ML20212C907

NRC Staff Response to Seacoast Anti-Pollution League late- Filed Contention & Motion to Reopen Record.* Recommends That Seacoast Anti-Pollution League 870206 Motion to Reopen Record Be Denied

ML20212C907
Person / Time
Site:	Seabrook
Issue date:	02/26/1987
From:	Perlis R NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20212C911	List: ML20212C907 ML20212D002
References
CON-#187-2634 OL-1, NUDOCS 8703040024
Download: ML20212C907 (9)

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February 26, 1987

. COLKETED us W UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '87 A(Ar 02. P 1 :41

%EFORE THE ATOP"O SAFETY AND LICENSINO BOdRD 4 ,

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in the Matter of )

. ) Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF ) 50-444 OL-01 NEh' HAMPSHIRE, et al.

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) On-site Emergency Planning

) and Safety Issues (Seabrook Station, Undts 1 and 2 )

URC STAFF RESPONSE TO SAPL'S LATE-FILED COMTENTION AND MOTION TO REOPEN THE RECORD I. INTRODUCTION On February 6, 1987, the Ceacoast. Anti-Pollution League ("SAPL")

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submitted a motion to admit a late-filed contention and reopen the record on on-cite emergency planning. SAPL's contention alleges that Applicants have failed to provide an ' adequate means for prompt notification of the public in the event of an emergency as required by 10 CFR 550.47(b)(5).

As basis for its contention, FAPL relies on a purported testing failure of i

l sirens in the town of East Kingston, New Hampshire, and a decision by the New I'ampshire Superior Court holding that the strens in the towns of Rye and Hampton Falls were installed uniswfully and must be removed.

Attached to SAPL's motion is the Affidavit of Frederick H. Anderson, L

Jr., a journalist who was present during the testing of the East Kingston sirens and describes in his aff1 davit certain problems encountered during the testing. If its motion is denied, SAPL requests in the alternative that the Board condition any low-power operating license upon Applicants' compliance with Section 50.47(b)(5). For the reasons presented below, the motion to reopen the record should be denied.

DESIGRATED ORIGIRAL h Cortified B 3 501

.,. II. ' ARGUMENT A motion to admit a late-filed contention a'nd reopen the record must satisfy tile requirements of in CFR f f 2.714(a)(1)(1-v) and 2.734. SAPL uddresses both the standerds for late-filed contentions ($2.714) and motions to reopen (52.734) at pages 2 through 6 of its motion. As demonstrated below, although SAPL's motion may meet the late-filed contention requirements, it falls to justify reopening the record under Section 2.734.

A. Mte-Filed Contentions Section 2.714(a) establishes a balancing test for the consideration of late-filed contentions. Applying the crfteria set forth in that regulation .

to SAPL's motion yields the following results:

1. Good cause for failure to file on time The test of the sirens in East Kingston took place on January 31, 1987; the Superior Court decision was issued on January 20, 1987.

Under the circumstances, tht, Staff agrees with SAPL that that party has established good cause for its failure to file this contention' earlier.

2. Other means to protect petitioner's interest To the extent that petitioner has an interest in the operability of strens during low power operation, there are no' other means available to protect petitioner's interest. The Etaff would note, however, that to the extent petitioner is concerned with the operability of sirens during full o

power operation, its contention could have been filed with the Licensing Board considering offsite emergency planning fisues. -

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3. Pgtent to which petitioner could contribute to a sound record In support of its position on this factor, SAPL notes that it could brint; Mr. Anderson as a witness, and further indicates that it is "looking into the possibility of securing an expert witness who could testify to the rudibility and intelligibility of public alerting systems." Motion at 3.

The burden is upon SAPL to affirmatively demonstrate that its witnesses could assist in the development of a sound record. See, g, e

Long Island Lighting Company (Shoreham Plant, ITnit 1) , ALAB-747, 18 NRC 1167,1177-78 (1983). While f.fr. Mderson may be able to testify on some of the details of the testing at East Kingston (one of the issues raised by the contention), he does not appear to be competent to testify on either the underlying causes of the problems identified in his affidavit or on the adequacy of the corrective mecsures that have been identified by the Applicants. See attached Affidavit of William Lazarus at 5 .

Inasmuch as these latter issues would be critical to resolution of the contention, this factor weighs against admission of the cont'ention.

4 Extent to which other pcrties will represent petitioner's interest The Staff concedes that this factor weighs in favor of admission of the contention.

5. Broadening and delay of the proceeding

., As SAPL concedes, this factor weights against admission of the contention. It bears noting that the record 'on onsite issues originally closed in' August of 1983, and the record on the limited reopening closed at the end of the hearings on October 3,1986. Further, authorization of issuance of a low-power license awaits only a Commission decision on its review of ALAD-853,1 and this Board's decision on the remaining onsite cententions. 2,/ Depending upon the imminence of these decisions, the delay factor could weigh very heavily afrainst SAPL.

In sum, Factors 1, 2 and 4 weigh in SAPL's favor, Factor 3 cuts against SAPT. somewhat, and Factor 5 weighs rather heavily against SAPL.

It is unnecessary to resolve this conf 1/ct, however, because it is clear that the motion to reopen does not meet the applicable reopening standards set out in Section 2.734.

B. Biotions to Reopen the Record On May 30, 1986, the Commission adopted Section 2.734 to codify preexisting practice with regard to motions to reopen records in Commission adjudicatory proceedings. See 51 Fed. Reg. '19535, g seq.

(May 30, 1980). Under this regulation, a motion to reopen must be timely, it must address a significant safety or environmental issue, and it must demonstrate that a materf ally different result "would be or would

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1/ Final briefs on this issue were submitted to the Commission on February 4,1987

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2/ The last set of proposed findings was submitted to the Board on December 1,1986.

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have been likely had the newly proffered evidence been considered initially."

A proponent of reopening the record has always shouldered a heavy burden in Commission proceedings. See, e.g., _ Kansas Gas and Electric Company (Wolf Creek Station, Unit No. 1), ALAB-462, 7 NRC 320, 338 (1978). As shown below, SAPL has failed to carry its burden in this i regard.

1. Timeliness of the motion For the reasons discussed above with respect to the timeliness of the late-filed contention, SAPL has filed its motion to reopen in a timely manner. /

2. Significance of the safety issue involved SAPL's contention relies on two bases: the test of the sirens at East Kingston and the decision of the New Hampshire Superior Court on the challengo brought by the towns of Rye and Hampton Falls. Neither basis has sufficient safety significance to verrant reopening the record.

Insofar as the test at East Kingston is concerned, the attached affidavit of William Lazarus demonstrates that the problems encountered (to the i extent that the problems were real ones and not the result of improper testing procedures) were caused by winter storm conditions, and the Applicants' have initiated corrective actions which should protect the sirens from such adverse weather conditions. Lazarus Affidavit at 11 5-7. In a somewhat related case involving construction errors, the Appeal Board made clear that the discovery of errors during construction a

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does not necessarily warrant a reopening; the critical issue is whether the errors. identify a serioub safety problera.

Pacific Gas and Electric Co. (Diablo Canyon Plant), ALAB-756, 18 NRC 1340, 1345 (1983); see also, Id, ALAB-775, 19 NRC 1361,1366 (1984).

In reaching a decision on whether a significant safety issue has been raised, the Board s'hould examine the factual nature of the responses submitted by the parties. See Vermont Yankee Nuclear Power Corp.

(Vermont Yankee Station), ALAB-138, 6 AEC 520, 523 (1973); see also, i Diablo Canyon, ALAB-756, supra,18 NRC at 1343. Given the fact that the problems identified in the East Kingston test have been resolved, there are no significant safety issues that would warrant reopening the record. O y As to the Superior Court decision, the decision was stayed by the the filing on February 13, 1987 of Applicants' appeal to the New 3_/ Two additional items are worthy of note concerning the test at East l Kingston. To the extent that SAPL argues that the test I

demonstrated that the sirens did not convey intelligible, audible

! messages to the public, it should be pointed out that the Applicants l do not rely on the sirens in East Kingston for providing anything l other than an alert to the public; the Applicants' emergency plan provides that the public should turn on radios for further information if the sirens go off. See Seabrook FSAR, Radiological Emergency Plan, Appendix E, Page T1. The only strens that might be used to convey voice messages to the public are those sirens that

! serve the beach population. Id. The ability of the sirens to convey voice messages to the beach population during winter storm

conditions does not appear to be of great safety significance.

Second, although the Staff agrees with SAPL that the Commission in adopting Section 50.47(d) intended that no'tification capability exist during low power operations, the Commission in adopting Section j 50.47(d) noted that any possible accident during such operation

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would be much slower in developing than would an accident during full power operation. See 47 Fed. Reg. 30232 (July 13, 1982).

(FOOTMOTE CONTINUED ON NEXT PAGE) i

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Hampshire Supreme Court. M . As the decision is stayed, it does not

, presently affect the capability of the sirens to' notify the public in either of the two affected towns. There is currently no issue to litigate in this regard, and there certainly is no current safety significance attached to the Superior Court decision. The Staff would note thr.t if the decision is affirmed by the Supreme Court and the sirens are removed after a license has issred, the provisions of 10 CFR 950.54(s) would apply. 5_/ As to the motion to reopen, SAPL has not demonstrated that the Superior Court i decision har sufficient safety significance to warrant reopening the record.

3. Likeliness of a materially different result As demonstrated in the attached Affidavit of Mr. Lazarus, the problems with the sirons in East Kingston were caused by winter storm conditions, and measures have been taken to assure that the sirens will not be adversely affected by adverse winter storm conditions in the (FOOTNOTE CONTINUED FROM PREVIOUS PAGE)

Because of the additional time available during an accident at low power, the safety significance of sirens during low power operation is not as critical as during full power operation.

-4/ See Rules of the Superior Court of the State of New Hampshire, Rule 1 74. Copies of the appeal were transmitted to the Board and parties by Applicants' counsel by letter dated February 18, 1987.

-5/ 10 CFR 550.54(s)(2)(fi) provides that if the Commission finds that

the state of emergency preparedness at an operating reactor does

not provide reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency, and i if the deficiencies are not corrected within four months of that finding, the Commission will determine whether the reactor shall be shut down until such deficiencies are remedied or whether other enforcement action is, appropriate.

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future. Affidavit at if 5-7. .Under the circumstances, it seems clear that a different result with respect to the adequacy of the sirens would not be reached if this matter were to be considered.

In sum, SAPL's contention and motion to reopen raise an issue whoss cause has been identified and resolved. Under the circumstances, the motion to reopen does not raise a significant safety issue and would not likely lead to an adverse finding on the issue of the adequacy of the stren notification system at Seabrook. For those reasons, the motion to reopen the record must be denied.

C. ,

The Request to Condition the Licens, As noted earlier, SAPL has requested in the alternative that the Board condition any low power license on Applicants' compliance with Section 50.47(b)(5). The Staff does not see any demonstrated need for such a condition. Under the Commission's regulations, the Applicants' emergency plan must comply with 150.47(b)(5) during low power operations. The Commission's regulations further mandate that if at any time after initial licensing the Applicants ceaue to comply with emergency planning requirements and do not remedy the noncompliance within four months, the Commission will determine the appropriate action to be taken given the nature of the emergency planning deficiency. See 10 CFR I 50.54(s)(?)(ii). SAPL has provided the Board with no reason to adopt a condition more stringent than that already provided for in the pommission's regulations.

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III. . CONCLUSION For the reasons presented above. SAPL's motion to reopen, arut associated late-filed contention, should be denied.

Respectfully submitted, s '

k 'N/7 Rchert G. Perlis Counsel for NRC Staff Dated at Bethesda, Maryland this 26th day of February,1987 4

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