ML20206M976

NRC Staff Response to 881114 Board Order Requesting Comments on Significance of ALAB-903 for Seabrook Proposed General Exercise Contentions.* Contentions & Bases Should Be Denied. Certificate of Svc Encl

ML20206M976
Person / Time
Site:	Seabrook
Issue date:	11/23/1988
From:	Chan E NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#488-7565 ALAB-903, OL, NUDOCS 8812020117
Download: ML20206M976 (13)

Text

, 7I 11/23g88 UNITED STATES OF AMERICA UdhIt NUCLEAR REGULATORY COMMISSI0t' BEFORE THE ATOMIC SAFETY AND LICENSING BOARD '88 NOV 25 P3 :02 In the Matter of Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF 50-444 OL NEW HANPSHIRE, el al. Off-site Emergency Planning (SeabrookStation, Units 1and2)

NRC STAFF RESPONSE TO NOVEMBER 14, 1088 BOARD ORDER REQUESTING COMMENTS ON SIGhlFICANCE OF ALAP-903 FOR SEABROOK PROPOSED GENERAL EXERCISE CONTENTIONS _ _

INTRODUCTION In a November 14, 1988 Order, the Licensing Board stated that it would coasider the parties' views, if provided by November 23, 1988, as to the significance of the Appeal Board's decision in ALAB-903 1/ concerning the 4

meaning of the term "fundamental flaw" in a radiological emergency exercise, in connection with the currently proposed Seabrook exercise contentions.

Pursuant to that Order, the Staff has reviewed the Intervenors' contentions and the Staff's October 13, 1980 response thereto, and hert'n provides its coments and additional objections in light of the Appeal Board's guidance in ALAB-903.

DISCUSSION In order to satisfy the admissibility criteria of 10 C.F.R. ! 2.714(b),

the basis of a contention must be set forth with reasonabl9 specificity. In addition, pursuant to the Comission's decision in Long Islan_d Lightino Co.

1/ Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),

ALAP-903, 28 NRC (slipop.,Nov. 10,1988).

8812020117 081123 PDR ADOCK0500g3 p567

O (Shoreham Nuclear Power Station, Unit 1), CLI-86-11, 23 NRC 577, 581 (198e),

the Board may accept contentions concerning an emergency planning exercise only if they provide bases "which, if shown to be true, would dcmonstrate a fundamental flaw in the plan."

In ALAB-903, the Appeal Board clarified the "fundamental flaw" requirement. In this regard, the Appeal Board ruled that "a fundamental flaw in an emergency plan, as re realed by an exercise, has two principal components. First, it reflects a failure of an essential element of the plan, and, second it can be ',enedied only through a significant revision of the plan." ALAB-903, slip op at 6. Further, the Appeal Board noted that contentions concerning an exercise should set forth their bases with "greater detail" than other contentions, since there is "substantially more infomation available on which to base exercise contentions than is ordinarily the case." I_d . at 9-10. The Appeal Board noted that the "essential elements of the plan" should be detemined by reference to the 16 basic energency planning standards set forth in 10 C.F.R. i 50.47(b) and the requirements of 10 C.F.R. Part 50, Appendix E." Id. at 7. The determination of the second corponent turns on whether the failure of a portion of the plan, as revealed by the exercise, can be readily corrected or whether it requires that a portion of the plan "be reassessed or reconceived to a significant extent in order to prNent such a failure in the future." J_d .

The Appeal Doard provided specific guidance concerning these two facters. With regard to the first factor, the failure of an essential eierent of the plan, the Appeal Board observed that "[m]inor or isolated problems on the day of the exercise do not constitute fundarrental flaws in

2 the olan." Id. at 7. While deficiencies or shortcomings revealed in the exercise standing alone may not constitute e fundamental flaw, they can be i considered collectively, "provided they are pervasive and show a pattern of ,

related or repeated failurss associated with a particular essential element of the plan." J_d . If the observed result is delay, "1.e. , a failure to -

meet the time estimates on which the plan is premised," that delay "must be [

substantial and thus likely to have affected the protective action recomendations in an actual emergency." M. Further, individual perfomance errors are not to be considered "fundamental flaws", unless the ,

i "individual performs a critical role under the plan and there is no back-up  ;

structure or provision that would mitigate the effects of the individual's failure." Id. at 7-8.  :

The Appeal Board provided guidance also as to the second factor i necessary for a "fundamental flaw", i.e., that the problem can be remedied i

[

4 only through a significant revision of the plan. Here, the Appeal Board l

indicated that if a problem can be readily corrected, it is not a fundamental flaw. Hence, a readily correctable minor g hoc performance ,

j error, e.g., equipment failures or minor changes in the procedures in the l 4

plan, are not evidence of a fundamental flay. J_d. at 8. However, if the relevant plan portion "itself must be reassessed and reconceived to a i significant extent in order to prevent such a failure in the future, then j there is a fundamental flaw." M. Finally, the Appeal Board noted that a l r

FEMA finding of e "deficiency" is "not necessarily" tantamount to a  ;

"fundamental flaw." M.at12.

In light of ALAB-903, which requires that these two factors be  !

l addressed in determining the aMssibility of contentiens, the Staff offers  !

i i

+hese addition 31 objections to certain contentions and bases.

. The Staff recognizes, however, that cocrents provided by Intervenors in response to the Board's November 14, 1988 Order could eliminate some cf the objections set forth below.

MA_G Centention 8 The Staff objects to Basis B, as the al' eged failures here are clearly problems with equipment that can easily be corrected, without requiring any significant change in the Plan itself; fut ther, any "delay" referred to herein is not alleged to be so substantial as to delay a protective action reconnendation. Hence, this basis fails to meet the two prongs of the Appeal Board test and must be rejected. Likewise, Bases C.1 and 3 which allege that procedures are not sufficient and the radios may be set to different frequencies, clearly are minor, readily correctable elements that do not evidence a fundamental flaw in the Plan which requires significant revision. Thus, this contention nust be rejected as failing to raise a litigable issue in this phase of the proceeding.

MAG, Contention 13 The Staff objects to Bases A, B, and 0 as these bases clearly relate to a perfonnance of errors of individuals and does not meet the Appeal Board test requiring the resulting delay to be substantial and to have the potential to affect the taking of protective action recommendations. There is no showing that the delayed deployment of traffic guides in beach areas was substantial or that it would affect a protective action recommendation in a significant nenner. Hence, this contention should be rejected for l

failure to meet the two part test for alleging a fundamental flaw in the emergency pian.

MAG Conten:. ion 14 Basis C appears to present essentially a question as to inadequat'a training of hospital staff; this is a readily correctable performance error.

Absent a showing by Intervenors that this illustrates an element that would i require significant revision of the plan to correct, the portion of the contention relying on this basis should not be admitted for litigation in this phase of the proceeding.

MAG Contention 15 The Staff further objects to this contention in that it fails to meet the second prong of the Appeal Board test: it fails to show whe'her the problems alleged in the training program are minor, readily correctable problems or whether they evidence a need for a major revision of the Plan itself. Absent such a showing, this contention is inadmissible at this stage of the proceeding.

MAG Contention 16 The Staff did not object to this contention regarding off-site monitoring in its original response to exercise contentions. However, in licht of ALAB-903, absent a showing by Intervenors that this is more than a minor, readily correctable problem, l.e., that it denonstrates a need to significantly revise the Plan, it is inadmissible. Additionally, the Staff objects to admission of this contention linited to Basis C, since by itself, a

the rumor control function does not constitute one of the 16 planning standards under 10 C.F.R. I 50.47(b). Thus, the contention fails to meet the first prong of the Appeal Board's test in ALAB-903, i NAG Contention 18 The Staff did not nbject to this contention generally in its initial response to exercise re ' r*fons. Under ALAB-903, however, the contention

, is inadmissibic absent a sht ing of why or how the problems identified would require extensive or signir1Gnt revision of the Plan itself, and are not  ;

I merely minor, readily correctable instances of performance errors revealed by the exercise. '

)

M_AG Contention 19 [

i It is not evident on the face of the contention that Basis D is anything more fran a minor, readily correctable problem. To be admissible, the contention would have to demonstrate why or how any change to the computer model would require 4. significant revision to the Plan itself.

Absent such a shewing, this Basis should be dismissed.

MAG Contention 2_1 The perforrance of one ambulance crew, on its face, is not evidence of A furidamental flaw, but rather is a perfomance error that would appear readily correctable. Absent a showing by Intervenors as to why or how this perfomance is evidence of a pattern of repeated failures, Basis C of the contention should be rejected.

l e-_.

SAPL Contention 1 The Staff opposes the admission of this contention. To the extent it is premised upon the facts alleged in Basis A, the contention is inadmissi-ble for the reasons set forth in our initial response. In light of ALAB-903, the facts alleged in Basis B also fail to raise a litigable issue.

First, the fact that different protective actions were adopted by various jurisdictions does not, in itself, reflect any problem with the emergency plan. Next. SAPL cites only one incident in which incorrect information about school evacuation was provided to the public. Clearly, one such incident is indicative of only an isolated problem rather than a flaw in the plan which cannot be readily corrected. Finally, the facts recited by SAPL concerning the interaction between the IFO Controller and the State E0C de not reflect any failure in the emergency response plan. SAPL provides no basis for concluding that the facts cited impaired the ability of the response organization to order or carry out PA's for school children. In short, Basis B fails to meet the two part test for alleging a fundamental flaw in the emergency plan.

SAPL Contention 4 The Staff opposes admission of this contention. Aside from being vague, the contention does not raise problems which require significant revision of the emergency plan. Even if one of the teans was unfamiliar with sampling techniques, this does not represent a systenic problem.

Furthernore, it can be readily corrected by simply providing additional training to the sanpling team members. Sinilarly, the maps used by those teams can easily be irproved without any sut'stantive change in the crergency

.c.

pl a n . Absent a showing by Intervenors that these are more than minor, readily correctable problems the contention is inadmissible.

SAPL Contention 9 The Staff opposes admission of this contention for lack of basis. The events cited by the Intervenor to support the contention, even if true, fail to demonstrate a pattern of failures associated with an essential eleiaent of the plan. The fact that the Director and other, unspecified members of the PCDC were rot immediately informed that a release of radiation occurred does not, in itself, indicate that the emergency plan requires substantial revi-sion. SAPL has failed to tie that fact to any delay or other consequence in terms of energency response or allege that it can be remedied only through reassessment of the plan. The fact that the radio over which the informa-tion was monitored was kept in a separate room and that status boards in the Seabrook EOC were not kept current are obviously minor matters which can easily be corrected. Absent a showing of why or how the problems identified would require extensive revision of the plan, this contention should be rejected.

SAPL Contention 12 The Staff oppeses admissicn of this cortention for lack of basis. For both the Salem and Dover reception centers, SAPL has rerely made vague allegations about an insufficient number of personnel and inadequate know-ledge of responsibilities ar.d listed several unrelated and ninnr problems.

While it is alleged that evacuees at Salem and Dover did not begin to undergo nionitorinn until 5:09 ard 4:40, respectively, SAPL does nnt indicate L

4 g.

that this would have any significant effect on emerem

• response or is in any way related to a problem with the emergency a ne other problems listed; phone lines across a corridor, a non-wo'  ; radio, a mix-up of Mettags, and insufficient headsets, are obviously minor and can be easily corrected without any substantial changes in the energency plan and absent a -

j showing to the contrary, this contention should be denied admission.

TOH/NECHP EX 2 The Staff opposes the admission of this contention on the grounds that it fails to meet the requirements set forth in ALAB-903 in that the conten-i tion does not raise problems which require significant revision of the l emergency plan. Instructions to the public regarding the care, status or

! early dismissal of school children, the bus drivers needing assistance, the i

text of a news release and similar isolated problems appear to be ad_ hoc,

readily correctable performance problems. Absent a showing that these items i demonstrate a pattern of failures associated with an essential eierent of

the plan, or that the plan would require reconceiving, or that the allaged i

delay concerning the protective action decisions was substantial enough to j affect protective action recomendations in an actual emergency, this contention cannot meet the Appeal Board's fundamental flaw standards an>

1 should be rejected.

I CONCLUSION

]

In addition to the reasons set forth by the Staff for opposing various l contentions in its response of October 13, 1988, the Staff opposes the admission of the contentions discussed above in accordance with ALAB-903.

l Absent a showing by November 23, 1988 that the exercise problens raised by i

the Intervenors' proposed general exercise contentions either result in delay sufficient to affect protective action recomendations or would require significant revisions or reconception of the SPMC, these contentions and bases should be denied admission.

Respectfully submitted.

Elaine I. Chan Counsel for NRC Staff Dated at Rockville, Maryland this 23rd day of November, 1988

' ( P ( I k.

• UllITED STATES OF AMERICA  ;

NUCLEAR REGULATORY COMMISS10fl

.g3 is 25 PE02 BEFORF THE ATo"fC SAFETY AND LICENSING BOARD In the Matter of ) .$

Docket Nos. 50-443 OL' I

PUBLIC SERVICE COMPANY OF 50-444 OL NEW HAMPSHIRE, et al. Off-site Ertergency Planning ,

(Seabrook Station, Units 1 and 2) l CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSC TO NOVEMBER 14, 1988 BOARD ORDER REQUESTING COMMENTS ON SIC-NIFICANCE OF ALAB-903 ON SEABROOK PROPOSED GENERAL EXERCISE CONTENTIONS" in the above captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Comission's internal mail system, as indicated by double asterisks, by hand this 23rd day of November 1988:

Ivan W. Smith, Chairman ** Philip Ahren Esq.

Administrative Judge Assistant Attorney General Atomic Safety and Licensing Board Office cf the Attorney General U.S. Nuclear Regulatory Comission State House Station Washington, DC 20555 Augusta, ME 04333 Gustave A. Linenberger, Jr.** Carol S. Sneider, Esq.

Administrative Judge Assistant Attorney General Atomic Safety and Licensing Board Office of the Attorney General U.S. Nuclear Regulatory Cemission One Ashburton Place, 19th Floor Washington, DC 20555 Boston, MA 0?10P Dr. Jerry Harbour ** George Dana Bistee, Esq.

Administrative Judcc Assistant Attorney General Atoric Safety & Licensing Peard Office of the Attorney General U.S. Nuclear Regulatory Commission 25 Capitol Street Concord, NH 03301 l Washington, DC 20555 Thomas G. Dignan, Jr., Esq. Diane Curran, Esq.

l Robert K. Gad, !!!, Esq. Hamon, Curran & Tousley l Ropes & Gray 7001 S Street, NW 225 Franklin Street Suite 430 Poston, PA 0F110 Washington, DC 20009 H. J. Flynn, (sq. Robert A. Backus Esq.

Assistant General Counsel Backus, Meyer & Solonen Federal Emergercy Managerent Agency M6 Lowell Street 500 C Street, S.W. Manchester, PH 03106 Washington, DC 70472

, 4: ,

4 i

Paul t'cEachern, Esq. Judith H. Mizner, Esq. 1 Matthew T. Brock, Esq. Silverglate, Gentner, Baker, Shaires & McEachern Fine, 8 Good 25 Maplewood Avenue 88 Board Street P.O. Box 360 Boston, MA 02110 Portsnouth, NH 03801 Robert Carrigg, Chairman Charles P. Graham, Esq. Board of Selectmen McKay, Murphy & Graham Town Office 100 Main Street Atlantic Avenue Amesbury, MA 01913 North Hampton, NH 03870 Sandra Gavutis, Chairman Villiam S. Lord Board of Selectmen Board of Selectmen RFD #1, Box 1154 Town Hall - Friend Street Kensington, NH 03827 Amesbury, MA 01913 ,

Calvin A. Canney Mrs. Anne E. Goodman, Chairman City Hall Board of Selectmen 126 Daniel Street 13-15 Newmarket Road Portsmouth, NH 03801 Durham, NH 03824 R. Scott Hill-Whilton, Esq. Hon. Gordon J. Humphrey Lagoulis, Clark, Hill-Whilton United States Senate ,

& McGuire 531 Hart Senate Office Building '

79 State Street Washington, DC 20510 Newburyport, MA 01950 Richard R. Onnovan .

Allen Lampert Federal Emergency Management .

Civil Defense Director Agency l Tcwn of Brentwood Federal Regional Center 20 Franklin 130 228th Street, S.W. .

Exeter, NH 03833 Bothell, Washington 98021-9796 l William Armstron0 Feter J. Matthews, Mayor Civil Defense Director City Hall ,

Town of Exeter Newburyport, MN 09150 ,

10 Front Street Exeter, NH 03833 Michael Santosuosso Chairesn  ;

Doard of Selectmen Gary W. Holres. Esq. South Hampton, NH 03877 Holres A Ellis t7 Finnacunnet Road Ashod N. Amirian, Esq.

Hampton, NH 0304? Town Ccunsel for Merrimac 376 Main Street ,

J. P. Nadeau Haverhill, MA 08130 '

Board of Selectmen 10 Central Street Barbara J. Saint Andre, Esq.

Fyr , NH 03870 Kopelman and Paige, P.C.

77 Franklin Street Suite 1000 i Boston, MA 02110 l

Robert R. Pierce, Esq.* Atomic Safety and Licensing Atenic Safety and Licensing Board Panel (1)*

Board Pai,el U.S. Nuclear Regulatory Comission U.S. Muclear Regulatory Comission Washington, DC 20555

' Washington, DC 205C5 Docketing anc Service Section*

Atomic Safety and Licensing Office of the Secretary Appeal Panel (5)* U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, DC 20555 Washington, DC 20555 l

-- - s . e= .

Elaine I Chan  !

Counsel for NRC Staff I

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