ML20206M903

Seacoast Anti-Pollution League Comments on Significance of ALAB-903 to Exercise Contentions.* Svc List Encl

ML20206M903
Person / Time
Site:	Seabrook
Issue date:	11/22/1988
From:	Backus R BACKUS, MEYER & SOLOMON, SEACOAST ANTI-POLLUTION LEAGUE
To:	Atomic Safety and Licensing Board Panel
References
CON-#488-7550 ALAB-903, OL, NUDOCS 8812020060
Download: ML20206M903 (11)

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UNITED STATES OF AMERICA 'E8 IU D l NUCLEAR REGULATORY COMMISSION ,

ATOMIC SA' ETY AND LICENSING BOARD Before Administrative Judges: i I'an W. Smith, Chairman I Gus, ave A. Linenberger, Jr.

Dr. Jerry Harbour i In the Matter of ) Docket No. 50-443-OL /-Ob PUBLIC SERVICE COMPANY )

OF NEW HAMPSHIRE, et a1 ) (Offsite Emergency Planning) '

)

(Seabrook Station, )

Unit 1 ) November 22, 1988 SAPL'S COMMENTS ON THE SIGNIFICANCE OF ALAB-903 TO THE EXERCISE CONTENTIONS On November 14, 1988, the Licensing Board issued a Memorandum inviting comment on the guidance provided by the Appeal Board on the meaning of the term "fundamental flaw" in Lona Island Lichtina company, (Shoreham Nuclear Power Station, Unit 1) ALAB-903, )

l November 10, 1988, 27 NRC . The Board stated that it would consider the significance of the parties' comments on the exercise contentions if received on or before November 23, 1988.

In ALAB-903, the Appeal Board has agreed that no new test beyond that set forth in CLI-86-11, 23 NRC 577, 581 (1986) is allowed. The Commission in that decision stated that hearings on the results of planning exercises would be restricted to issues revealing "deficiencies which preclude a finding of reasonable assurance that protective measures can and will be taken, i.e.,

g20$$ h f a 1 393 1

fundamental flaws in the plan," a ruling consistent with the regulatory standard at 10 CFR 550.47(a)(1) requiring "[R]easonable assurance that adequate protective measures can and will be taken 1

in the event of a radiological emergency." However, the Appeal i Board in ALAB-903 has attempted to "flesh out" the fundamental flaw standard, purportedly to make it easier to apply in litigation and to leave "little room for delay and semantic

! debate." In making that attempt, the Appeal Board defined a

] futidamental flaw as having two principal components:

1) it reflects a failure of an essential element of the plan, and

2) it can be remedied only through a significant plan revision.

SAPL has no quarrel with the first standard if the term "plan" is construed broadly to include not only the plan itself l

i but also the capability to implement it. SAPL, however, believes i

that the second standard could potentially eliminate a whole range  ;

4 of issues where it is not the written plan provisions themselves but the means of preparedness or implementing of the plan t

provisions that is fundamentally flawed. The latter kinds of I i

{ deficiencies could every bit as much detract from reasonable assurance of adequate public protection as problems with the plan provisions themselves. The Appeal Board therefore, is not simply l l interpreting CLI-86-11 but is instead impssing a higher threshold l for admissibility of exercise contentions than the Commission did i

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r-in CLI-86-11. Further in Union of concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir.1984), cert. denied, 469 U.S. 1132 (1985), the Court, in stating that the Commission had a right to limit hearings on exercises, was upholding the Commission's right to eliminate "minor or ad hoc problems occurring on the exercise day." 735 F.2d at 1448. It was not supporting the elimination of material issues that might not necessarily require a rewrite or restructuring of the plan itself. Finally, the restriction of admissibility of implementation issues in ALAB-903 conflicts with the basic emergency planning regulation, 550.47(a)(1), which requires that in the event of an emergency adequate steps can "and will" be taken.

Without waiving its rights to object to application of the two-part standard the Appeal Board has described in ALAa-903, SAPL addresses below the admissibility of its graded exercise contentions should this improper standard be applied. SAPL would note that the Appeal Board addressed the admissibility of contentions related to the scope of the exercise in ALAB-900, 28 NRC 275 (1988). SAPL therefore believes that that is the relevant dScision to consider as regards the admissibility of SAPL's contentions or portions of contentions addressed to issues concerning the r ope of the exercise. SAPL has already stated why eitch of l':s contentions addresses proLlems t. hat are severe and not n ce "minor or ad hoc" in its October 18, 1988 Reply to Applicants' and Staff's Response. SAPL incorporates that reply by rcierence herein and further states as follows:

SAPL EX-1 This contention in part addresses the fact that there was not a sufficient scope of test of the schools' tesponse capability during a radiological emergency, which is clearly an admissible issue per ALAB-900. The remainder of the contention dealt with the inability to order and carry out adequate protective measures for school children, in other words with preparedness and implementation capability. More detailed plans might or might not prevent the snafus that occurred during the exercise. Therefore, it is unclear whether or not in applying the second standard set forth in ALAB-903 this portion of the contention would be eliminated. This is a question that can and should be answered by a hearing into the factual issues raised by the contention.

SAPL's position is that the problems were so pervasive and serious in effect that they ought to preclude a reasonable assurance finding.

SAPL EX-2 SAPL EX-2 goes both to the scope of the exercise (not enough vehicles and drivers involved and insufficient test of refueling capability) and the ability to provide adequate numbers of response vehicles and adequate numbers of appropriately trained drivers to protect transit-dependent, special facility and special needs populations. SAPL believes the exercise did raise serious

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7 questions as to the NHRERP's basic provisions for coordinating the dispatch of buses and trained drivers to appropriate locations and that a significant plan revision is necessary to eliminate these repeated problems. Therefore, this contention definitely meets even the elevated admissibility standard set forth in ALAB-903.

SAPL EX-3 This contention addresses the delivery of dosimetty use training to bus drivers, ambulance drivers and local town personnel. This problem has been pandemic since the February 1986 exercise. Therefore, it is reasonable to conclude that the plan needs to be modified to ensure the accountability for delivery of ,

l training to essential personnel, and this contention would i therefore be admissible even under the standards set in ALAB-903.

l SAPL EX-4

.i Part of this contention goes to the scope of the exercise i

! (which goes to questions of personnel adequacy) and therefore ALAB-900 would govern as to admissibility of that portion. The remainder of this contention raises questions about the training process. Because, at this late date, personnel are not adequately trained, it is reasonable to assume that there is a serious problem with the training delivery process. Though the problem is serious, without further evidence it is not possible to determine if it vill be easily correctable or not. Therefore, the admissibility of this portion of the contention under the standards set out in ALAB-9C3 is unclear. Again, this should result in the 'ssue being resolved through the fact-finding process and the hearing process.

SAPL EX-5 The major portion of this contention goes to scope and is clearly admissible as ALAB-900 is the relevant decision. The issue of training of hospital staff is a serious issue which may or may not be easily corrected. Therefore, the application of the ALAB-903 standards to the other portion of this contention yields l

an uncertain result with respect to admissibility. Again, this should be resolved through the fact-finding process.

SAPL EX-6 This contention raises a significant scope of exercise issue and it further raises a significant and pervasive issue of adequacy of manpower and ability to coordinate placement of aanpower at ACP/TCP's during a radio 3ogical emergency. The emergency response plan needs to be revised to further spell out which specific personnel are to cover each ACP/TCP and over what routes they are to be deployed to these locations.

SAPL EX-7 This contention goes to the scope of the exercise and is clearly admissible under the standards elucidated in ALAB-900.

SAPL EX-8 A portion of this contention is admissible under ALAB-900 as f it goes to issues of scope; there was no demonstration of the capability to staff Reception Centers and Stagings Areas over a a

o j 24-hour time frame and no demonstration of the capability to fill positions of personnel absent due to sickness or other causes.

The other portions of the contention go to inadequacies in the

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q ability to staff positions that participants in the exercise attempted to staff unsuccessfully. Staffing inadequacies are a t

pervasive and pernicious problem that ought to prevent a reasonable assurance finding. The non-scope portions of this i issue are clearly and plainly very serious implementation 1

problems. ALAB-903 does not make appropriate allowances for i admission of this type of contention. Application of the second

!j standard in ALAB-903 would probably eliminate the non-scope portions of this contention, a result SAPL believes to be improper j

j and inconsistent with 550.47 (a) (1) and USC v. NRC, supra. .

A j SAPL EX-9 l

l This contention is one in which the application of the first standard articulated in ALAB-903 would militate strongly in favor of the condition's admission. "'he

. problem of the serious delay in appropriate action following upon the receipt of emergency

] information could have serious public safety implications.

However, it appears to be the implementation of the written plan, l

I and not the provisions of the plan itself, which is the problem.

1 j The second standard in ALAB-903, would prevent admission of this i contention. What this demonstrates is not that the contention l

! does not point out a fundamental flaw, but that the standard 1

improperly eliminates meritorious issues.

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SAPL EX-10 This contention goes to the scope of the exercise and would clearly be admissible per ALAB-900.

SAPL EX-11 This contention goes to implementation capability and specifically addresses the regulatory requirement at 10 CFR Part 50, Appendix E., IV. D.3. for ptompt decision-making and prompt public notification of the results thereof. The improper second standard in ALAB-903 would eliminate this contention even though it raises questions of very serious public safety import and is congruent with the guidance in FEMA Guidance Memorandum AN-1.

SAPL EX-12 The contention is in part a scope contention since it raises the issue that not all tha reception / decontamination centers were exercised. It is largely an implementation contention, however, as it points out the serious flaws in the conduct of operations at the reception / decontamination centers. This contention likely does meet even the second standard of ALAB-903. The flaws in execution of the plan were so pervasive and extreme that a redraft of the reception / decontamination center plans to include much more specificity and clarity of direction is needed.

SAPL EX-13 This contention goes to the scope of the exercise and is admissible per ALAB-900.

1 SAPL EX-14 3

This contention pointed out serious flaws in the implementation of the plan since areas under the plume were not j evacuated as they should have been. This contention raises issues of extreme public safety import and would indicate that plan revisions are necessary to ensure that there are provisions to allow for Ad h22 expansions of the emergency response when 4

conditions are such as to make that necessary. Therefore, this contention would meet both the standards set forth in ALAB-903.

I Respectfully submitted, I Seacoast Anti-Pollution League

By their Attorneys, BACKUS, MEYER & SOLOMON By

at F. fw< .

Robert A. Backus',' Esquir e' 116 Lowell Street i P.O. Box 516 Manchester, NH 03105 l (603) 668-7272 1

DATED: November 22, 1988 I hereby certify that copies of the foregoing Comments on the 1

Significance of ALAB-D03 to the Exercise Contentions have been forwarded by rederal Express to those parties on the attached l service list indicated with an asterisk and forwarded by first-i class mail, postage prepaid to all other parties on the attached service list.

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! Robert A. Backus p' p l

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'e8 m 23 F12:23 d Dr. Jertf Harbour pfCocketing&ServiceSec. Jane Doughty

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