ML20206M933

Town of Hamption (Toh) & New England Coalition on Nuclear Pollution (Necnp) Response to Board Order Re Toh/ Necnp Ex 1.* Requests Admission of Exercise Contention Ex 1. W/Certificate of Svc

ML20206M933
Person / Time
Site:	Seabrook
Issue date:	11/22/1988
From:	Brock M HAMPTON, NH, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SHAINES & MCEACHERN
To:	Atomic Safety and Licensing Board Panel
References
CON-#488-7554 ALAB-903, OL, NUDOCS 8812020081
Download: ML20206M933 (8)

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NUC RE R

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ATOMIC SAFETY AND LICEN3ING BOARD t

Before Administrative Judges:

Ivan W. Smith, Chairperson Gustave'A. Linenberger, Jr.

Dr. Jerry Harbour l

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November 22, 1988 In the Matter of

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Docket Nos. 50-443-OL i

PUBLIC SERVICE COMPA!!Y OF

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50-444-OL f

NEW HAMPSHIRE, et al,

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Off-Site Encrgency (Seabrook Station, Units 1 and 2;

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Planning

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4 TOWN OF HAMPTON l

AND 1 EW ENGLAND COALITION ON NUCLEAR POLLUTIO!!

I RESPONSE TO BOARD ORDER DATED NOVEMBER 14, 1988

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Eli, 'IOH/NECNF EX 1 l

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On Novembsr 14, 1988,- this Board issued an Order inviting p

comments by interested parties on the significanco,

t. o tho exercise

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L contentions, of Lono Island Lichtina C4, (Shorcham Nuclear Power

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l Station, Unit 1), ALAB-903, 27 NRC __ (11/10/88).

In, rocponse to l

that order, and with reference to exercise contention T0H/NECNP Ex 1, the Town of Hampton and New England Coalition on Nuclear Pollution i

2 state as follows:

GENERAL COMMENT

S By its terns, ALAB-903 does H21 purport to provide t

guidance on the admissibility of contentions alleging fundamental 2

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l flaws in planning that c.re premised upon the inadequate, or unduly restrictive, scope of a pre-license exercise.

Last !!ay, in connection with another LILCO arpcal from an earlier licensing board decision on the p_ cope of the February 1986 exercise, we inaued a memorandum disclosing our tentative conclunionn on the merits of that appeal We took t.m t action so our preliminary views on the require'l scope of a pre-license exer'cise could be relied upon to the extent feasible in the design and conduct of then upcoming June exercise Our subsequent decision on LILCO's appeal was consistent with those tentative views.

ALAB-903, at p. 3 and N.3.

(Referencing ALAD-900).

ALAB-903 citos ALAB-900 with approval, yet does not dinturb the criteria established by ALAB-900 as to the proper scope c; f a pre-license exercise.

ALAB-903 therefore has no applicatinn to TOH/NECNP Ex 1, which, on its face, concerns the inadequate p_ rare of the NHRERP June exercise, that precluded a meaningful test and evaluation of the energency plan.1/2 1

"Indeed, the necessary, albeit inplicit, assurption in the Commission's CLI-86-11 criterion for an admissible exercise contention is that the exercise itself must be comprehensive enough to. permit a meaningful test and evaluation of the emergency plan to ascertain if that clan is fundamentally flawed."

ALAB-900, at p. 31 (9/20/88).

2 TOH and NECNP have already addrecsed ALAB-900 at I c..g th, and how TOH/NECNP Ex 1 falls squarely within those contentions concerning the scope of a pre-license exercise, deemed litigable by the Appeal Board.

Ect, TOWN OF HAMPTON AND NEW ENGLAND COALITION ON NU.. EAR POLLUTION REPLY TO THE RESPONSES OF THE STAFF AND APPLICANTS INTERVENORS' CONTENTIONS ON GRADED EXERCISE, dated October 21, 19F' 2

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By contrast, ALAB-903 assumes an exercise of adeauste rcone, and proceeds to define those fundamental flaws that may only be revealed through the actual conduct of that exercise.3 While theref ore ALAB-903 is inapplicable to evaluating the admissibility of TOH/NECNP Ex 1, ALAB-903 raises questions that require further comment.

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First, ALAB-903 purports to provide "no Dn test beyond that set forth in CLI-86-11", ALAB-903, p.

6, for the admissibility of exercise

.j contentions.

The Appeal Board proceeds to assert,

howevor, that i

"where the problem can be readily corrected, the flaw cannot reasonably be characterized as fund Aental."

A LA B-9 0 3,

p.

8.

The contention, alleging a readily correctable flaw, however fundamente.1, i

i is therefore apparently barred.

In support of this proposition, the Appeal Board citos to the commission's "approval on another licensing i

1 board's rejection of exercise contentions that alleged only ' minor, ad i

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hoc, correctable problems'."

AIAB-903, p.

8, N.B.

To tht: extent i

these comments may be construed as precluding litigation of exercise i

contentions alleging the failure of an essential element of the plan, i

whether or not that failure recuires "a

.sioni fica nt revisipp of the t

plan" ALAB-903, p.

6, such an interpretation would unlawfully restrict i

Intervenors from litigating issues material to a licensing decision in l

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3 "In our view, a fundamental flaw in an emergency plan, n revealed in an exercise, has two principal compone r.t s.

First, it reflects a failure of an essential element of the plan, and, second, it can be remedied only through a significant revision of the plan."

j ALAB-903, p.

6.

(Emphasis supplied.)

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violation of Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C.

Cir., 1984, cert. denied), 469 U.S. 1132 (1985).

Indeed, the Appeal Board itself recognized that the UCS decision precluded litigation only of "minor or ad hoc problems occurring on the exercise day."

ALAB-903 at p.

4, citing UCS, 735 F.2d at 1448.

Consistent with the UCS decision, the Commission further approved exclusion of exercise I

contentions only where the allegations were "ninor, ad

hoc, correctable eroblems."

Sg_q, ALAB-903, p.

8, N.8, citing Carolina Power fr Licht C o._., (Shearon Harris Nuclear Power Plant), C LI-8 6-2 4,

24 NRC 769, 777 and N.10 (1986).

Such "correctable problems,"

excluded from litigation, cannch extend to fundamental flaws revealed by an exercise, without contravening Intervenors' rights, under the UCS decision, to litigate all issues material to licensing.

Clearly, I

fundamental flaws are material.

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ALAB-903, therefore, should be construed by this Board, consistent with established federal precedent and commission guidance, to require admission of all contentions alleging fundamental flaws of an essential element of the plan, even where such flaws allegedly may be "readily corrected."

ALAB-903, p.

8.

Intervenors should not be required to rely upon the Applicants' bare pledge that a fundamental planning defect, as demonstrated by the exercise, will be, or can be, readily corrected.

Similarly, Intervenors should not be required to accept a predictive

finding, ithout proof by

exercise, that Applicants will adequately carry out the plan in an actual emergency, or correct a fundamental planning flaw revealed by an exercise.

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l Indeed, Commission regulations require that the exercise "verify the capability to respond to the accident scenario."

10 C.r.R.

Part 50, App. E IV. F.1 (11. 4 ).

Prior to licensing, Applicants therefore must I

verify, by exercise, that all fundamental flaws have been curod.

CONCLUSION I

i For reasons previously stated, TOH and NECNP respectfully request

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t admission of TOH/NECNP Ex 1.

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Respectfully submitted, l

TOWN OF HAMPTSN By Its Attorneys SHAINES & McEACHERN Professional Association I

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November 22, 1988 By f

Matthew T.

Brock i

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CERTIFICATE OF SERVICE,

• m my 23 R2:12 I, Matthew T.

Brock,-one of the attorneys for th4 Town of Hampton

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herein, hereby certify that on November 22, 1988, I nade service of

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the foregoing document, TOWN OF HAMPTON AND NEW ENGLAND. COALITION ON NUCLEAR POLLUTION RESPONSE TO BOARD ORDER DATED NOVEMBER.14',.198h RE:

1 TOH/NECNP EX 1,

by depositing copies thereof in the United States i

Mail, first class postage prepaid for delivery (or, where indicated, by Express Mail, prepaid) addressed to:

1 1

i

• Ivan Smith, Esq., Chairman

• Dr. Jerry Harbour Atomic Safety & Licensing Board Atomic Safety & Licensing Board (Off-Site)

(Off-site)

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comm.

East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 e

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• Judge Gustave A.

Linenberger, Jr.

• Atomic Safety & Licensing Atemic Safety & Licensing Board Appeal Board Panel

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(Off-Site)

U.S. Nuclear Regulatory Comm.

1 U.S. Nuclear Regulatory Commission Washington, DC 20555 l

East West Towers Building j

4350 East West Highway

• Thomas Dignan, Esq.

i Bethesda, MD 20814 George H. Levald, Esq.

1 Kathryn A. Selleck, Esq.

• Adjudicatory File Ropes & Gray l

Atomic Safety & Licensing Board 225 Frankin Street l

Panel Docket (2 copies) 2.r:

Boston, MA 02110 l

U.S. Nuclear Regulatory Commission l

East West Towers Building

• Carol S.

Sncider, Esq.

4350 East West Highway Stephen H. Oleskey, Esq.

Bethesda, MD 20814- -

Allan R. Fierce, Esq.

Department of the Atty. General

• Stephen E. Merrill, Esq.

One Ashburton Place George Dana Bisbee, Esq.

Boston, MA 02108

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Office of the Attorney General 1

State House Annex

• Diane Curran, Esq.'

Concord, NH 03301 Andrea C.

Ferster, Esq.

Harmon, Curran & Tousley

• Sherwin E. Turk, Esq.

2001 S Street, N.W.,

Suite 430 l

Office of General Counsel Washington, DC 20009-1125 l

U.S. Nuclear Regulatory Commission i

15th Floor - One White Flint North

• Richard R.

Donovan 11555 Rockville Pike Federal Emergency Ngnt. Agency Rockvil?J, MD 20852 Federal Regional Center 130 228th Street, S.W.

Bothell, Washington 98021-9796 l

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1 i

i

Philip Ahrens, Esq.

Robert A. Backus, Esq.

Assistant Attorney General Backus, Meyer & Solomon Office of the Attorney General 111 Lowell Street State House, Station 6 Manchester, NH 03105 Augusta, ME 04333 Jane Doughty Richard A. Hampe, Esq.

Seacoast Anti-Pollution League Hampe and McNicholas 5 Market Street 35 Pleasant Street Portsnouth, NH 03801 Concord, NH 03301 William S.

Lord, Chairman Charles P. Graham, Esq.

i Board of Selectman Murphy & Graham Town of Amesbury 33 Low Street Town Hall, Friend Street Newburyport, MA 01950

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Amesbury, MA 01913 R. Scott Hill-Whilton H. Joseph Flynn, Esq.

Lagoulis, Clark, Hill-Whilton Office of General Counsel l

& McGuire Federal Emergency Mgmt. Agency 79 State Street 500 C Street, S.W.

Newburyport, MA 01950 Washington, DC 20472 l

Ashod N. Amirlan, Esquire Judith H. Mizner, Esq.

l 376 Main Street 79 State Street I

Haverhill, MA 01830 2nd Floor Newburyport, MA 01950 I

i Senator Gordon J.

Humphrey Senator Gordon J. Humphrey i

l U.S. Senate One Eagle Square, Suite 507 j

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Washington, DC 20510 Concord, NH 03301 i

(Attnt Tom Burack)

(Attn:

Herb Boynton) l Leonard Kopelman, Esquire

• Robert R.

Pierce, Esq.

Barbara J. Saint Andre, Esquire Atomic Safety & Licensing Board Kopelman & Paige, P.C.

Panel i

1 77 Franklin Street U.S. Nuclear Regulatory Comm.

I Boston, MA 02110 East West Towers Building i

4350 East West Highway.

Bethesda, M'c 20814 l

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John H. Frye, III _

James H. Carpentor..-

Alternate Chairrnan Alternate Technical Member Atomic Safety & Licensing Atomic Safety & Licensing Board Panel Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comm.

Washington, DC 20555 Washington, DC 20555

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Matthew T.

Brock

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