ML20236C356
| ML20236C356 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/10/1989 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#189-8261 LBP-89-04, LBP-89-4, OL-1, NUDOCS 8903220102 | |
| Download: ML20236C356 (32) | |
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-[g tWi 13 P4 0D March 10, 1989 UNITED STATES OF' AMERICA NUCLEAR REGULATORY,, COMMISSION before the ATOMIC SAFETY AND LICENSING APPEAL BOARD
)
In the Matter of
)
)
PUBLIC SERVICE COMPANY
)
Docket Nos. 50-443-OL-1 OF NEW HAMPSHIRE, et al.
)
50-444-OL-1
)
(Seabrook Station, Units 1
)
(Onsite Emergency and 2)
)
Planning and Safety
)
Issues)
)
on Appeal From a Decision of the Atomic Safoty and Licensing Board LBP-89-04 Issued Januarv 30. 1989 BRIEF OF APPLICANTS Thomas G.
Dignan, Jr.
George H.
Lewald Kathryn A.
Selleck Jeffrey P. Trout Jay Bradford Smith Geoffrey C.
Cook Ropes & Gray One International Place Boston, MA 02110-2624 (617) 951-7000 counsel for Applicants hok bDOO sob g3 17 o
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f.
I e
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l TABLE OF CONTENTS i
STATEMENT OF PRIOR PROCEEDINGS AND FACTS 1
STATEMENT OF ISSUES PRESENTED FOR REVIEW.
14 ARGUMENT.
14 I.
THE CONTENTION WAS PROPERLY TREATED AS BEING LATE FILED IN A RECORD ALREADY CLOSED 14 II.
THE LICENSING BOARD DID NOT ERR IN ITS RULINGS WITH RESPECT TO THE 10 CFR S 2. 714 (a)
BALANCING OF FACTORS 19 III. THE LICENSING BOARD WAS CORRECT IN RULING THAT THE PROVISIONS OF 10 CFR S 2.734 WERE NOT MET 21 IV.
EVEN ASSUMING THE CONTENTION WAS NOT LATE FILED OR SHOULD HAVE BEEN HELD TO HAVE SATISFIED ALL APPLICABLE PROVISIONS OF 10 CFR S 2.714(a) AND 10 CFR S 2.734, IT WAS PROPERLY REJECTED AS NOT RAISING A FUNDAMENTAL FLAW IN THE SEABROOK EMERGENCY PLANS 24 CONCLUSION.
25 f-l _
.)
L.
I TABLE OF AUTHORITIES f
Cases:
1 Cleveland Electric Illuminating Co. (Perry' Nuclear Power Plant, Units 1 and 2), CLI-86-7, 23 NRC 233 (1986) 23 Commonwealth Edison Comoany (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241 (1986) 20, 21 Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-793, 20 NRC 1591 (1984) 24 Georaia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), ALAB-872, 26 NRC 127 (1987) 23 Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-462, 7 NRC 320 (1978) 22 Lona Island Lichtina Company (Sh'oreham Nuclear Power Station, Unit 1), ALAB-903, 28 NRC 499 (1988) 11, 24 Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-832, 23 NRC 135 (1986) 24 Louisiana Power & Licht Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1 (1986) 23 Louisiana Power & Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5 (1985) 22 Louisiana Power & Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB-786, 20 NRC 1087 (1984) 22 Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-7, 21 NRC 1104 (1985) 23 Mississioni Power and Licht Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC 1725 (1982) 20 Niacara Mohawk Power Coro. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347 (1975) 24
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Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-756, 18 NRC 1340 (1983) 22 Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-89 __, 29 NRC (March 6, 1989) 23 Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-88-7, 28 NRC 271 (1988) 15 Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-89-04, 29 NRC (January 30, 1989) 11-13, 19, 20 Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-83-20A, 17 NRC 586 (1983) 19 Public Service Comoany of New Hmanshire (Seabrook Station, Units 1 and 2), Memorandum and Order, (February 10, 3989) (unpublished) 13 Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), Memorandum, (February 9, 1989) (unpublished) 13 Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), Order, (October 25, 1988) (unpublished) 10 Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520 (1973) 23 Regulations:
10 CFR 5 2.714(a) 5, 12, 14, 15, 19, 21 10 CFR S 2.734 5,
14, 21, 22 10 CFR S 2.734(a) 12, 21-23 10 CFR S 2.734(d) 13-15, 21 10 CFR 5 50.47(d) 18 1
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l March 10, 1989 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING APPEAL BOARD
)
In the Matter of
)
)
PUBLIC SERVICE COMPANY
)
Docket Nos. 50-443-OL-1 OF NEW HAMPSHIRE, 31 A1
)
50-444-OL-1.
)
(Seabrook Station, Units 1
)
(Onsite Emergency and 2)
)
Planning and Safety
)
Issues)
)
on Appeal From a Decision of the Atomic Safety and Licensingr Board l
LBP-89-04 Issued January 30, 1989 BRIEF OF APPLICANTS STATEMENT OF PRIOR PROCEEDINGS AND FACTS Under date of September 16, 1988, the Attorney General of The Commonwealth of Massachusetts, New England Coalition on Nuclear Pollution, Seacoast Anti-Pollution League, and the Town of Hampton, New Hampshire (hereinafter referred to collectively as the Interveners) filed with the Atomic Safety and Licensing Board a document entitled Motion to Admit Exercise Contention or, in the Alternative, to ReoDen the Record (the Motion).
The thrust of the Motion was to attempt to inject into the proceeding a new contention which would
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permit the litigation of issues arising from alleged mistakes made by Seabrook Station Technical Support Center (TSC) and Emergency Operations Facility (EOF) staff personnel located onsite during the graded exercise of the emergency plans held in June of 1988.
The gravamen of the Motion was an inspection report issued by the Staff on July 6, 19881 and served by mail upon all parties July 7, 1988.2 In that report, the Staff reported certain observations made on June 28, 1988 during the above-mentioned graded exercise.
As is customary in such reports, the Staff, in a discussion of " Exercise Observations,n3 listed " strengths" and " weaknesses."
Included in the discussion of " weaknesses" was the following item:
"1.
The Technical Support Center (TSC) and Emergency Operations Facility (EOF) staff displayed questionable engineering judgment and/or did not address technical concerns (50-443/88-08-01).
For example:
Neither the EOF or TSC staff questioned a release of greater than 7000 curies per second i
1 The report was reproduced as Exhibit A to the Motion and will be hereinafter cited as "Exh.
A."
2 Letter, Bellamy to Harrison Re: Insoection No. 50-443/88-09 (July 7, 1988) (hereinafter referred to and cited as " Letter").
The Interveners had not included the Letter as part of Exhibit A to the Motion.
3 Exh. A at 4-5. I
-Q with only clad damage and no core uncovery; Efforts continued to restore the Emergency Feedwater Pump after a large break LOCA; A questionable fix for the Containment Building Spray system; A lack of effort to locate and isolate the release path; and No effort was noted to blowdown Steam Generators to lessen the heat load in containment."4 This " weakness" was set out in the context of a report which I
also recited as the "Results":
"No violations were identified.
Emergency response actions were adequate to provide protective
- measures for the health and safety of the public.us i
1 4
EZh. A at 5.
5 EXh. A at 1.
In addition, the following appeared in Section 6 (Exit Meetina and NRC Criticue) of the Report:
"The licensee was informed that previously identified items were adequately addressed and no violations were observed.
Although there were areas identified for corrective action, the NRC determined that within the scope and l
limitations of the scenario, the licensee 's performance demonstrated that they could implement their Emergency Plan and Emergency Plan Implementing Procedures in a manner which would adequately provide 1
protective measures for the health l
and safety of the public." (Emphases supplied).
l This conclusion was also expressed essentially verbatim in the Letter.6 Nevertheless, focussing upon the above-quoted
" weakness," and supported by an affidavit which purported to demonstrate that the " weakness" is more significant than the Staff believed,7 the Interveners took the position that what was presented was a significant safety issue which had to be litigated.
On September 28, 1989, Applicants replied to the motion, which reply included affidavits.8 Therein the Applicants made a number of arguments including, a lack of jurisdiction in the Licensing Board to entertain the Motion,9 a failure on 6
"Within the scope of this inspection, no violations were observed.
It was determined that your emergency response actions were adequate to provide protective measures for the health and safety of the public."
Letter at 1.
7 The affiant sought to shrug off the overall conclusion of the report by making certain assumptions as to what must have been going through the Staff's collective mind in reaching the conclusions it did.
Pollard Aff. 1 at pp.
8-9.
Whatever qualifications the affiant had to address the technical matters he purported to address, psychology and mindreading were not listed among them.
8 Aeolicants' Resconse to Motion to Admit Exercise Contention, or, in the Alternative, to Reocen the Record (Sept. 28, 1988), hereafter referred to and cited as " Applicants' Response," and enclosing Affidavit of James A. MacDonald ("MacDonald Af f. ") ;
Affidavit of Gary J.
Kline ("Kline Aff."); and Affidavit of Greac F.
Sessler ("Sessler Aff.") all also dated September 28, 1988.
9 ADelicants' Resoonse at 4-5.
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1 the part of the interveners to satisfy the late-filed contention test set out in 10 CFR 5 2.714 (a),10 and a failure of the Interveners to satisfy the standards for reopening a closed record under 10 CFR 5 2.734.11 In connection with the last of these arguments, Applicants pointed out that the affidavits which had been filed with the Applicants' Response, addressed each of the " examples"-of situations where the TSC or EOF staffs supposedly " displayed questionable engineering judgement and/or did not address technical concerns."
With respect to the release of greater than 7000 curies per second, it was shown that (a) the release figure was supplied by the controllers and, therefore, was not to be questioned under the rules, (b) a review of exercise events revealed that, in fact, the lack of correlation between the release condition and core cooling indications was recognised and discussed by TSC personnel, and (c) the lack of correlation in no way hindered the
,1 response and implementation of emergency procedures.12 The continued efforts to restore the Emergency Feedwater (EFW) pump (a) did not hindor, nor would it have effected, the response of the TSC to higher priority activities, (b) was i
l 10 Aeolicants' Response at 5-9.
11 Aeolicants' Resoonse at 10-14.
12 MacDonald Aff. 11 4-6. _ _ _ _ _ _ _ _ _ _ _ _ - _ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
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recognised'as an effort which may not be needed to mitigate a large break LOCA, and (c) was continued for good and sufficient reason anyway in light of the fact that no higher priority item was being interfered with.13 The " questionable fix for the Containment Building Spray System" was (a) in fact a contingency plan developed in case the normal flow i
path of the system could not be reestablished (the controllers interceded and declared efforts to reestablish the flow to be ineffectual on four occasions), (b) was technically sound, and (c) if needed, the fix would have been reviewed by NRC before implementation, a review not carried out because the normal flow path was reestablished.14 In fact, a concerted effort was made to locate and isolate the containment bypass leakage but was curtailed because of the fact that entry into the areas necessary for ultimate isolation or repair had to be postponed due to high radiation levels therein.15 As to the assertion that "(n]o effort was noted to blowdown the Steam Generators to lessen the heat load in the containment," it was established that (a) in fact such an effort was considered and temporarily postponed to assess its possible radiological consequences, (b) prior to 13 Kline Aff. 11 4-10.
14 Sessler Aff. 11 4-11.
15 Kline Aff. 11 11-14.
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1 completion of the assessment necessary to determine whether such an action would lead to introduction of accident levels of radioactivity to areas of the plant as yet unaffected, Day
- 1 of the exercise ended, and (c) subsequent analysis has shown that such action would have had no practical effect in reducing the temperature and pressure of interest.16 On October 6, 1988, the Staff issued another inspection report which, inter alia, addressed the " weaknesses" discussed above, and wholly confirmed the facts and views expressed in Applicants' Affidavits.17 As to the 7000 curies release matter, the Inspection report stated "The inspector reviewed the player and controller logs for selected TSC, EOF and i
engineering support center (ESC) staff.
These logs reveal that several staff members did question and/or comment on the mismatch between the reactor coolant i
activity and the release rate.
1 Subsequent discussions with the TSC and EOF controllers and players also indicated that they were aware of this mismatch.
In actuality, the ESC Staff made very accurate core damage assessments based upon the data supplied 16 Sessler Aff. 11 13-21.
17 USNRC Recion I, Inspection Report No. 50-443/88-10 at 8-10 (hereafter referred to and cited as
" Inspection Report").
The relevant pages were attached to Aeolicants' Resconse to Joint Interveners' Motion for Leave to File a Reolv to the Responses of the Aeolicants and Staff to the On-Site Exercise Contention (Oct. 12, 1988) as l
Exhibit "A" thereto.
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by the TSC.
[T]his level of
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activity is recognized to be an
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unrealistic number, which is required to provide the offsite dose rates necessary to exercise the entire emergency planning zone.
.The technical staffs had repeatedly identified and questioned these mismatches in previous drills and were told by the controllers that this high release rate was necessary to test the offsite plans, and that they should not challenge the data."18 As to.the continued efforts to restore the EFW pump, the Inspection Report stated:
"The licensee correctly stated that the EFW pump would be required to operate to support steam generator cooldown in the recovery phase and continued repair efforts were prudent.
The inspector agrees and determined that the stated activity did not detract from the overall recovery effort, nor did it diminish other higher priority action in progress or planned, and that Tsc judgments were made with long term recovery in mind."19 With respect to the allegedly " questionable" fix for the containment building spray system, the Inspection Report stated:
"The inspector met with the Technical Support Manager and a Technical Support Engineer and discussed the rationale behind the corrective action taken to rig an alternative water. source for the CBS system.
Although the capability of the proposed modification was never proven due to the eventual repair of a CBS pump, the inspector determined, based on this 18 Insoection Reoort, Item 5.
(Emphasis added).
i 19 Insoection Reoort, Item 1.
(Emphases added).
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j additional information, that the
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engineering judgment and methodology l
involved in the proposed system and
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operating procedures changes were i
acceptable.
The licensee actions were appropriate since this.fix was considered to be a 'last. resort' measure after all prudent and subsequent extraordinary measures had failed to provide containment spray by other means due to additional scenario controller intervention."20 With respect to the supposed lack'of effort to locate
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and isolate the release path, the Inspection report stated:
"This apparent lack of effort was the
'3 result of licensee decisions nat to
-pursue entry into the containment enclosure due to high radiation levels.
Discussion with the licensee confirmed that indirect measures, such as remote temperature, pressure and sump level indications, were'taken in a timely fashion to provide an alternate assessment of potential leakage paths.
The Inspector was unaware of these activities during the drill.
The licensee' decision to postpone entry into the containment enclosure was-intentional, based upon other recovery efforts associated with depressuring the containment.
Restoration of a CBS pump was imminent and activation of this
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system'would have stopped the release.
l CBS restoration was subsequently, and repeatedly, delayed by controller intervention so that the operators were 1
prevented from affecting repairs.
The licensee decis{ons in this regard were appropriate."2 20 Insoection Reoort, Item 2.
(Emphases added).
21 Insoection Recort, Item 3.
(Emphases added).
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With respect to the charge that no effort had been made l
to blowdown the steam generators, the Inspection Report had the following to say:
"This comment implied that S/G blowdown was appropriate.
The actual concern was that a step in the emergency procedure required the S/G to be depressurized.
This step was not performed because the TSC staff was unsure of the integrity of the S/G tubes because no sample was available due to blowdown system isolation.
This TSC staff concern was expressed to the inspector when he questioned them during the exercise.
The NRC position in this area is that improved guidance to the operator may be warranted and should be evaluated, however the decision not to vent or blowdown the S/Gs without sampling appears to have been reasonable and appropriate."22 As an overall conclusion, the Inspection Report stated:
i "With respect to the above identified weaknesses, the exercise inspection confirmed that the TSC/ EOF staff possesses adequate capabilities to protect public health and safety.
This open item is considered closed."23 The above described report, inter alia, having been brought to its attention, the Licensing Board requested further briefing on the matter.24 All parties complied with 22 Inseection Recort, Item 4.
(Emphases added).
23 Insoection Report at 10.
24 Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), Unpublished ASLB Order (Directing Additional Briefing and Affidavits)
(Oct. 25, 1988).
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t this order,25 and, in its reply, the Staff raised the issue of whether, assuming that the contention was either not, or properly, late filed as a matter of law, it must be rejected in any event as an exercise contention because it did not-raise a " fundamental flaw" as that term had then recently been discussed and illuminated in an Appeal Board decision issued in the Shoreham proceeding.26 Thereafter, a reply to the Staff was filed by interveners and a rejoinder thereto was filed by the Staff.27 On January 30, 1989, the decision on appeal was issued by.the Licensing Board.28 The Licensing Board began by rejecting the Applicants' argument that it lacked jurisdiction to entertain the 25 Anol'icants' resoonse to Board Order of October 25, 1988 (Directina Additional Briefino and Affidavits (Nov.
8, 1988); Memorandum of Joint Interveners in l
Response to October 5, 1988 Order of Licensina Board (Nov.
9, 1988); NRC Staff Resoonse to Licensina Board Order of October 25, 1988 (Nov. 28, 1988).
26 Staff Resoonse to Licensina Board Order of October 25, 1988 (Nov. 28, 1988) at 7 citing.Lona Island Liahtina Comoany (Shoreham Nuclear Power Station, Unit 1), ALAB-903, 28 NRC 499 (1988).
27 Joint Interveners' Resnonse to "NRC Staff Resoonse to Licensina Board Order of October 25, 1988 (Dec.
7, 1988); NRC Staff Resoonsa to Joint Interveners' Motion for Leave to Submit Resconse to NRC Staff response to Licensina Board Order of October 25, 1988 (Dec. 27, 1988).
28 Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-89-04, 29 NRC (January 30, 1989), hereafter referred to as LBP-89-04 and cited to the slip opinion.
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Motion.29 It also rejected out of hand the argument of the l
interveners that the contention was not late filed.30 It then went on to address the issue of whether, assuming the record was still open, or would otherwise be reopened, the Interveners would prevail under the balancing test set out in 10 CFR S 2.714(a); the Beard concluded that the Interveners would not.31 Basically the Licensing Board found that the Interveners had, in hand, sufficient information to file the contention as early as July 15, 1988, that their claimed reason for having to wait until receipt of other documents l
was not meritorious, and, therefore, that they did not have any good cause for waiting until September 16, 1988 to file.32 Holding that this meant that a compelling. showing must be made upon the other factors, the Licensing Board went on to hold that both the third and fifth factors weighed against the Interveners.33 Despite the fact that the holding already made operated to preclude satisfaction of the first l
of the 10 CFR 5 2.734(a) criteria and also the provisions of 29 i
LBP-89-04 at 2-4.
30 LBP-89-04 at 5-6 & n.8 31 LBP-89-04 at 6-11 32 LBP-89-04 at 7-10.
33 LBP-89-04 at 10-11.
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10 CFR 5 2.734(d),34 the Licensing Board nevertheless went on to address the issues of whether the Motion, as a motion to reopen the record, raised a significant safety question and whether the proffered evidence would have been likely to produce a materially different result.
tfter engaging in a careful analysis of each of the five " weaknesses" described above, the Licensing Board concluded that none of them presented a significant safety issue, and perforce concluded that a materially different result would not have been likely had the proffered evidence been considered initially.35 Accordingly, the Motion was denied.
On February 1, 1989, the Interveners filed a Notice of Appeal, and on February 13, 1989, their brief.36 It is in the forgoing posture that this matter comes before the Appeal Board.
34 Egg LBP-89-04 at 14.
35 LBP-89-04 at 15-40.
36 On February 8, 1989, the Interveners filed identical Applications for a stay of the decision before both this Appeal Board and the Commission.
This Appeal Board has entered orders stating that it does not intend to address the application filed with it, absent Commission direction to do so.
See Unpublished Appeal Board Memoranda of February 9, 1989 and February 10, 1989.
As of this writing, the Commission has yet to address the application filed with it..__
4 STATEMENT OF ISSUES PRESENTED FOR REVIEW 1.
Was the contention properly treated as a late filed contention requiring the reopening of a record to be heard?
2.
Assuming the contention was properly treated as a late filed contention, did the Licensing err in holding that the balancing of factors weighed against the admission of the contention under 10 CFR S 2.714(a)?
3.
Assuming the contention was properly treated as one which required the reopening of a closed evidentiary record in order to be heard, did the Licensing Board err in holding that the Interveners had not satisfied the provisions of 10 CFR S 2.734?
4.
Even assuming that the contention was either timely filed, or that the pertinent requirements of 10 CFR S S 2. 714 (a), 2.734 were, in any event, satisfied, should the contention still have been excluded as not raising a " fundamental flaw" in the emergency plan?
ARGUMENT I.
THE CONTENTION WAS PROPERLY TREATED AS BEING LATE FILED IN A RECORD ALREADY CLOSED.
While we analyze the first issue presented in more depth below, the short and complete answer to the question of whether the Board erred by requiring the Interveners to satisfy the " late filed" 10 CFR S 2.714 (a) standards and the 10 CFR S 2.734 standards (which incorporate 10 CFR S 2.714(a) standards 37), is to be found in a decision of the Commission 37 10 CFR S 2.734(d). l l
L which is binding on this Appeal Board, wherein, in reference to the Seabrook docket at bar, the Commission stated:
"The procedural' posture of this case V
reflects that the record is closed for
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the consideration of new issues, and litigation on Commission) may(the issue before the only be pursued if a motion to reopen is granted and at least
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one' late-filed contention is admitted.n38 This means that, not only was reopening required, but also, by virtue of that fact alone, a satisfaction of the 10 CFR 5 2.714(a) test would be required for this new contention because of the provisions of 10 CFR S 2.734(d).
The Interveners' entire response to this problem for their case'is contained in a footnote on page 11 of their j
brief wherein.it is stated:
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"(T]he Commission did not make reference
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in this decision to the litigation of issues arising from the June 1988 onsite exercise.
Moreover, the Commission ruling cited by the Board was dated
.i September 22, 1988, 6 days after the interveners filed their onsite exercise i
contention."39 This is no answer.
The Commission statement referred to a l
status this docket had as of September 22, 1988 and had had for a long time previously.
And, while it is true that the Commission, in that decision, was not addressing " issues 38 Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-88-7, 28 NRC 271, 273 (1988) (emphases added).
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39 Interveners' Br. at 11 n.7.
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L arising from the June 1988 onsite exercise," it was referring to the status of an entire docket; the docket that f
interveners elected to file in.
In short, the commission's language, quoted above, is dispositive of the first. issue.
Prescinding from the foregoing, even absent the above quoted Commission statement, the Board made no error in treating the contention as late filed in a closed docket for other reasons.
If we understand the argument that Interveners are making as the first point in their brief,40 i
it is that the holding of the June exercise, in effect, I
started a new period running for the filing of any and all contentions arising out of the exercise; that this contention j
comes out of the exercise, and, therefore it is timely filed.
This theory is flawed.
What has caused most, indeed all, of the Interveners' problems in this matter is their decision to 1
take what, in fact, was an exercise-related contention and twist it into something that, hopefully could be argued as grounds to stop issuance of a low power license for Seabrook Station.
To accomplish this legerdemain, they engaged in tactics whereby they wound up filing the wrong contention with the wrong board and now are suffering the consequences, at least insofar as the possibility of ever having litigation I
is concerned.
40 Interveners' Br. at 3-7. _ _ _ - _ - _ _ __ __-. _ _ - _
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It is interesting to note that in the Interveners' Brief, it is stated:
"The June 1988 onsite exercise is presently the relevant exercise to the issuance of any low power license which postdates it.
Therefore that exercise is material to that licensing and Interveners have a right to litigate it."41 And later it is stated:
"As discussed above, the critical difference is that the June 1988 exercise as an event is material to a low power license'and interveners' hearing rights attach to it.n42 It is this erroneous belief that the exercise was material to the low power license issuance that lead the interveners into their present problem.
Issuance of a low power license is I
not, under NRC regulations dependent upon the onsite portion of the emergency plan for the site being exercised.
The pertinent regulation states:
" Insofar as emergency planning and preparedness requirements are concerned, a license authorizing fuel loading and/or low power operation may be issued after a finding is made by the NRC that the state of onsite emergency preparedness provides reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.
The NRC will base this finding on its assessment of the applicant 's emergency plans against the 41 Interveners ' gr. at 4.
42 Interveners' Br. at 6. _ _ _ _ _ _ - _ - _ _ _ - _ - _ _ _ _ _ _ _ _ _ _ _ _ _.
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pertinent standards in paragraph (b) of this section and Appendix E of this part."43 a
In short, the necessary finding for low power is to be made only on the basis of the plan, not the exercise.
And this
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finding was made a long time ago in a record already closed.
The interveners' problem is further illustrated if one i
1 returns to the original filing of the contention at issue.
Although the contention itself was carefully drafted to allege regulatory basis arising out of the emergency planning regulations, it came down to a contention that the applicant-was not technically qualified because its control room personnel were not properly trained.
After some rhetoric in the Motion as originally filed with the Licensing Board as to'
" defects and inadequacies,"
in the Applicants' personnel, there is the statement:
"These defects and inadequacies in the current Staff reflect an inadequate staff training program."44 Defects and inadequacies in the training of the l
l Seabrook onsite Staff might have been fair subjects for litigation in the onsite hearing phase of the case.45 And 43 10 CFR 5 50.47(d) 44 Motion to Admit Exercise Contention or, In the Alternative, to Ooen the Record (Sept. 16, 1988) at 2.
45 Indeed, at one time there was in litigation in this proceeding, the following contention before the i
then plenary "Hoyt" Licensing Board: "The Applicant has failed to demonstrate adequate on-site.- _ _ _ _ _ - _ - _ _ _ _ _ _ _ _
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where, as here, what an intervenor claims as the basis for litigating that subject, arises from a later event, the late-filed contention rules operate.
Further, in this case, because the record is closed on all onsite matters, the rules with respect to reopening also apply.
The Licensing Board committed no error in so ruling.
II.
THE LICENSING BOARD DID NOT ERR IN ITS RULINGS WITH RESPECT TO THE 10 CFR 5 2.714 (a) BALANCING OF FACTORS.
As the second point in their brief, Interveners' argue that the Licensing Board erred in holding that the balancing-of-factors test set out in 10 CFR S 2.714(a) had not been met.46 We note at the outset, that the Interveners make no attempt to demonstrate that the Licensing Board was wrong in holding that the fifth factor weighed against them.47 Rather protective measures in the event of an emergency in accordance with 10 CFR 50.47 (a) (b), 10 CFR 50 App. E, and NUREG-0654."
This was contention CCCNH-5 and was dismissed out of the proceeding along with its sponsor on April 18, 1983.
Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-83-20A, 17 NRC 586 (1983).
No t
one has tried to resurrect it since.
It is noteworthy that the regulations it cites include within them the more particularized allegations of regulatory transgression alleged in the contention at bar.
See Motion to Admit Exercise Contention or. In the Alternative, to Recoen the Record (Sept. 16, 1988), Exhibit 1.
46 Interveners' Br. at 8-11.
47 LBP-89-04 at 11.
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I they confine their efforts to the rulings made with respect to the first and third factors.
As to the first factor, good cause for failure to file on time, the Licensing Board carefully analyzed the materials that the interveners claim they had to review before filing the contention and could find no basis for the claim of necessity.48 Indeed, it is transparent that this filing was held up so as to maximize the delay, had the ploy.been successful, in the issuance of a low powe,r license.
- Again, the choice of tactics was the interveners, and it backfired.
As to the third factor:
"[ Commission) case law establishes both the importance of this third factor in the evaluation of late-filed contentions and the necessity of the moving party to demonstrate that it has special expertise on the subjects which it seeks to raise.
(citation)
The Appeal Board has said:
'When a petitioner addresses this criterion it should set out with as much particularity as possible the precise issues it plans to cover, identify its prospective witnesses, and summarize their proposed testimony'."49 The Interveners merely alleged that they would "[ provide) an i
1 expert witness" and generally identified the subject matter 48 LBP-89-04 at 8.
49 Commonwealth Edison Comoany (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 246 (1986), citina with acoroval, Mississioni Power and Licht Co._
(Grand Gulf Nuclear Station, l
Units 1 and 2), ALAB-704, 16 NRC 1725, 1730 (1982).
i i
_ _ _ - - - _ _ - - - _ - _ - - - _ - _ _ _ _ _ - - - = _ - - - _ - _ _ _ _ _ -
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of the testimony the unnamed witness would supposedly give.50 1
This hardly meets the standard set forth above.
The Licensing Board committed no error in weighing this factor against the interveners.
In short, the first, third, and fifth factors weighed against the interveners; the second and i
fourth, which are entitled to less weight, 51 weighed, as usual, in their favor; the balance clearly was against them.
III. THE LICENSING BOARD WAS CORRECT IN j
RULING THAT THE PROVISIONS OF 10 CFR i
5 2.734 WERE NOT MET.
Interveners' third point in their brief is that the Board erred in holding that, as a motion to reopen, the Motion did not satisfy the requirements of 10 CFR S 2.734.52 4
To begin with it should be noted that the criteria set forth in 10 CFR S 2.734(a) are, along with that set out in 10 CFR 5
]
i 2.734(d) (satisfaction of the 10 CFR S 2.714(a) balancing test), where it is applicable, in the conjunctive.
That is to say all the criteria must be satisfied.
In light of the correctness of the Licensing Board's handling of the 10 CFR S 2.714(a) analysis, as discussed above, the ruling with l
f 50 Motion to Admit Exercise Contention or, in the Alternative, to Reocen the Record (Sept 16, 1988)
)
at 10.
)
51 Commonwealth Edison Comoany (Braidwood Nuclear i
Power Station, Units 1 and 2), CLI-86-8, 23 NRC l
241, 245 (1986).
52 Interveners' Br. at 11-17.
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4 respect to 10 CFR S 2.734 must stand on that basis alone.
Nevertheless, we address below the Interveners' argument that the Licensing Board erred in its handling of the criteria set out in subparagraphs (2) and (3) of 10 CFR S 2.734(a).
We have already addressed so much of the Interveners' argument as asserts that the " reopening" standards should not have been applied at all.53 The second argument to the effect that the Licensing Board improperly reached the merits of the issue 54 is based upon a misunderstanding of what a Licensing Board is supposed to do with a motion to reopen.
One of the matters that must be determined is whether or not there is a significant safety issue presented.
To determins this the Board must look at the affidavits filed by all parties and determine whether the moving party has prevailed by meeting its " heavy" burden 55 as to this matter.56 To the 53 Suora, 5 I.
l 54 Inte rvenor.g ' Br. at 13-17.
55 Louisiana Power & Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5, 14 (1985).
Accord, Louisiana Power & Licht Co.
(Waterford Steam Electric Station, Unit 3), A LAB-786, 20 NRC 1087, 1090 (1984); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-756, 18 NRC 1340, 1344 (1983);
Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-462, 7 NRC 320, 328 (1978).
56 In their brief, the Interveners assert that: "What happened during the exercise is a function of which Staff Inspection Report is read."
Interveners' Br.
at 16 n.8.
This is followed by vague allegations l
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p t
j, I
L extent that the Licensing Board engaged:in this activity it acted in full compliance with the regulations and the' case precedent.57 concerning credibility'(presumably directed to the second report) and a reference to the need for discovery in order to resolve credibility questions.
Two points are to be made.
First, to the extent the Interveners are placing their reliance for meeting their burden on the-first inspection report, and it is repudiated by the Staff as-they claim, the commission'has recently reaffirmed the doctrine that "where a contention is based on a factual underpinning in a document which has been essentially repudiated by the source of that document, the contention may be dismissed unless the intervenor offers another independent source."- Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-89 __, 29 NRC' (March 6, 1989), Slip Op. at 8, citina with amoroval, Georaia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), ALAB-872, 26 NRC 127, 136 (1987). Second, it is long since settled that discovery in order.to frame a motion to reopen is not allowed.
Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-7, 21 NRC 1104, 1106 (1985).
Egg also, Louisiana Power &
Liaht Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1, 6 (1986); Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), CLI-86-7, 23 NRC 233, 235-36 (1986).
57 Egg 10 CFR S 2.734 (a) (2); Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523-24 (1973). __
4 I
IV.
EVEN ASSUMING THE CONTENTION WAS NOT LATE FILED OR SHOULD HAVE BEEN HELD TO HAVE SATISFIED ALL APPLICABLE PROVISIONS OF 10 CFR E 2.714(a) AND 10 CFR 5 2.734, IT WAS PROPERLY REJECTED AS NOT RAISING A FUNDAMENTAL FLAW IN THE SEABROOK EMERGENCY PLANS.
As noted earlier,58 and stated by the Interveners,59 the cie.tention, as filed, allegr.d only a training problem, (based I
on a Staff concern now closed out).
Such a matter is not a
" fundamental flaw" which " reflects a failure of an essential element of the plan," which "can be remedied only through a signif u: ant revision of the plan. "60 As such, the contention, even if deemed timely, would have failed as an exercise contention.61 58 Suora, at 18-19.
I 59 Interveners' Er. at 17.
60 Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-903, 28 NRC 499, 505 (1988).
61 Id.
Applicants acknowledge that they did not make this argument to the Licensing Board below nor did J
the Licensing Board address it.
However, the Staff made the argument, and, in any event, a prevailing party below may urge any ground in defending the result below, even lines of argument reiected by the lower board.
Lona Island Lichtina Co.
l (Shoreham Nuclear Power Station, Unit 1), ALAB-8 3 2,
23 NRC 135, 141 (1986);
Commonwealth Edison Co.
(Byron Nuclear Power Station, Units 1 and 2), ALAB-793, 20 NRC 1591, 1597 n.3 (1984); Niacara Mohawk Power coro. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347, 357 (1975).
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CONCLUSION The decision of the Licensing Board should be affirmed.
Respectfully submitted,
/
Thtimas GI,Diffiian, Jr.
Kahrnk.Se1ck Jeffrey P. Trout Jay Bradford Smith Geoffrey C.
Cook Ropes & Gray One International Place Boston, MA 02110-2624 (617) 951-7000 Counsel for Applicants e
e kN CERTIFICATE OF SERVICE
'89 MR 13 P4 :06 I, Thomas G.
Dignan, Jr.,
one of the attorneys for the Applicants herein, hereby certify that on March 10, 19,89., I made service of the within document by depositing copies,%,s 1
thereof with Federal Express, prepaid, for delivery to (otAh where indicated, by depositing in the United States mail, first class, postage paid, addressed to):
Alan S. Rosenthal, Chairman Howard A. Wilber Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Appeal Panel U.S.
Nuclear Regulatory U.S. Nuclear Regulatory j
Commission Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 i
Thomas S. Moore Mr. Richard R.
Donovan Atomic Safety and Licensing Federal Emergency Management Appeal Panel
. Agency U.S. Nuclear Regulatory Federal Regional Center Commission 130 228th Street, S.W.
East West Towers Building Bothell, WA 98021-9796 4350 East West Highway Bethesda, MD 20814 Administrative Judge Peter B.
Administrative Judge Ivan W.
Bloch, Chairman Smith, Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Board 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 Administrative Judge Emmeth A.
Administrative Judge Kenneth A.
Luebke McCollom 4515 Willard Avenue 1107 West Knapp Street Chevy Chase, MD 20815 Stillwater, OK 74075 Dr. Jerry Harbour Administrative Judge Richard F.
Atomic Safety and Licensing Cole Board Atomic Safety and Licensing U.S.
Nuclear Regulatory Board Commission U.S.
Nuclear Regulatory East West Towers Building Commission 4350 East West Highway East West Towers Building Bethesda, MD 20814 4350 East West Highway Bethesda, MD 20814
+
C James.H. Carpenter, Alternate
. Robert R.EPierce, Esquire Technical Member
. Atomic Safety and Licensing Atomic Safety and Licensing Board Board U.S. Nuclear Regulatory.
U.S.. Nuclear Regulatory Commission Cormission East West Towers Building East West Towers Building 4350 East West Highway.
4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 Adjudicatory File Sherwin E. Turk, Esquire Atomic' Safety and-Licensing Office of General Counsel Board Panel Docket (2 copies)
U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission One White Flint North, 15th Fl.
East West Towers Building 11555 Rockville Pike 4350 East West Highway Rockville, MD 20852 Bethesda, MD 20814 Robert Carrigg, Chairman Diane Curran, Esquire Board of Selectmen Andrea C.
Ferster, Esquire Town Office Harmon, Curran & Tousley Atlantic Avenue Suite.430 North Hampton, NH 03862 2001 S. Street, N.W.
Washington, DC 20009
- Atomic Safety and Licensing Robert A..Backus, Esquire Appeal Board Panel Backus, Meyer & Solomon U.S.
Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03105 Philip Ahrens, Esquire John P. Arnold, Esquire Assistant Attorney General Attorney General Department of the Attorney-George Dana Bisbee, Esquire General Assistant Attorney General Augusta, ME 04333 Office of the Attorney General 25 Capitol Street.
Concord, NH 03301-6397 Paul McEachern, Esquire John Traficonte, Esquire Shaines & McEachern Assistant Attorney General 25 Maplewood Avenue Department of the Attorney P.O.
Box 360 General Portsmouth, NH 03801 One Ashburton Place, 19th F1r.
Boston, MA 02108 Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall Route 107 126 Daniel Street Kensington, NH 03827 Portsmouth, NH 03801 l I
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- Senator Gordon J. Humphrey R. Scott Hill-Whilton, Esquire U.S. Senate Lagoulis, Hill-Whilton &
Washington, DC 20510 Rotondi (Attn:
Tom Burack) 79 State Street Newburyport, MA 01950 i
- Senator Gordon J. Humphrey Mr. J.
P. Nadeau One Eagle Square, Suite 507 Selectmen's Office Concord, NH 03301 10 Central Road (Attn:
Herb Boynton)
Rye, NH 03870 Mr. Thomas F.
Powers, III Mr. William S.
Lord Town Manager Board of Selectmen Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 H. Joseph Flynn, Esquire Charles P. Graham, Esquire Office of General Counsel Murphy and Graham Federal Emergency Management 33 Low Street Agency Newburyport, MA 01950 500 C Street, S.W.
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Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03842 Concord, NH 03301 Judith H. Mizner, Esquire 79 State Street, 2nd Floor Newburyport, MA 01950 g/~%>
cunais fgnan, Jr.
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