 1988, the Joint Intervenors anxed the f
.i Doard to admit the exercise contention, largely based on the NRC's report.
Five days later, the NRC sent a Senior Emergency 3
preparedness Specialist to discuss again the weaknesses i
identified in the first report with the exercise participants.
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NRC Report 88-10 at 2.
Instead of sending any of the f
original team of inspectors that actually witnessed the exercise back to Seabrook, the NRC elected to replace the inspectors that had criticized the Applicants' performance.
t' The new report cleared away the criticisms and was signed on September 28, 1IEH3 but curiously not released on that date.
t On tha' date, however, the Applicants responded to the l
motion to admit the contention and attached the affidavits of the exercise participants with explanations for their exercise
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Notwithstanding the Staff's description of the inspection f
as "routine" in fact it was substantially out of sequence with the other inspections described in the report.
NRC Report i
88-10 at 1 (all other inspections conducted between July 6 and l
September 6).
An appropriate conclusion to draw is that the j
NRC was not interested in addressing the weaknesses until the Joint Intervenors asked for a hearing on them.
t i I
t performances that were interwe:)ved with the yet to be released l
NRC report.
The report was finally released on October 6, 1988.
1 The report is entitled to no weight from the Board.
- First, the circumstances of its creation suggest that it was an attempt, inconsistent with the Staff's obligation to uphold i
public health and safety, to minimize the impact on the Seabrook litigation of the first report's conclusions.
- Second, whereas the first report relied on the direct observations of a I
team of se'ren inspectors, the second report relies on the pnat-f atts justifications of the criticized players, as related through the report of a new inspector who did not even witness the exercise.
Finally, if as the second report indicates the observations of the first team of inspectors were suspect, the Board should consider why the new inspector reassessed only the findings of exercise Reaknesses and left untouched the findings of exercise strengths.6/
C.
The Second Pollard Affidavit Demonstrates that Despite The Applicants' Affidavits And The Second NRC Re90 tt_Ihe_ EAere i s e Weakness.e s_He r e Re aLAnd_Eign LLLcAnL Accompanying this brief is the Second Affidavit of Robert D.
pollard.
Mr. pollard has reviewed both the Applicants' Affidavits and the second NRC report and has found numerous ettors and inconsistencies.
He concludes that notwithstanding j
the belated justifications and explanations, the Applicants diil l
l not meet the on-site exercise objective because they did not l
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If, as the NRC now contends, its first team of inspectors made such crucial errors in assessing the Applicants' performance, an appropriate remedy would be to hold another exercise before low-power testing. __
O demonstrate an "ability to analyze station conditions, parameter trends and develop potential solutions for placing the unit in a safe, stable condition."
In short, a significant safety issue remains and a materially different result would have been reached in the low power proceedings had this evidence been considered initially.
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Ef.fo.r1;Ltn_RecalLEmersency Eeedwater_I"EEH".l._Eurnp The Applicants claim that efforts to repair the inoperable EFW pump after a large break loss-of-coolant accident ("LOCA*) were mado "to assure a backup heat removal method if a need for future use arose."
Kline Affidavit 4 8.
The second NRC Report accepts this explanation, adding that "the EFW pump would be required to operate to support steam generator cooldown in the recovery phase."
HRC Report 88-10 at 8.
The NRC also accepted the Applicants' representations that the EFW pump activities did not detract from the overall recovery effort.
Id, As pollard points out, these claims are invalid.
In a i
large break LOCA there is little if any potential for usefully employing an EFW pump whether in the short run or the long run.
Because no reactor coolant can be circulated through the steam generator tubes, emergency feedwater is of no use in removing heat from the coolant or the core.
The steam generators will likely have more than adequate time to air cool in the post-accident period.
Moreover, the NRC does not explain how it was "determined" that the irrelevant EFW pump activities did not detract from the overall recovery effort.
Second pollard Affidavit NT 8-10.
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"Questionable Fix" for Containment auilfling. Epr ay_L"CBS"LSys_ tees The Applicants claim that this example of thoir deficient technical judgment was the result of a lack of communication with t4RC observers.
They also state that the alternative flewpath which constituted the "questionable fix" was, in fact, technically second ar.d, in any event, was only a contingency plan that would not have been implemented without NRC approval.
Sessler Affidavit at 5-6.
The NRC now accepts the contingency plan as a "last resort" measure.
NRC Report No. 88-10 at 9.
Pollard points out that neither Mr. Sessler nor either of the two inspection teams provides sufficient detail of the contingency plan to assess its adequacy.
Moreover, the two inspection reports are irreparably inconsistent on this issue.
The second report accepts the flowpath plan because it was a "last resort" and yet the first inspection team, knowing it was a last resort, still rejected it.
Finally, the questionable technical judgment of the TSC and EOF staff is not cured b/
relying on the NRC to pre *'ent, in the end, the Applicants' inappropriate measures from being employed.2#
Second pollard Affidavit V 14.
l 3.
La c k_o LI Cf ort Lt o_.Lo c ate __a nd_Ls_o l a t e_Re l e a s e _ P a t h.
The Applicants now c)iim that they made efforts to locate and isolate the release path but that efforts to 1
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The NRC and the Applicants apparently recognize that something went wrong in the exercise because the lattet have agreed to augment their staff roster.
NRC poport No. 88-10 at 9.
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directly inspect the isolated area were deterred uy high radiation levels.
Kline Affidavit at 5-6.
The new NRC inspector asserts that the first inspection team simply must have been unaware of the activities.
Finally, the NRC concludes that postponing entry was justified by the imminence of restoration of the CBS pump.
NRC Report 98-10 at 9.
Once again, these claims fall short of the mark.
Because the most effective way to terminate on off-site release is to isolate the leakage path, it should have received a higher priority than attempting to restore the CBS pump.0#
Moreover, the Applicants have provided conflicting information on radiation levels, making it impossible to judge whether the decision to postpone entry was appropriate.
Finally, neither the Applicants nor the NRC has explained why the original team of seven inspectors failed to observe these alleged efforts to locate and isolate the release path.
Second pollard Affidavit TV 18-21.
4.
H o_E ff o r t t o_Dlowd oMn_Et c a ln_G e nc La lo rs The Applicants offer two explanations for their failure to blowdown the steam generators: (a) personnel made a decision to postpone blowdown to assess the level of radioactive material in the steam generator 1; and (b) they determined after the exercise that the heat transfer between the containment atmosphere and the insulated steam generators S/
Cfforts to isolate the release would have been particularly important given the repeated delays (through controller intervention) in CBS pump testoration.
NkC Report No. 88-10 at 9.
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was insignificant.
Sessler Affidavit at 7-8.
The NRC now l
believes that the Applicants' performance was acceptable "beccuse the TSC staff was unsure of the integrity of the S/G tubes because no sample was available due to blowdown system isolation."
NRC Report No. 88-10 at 9-10.
Again, the explanations fail for technical reasons.
The only way to have radioactive material in the steam generators justifying postponing blowdown would be a leak in the steam generator tubes.
In a large break LOCA, that leakage path would cause leakage flow from the steam generator through the break in the tubes and out the large break.
Assuming that the Applicants were concerned about the integrity of the tubes, blowdown would have been all the more important because it would have mitigated the hot secondary water leakage through the tubas, out the large break and into the containment.
Second pollard Affidavit 14 25-26.
5.
Ra dioactiv.c__ Release _ Hate The Applicants assert that the TSC staff did in i
fact question the Idek of correlation between the release condition and core cooling indications.
MacDonald Affidavit at 3.
The NRC now agrees.
NRC Report No. 88-10 at 10.
As Pollard points out, there is no explanation whatsoever for why the original inspection team reached a different conclusion on this point.
Second Pollard Affidavit t 30.
In any event, as the NRC recognizes in part, the lack of correlation between the data demonstrates a problem in the exercise scenario that undercuts the validity of the results of I
the exercise.
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O in sum, even if seriously considered by the Doord, the Applicants' Affidavits and the second NRC report do not withstand scrutiny.
The problems identified by the first inspection team were real and cannot be made to disappear by post-exercise maneuvering.
Those probl.ims raise significant safety issues which would have led to a materially different result in the low-power proceedings had they been considered initially, i
i CONCLUEIDH t
I For all the foregoing reasons, the Joint Intervenors' onsite exercise contention should be admitted for litigation j
and a low-power license should not issue until the contention is fully resolved.
i Respectrully submitted, JAMES M.
SHANNON ATTORNEY GENERAL COMMONWEALTH OF MASSACHUSETTS t
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l k
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Q.
By:
' c r ^:
l' f
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'S t e plie n A.<d'o n a s Deputy Chief l
Public protection Bureau i
Department of the Attorney General
(
Ono Ashburton Place / 19th Floor Boston, MA 02108 i
i ON BEHALF OF:
TOWN ON HAMPTON Matthew T.
Brock, Esq.
Shaines & McEachern 25 Maplewood Avenue i
P.O.
Box 360 i
Portsmouth, NH 03801 l
(603) 436-3110
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NEW ENGLAND COALITION ON NUCliEAR POLLUTION Diane Curran, Esq.
Harmon, Curran & Towsley L
Suite 430 2001 S. Street, N.W.
Washington, DC 20009 (202) 328-3500 i
SEACOAST ANTI-POLLUTION LEAGUE Robert A. Backus Backus, Meyer & Soloman 116 Lowell Street P.O.
Bot 516 Manches er, NH 03106 (603) 658-0730 DATED:
dovember 9, 1988 l
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