ML20215K964
| ML20215K964 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/04/1987 |
| From: | Backus R BACKUS, MEYER & SOLOMON, SEACOAST ANTI-POLLUTION LEAGUE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#287-3367 OL-1, NUDOCS 8705120050 | |
| Download: ML20215K964 (34) | |
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,j BEFORE THE ATOMIC SAFETY AND LICENSING APP ~EAL BOARDi.--
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In the Matter of )
) Docket Nos. 50-433 OL PUBLIC SERVICE COMPANY OF ) 50-444 OL NEW HAMPSHIRE, et al. ) On-site Emergency
) Planning and Safety (Seabrook Station, Unit 1- ) Issues
)
SEACOAST ANTI-POLLUTION LEAGUE'S BRIEF IN SUPPORT OF APPEAL OF PARTIAL INITIAL DECISION AUTHORIZING ISSUANCE OF LICENSE TO OPERATE SEABROOK STATION UNIT 1 UP TO 5% OF RATED POWER MAY 4, 1987 O O$$$(({ PDR Ofo3
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& l TABLE OF CONTENTS 4
Page Table of Contents..........................................i Table of Authorities...................................... 11 General Statement.of Proceedings.......................... 1 SAPL Supplemental Centention 3............................ 3 A) Specific Procedural History of SAPL Supplemental Contention 3.......................................... 3 B) The Argument.......................................... 4 The Licensing Board Erred in Denying A Hearing on SAPL Contention 3 SAPL Supplemental Contention 6............................. 10 A) Specific Procedural History of SAPL.................... 10 Supplemental Contention 6 B)'The Argument............................................ 11 The Ilcensing Board Erred in Redefining the Legal 4 Standard for the SPDS, In Failing To Require The Production Of The NRC Project Manager for Seabrook As A Witness, And In Allowing Licensure of Seabrook i Without a Fully Compliant SPDS S AP L C o n t e n t i o n 3 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 8 A) Specific Procedural History of SAPL
. C o n t en t i o n 3 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 B) The Argument ......................................... 19
- The Licensing Board Erred in Falling To Reopen The Record, In Failing To Admit' SAPL 's Late-Filed Contention, In Falling To Conduct A Hearing On The 4 Genuine Issues of Material Fact In Dispute Regard-ing The Reliability, Audibility, Intelligibility and Legality of the Siren System For Seabrook Station and In Holding that 10 CFR S50.54(a) (2) (ii)
- Could Support An Initial Licensing Determination Conclusion.................................................. 28 Appendix A 4
P e
11 6 TABLE OF AUTHORITIES CASES ALAB- 731 June 20,1983 REGULATIONS 10 CFR S2.714(a) (1) 10 CFR S2.734 10 CFR S2.762(b) 10 CFR 5 50.47(b) (5) 10 CFR 50.54(a) (2) (ii) NUREG-0737, Supplement No.1, Generic Letter No. 82-33 40 CFR S1502.22(b) FEDERAL REGISTER 45 End. Reg. 40101 USNRC Statement of Interim Policy 47 Fed. Rec. 30232 Council on Environmental Quality National Environmental Policy Act Regulations; Incomplete or Unavailable
- Information 51 Fed. Rec. 15618 Emergency Planning and Preparedness i
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.3 SEACOAST ANTI-POLLUTION LEAGUE'S BRIEF IN SUPPORT e OF APPEAL OF PARTIAL INITIAL DECISION AUTHORIZING ISSUANCE OF LICENSE TO OPERATE SEABROOK STATION UNIT 1 UP TO 5t OF RATED POWER 1 GENERAL STATEMENT OF PROCEEDINGS On June 17, 1986, Applicants filed a motion for incorporation of certain materials into the record, for closing of the record and for issuance of an operating license for Seabrook Station not in excess of 5% of rated power. On June 27, 1986, the Seacoast Anti-Pollution League filed its response and objection to the Applicants ' motion, citing, inter alla, concerns about the - acequacy of the Detailed Control Room Design Review (hereinafter "DCRDR") , and the Safety Parameter Display System (hereinafter "SPDS"), the public alerting system for Seabrook and the treatment of consequences of severe accidents in the Seabrook FES. On July 25,1986, the Board stated in its Memorandum and Order ruling on the Applicants' motion that, af ter considering the evidence presented during a supplementary hearing, it would decide whether or not to authorize issuance of an operating license for Seabrook Unit 1 up to and including 5% of rated power. The Board ruled that it would receive eviden'ce in the hearings on SAPL Supplemental Contention 6, which dealt with the DCRDR and SPDS and a schedule of proceedings was established. On that same date, Applicants filed a motion seeking summary disposition of SAPL Supplemental contention 6, which was opposed by SAPL on August 4,1986 but granted in part by a Memorandum and Order of
- the Board dated September 15, 1986. That portion of the contention disposed of dealt with the Detailed Control Room Design Review; summary disposition with respect to the SPDS was denied. -
Howevt:, the SPDS issue was rephrased, and narrowed, by the Board. Hearings on the onsite issues remaining for litigation began on September 29, 1986 and proceeded on September 30,' October 1 and October 3. The Seacoast Anti-Pollution League participated solely in the SPDS issue. SAPL's proposed findings of fact, conclusions of law and proposed form of decision were filed on November 7, 1986. On February 6,1987, SAPL filed a contention and motion to admit late-filed contention and reopen the record of the onsite portion of the Seabrook proceedings. In its contention, SAPL raised issues of the reliability, audibility and intelligibility
- and also the legality of the public alerting and notification system in the Seabrook EPZ, citing test results in one of the 17 New Hampshire towns and also citing a New Hampshire Superior Court decision resulting from a legal challenge brought by two other towns. On March 23, 1987,- the Board issued a Memorandum and Order denying SAPL's February 6 motions with respect to the contention relative to public alerting and notification. On March 25, 1987, the Board issued its Partial Initial Decision (PID) authorizing issuance of a license to operate Seabrook Unit 1 up to 5% of rated power. SAPL filed its Notice of Appeal of the PID on April 3, 1987. SAPL then filed a motion for stay, joining also in the motion of the Attorney General of the Commonwealth of Massachusetts for stay, on April 8, 1987. Pursuant to 10 CFR
8 S2.762(b), SAPL now files this brief. i II. SAPL SUPPLEMENTAL CONTENTION 3 A. Soecific Procedural History of SAPL Supolemental Contention 3 SAPL Supplemental Contention 3, which was admitted by Memorandum and Order of the Board dated September 13,1982, read as follows: The applicable requirements of the Commission's Interim Policy Statement issued June 13, 1980, 45 Fed . Reg . 40101 on Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969 have not been met. Both SAPL and Applicants moved for summary disposition of the contention on February 11, 1983, SAPL arguing that, on its face, the Final Environmental statement (hereinaf ter "FES") for Seabrook Station did not comply with the Interim Policy Statement (herein-af ter "IPS") and the Applicants arguing that, as a matter of law, the FES discussion of accident considerations did comply with the IPS. Both SAPL and the Applicants thereafter filed answers in opposition to each others motions, SAPL's filed on March 21, 1983 and the Applicants ' filed on March 9,1983. The Board ruled in favor of the Applicants' motion and denied SAPL's motion on May 11, 1983. SAPL appealed the dismissal of SAPL Supplemental Contention 3 and in the alternative petitioned for directed certification of said dism'issal on May 26, 1983. By Memorandum and Order dated 9
June 20,1983, the Appeal Board dismissed the appeal and denied directed ' certification, stating that ".. .SAPL must await the Licensing Board 's initial decision before presenting its grievance for appellate consideration." (ALAB-731) This matter is now rire for appellate review. B. The Araument The Licensing Board Erred in Denying a Hearing on SAPL Supplemental Contention 3 SAPL contends that, in ruling on the Applicants ' and SAPL's motions for summary disposition, the Board clearly erred in finding that "the issues raised in the motions are questions of law, not of fact."l/ Though true in the case of SAPL's motion, which tested the compliance of the FES with the IPS on its f ace, the Applicants' motion went to issues of material f act as to the truth, adequacy and completeness of the accident consequence analysis in the FES, matters which could only have been fairly resolved' in the context of an evidentiary hearing, especially given. the fact that SAPL had supplied the affidavit of a physics professor (Affidavit of Richard L. Kaufmann) which challenged the adequacy of the accident consequence analysis in the FES. SAPL's challenge of the FES accident consequence analysis was on four major points: a) that it provided information on environmental , .! consequences of accidents only in terms of 1/ Memorandum and Order of May 11, 1983, at p. 30. i 4 j I i
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probabilities and also did not provide a worst case analysis b) that the assumptions used in the probabilistic risk assessment were faulty, bore no reasonable relationship to the Seabrook site, and ignored site specific data c) that external events which could have a bearing on risk, particularly sabotage, were not adequately treated in the analysis, and d) that a quantative uncertainty analysis was not provided The Board, in its May 11, 1983 Memorandum and Order stated:
"SAPL contends that the FES is deficient because it does not , estimate the consequences of a major accident. However, the Board finds no such requirement in the Commission's Policy Statement."
However, in the Summary of the Commission's Interim Policy Statement, the following appears:
"It is the Commission 's position that its Environmental Impact Statements shall include considerations of the site-specific environmental impacts attributable to accident O
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sequences that lead to releases of radiation and/or radioactive materials, includina secuences that can result in inadeauate coolina of reactor fuel and to meltino of the reactor core. In this regard, attention shall be given to both the probability of occurrence of such releases and to the environmental consecuences of such releases. 45 Fed. Re.g.. 40101 (emphases added) SAPL pointed out that the Commission's IPS called for "a reasoned consideration of the environmental risks (impacts) attributable to accidents at the particular facility or facilities within the scope of each statement." Id.. at 40103 Merely defining environmental consequences in terms of their probabilities would not provide the public or governmental decision makers with sufficient information upon which to base a
" reasoned consideration". In response to Applicants' motion for summary disposition, SAPL further stated that since the IPS was to implement the requirements of NEPA, it should be interpreted in accordance with the binding Council on Environmental Quality (CEQ) regulations at 40 CFR S1502.22(b) which said:
"If (1) the information relevant to adverse impacts is essential to a reasoned choice among alternatives and is not known and the overall costs of obtaining it are not known (e.g. the means for obtaining it are beyond the state of the art) the agency shall weigh the need for the action against the risk and severity of possible adverse impacts were the l
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action to proceed in the f ace of' uncertainty. If the maenev nroceeds. it shall include a worst ' case analvsis and an ,
. indication of the orobability or imorobability of its occurrence."- ,
The Board stated . in its May 11, 1983 Memorandum and order
'that information essential ~ to a reasoned choice among alternatives ,
was not lacking. SAPL, however, contends that knowledge about the risk and severity . of possible accidents at Seabrook is 'indeed essential to a reasoned choice among. alternatives. . Though CEQ regulations promulated since the Board ruled on SAPL's contention have rescinded the requiremen.t for a worst case analysis, the requirement-for federal agencies to evaluate the
" reasonably foreseeable significant adverse impacts" of an action, t even in the f ace of unavailable or incomplete information, has not
- been eliminated (51 Fed. Reo. 15618, at 15625) .
Indeed , it is specifically stated that "The regulation also makes clear that the reasonably fore-seeable potential impacts which the agency must evaluate i include those which have a low probability of occurrence but : which would be expected to result in catastrophic l consequences if they do occur." (142 at 15621) SAPL contends that the Seabrook Station FES does not comply with the new CEQ regulations, much less the more stringent requirements in force when SAPL's contention was initially filed. l
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The Seabrook Station FES nowhere sets out the impacts of even one single nuclear accident resulting in catastrophic consequences. SAPL . further contends that the invalidity of . the assumptions -
; relied upon for the probabilistic risk assessment (PRA)' 'in the FES demonstrate the prima f acie inadequacy of that assessment. The i NRC staff analysis in the FES bases its release category frequency estimates on "rebaselined" results for the Surry PWR, originally i analyzed in the Reactor Safety Study (WASE-1400) . Surry is of a i fundamentally dif ferent design than Seabrook and is sited in - a j.
l location which poses less severe evacuation problems.2/ The Seabrook accident consequence estimates in the FES employed a
" weighted average" treatment to account for the transient beach population. This mathematical artifice is a' poor approximation for consequences at the more severe end of the spectrum.
i Additionally, WASH-1400 ignored steam generator tube rupture j (STGR) accidents. Further, the generic risk treatment in the l Seabrook FES ignored severe accident phenomena including steam i j explosion, high pressure melt ejection and direct containment-heating, and induced steam generator tube ruptures during ststion i blackout sequences. The FES excluded source terms which have; } 2/ In dissenting from the Commission's decision not to review Mr. 4 Harold Denton's denial of SAPL's 2.206 petition seeking an early determination that adequate emergency planning was not feasible, j then Commissioners Gilinsky and Bradford stated: "Seabrook poses 4 difficult, and perhaps unique, emergency planning problems." i ..
_g_ large releases fractions for the ruthenium and lanthanide release groups, substances which would contribute significantly to long-term population exposures, lung doses and latent cancer estimates. 4 Further, neither the Surry nor the Seabrook PRA results even considered external events hazards. The Board in its Memorandum and Order of May 11, 1983, cited the staff position that sconsequences of successful sabotage acts would not be different from the consequences of severe releases caused- by " internal events". This is a challengeable assumption, particularly for a plant such as Seabrook. Further, earthquakes could be fundamentally different than " internal events" since the seismic ctivity might not only cause an accident, but might impair the emergency response. Finally, the core melt frequency and release category, frequency estimates were not bounded with appropriate uncertainty ranges. Certain individual accident sequences can have drastically different probabilities from one plant to another.
'Therefore, the NEPA balancing of risks versus the benefits of operation of Seabrook Station was not done in any meaningful way.
SAPL contends that a supplemental FES ought be provided to supply an appropriate NEPA-required analysis of environmental consequences of low probability events which could foreseeably result in catastrophic consequences. The public interest so requires. 9
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- III. SAPL SUPPLEMENTAL CONTENTION 6 A) . Specific Procedural History of SAPL Sucolemental Contention 6 On April 20, 1982, SAPL filed SAPL Supplemental Contention 6, rehich', inter alla, stated that SAPL joined in and adopted as its own the ' State of New Hampshire 's contention NH-10 and the basis (herefor as amended by the State on May 24, 1982. Contention
( NH-10, as admitted , read as follows: f5 "The Seabrook Station Control Room Design does not comply 0 'with General Design Criteria 19 through 22 and 10 C.F.R. Part 50, Appendix A, and NUREG-07 37, Items I .D .1 and I .D .2. " r - By Order of September 13, 1982, the Board admitted SAPL
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Supplemental Contention 6. Subsequently, on June 12,1986, prior to any hearing having been held on the issue, the State of New Hampshire sought to withdraw Contention NH-10. SAPL filed an
- objection to the State's motion on June 19, 1986 and on June 27,
# 1986 the Applicants moved to strike SAPL's objection. By
- j r Y' Memorandum and Order of July 21, 1986, the Board ruled that the State of New Hampshire's motion to withdraw Contention 10 was granted , the Applicants ' motion to strike SAPL's objection was denied and Contention NH-10 was converted to and replaced by SAPL Supplemental Contention 6, which would reflect the identical 1
, wording and basis of former Contention NH-10. By motion filed July 25, 1986, Applicants then sought summary disposition of SAPL Supplemental Contention 6. By Memorandum and I
- Order of September 15, 1986, the Board granted summary disposition
- of that portion of SAPL's contention which dealt with the Detailed Control Room Design Review (Item I.D.1), and denied summary disposition of that part of SAPL's contention which dealt with the Safety Parameter Display System (Item I.D.2) . The Board further rephrased and narrowed the SPDS issue, ruling that:
"...SAPL may and the Staff and/or App!s' ants shall present written explanatory testimony upon the issue of whether or not, in light of the fact that the SPDS is not currently at an optimum, i.e. incomplete, because of the aforementioned deficiencies, there is reasonable assurance that, in deferring improvements to the SPDS until the first refueling outage, the safety of the population in the immediate vicinity of the plant will be protected."
Hearings on the SPDS issue were conducted by the ASLB between September 29 and October 3,1986. Proposed findings and conclusions were filed by SAPL on November 7, 1986. The Board issued its Partial Initial Decision ruling on the SPDS on March 25,1987. B) The Araument The Licensing Board Erred In Redefining The Legal Standard For The SPDS, In Failing To Require The Production Of The NRC Project Manager for Seabrook As a Witness, And In Allowing Licensure of Seabrook Without A Fully Compliant SPDS e
SAPL holds that the standard outlined by the Board in its September 15, 1986 Memorandum and Order is not the appropriate legal standard to be applied in weighing the adequacy of the SPDS. SAPL contends that the proper legal standard is that set forth in NUREG-0737, Supplement No. 1. That document required that implementation dates for the SPDS negotiated in 1983 were to have , been translated into binding legal requirements. The Introduction to NUREG-0737, Supplement No. 1 states:
"It is also not intended that either the guidance documents or the fundamental requirements are to be considered. binding legal requirements at this time. As indicated below, however, the fundamental requirements will be transisted into bindina leaal reauirements in the manner specified .__"' _
(emphasis added) Below-it goes on to specify:
"The requirements for emergency response capabilities and facilities are being transmitted to licensees by this supplen, nt and are being promulgated to NRC staf f. The letter which forwards this supplement requests that licensees submit a proposed schedule for completing actions to comply with the requirements.
a "Each licensee 's crocosed schedule will' then be reviewed by the assioned NRC Proiect ' Manager, who will discuss the subject with the licensee and mutually agree on schedules and completion dates. The imolementation dates will then be formalized into an enforceable document." (emphases . added) The purpose of NUREG-0737, Supplement No. 1, was to provide additional clarification of certain of the Post-TMI Action Plan Requirements set forth in NUREG-0737, including the requirement for an SPDS. The Three Mile Island accident revealed, among other things, that more attention needed to be paid to the interface between man and machine in nuclear plant control rooms. The
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hundreds of alarms which were activated during the course of the
. Three Mile Island accident added to the general confusion and were a f actor in the misdiagnosis by the operators of the plant's actual condition.
The SPDS. requirement was added so that plant operators-would have in one central location a concise display of critical plant variables to aid in the rapid and reliable determination of the safety-status of the plant. That the Seabrook Station SPDS as { presently constituted does not meet the NUREG-0737, Supplement J No. 1 requirements was uncontroverted in the hearings held on the issue between September 29 and October 3,1986 (See also PID at
- 10) .
Prior to the hearing, SAPL -filed a motion to' have the NRC Project Manager produced as a witness'so he could be cross-
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I examined.-in regard Lto the schedule negotiated. with the Applicants,
. pursuant to the provisions in NUREG-0737, Supplement No. 1 described above, for bringing the'SPDS into full compliance with requirements. The Board denied SAPL's motion. This procedural error'was prejudicial to SAPL's case. The original implementation schedule agreed'upon.between the NRC. staff and Applicants was ,
stated. in a letter dated April 14, 1983 and designated by the number SBN-499. That letter stated that: " Verification and validation of the SPDS will be accomplished by December 1983. . ." In an ' Affidavit appended to "NRC . Staf f Response to Applicants ' Motion for Summary Disposition of SAPL Supp. 6," dated August 18, 1986, Richard J. Eckenrode, the NRC 's Staf f 's witness, stated that: "PSNH had originally proposed a June 30, 1986 implementation date for the Seabrook SPDS, which the staff found to be acceptable." Clearly, the witness brought by the Staff did
- not have knowledge of the early schedule negotations for j_ implementing the SPDS. The SPDS should have been implemented, as-stated - in SBN-499, by December 1983. There is no justification for allowing Seabrook Station to operate without a fully compliant SPDS more than three years later.
The Partial Initial Decision dated March 25, 1987 allows Seabrook Station to go into operation without a fully compliant J b _ . _ _ _ _ . _ . _ . _ _ _ _ ~ _ _ _ . , _ . . _ _ . ._ , m._ .__ . . . . _ . - _ .
.. SPDS. At least three important items are allowed to be deferred until the first refueling outage: addition of a containment isolation display, tests to determine SPDS computer response time under heavy computer loading, and improvement of the data validation algorithm. 3/
SAPL contends that containment isolation is a variable of great importance and should be included on the SPDS before any level of plant operation. A containment isolation valve left open could compromise a good degree of the containment's intended function. (It. at 784] There had been no NRC review of the l containment isolation display on the main control board as of the l 1 time of the hearing (:Lt. at 783, 856]. An Unusual Event at Seabrook which occurred subsequent to the hearings on February 11,
. 1987 involved a f ailure to properly isolate containment.
SAPL contends that deferral of improvement of the data 3/There is some confusion about the Board 's rulings with respect to radiation variables, since at page 39 of the PID it states that the deferral of their addition can be until restart following-the first refueling outage, but at p. 13 it states that the Board imposes a condi. tion on the operating license that the radiological control screen on the SPDS be implemented prior to operation at l levels above five percent of rated power. The PID Order reflects I the latter set of circumstances, and SAPL assumes herein that the Order is controlling. l l
validation algorithm could result in incorrect information being displayed to plant operators. The PID states: "For those instances in which a potential for misleading information may occur in the SPDS top level displays because of the validation algorithm, the Board finds-that in this case reliance by the plant operators on alarms and displays on the main control board is an adequate interim compensating measure." .SAPL contends that the whole purpose.of an SPDS is defeated if the information on it, which is to eliminate operator confusion, is potentially incorrect and - the operator once again has to rely on the myriad alarms and displays on the main control board. SAPL contends that failure to test the SPDS under conditions of heavy computer loading before plant operation is unacceptable. Conditions of heavy loading could be simulated before- the plant is brought into operation.- Heavy loads on the main plant computer could result in delays in SPDS update and response times (Lt. at 857]. SAPL.is further concerned that the manufacturer of the main plant computer is-out of business (It. at 787] which must raise concerns about the reliability of the eqelpment and the availability of parts and maintenance. i. SAPL further disagrees with the deferral of achievement of continuous SPDS display and the-deferral of addition of RHR flow, containment hydrogen and radiation variables until five percent g , _ power is to be exceeded. The Board admitted that it did not attempt "to make any independent evaluation of the relative safety significance of. individual deficiencies; indeed the record would l I \
not completely support such an evaluation." (PID at 10) . . Therefore, SAPL contends'that there was no basis.in the record for the decision to allow deferral of certain improvements until exceedance of five percent. power and deferral of others until the first refueling outage. In discussing certain variables, the Board also said of the NRC Staf f 's witness, upon whom it heavily relied in its proposed findings, that the " credibility of the Staff's position was undermined by its witness' apparently poor understanding of the underlying operational ~ systems, the challenge to which is required to be shown by-the'SPDS." (PID at 37) SAPL believes, therefore, that Applicants have not sustained the
. burden of proof that they have met even the less stringent ~1egali standard articulated by the Board, i.e. :that there is reasonable
. assurance that deferral of improvements to the SPDS will not j- affect the safety of the population in the vicinity of the plant.
i Again, SAPL contends that all of the NUREG-0737 requirements The requirements were established
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should be fully complied.with. by'the Commission to enhance emergency response capability and it was not up to the Board to pick and choose which requirements must be complied with at various power levels and which must not. The flexibility in the schedule of implementation of these requirements was to accomodate the needs of those licensees with operating reactors back when the requirements were first imposed. There is simply no justification for failure of compliance when
more than three years have gone by since the date by which the Applicants committed to be in compliance. f/ It is not up to the Board 's discretion to determine which of the Commission's requirements must be complied with to provide " reasonable assurance" of public safety. It is the Board 's responsibility to determine only whether or not those requirements have been met. Clearly they have not been met. IV. SAPL CONTENTION 3 8 A) Specific Procedural History of-SAPL Contention 38 A test of the siren public alerting system was held in the Town of East'Kingston, N.H. on January 31, 1987. On February 6,1987, SAPL filed " Seacoast Anti-Pollution
, League's Contention and Motion to Admit Late-Filed Contention, Reopen the Record on On-Site Emergency Planning and Condition The Issuance Of A License Up to 5% Of Rated Power On Applicants '
Compliance With 10 CFR S 50.47 (b) (5) ". Responses opposing the reopening of the record and admission of the late-filed contention were filed by the Applicants and the NRC Staff on February 23, 1987 and February 26, 1987 respectively. The Board denied 4/ NUREG-0737, supp.1, with its regulatory requirements was publishad'more than four years ago, long before anyone anticipated Seabrook would be opera'_ional.
SAPL's motions on March 23, 1987 5/ On March 25,1987, the 2 Partial Initial Decision was issued by the Board authorizing low power operation of Seabrook Station. B) The Aroument The Licensing Board Erred In Failing To Reopen the Record, In Falling To Admit SAPL's Late-Fi?.ed Contention, In Failing To Conduct A Hearing On The Genuine Issues of Material Fact In Dispute Regarding the Reliability, Audibility, Intelligibility and Legality of the Siren System For Seabrook Station and In Holding That 10 CFR 550.54 (a) ( 2) (ii) Could Support An Initial Licensing Determination SAPL's late-filed contention read:
" Applicants have not complied with the provisions of 10 CFR S 50. 47 (b) ( 5) and Appendix E, SIV, D.1 and - 3 and Part 50 of the Commission 's regulations and NUREG-0654 II.E.6 and Appendix 3 because the siren system for public alerting and instruction is unreliable, not properly audible, and does not convey properly intelligible messages and does not, 5/ The Board 's Memorandum and Order denying SAPL's contention was not received until March 30, 1987, which left SAPL no time to move for reconsideration before the PID was issued.
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- z. therefore, ensure prompt alerting and notification of the public.- Furthermore, the installation of the. siren system has been found' illegal byfa New Hampshire Superior' Court."
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SAPL's contention was based upon the results of a test of the siren system conducted in East Kingston, N.H. on January 31, 1987.
. SAPL supplied the affidavit of a witness to the test which:
. established that _the sirens'did not activate reliably,'were not sufficiently audible and did' not convey properly intelligible voice messages.. As further basis for its contention, SAPL cited
; the. legal' opinion ~of a Rockingham County Superior Court judge who
. found against 'the lead Applicant, Public Service Company of New -
1 Hampshire, in a suit contesting .the legality- of the installation of the system" brought by the Town of Rye and' joined in by the Town of Hampton Falls. SAPL stated that the East' Kingston siren test
*- raised serious questions about the ability of the siren system to 1
j , effect timely alerting and public notification throughout the ) entire EPZ . In opposing SAPL's motions for reopening of the record and admission of the late filed contention, Applicants supplied the Affidavit of Anthony M. Callendrello. Mr. 'Ca11endre11o's affidavit described corrective actions for the ~ siren system as i follows:
"These actions - include: the development of a new' detailed test procedure; reorientation of the-sirens out of the prevailing winter wind direction in order to alleviate icing i- which was found to be a major cause of the sound attenuation problem; consideration of installation of water repellant l
coatings on the' siren screens and/or modification of the screens;.and modifjgatjpg to the an_tRDDa desigp_fpr_the East j KJngston sirens." (emphasis added) r l f
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The affidavit went-on to conclude:
"In my - opinion the taking of the _ corrective actions outlined in the attac hed report will provide reasonable assurance that, should L they be called upon to_ do so, the East Kinoston sirens will orovide the necessary warnina and information to the population located in that toys," (emphasis added)
The NRC Staff also opposed SAPL's motions and supplied the Af fidavit of William J. Lazarus. Mr. Lazarus stated, in pertinent part, that:
"The purpose of this affidavit is to address the operability, reliability and the adequacy of coverage for those sirens that are part of the Seabrook emergency alert and notification system that are located in the town of East-
. Kinoston a_ Hew Hampshire."- (emphasis added)
SAPL's contention, though founded upon the East Kingston test, was a directed at the siren system throughout the plume. exposure pathway EPZ. The supplied affidavits do not provide sufficient support for a finding that the problems encountered in East Kingston have been corrected throughout the EPZ. Furthermore, there is still basis for dispute about the adequacy of the corrective measures that~have been taken even in East Kingston since the sirens have not been tested subsequently following or during a severe winter D
. storm. Such storm conditions happen with relative frequency during the winter months in the Seabrook EPZ. The Board, in its March 23, 1987 Memorandum and Order, decided against SAPL's motions. In considering the five f actors set forth in 10 CFR S2.714(a) (1) f/, the Board ruled that the first, second and fourth factors weighed in SAPL's favor. With respect to the third factor, the Board stated that "SAPL has failed to demonstrate that is has'special expertise on the subjects which it seeks to raise and thus it would not assist in developing a sound record." The Board held against SAPL the f act that it had not identified prospective witnesses other than the affiant nor summarized their proposed testimony. SAPL contends 6/ The five factors are: (i) Good cause, if any, for failure to file on time. (ii) The availability of other means whereby the petitioner 's interes' vill be protected. (iii) The extent to which t.. petitioner's participation may reasonably be expected to assist in developing a sound record. (iv) The extent to which the petitioner's interest will be represen'.e3 by existing parties. (v) The extent to which the petitioner's participation will broaden the issue or delay the proceeding.
that it is entirely unreasonable for the Board to expect that SAPL would have retained an expert witness between January 31, 1987 when the siren test was conducted and February 6 when the contention was filed. SAPL has since found a firm that would have the requisite expertise to conduct study on the issues in contention but SAPL believes that it is unreasonable for the Board to expect that experts would be retained before a contention was even admitted. SAPL did not claim that the fif th f actor would not weigh against the admission of the contention. The weighing of all five factors should have resulted in a determination in SAPL's favor, but the Board did not weigh the factors since it ruled that SAPL did not meet the criteria at 10 CFR S2.734. A motion to reopen a closed evidentiary record is governed by the provisions at 10 CFR S2.734 2/ SAPL's satisfaction of criterion (d) was discussed above. The Board ruled that SAPL 7/ Section 2.734 provides in pertinent part: (a) A motion to reopen a closed record to consider additional evidence will not be granted unless the following criteria are satisfied: (1) The motion must be timely, except that an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented.- (2) The motion must address a significant safety or environmental issue. (3) The motion must demonstrate that a material 11y different result would be or would have been likely had the newly proferred evidence been considered initially. (d) A motion to reopen which relates to a contention not previcucl; in controversy among the parties must also satisfy the requirements for nontimely contentions in S 2.714(a) (1) (i-v) .
. did satisfy criterion (a) (1) that the motion be timely, but ruled that SAPL did not meet its burden in satisfying (a) ( 2) and (a) (3) ,
that the motion must address a significant safety or environmental issue, and that the motion must demonstrate that a materially different result would have been likely had the newly proffered evidence been considered initially. . In dealing with criterion (a) ( 2) , the Board deferred to the expertise of the Staff 's affiant and also stated that the Staf f's and Applicants ' affiants had stated that corrective actions were being undertaken to assure that such problems would not occur in , the future. The Board concluded that the siren test did not present a significant safety issue sufficient to warrant reopening the record. However, as SAPL noted Eggtat the Staff's and Applicants ' affidavits do not support a finding that Applicants have sought to correct all the problems with the sirens in sny other town other than East Kingston, N.H. Further, the efficacy of the corrective measures are issues of f act which could be the subject of dispute. All the Staff 's and Applicants ' affiants state are " opinions" that certain corrective measures, when and if implemented, would place the sirens in compliance with regulatory requirements for public alert and notification systems. This was, of course, the opinion of Staff and Applicant witnesses prior to the test of the East Kingston sirens on January 31, 1987, and their opinions on the
~
acceptability of the sirens, as demonstrated by the test in East l l
. Kingston, turned out to be incorrect. On the basis of this background, SAPL and the citizens it represents should not be denied the right to a hearing on the issue of whether an adequate alerting system is in place. The system ought not be found adequate on the basis of these generalized opinions.
Further, with respect to the second criterion, the Board ruled that the New Hampshire Superior Court decision did not present a significant safety issue because its effectiveness was stayed pending decision on appeal by the New Hampshire Supreme Court. The f act is that at present the public alert and notification system has been held illegal and low power licensing ouggt be stayed until such time as a higher court may overturn the Superior Court's ruling. The Board argued that, even if the New Hampshire Supreme Court were to affirm the lower court's decision,
. the safety of the public would be assured by the provisions of 10 CFR 550.54(a) (2) (ii) R/. SAPL contends that the licensing requirements at 10 CFR S50.47 must be met before licensing and that it is impermissible to defer compliance with the licensing requirements by calling into effect regulations that were developed to be applicable in post-licensing circumstances only, such as S50.47(a) (2) (ii) .
8/ Section 50.54(a) (2) (ii) provides in pertinent part that:
. (ii) If af ter April 1,1981, the NRC finds that the state t
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The statement of considerations for the Commission 's rule allowing issuance of lower power licenses prior to review, findings and determinations concerning the adequacy of offsite emergency plans specifically stated that certain offsite elements of the Applicants ' emergency plan had to be reviewed for adequacy before such licenses could issue, including review of the Applicants ' compliance with S 50.47 (b) (5) procedures for notification and clear instruction to the populace in the EPZ. 47 Fed. Fec. 30232, at 30234. Failure to have in place an effective public alerting and notification system can undercut the effectiveness of the overall entergency response effort. 9/ Clearly the issues SAPL raised are of great signifance to the safety of the public. The fact that the Commission highlighted the importance of 5 50.47 (b) (5) by requiring review of 8/ continued of emergency preparedness does not provide reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency. . .and 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. 9/ A June 9,1986 letter to the Commissioners from 2 members of the~ Indian Point licensing board, Dr. Oscar H. Paris and Frederick J. Shon, stated their concerns about the alerting capability of s
, - - - , - , e
compliance with'its provisions for low power licensing underscores the safety significance of public alerting and notification issues.
.With respect to criterion (a) ( 3) , SAPL contends that a materially different result would have been likely- had this evidence about the siren system been considered initially. The fact that the affidavits supplied by the NRC Staff and Applicants do not support a finding that the siren system in the entire EPZ has been corrected, particularly with respect to modifications to the antenna design, and the fact that the system is currently held to be illegal ought to have resulted in a finding that the Applicants have -not sustained their burden af proof that rhe o
requirements at 10 CFR 550.47 (b) (5) and Appendix E, SIV, D.1 and 3 have been met. 10/ Further, the~ Board has erred in holding that 10 CFR S50.54(a) (2) (ii) can be invoked in support of an initial licensing determination. For all of these reasons, there are significant doubts about 9/ continued sirens on winter nights, citing NUREG/CR-2655, PNL 4226, a document which had been brought to their attention by a letter to the Commissioners from the Shearon Harris Board. (A copy of this letter was appended to SAPL's contention) . 10/ SAPL would also point to the contention filed by the Commonwealth of Massachusetts with respect to the siren system e
e the reliability, efficacy and legality of the public alerting and notification system for Seabrook Station. The low power license for Seabrook Station should not be authorized until an alternative nublic alerting system of proven effectiveness has been substituted for the current system or until all doubts about the current system have been removed with a hearing on these issues having been afforded to the parties. V. CONCLUSION For the reasons set forth above, SAPL respectfully requests that this Appeal Board reverse the Partial Initial Decision and romand the matters discussed herein back to the Atomic Safety and Licensing Board for further hearings. SAPL joins in and adopts
" Attorney General James M. Shannon's Brief In Support of Reversal
. of Licensing Board 's Partial Initial Decision Authorizing Issuance of a Low-Power Operating License" to be filed May 6,1987 and "New England Coalition on Nuclear Pollution's Brief in Support of Appeal of Partial Initial Division Authorizing Issuance of a License to Operate at Low Power" to be filed on May 8,1987.
Further, in accordance with the positions stated therein, SAPL respectfully requests that the decision on low power licensing
. 11/ continued in the Town of Merrimac, Massachusetts as further indication that the siren system is currently inadequate to meet licensing requirements. Further, three other Massachusetts towns, Salisbury, Newbury and West Newbury have recently voted in town meetings that siren systems must be removed from those towns. A letter from the town of West Newbury to PSNH is appended as Attachment A."
e await the conclusion of full evidentiary hearings on the offsite emergency planning issues. Respectfully submitted SEACOAST ANTI-POLLUTION LEAGUE By its Attorney BACKUS, M ER J, SOLOMON DATED: MAY 4, 1987 y 4t6bfrt A. Backus 116 Lowell Street Manchester, NH 03105 603-668-7272 I hereby certify that a copy of-the within " Seacoast Anti-Pollution League's Brief in Support of Appeal of Partial Initial Decision Authorizing Issuance of License To Operate Seabrook Station Unit 1 Up to 5% of Rated Power", has been sent this date, first class, postage prepaid, to all parties on the attached service list. , -. ->-
#~ l R'obe'r t A. B ackus 9
- g. ,
Attachnent A o LAGOULIS, CLARK, HILL WHILTON & MCGUIRE ATTORNEYS AT1.AW e- 79. STATE STREET NEWBURYPORT, M ASS ACHUSETTS 01950 - (617) 462 9393 LAGOULIS & cLAluC. P.C. JAMES LAGOULIS GEORGE W. CLARK JR. R. SCXHT Hill WHILTON MAURICE G. MCGUIRE April.23, 1987 Robert J. Stillman, Esq.
-Ropes & Gray 225 Franklin St.
Boston, MA 02110
Dear Mr. Stillman:
The West Newbury Board of Selectmen voted last night to remove the five siren poles placed by your client, Public Service Company of New Hampshire, in the town of West Newbury. The poles will be removed on Friday, May 8, 1987 unless earlier removed by your client. Your client is invited to observe the removals or to provide whatever assistance or advice your client may deem advisable to insure that the removals are properly conducted. Your client may take possession of the poles and siren apparatus immediately after their reraoval. If your (11ent declines to take possession, you will be advised as to where the materials will be stored. This notice is being sent'to your firm in accordance with your previous request that all notices regarding the siren poles be so directed. Very truly yours, , R. Scott Hill-Whilton RSHW/fb l cc: West Newbury Board of Selectmen
/ Judith H. Mizner, Esq.
9 9
CERTIFICATE OF SERVICE AND' SERVICE LIST g c A' DOLKE TEC.
' Joseph Flyn Asst.Gn.Cnsl. ' Helen Hoyt. Chm.
- Thomas DIN 1hn, Esq.:*
Fod. Emerg, higmt. Agcy. Admn. Judge Ropes & Gray 500 C.St. So. . West Atomic Safety & Lic Brd. 225'gy'r Boston, IA Lp ,,,, RP Washington, DC 20472 USNRC Washington, DC -20555
~
0FFlcEcr y w Office of Selectmen Dr. Jerry Harbour
- Town of Hampton Falls Admin. Judge DoheMM[S$M4.
Office of the Secretary. Sec.
- Hampton Falls, NII 03844 Atomic Safety & Lic Brd. USNRC USNRC . Washington, DC 20555 Washington, DC 20555 Shenvin E. Turk, Esq. SI' Jane Doughty Office of Exec. Legl. Dr.
Dr. Gustave A. Linenberger
- Admin Judge SAPL USNRC Atomic Safety & Lic. Brd. 5 Market Street Washington, D.C. 20555 USNRC Portsmouth, NH 03801 Washington, DC 20555 Phillip Ahrens,~Esq. Paul McEachern, Esq. George Dana Bisbee, Esq.
Asst. Atty. General Matthew Brock,- Esq. Attorney General's OFF. State. House, Sta. #6 25 Maplewood Ave. State of New Hampshire Augusta, ME 04333 P.O. Box 360 Concord, NH 03301 Portsmouth, NH 03801' Carul'Sneider, Esq., Asst.AG D1ane Curran, Esq. William S. Iord One Ashburton Place, Ilarmon , Weiss Board of Selectmen 59th Floor 20001 S Street NW Suite 430. Town Hall-Friend St.
- Boston, MA~ 02108 Washington, DC 20009 Amesbury, MA 01913 Richard A. Hampe, Esq. Maynard Young, Chaimun . Sandra Gavutis New Ilampshire Civil Defense Board of Selectmen Town of Kensington Agency- 10 Central Road Box 1154 Harpe & McNicholas Rye, MI 03870 East Kingston, N.H. 03827 35 Pleasant St.
Concord, MI 03301 Judith H. Mizner, Esq. Edward 'Ihomas Mr. Robert Harrison Silverglate, Gertner, FEMA Pres. & Gief Exec. Officer Baker, Fine, Good & Mizner 442 J.W. McComack (pOCH) PSCO 88 Broad Street Boston, MA 02109 P.O. Box 330 Boston, MA 02110 Manchester, NH 03105 Alan Rosenthal, Gainnan 4 Atomic Safety & Lic. Appeal Roberta Pevear State Rep. 'Ibun of Haupt Falls Board US. NRC Drinkwater Road Washington, DC - 20555 Hanpton Falls, MI 03844 Cary ECes #-
. Atomic Safety & Licensing
; Aprec.1 Board U.S.FRC Washington, DC 20555 Hcward A. Wilber V
.itenic 3afety & Licensing
. Appeal Ecard-U.S. NRC Washington, DC 20555}}