ML20206M943

New England Coalition on Nuclear Pollution Comments on Significance of ALAB-903 to Seabrook Offsite Exercise Contentions.* Svc List Encl

ML20206M943
Person / Time
Site:	Seabrook
Issue date:	11/22/1988
From:	Curran D HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	Atomic Safety and Licensing Board Panel
References
CON-#488-7563 ALAB-903, OL, NUDOCS 8812020084
Download: ML20206M943 (9)

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November 22, 1988 .

r%KEif a UNITED STATES NUCLEAR REGULATORY COMMISSION; ivc BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

'Ea Roy 25 R2:17

)

In the Matter of )

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Public Service Company of )

New Hampshire, et al. ) Docket Nos. 50-443 OL

) 50-444 OL (Seabrook Station, Units 1 & 2) ) OFFSITE EMERGENCY

) PLANNING ISSUES

)

NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S COMMENTS ON THE SIGNIFICANCE OF ALAB-903 TO THE SEABROOK OFFSITE 2XERCISE CONTENTIONS Introduction By order dated November 14, 1988, the Licensing Board offered the parties an opportunity to address the significance of ALAB-903, November 10, 1988, 27 NRC , to the Seabroch exercise contentions. The New England Coalition on Nuclear Pollution

("NECNP") submits that the "fundamental flaw" test articulated by 1 the Appeal Board in ALAB-903 goon beyond the materiality standard established by the Court in Union of Concerned Scientists v. U.S.

Nuclear Reculatory Connission, 735 F.2d 1435 (D.C. Cir. 1984),

gatax denied, 469 U.S. 1132 (1985), and sets an impermissibly

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high threshold for the admission of contentions on exercises.

Nevertheless, the two contentions submitted by NECNP on behalf of itself and the Town of Hampton satisfy the Appeal Board's stan-dard, and should be admitted.

I. As a Standard for Deterninina the Admissibility of Exercise Contentions, the "Fundanental Flaw" Concept is Fundanentally Flawed.

In Union of Concerned Scientists v. NRC, the U.S. Court of

Appeals held that the NRC must offer a hearing on all issues hgj202OOB4881222 g ADOCK 05000443 PDR

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1 material to the issuance of a nuclear power plant operating i'

license. In its decision, the Court emphasized relevance as the basic standard for identifying those issues on which the Commis- ,

sion must offer an adjudicatory hearing. 735 F.2d at 1447. l Noting the Commission's complaint that hearings on exercises could delay full power operation, the Court also observed that .

the Commission has "wide discretion to structure its licensing 4

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hearings in the interests of speed and efficiency." Id2 at 1448.

1 The Court suggested that the Commission might choose to codify the position taken in its briefs, i.e.,

that the exercise is only relevant to its licensing i decision to the extent it indicates that emergency preparedness plans are fundamentally flawed, and is not relevant as to minor or ad hoc problems occurring on the day of the exercise. ,

Idt It is this dictum that the Commission adopted in CLI-86-ll, 23 NRC 577, 581 (1986), and which the Appeal Board fleshed out I with a two-part test in ALAB-903, as the standard for admis-sibility of contentions on emergency planning exercises. l The trouble :,ith the "fundamental flaw" standard is that it is a merits test and not a test of relevance. How many lost bus ,

drivers does it take to create a "fundamental flaw" in an emer-  ;

gency plan? Which elements of the plan are "essential?" What constitutes "significant revision" to an amargency plan? These questions cannot be answered without evaluating the entire plan l on its merits and the evidence presented by the parties, includ- f

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ing testimony of expert witnesses, on the significance of the

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! errors.1 They are not appropriately asked at the threshold stage l l of considering contentions.

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As held in UC9 v. NRC, the proper standard for admissibility f of exercise contentions, as with all other contentions, is one of 5 relevance. A contention must be deemed "relevant" if it chal-i t

lenges some aspect of an applicants' compliance with regulations [;

i necessary for the issuance of an operating license.2 If, as in Siecel v. NRC, 400 F.2d 778, 783 (D.C., Cir. 1968), the Commission  !

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! considers that a particular issue is not within the scope of mat- l

! ters relevant to licensing, then it aay exclude contentions i t

addressing those issues. However, it pay not exclude contentions 1

2 which address material issues, simply beceuse it considers those I i issues to be insignificant.3 j i f i  ;

$ i l 1 In CLI-86-11, the Commission recognized that it would be j 4 error to require "premature evidentiary decisions" on whether j

! exercise contentions demonstrate "fundamental flaws" in emergency 7

planning. 23 NRC at 581. Hence, the Commission attempted to l I remedy the situation by requiring Licensing Boards to admit con- i i

tentions which, "if shown to be true, would demonstrate a funda- l l mental flaw in the plan." M ., (emphasis added) However, this t measure does not address the problem that even if allegations of [

r exercise defects are assumed to be true, judging their sig-nificance and ramifications is essentially an evidentiary task, f

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i 2 The Commission may also require intervenors to state their f concerns with reasonable specificity. Eg.g BPI v. AEQ, 502 F.2d  ;

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) 424, 428 (D.C. Cir. 1974).

! 3 In ALAB-903, the Appeal Board cites Union Electric Co. (Cal-l laway Plant, Unit 1), AI.AB-7 4 0, 18 NRC 343, 346 (1983), as a {

j precedent for imposition of a gravity or significance-related 1 J

standard on the admissibility of quality assurance contentions. (

l Slip op at 10. In fact, however, ALAB-740 affirmed a partial i l

initial decision, following a full adjudicatory hearing on the  !

l merits, ruling that intervenors' evidence did not raise "per-  !

, vasive" QA problems. AIAB-740 did nga apply this standard to i l threshold decisions on the admissibility of contentions. [

t similarly, the holding in San (gis Obisco Mothers for Peace e

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It is important to observe that while the Court of Appeals in UCS v. NRC did not bar NRC from adopting the fundamental flaw i

standard, neither did it explicitly approve the standard.4 14 ore- l 1

over, it is not clear at what stage of a licensing proceeding the Court considered the Ptandard should apply. The opinion cites the Siecel and HEI cases, which involved threshold standards for i admission of contentions.5 735 F.2d at 1448. At the same time, [

the Court suggests that the "fundamental flaw" standard should be t

a c

(continued) l '

v NRC, 751 F.2d 1287, 1320-21 (D.C. Cir. 1984), aff'd en banc, 789 F.2d 26, cert. denied, 107 S.Ct 330 (1986) is inapposite. l EA2 ALAB-903, slip op, at 11-12, note 10. In that case, the Court of Appeals affirmed the denial of intervenors' motion to j reopen the record, based on intervenors' failure to show per-

vasive QA problems. As the Court clearly held in Ucs v. NRC, the  :

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NRC may not apply the standard for reopening the record to '

exercise contentions. 753 F.2d at 1444.

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r 4 In fact, the court implied that the fundamental flaw stan-dard might be challengable on grounds that it was arbitrary and i capricious. Id2 at 1448, note 20.

! 5 It should be noted that neither of the admissibility stan- [

dards upheld in these cares was based on the gravity or sig- '

l nificance of the issues raised in the contentions. In Siecel,

' the court found that NRC was within its statutory authority in i' refusing to consider accident risks posed by a foreign military In HEI, the court upheld the NRC's requirement that con-attack.

tentions be stated with specificity and basis.

If the "fundamental flaw" standard has a parallel in exist- t 1 ing caso law, it is the standard for reopening the record in NRC 1 l heerings, which was rejected as too discretionary in UCS v. NRC. [

! Een 705 F.2d at 1443-44, 10 C.F.R. I 2.743 (motions to reopen must address "significant safety or environmental issues" and '

l show that earlier litigation of the issue would likely have I l achieved "a materially different result").

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applied at the summary judgment phase: "(u]nder (a fundamental flaw) standard, the NRC could summarily dismiss any claim that

< did not raise genuine issuco of material fact about the fundamen-tal nature of the emergency preparedness plans. Egg 10 C.F.R. (

l 2.749 (1993)." Idx at 1448. As discussed in the preceding para-graph, there is a very important distinction between these two phases of a proceeding. NECNP submits that while the sig-I nificance of an emergency planning or, preparedness flaw might to

! a valid consideration in a summary judgment or other merits deci-

! sion, it has no place in a ruling on the admissibility of a con-l tention. The admissibility of the exercise contentions should be I

judged according to whether they challenge compliance with Com-4 mission standards with reasonable specifity and basis.

I II. NECNP's and Town of Hareton's Contentions Satisfy the "Fundamental Flaw" Standard for Admissihility, i While NECNP disagrees with the fundamental flaw standard as i

i established in CLI-86-ll and interpreted in ALAB-903, we recog-nize that CLI-86-ll governs this Licensing Board. Thus, NECNP s

will address the applicability of CLI-86-11 and ALAB-903 to the i

two contentions that NECNP filed on behalf of itself and the Town

! of Hampton.6 i In CLI-86-ll, the Commission defined "fundamental flaws" as i

"deficiencies which preclude a finding of reasonable assurance 1

I I 6 Contention TOH/NECNP-1 challenged the adequacy of the scope f of the exercise. Fxercise scope issues were decided in ALAB-900, I and have already been addressed in Town cf Hampton's pleadings I regarding Contention TCH/NECNP-1.

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that protective measures can and will be taken." In ALAB-903,  ;

the Appeal Board elaborated on this standard, articulating a two-part definition of a fundamental flawr "(f)irst, it reflects a a failure of an essential element of the plan, and, second, it can be remedied only through a significant revision of the plan."

Slip op. at 6.

In ALAB-903, the Appeal Board repeated the Court of Appeal'c l dictum that "minor or isolated problems on the day of the

, exercise do not constitute fundamental flaws in the emergency plan." Slip op. at 7, citing UCS v. NRC, 735 F.2d at 1448. The Appeal Board also observed that deficiencies that alone would not j l constitute a fundamental flaw "can be considered collectively, provided they are pervasive and show a pattern of related or ,

) repeaced failures associated with a particular essential element l'

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j of the plan."

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! Contention TOH/NECNp-2 asserts that the exercise

! I demonstrated that there is no reasonable assurance that adequate d i measures can and will be taken to protect school children during i a radiological emergency. The basis of the contention cites a ,

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i long litany of problems demonstrated during tre exercise, includ- l

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ing confusing and inaccurate public instructions, inability of I bus drivers to carry out their assignments, and tardy implementa-i

tion of protective actions for school children. Tnese problems i i l

) "show a pattern of related or repeated failures" in carrying out  ;

those portions of the New Hampshire Radiological Emergency Response plan that govern protective actions for children. This i

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i is certainly an "essential element of the plan." The corrective j actions that may be required are also extensive, including [

retraining of personne17 , reorganization of responsibilities, and p

redrafting of procedures. .

T Contention TOH/NECNP-3 challenges the lack of coordination

between the State of New Hampshire and the New Hampshire Yankee 3

Offsite Response Organization. Clearly, the integration of f 1

responses in contiguous jurisdictions is an important element of r r

emergency planning. Egg NUREG-0654 at 19-23. The lack of ade-

! quate coordination betw6en New Hampshire and the New Hampshire 1

I Yankee ORO was demonstrated in the failure to coordinate beach

{ closings in New Hampshire and Hassachusetts. Whether the failure

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to provide adequate coordination resulted from poor procedures, a f i

defect in the plans themselves, or from poor training, is not yet

! clear. Discovery of exercise documents and participants would be required in order tt affectively answer that question. It is i evident, however, that some major changes in the emergency response will be needed to correct this problem.

CONCLUSION 4

As discussed atove, the "fundamental flaw" etandard articu-1 1

j lated by the Appeal Board in ALAB-903 should not be applied to 1

i 7 As provided in 10 C.F.R. 5 50.47(a), preparedness is an important element of emergency planning, in addition to the plans themselves. Neither UCS v. NRC, CLI-86-11, or ALAB-903 address I this part of the emergency planning standard. It is NECNP's position that contentions addressed to the preparedness of state l and local personnel to respond to an accident must also be con-3 1

sidered and admitted if they meet the Commission's standards.

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the admissibility of intervonors' contentions on the Seabrook emergency planning exercise. Even if the standard is applied, however, Contentions TOH/NECNP-2 and TOH/NECNP-3 are admissible.

Respectfully submitted,

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Diane Curran HARMON, CURRAN & TOUSLEY 2001 "S" Street N.W. Suite 430 Washington, D.C. 20009 (202) 328-3500 November 22, 1988 CERTIFICATE OF SERVICE I certify that on November 22, 1988, copies of the foregoing pleading were served by first-class mail or as otherwise indi-cated on all parties to this proceeding, as designated on the attached service list.

C Diano Curran Pd M

y .

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O SEAllROOK SERVICE LIST Offsite Ucensing Board

'Nrnaa O. Dignan, Sq. Alfred V. Sargent, Chairman Diana Sidebotham

• Ivan W. Smith Chairman R K. Gad it, IM Doard of Selectmen RJD # 2 Don 12to Atom : Safety and ucensmg Doard Ross & Orsy Tees of Salisbury, MA 01950 Putney,VT 05346 US Nwdcar Reptatory Commission 225 Franuin krest Clashmston, D.C 20555 Doston, MA 02110 Rep. Roberta C Pevear Richard Doncna Drmk= ster Road EMA Dr. Jerry liarbour Carol S. SneMer, Dquire llampton Fana,bli 03&44 442 J.W. McCormack (POC1f)

Atonue Safety and licensing Doerd Anistant Attorwy General Doston, MA 02109 U1 Nuclear Regulatory Commission 1 Ashbvrton Place,19th floor Phillip Ahrens, ry.

Washiegton, D C. 20$55 Dtuton, MA 0210s Assistant /,rtorney General Jane Doughty State llouse, Statsoa #6 SA?L Ousta v Unenberger Stanley W. Knc=ica Aupata, ME M333 3 Market Street Atomic Safeey and ucenamg Daard Daard of 5elarmea Portsmouth, N1103801 U1 Nucieat Regulatory Commissson P.O. Dos no Allen Lampert Washmston, D C 20555 North l'am*. ton, Nil 03C6 CMI Def tnae Director Toen of Brento.oc4 Rebert R.15erte Dq. 1 P. Nadeau Eaeter,Nlt OM33 Atomx Safety and ucensmg Ibard Toms of Ryg

• Dy Owrrught U1 Nuclear Rr;.tatory Commmon 155 Washingtoa. Road Matthew T. Drock, Dq.

Washingtca D C 20$35 Rye, New flarnphire 038M Shaines & McFachern P.O. Dos 360 Atcu Safe ry and Ikensing Senator Gordon J. }{wrnphrey Maple =ocd Awave Ikerd Panel US Senate Portsmouth, Nil 03801 U1 Nucitar Reptatory Commasson Washieston, D C 20510 Washmston D C 20555 (Atta. Tom Durack) Sandra Gavutis

. Rm 1, Don 1154 Ikrketing and Serwe Branch Rxhard A. llamp. Esq Fast Kensmgten, N11 OM27 U1 Nuclear Reptatory Commeon llamp and McNicholas Wuhmgton, D C, 20$53 35 Pleasant Street Robert A. Dachus Dq Concord, Mi 03301 Bachus, Mc35t & Soiomon Wilham S. Lord, Selectman til Lo tu Street Tc=3 Ita3 - I nenJ Street Gary W. llotmes, Dq. Manchester, Nll 0310$

Arnesbury, MA 01913 llotmea & Dhs 47 Winnaevanent Road Aerosa E.Twrt. Dq Mrs. Anne E. Cardmaa llampton, N11 0%42 Office of Gene rol Counsel Ikard ed klectmea US Nuckar Replatory Commiunon 1315 New Maiket Road WJt am Armstrong Wuhington, D C 20535 Durham, N11 OM42 CM) Defense Director 10 Front Street 11.Awephth w Dq Senator Gordent J. liwenphrey Deter, Nil CM3) O(fwe of General Cmnact i Dgle Square, Sie 507 fDLA Cone,1, NJl CINI Cama A. Canney SN C Street iW.

Gry Manager Wuhmstoe D C 2A Mn hael Santosm Chairman Oty 1(a3 Ibard of Sele. men 124 Daniel Street George Dana Baades, E4 knell 5treet, RTV e 2 Portsmouth, Nil OM01 Geoffrey M. llentington, Dq smth Itamptes N110%42 Offte of the Attorney G neral E 1=*rd A. Nmaa State llouse Annen J 4th Il Maner, ty IDLA Concord, MI 03%1 S< herg' ate, Ge rtner, et al 442 I W McCormack (POCll) 83 BruaJ Street IAston, MA 021N R Scott itJ1-wwton Ikwton,NLA 021M Lag, win, Carl lict Whtiton Chries P. Graham Dq and MeOwe McKay Wrpy and Graha m M State Street IN Main Street Neut wryport. MA 01950 Amesbury, MA 01913

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