ML20206M966

Comments of Commonwealth of Ma Atty General on Significance of ALAB-903 on Exercise Litigation.* Requests Oral Argument Prior to Decision on Admissibility of Exercise Contentions. Certificate of Svc Encl

ML20206M966
Person / Time
Site:	Seabrook
Issue date:	11/23/1988
From:	Traficonte J MASSACHUSETTS, COMMONWEALTH OF
To:	Atomic Safety and Licensing Board Panel
References
CON-#488-7575 ALAB-903, OL, NUDOCS 8812020110
Download: ML20206M966 (16)

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Ut1ITED STATES OF AMERICA t1UCLEAR REGULATORY COMMISSIOt1 ATOMIC SAFETY AtID LICEllSIt1G BOARD Before the Administrative Judges:

Ivan W. Smith, Chairman Gustave A. Linen srger, Jr.

Dr. Jerry Harbour

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In the Matter of ) Docket tios . 50-443-OL

) 50-444-OL PUBLIC SERVICE COMPAtlY ) (Off-Site EP)

OF flew !!At1PSHIRE, ET AL. )

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(Seabrook rotation, Units 1 and 2) ) tiovember 23, 1988

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COMME!3TS OF THE MASSACHb ETTS ATTORt1EY GE!1ERAL O!! THE EIGilIFICAliC3 GF ALAB-903 ON_THE_IXERCISE 11TIf ATIQH It!TEODUCTION By Memorandum dated tiovember 14, 1988 and faxed to the Massa',husetts Attorney General ("Mass AG") on llovember 15, this Board noted the tiovember 10, 1988 decision of the Appeal Board in the Shoreham proceeGing and stated that it wot.1:1 "consider comments by the parties in this proceeding on the significance of ALAB-903 tu the exercise contentions if received by the Board on or before tovember 23, 1988." (p.2 of Menorandum).

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The Mass AG submits the following comments.1#

ColEllTE.0lLALAB-911 A. ALA D -103_S EIS_f. ORT 11._QRLL AtLAD STRACT_STAN DARD

1. Initially, it should be noted that the discussion concerning the elements of a "fundamental flaw" set forth in ALAB-903 is an abstract one. The Appeal Board, unfortunately, has not yet issued its decision on the substant#ve ride of LILCO's appeal of the February 1988 Shoreham Licensing Board February 1986 exercise decision. LBp-88-2, 27 NRC 85 (1988)

(the "Shoreham exercise opinion"). In that decision the Licensing Board found fundamental flaws in the areas of communications, traffic control and training. Id it 212-13.

Obviously, a much more solid interpretation of ALAB-903's l

abstract discussion of "fundamental flaw" would tu possible if l it were clear whether the flaws identified in the Shoreham 1/ The Mass AG reserves his right to file amended exercise >

contentions if as a result of NRC decisions that issue titer eptember 21, 1988 (the date the Mass AG's exercise contentions were filed) and October 24, 1988 (the date the Mass AG filed his reply to the responses of the Staff and the Applicants) ,

this Board finds that the legal standards governing the '

admissibility of exercise contentions have either: 1) changed  :

out right so that the Mass AG's exercise contentions no longer [

meet the standard in ef f ect on Septeinber 21, 1988 or 2) evolved t through "further elaboration or interpretation" (ALAB-903, slit' '

opinion at 6) to the extent that the Mass AG's exercise t contentions no longer meet that newly elaborated legal standard I but would meet the standard as it had been articulated by the  !

Commission as of September 21, 1988. The Mass AG has not  !

understood the present opportunity to comment on ALAB-903 as an I invitation to amend his exercise contentions to bring them into conformity with whatever portions of ALAB-903, if any, this Board may interpret as newly articulated interpretive criteria or "guidance as to what is meant by a ' fundamental flaw '"

(Memorandum at 1). It should be noted in this regard that ALAB 903 is "advisory in nature" (ALAB-903 at 4) and that it was i issued and made available to the Shoreham parties befare a '

filing deadline was set for the submission of exercise contentions on the June 1988 Shgreham exercise.

i exorcise opinion do or do not pass ALAB-903's articulated exercise contention standard.

2. However, ALAB-903 (at 5) does recite the arguments made by LILCO to the Shoreham Licensing Board concerning a three-part test for alleging a fundamental flaw:

1) the flaw would have substantial effect on the public health and safety; 2) reflect a pervasive or systemic defect and 3) be "readily correctable through additional training or equipment". Id. (This test is described at LBp-88-2, 27 NRC at 91-92.) As ALAB-903 indicates, the Shoreham Licensing Board i accepted the first two prongs of this test but rejected the I third."/

In rejecting the third prong and thereby rejecting i the requirement that a fundamental flaw not be "readily correctable by means of additional training", LDP 88-2, 27 NRC l

at 92 quqLLng LILCO's proposed Findings, the Shoreham Licensing Board laid the foundation for its findings of fundamental flaws in the LILC0 training program. The Board found, intet alia, I'

that:

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LILCO's training program has not adequately trained LERO personnel to follow the LILCO [

plan and procedures, l Idx at 185;  !

tha t raining of LERO personnel in responding }

to unanticipated and unrehearsed events, in  !

communicating information about such events, i in analyzing the kind of equipment needed to  !

respond to serious roadway accidents, and in  !

the development of alternative actions when ,

actions called for by the plan do not or I will not work effectively, has been inadequate.  !

Ida at 180 i

P 2/ Mo'e precisely, the Shoreham exercise opinion noted that [

the first prong "does little more than restate the definition of a fundamental flaw found in CLI-86-13" and accepted the second prong "to the extent that it stands for the proposition that the failure demonstrated by the exercise must be pervasive as opposed to a minor or ad hoc problem." 27 NRC at 92.

8 4 These findings supported the Licensing Board's overall conclusion that inadequacies in the training program "preclude (d] a finding of reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency . . . and therefore constitute a fundamental flaw. . . .

1d.. at 212.

3. ALAB-903 does not intimate whether these Shoreham Licensing Board findings and conclusions as to deficiencies in the LILCO training program reflect a correct or incorrect i

interpretation of a "fundamental flaw." It is simply not clear  ;

whether the additional training required to correct these i deficiencies constitute a "significant revision" of the plan. l l

1 ALAB-903 at 6. *f the Appeal Board affirms the findings and conclusions of the Shoreham Board regarding training i

deficiencies as fundemental flaws, this action would I I

substantiate one interpretation of "significant revision" of an

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emergency plan.3# If the Appeal Board reverses these l 1 i findings of fundamental flaws in training on the grounds that 1

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no significant revision of the plan is required to corvect them, then another possible interpretation of ALAB-9f3 will

turn out to be the correct one.

< In short, the significance of ALAB-905 as guidance in i

articalating the standard for the sdmission of exercise contentions is limited and any reliance on it with regard, for example to specific contention or issue areas like training.

3/ In short, even if caly additional training is required, such a corrective measure would not indicate that the deficiencies are properly viewed as "minor, ad hoc correctable problems." ALAD-903 at 8 n.8 citing CAralina_Fanet_ Light _Co.

(Sheaton Harris Nuclear power plant), CLI-86-24, 24 NRC 769, 777 & n.10 (1986).

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e runs the risk of being rejected by the Appeal Board itself when it issues its decision on review of the specific fundamental flaws found in the Shoreham exercise opinion.4#

B. UCS_ CASE _ AND _ALLEG ING_1LEUNDAMEllTAL.. FLAW

1. If, Jtanding alone, ALAB-903 is to be read i.s guidance on the apprtpriate legal standard for the admissibility of exercise contentions, then its discussion should be understood in the context of exerciso litigation l

generally. put simply, intervenors have a right to litigate 1

the results of an exercise to the extent that those results are l

considered by the llRC to be material to licensing. Exercise results are material to licensing to the extent that they disclose that deficiencies exist in the state of planning and l

preparedness that would preclude licensing.E# Finilly, l

deficiencies sufficient to preclude licensing are deficiencies that prevent the "reasonable assurance finding" pursuant to 10 CFR 50.47(a)(1). This syllogism is based on UnLon_ni_ConctIned Sc ien t i s t s. y2_IIRC , 735 F.2d 1437 (D.C. Cir. 1984) ("UCS") and reflected in Lon1. Island _ Lighting _C h (shoreham lluelear power Station, Unit 1), CLI-86-ll, 23 NRC 4/ It appears that that decision is imminent. ALAB-903 at 3 l

states: "We had hoped to be able to issue our decision on the entirety of LILCO's appeal by this time . . . . If so, overall efficiency may well be served in this case by simply waiting to review that decision before ruling on the exercise contentions as submitted.

5/ Logically, exercise results are material to licensing if they indicate deficiencies of such a natute and kind that would affect the decision to license. If the exercise results were of negligible significance and would not effect the decision to license (and the findings necessary to such a decision) then these result s are not "material" to the licensing decision.

Thus, the issue becomes what kind of results would the NRC consider to be material to licensing?

l 577, 581 (1986). Deficiencies packing the requisite wallop are labelled "fundamental flaws."

2. One relatively simple way to assess whether an exercise result is material to licensing is to imagine an exercise witnout intervenors and ask whether an exerc}se result when reviewed by the Staff would or should be considered by the Staff to be a "deficiency" requiring correction. As the UCS court noted:

Since the 11RC, by its , regulation, has  !

made correction cf deficiencies iden*.lfied in emergency exercises a requirement of its ultimate licensing decision, it would seem to Collow that results of these exercises I must be subject to the section 189(a) hearing requirement. UCS at 1442. [

Thus, one way of looking at ALAB-903's elaboration of i

"fundamental flaw" is to understand it as a statement [

1 concerning what kinds of deficiencies revealed by exercises are l to be corrected as a requirement of licensing. Such f deficiencies are "material" and, therefore, hearing rights attach to them. "Fundamental flaw" is simply the pleading or procedural form or aspect of this type of deficiency.

3. Viewed in this light, ALAD-903's discussion of

" f undament.a 1 f l aw" is unexceptional. First, the exercise

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deficiency must concern an "essential" element of the

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e plan 0' Second, the deficiency can be remedied only through a "significant" revision of the plan. Road together it is clear that these two components indicate what kind of deficiency revealed by an exercise would preclude a licensing decision. The deficiency nust involve an area of planning that '

is important for public sefety and ALAB-903 identifies these i

areas by referenc9 to the 16 planning standards and the requirements of Appendix E.2# Once it is clear that a deficiency involves an "essential" area of planning, the scope of the corrective actions needed -- whether a "significant"  !

revision of the plan is required -- must be assessed, t i

Obviously, cauging the scope of the corrective action needed is simply the inverse of judging the depth or extent of the deficiency as it was revealed by the exercise. To affect I public safety, a deficiency must not only i f

p 6/ "plan" should not be read narrowly here. The exercise tests the "implementation capability" (50.47 (a)(2)), or the "emergency response capabilities" (50.47 (b)(14)) as decctibed  !

in a plan. Appentlix

• characterizes the exercises as  ;

"emetgency prepated .45 exercises". 10 CFR part 50, App. E. F. >

(emphasis supplied). Further, ALAB-903 makes clear that whether an essential element of a plan is involved should be '

determined by reference to the 16 planning standards and the requirements of Appendix E. ALAB-903 at 7. Thus, the word l "plan" should be understcod to inclade the implementation (

capability or level of preparedness that a plan reflects and wuich exercises are designed to test. [

t 2/ Frankly. ALAB-903's shorthand reference to the regulations  :

as constituting the "essential elements" of a plan will not l uithstand analysis. Obviously, a planning requirement is l

"essential" if a deficiency with regard to that requirement  !

would run to the level of public safety affotded by an adequate l emergency plan. Not all 50.47(b' standards and Appendix E requirements are so intimately linked to public safety. Plan [

maintainence as required by 50.47(b)(16), for example, is only }

indirectly linked to a present level of public protection. l l

i involve planning areas connected to public safet/ but must also be indicative of a planning or preparedness failure in that area sufficient to actually affect public safety.E#

4. For example, if an exercise reveals that a certain response position is filled by a totally untrained person, this fact standing alone in an exercise contention should be analyzed as follows: First, is the exercise position l

at issue one required by those planning standards that are connected to public safety? If it is, then the contention touches on an "essential element" of the plan. Second, could the deficiency be remedied without "significant revision" of the plan. This inquiry is more comp. lex and involves the following analysis:

a. If the position at issue is central to an adequate plan, then the deficiency would have to be corrected by 1) replacing the untrained person with a trained person or

2) training the untrained persor.. Either step would require "significant revision of the plan" because such a change would  ;

be a requirement of licensing and nat be considered minor, ad 8/ Thiu , the ALAB-903 test of a fundamental flaw involves first, deteimining whether the alleged deficency could affect the level of public safety ("essential element"), and second, determinino whether the deficiency dues affect that level of safety. ("rignificant revision" required). The deficiency will affect the level of safety if it is not minor, thus requiring "significant revision" in the plan to be corrected.

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s hoc or "readily corrected" for purposes of licensing.E# In short, "significant revision" of the plan would be involved if changes would actually have to be made in the plan and the .

Icvel of preparedness bcLorc a license could issue. The circumstances must be such that the corrective action needed must ac.t.ually. be Laken instead of being assumed to be taken in the next exercise or in the event of an emergancy, such ,

assumption being based on how minor and readily correctable the  ;

deficiency is, flere the thsence of a trained person in a pivotal position could not be assumed to be remedied in the future but would require "significant revision."  ;

l 1 b. If the position at issue is not central to ,

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-l an adequate plan -- but nonetheless is required by the core [

planning standards -- the the inquiry focuses on whether the r

j defective training of the person involved is indicative of a i i _ _ _ .

) 9/ The test can not be simply whether the deficiency is I correctable. Obviously, if tnis were the test no exercise  :

1 tesults would over be material to licensing because the Staff l

1 would or could assume that any deficiency disclosed by an .

exerelso "is cortectable" and, as a result, the exercise  !

results cop.d never preclude licensing. Moreover, tne test can l nut involve the speed with which a deficiency can be t i

corrected. A quickly correctable deficiency in an essential j planning area would preclude licensing at least for the shott i time it takes to correct. In this regard, Appendix E, F.4  !

makes clear that a r.emedial exercise is required if a plan

, reveals deficiencies chat preclude a reasonable assurance .

findi.19 It can be assumed that a deficiency requiring a remedial enercise can not be "readily corrected" even if the corrective action of revising the plan does not take a great j length of time.

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1 larger training deficiency.l0' In this regard, tne f

i procedural context is quite similar to unlawful discrimination  ;

4 cases involving a pattern or practice which is pleaded by  ;

ex9mple.II# If a systemic problem in the training program is

reveaind by the exercise, then a "r.ignificant revision" of the  !

- l plan is requic:d and the contention does make cut a L

"fundamental flaw." L f

In sum, the proper test involves both a horizontal and a i h

vertical dimension: is the deficiency located in a vital '

l j public safety planning area and does it indicate that the depth

of the planning failure is such that significant revisions in 1

i the plan are needed before a reasonable assurance finding can l i l

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h C. RQLE OF FEMA  !

J ALAB-903 briefly touches on the weight to be given to l

I a FEMA review of an exercise in making a "fundamental flaw [

determination." ALAB-903 at 12. l l- i I

h j (I]f FEMA has found no deficiencies or j j assigned a less severe rating to a problem  ;

revealed by the exercise, an intervonor j

j seeking the admission of contentions that i

! allege a fundamental flaw has a more 1 difficult task. but it cannot be precluded  !

from even offering such contentions. '

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10/ It is in this context that the analogy to tho O' f litigation drawn in Al%B-903 is most apt. Would 'se r*ilure to i adequately train a person in one position indica + wenther i deficiencies in training are "so pervasive as tc re - I legitimate doubt about the integrity" of the traint.- program?

ALAD-903 at 10. The answer would be fact-specific; 1.e, what training did that person receive? What test results did he achieve? How was he evaluated? If a t otally untrained person had besn "trained" and "qualified" this may raise "legitimate doubt.'

t 11/ See also Mass AG's september 21, 1988 Exercise Contentions at 6-7 which characterizes the exercise pleading situation as {:

"pleading bases by example." Such an approach is directly

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supported by ALAD-903's refer,eqqp ,to QA litigation. ,

I As quidance for this Board, the statement that intervenors have a "mora difficult task" if FEMA has found no deficiency in a planning area is not very helpful. Moreover, the Appeal Board was not addressing thi specific contentions and arguments made by the Mass AG here regarding the weight to be given to any FEMA finding as an agency finding on utility off-site planning. If this Board does intend to raise the procedural barrier to entry for an exercise contention based on FEMA's findings on that exercise, it should first resolve the challenges made by the Mass AG to FEMA's role in utility offsite planning evaluation. These issues we. simply not raised in the Shoreham proceeding and ALAB-903 can not be relied upon in this regard.

D. MISfELLotEquLi'DMMEtlTS 1, ALAB-903 states that "more information" is available to intervenors on w'.lich to base exercise contentions than is ordinarily the case. ALAB-903 at 9. As discussed in detail in the Mass AG's Exercise Contentions at 4-6, the inf ormation f rom wl.ich an intervenor would know what actually happened during the exercise as witnessed by FEMA and NRC observers and evaluators has not yet been made available.

l 2. ALAB-903 appropriately disposes of the Staff's confused argument concerning the link between the realism remand -- CLI-86-13 -- and the Commission's fundamental flaw decision -- CLI-86-11. See ALAB-903 at 5 n.5.

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3. As noted at the outset, ALAB-903 may articulate new P.laadlRS requirements for exercise contentions for'the first time. ALAB-903 states that:

Any contention alleging that an exercise revealed a funcamental flaw in the emergency p l a n (ttus_t a;1drAR,a bo t h o f : t he s e f a c t o r s . . .

. 142 at 8. (emphasis supplied).

Due process arid fundamental f airness dictate that, to the extent these are now NRC. pleading requirements that were not apparent from preexisting law, the Mass AG must be given an opportunity to conform h.is exercise contentions to this newly articulated standard.

4. In light of the complexity of these issues, the Mass AG requests oral argument prior to any decision on the admissibility of his exercise contentions.

Respactf ully subtaitted, JAMES M. GHANNON ATTORNEY GENERAL COMMONifCALTH OF MASSACl!USETTS

l. r ,

y By: .[ /RA C'*

John Traficonto c

A.ysistant Attorney General Department of the Attorney General

'One Ashburton Place Boston, MA 02108 (617) 727-2200 DATED: November 23, 1988 l

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! Z H :i G UNITED STATES OF AMERICA ""E NUCLEAR REGULATORY COMMISSIg g g g 3)

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el 1;.

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In the Matter of )

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PUBLIC SERVICE COMPANY OF ) Docket No.(s)

NEW HAMPSHIRE, ET AL. ) 50-443/444-OL-1 (Seabrook Station, Units 1 and 2) )

)

_ )

CERTlF_LCAIE OF SERY_1CE I, John Traficcnta, hereby certify that on November 23, 1980 ' made service of the within COMMENTS OF THE MASSACHUSETTS ATTORNEY GENERAL ON THE SIGNIFICANCE OF ALAB-930 ON TH2 EXERCISE LITIGATION, by first-class mail, or by telefax as indicated by (a) to the following parties:

Sherwin E. Turk, Esq. *Ivan W. Smith, Chairman U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of General Counsel Atomic Safety & Licensing Board 15th Floor East West Towers Building 11555 Rockville Pike 4350 East Wast Highway Rockville, MD 20852 Bethesda, MD '0814 Gustave A. Linenberger Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814

3: l

', l Dr. Jerry Harbour Robert R. Pierce, Esq.

Atomic Safety & Licensing Bd. Atomic Safety & Licensing Bd. ,

U.S. Nuclear Regulatory U.S. Nuclear Regulatory '

Commission . Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 H. Joseph Flynn, Esq. Stephen E.-Merrill Assistant General Counsol Attorney General f Office of General Counsel George Dana Bisbee Federal Emergency Management Assistant Attorney General Agency Office of the Attorney General 500 C Street, S.W. 25 Capitol Street Washington, DC 20472 Concord, NH 03301  !

Docketing and Service Paul A. Fritzsche,-Esq.

U.S. Nuclear Regulatory Office of the Public Advocate Commission State House Station 112 Washington, DC. 20555 Augusta, ME 04333 Roberta C. Pevear Diana P. Randall State Rcpresentative 70 Collins Street-Town of Hampton Falls Seabrook, NH 03874 Drinkwater Road l Hampton Falls, NH 03844 '

Atomic Jafety & Licensing Robert A. Backus, Esq.

Appeal Board Panel Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03106  ;

Atomic Safety & Licensing Jane Doughty Board Panel Seacoast Anti-Pollution League U.S. Nuclear Regulatory 5 Market Street Commission Portsmouth, NH 03801 Washington, DC 20555 Matthew T. Brock. Esq. J. P. Nadeau Shaines & McEachern Board of Selectmen 25 Maplewood Avenue 10 Central Road P.O. Box 360 Rye, NH 03870 ,

Portsmouth, NH 03801 l Sandra Gavutis, Chairperson Calvin A. Canney [

Board of Selectmen City Manager i RFD 1, Box 1154 City Hall ,

Rte. 107 126 Daniel Street Kensington, NH 038J7 Portsmouth, NH 03801

!g Senator Gordon J. Humphrey Angelo Machiros, Chairman U.S. Senate Board of Selectmen Washington, DC 20510 25 High Road (Attn: . Tom Burack)- Newbury, MA 10950 Senator Gordon J. Humphrey Edward G. Molin 1-Eagle Square, Suite 507 Mayor Concord, NH 03301 City Hall (Attn: Herb Boynton) Newburyport, MA 01950 Donald E. Chick William Lord Town Manager Board of Selectmen Town of Exeter Town Hall 10 Front Street Friend Street Exeter, NH 03833 Amesbury, MA 01913 Brentwood Board of Selectmen Gary W. Ilolmes, Esq.

RFD Dalton Road Holmes & Ellis Brentwood, NH 03833 47 Winnacunnet Road Hampton, NH 03841 i

Philip Ahrens, Esq. Diane Curran, Esq.

Assistant Attorney' General Harmon, Curran & Towsley Department of the Attorney Suite 430 General 2001 S Street, N.W.

State House Station #6 Washington, DC 20009 Augusta, ME 04333

' Thomas G. Dignan, Esq. Richard A. Hampe, Esq.

Ropes & Gray Hampe & McNicholas 225 Franklin Street 35 Pleasant Street Boston, MA 02110 Concord, NH 03301 Beverly Hollingworth Ashod N. Amirian, Esq.

209 Winnacunnet Road 376 Main Street Hampton, NH 03842 Haverhill, MA 01830 William Armstrong Michael Santosuosso, Chairman Civil Defense Director Board of Selectmen Town of Exeter Jewell Street, RFD 2 10 Front Street South Hampton, NH 03827 Exeter, NH 03833 Robert Carrigg, Chairman Anne E. Goodman, Chairperson Doard of Selectmen Board of Selectmen Town Office 13-15 llewmarket Road Atlantic Avenue Durham, NH 03824 North Hampton, NH 03862 Allen Lampert Sheldon J. Wolfe, Chairperson Civil Defense Director 1110 Wimbledon Drive Town of Brentwood McLean, VA 22101 20 Franklin Street Exeter, NJ 03833 Charles P. Graham, Esq. Barbara St. Andre, Esq.

Murphy & Graham Kopelman & Paige, P.C.

33 Low Street 77 Franklin Street Newburyport, MA 01950 Boston, MA 02110 Judith H. Mizner, Esq. R. Scott Hill-Whilton, Esq.

Lagoulis. Clark, Hill-Whilton Lagoulis, Clark, Hill-Whilton

& McGuire & McGuire 79 State Street 79 State Street Newburyport, MA 01950 Newburyport, MA 01950 lp l I.

John Traficonte Assistant Attorney General Department of the Attorney General One Ashburton Place Boston, MA 02108-1698 (617) 727-2200 DATED: November 23, 1988 l

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