ML20236P783

Contention of Atty General Jm Shannon & Motion to Admit late-filed Contention & Reopen Record.* Late-filed Contention Should Be Admitted & Record of Onsite Emergency Planning & Safety Phase of Litigation Should Be Reopened

ML20236P783
Person / Time
Site:	Seabrook
Issue date:	11/13/1987
From:	Jonas S MASSACHUSETTS, COMMONWEALTH OF
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML20236P788	List: ML20236P783 ML20236P807 ML20236P831
References
CON-#487-4837 OL-1, NUDOCS 8711190008
Download: ML20236P783 (11)

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00LKETED V5hRC l UNITED STATES OF AMERICA '87 NOV 16 PS :40 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD f0CXETb kI;h'Ef BRANCH Before Administrative Judges Alan S. Rosenthal, Chairman Howard A. Wilber In The Matter Of

) Docket Nos.

) 50-443-OL-1

) 50-444-OL-1 PUBLIC SERVICE COMPANY OF )

NEW HAMPSHIRE, et al., (On-Site Emergency

) Planning and Safety (Seabrook Station, Units 1 and 2) ) Issues)

)

) November 13, 1987 CONTENTION OF ATTORNEY GENERAL JAMES M. SHANNON AND MOTION TO ADMIT LATE-FILED CONTENTION AND REOPEN THE RECORD I. INTRODUCTION As of September 25, 1987, six of the eight-emergency notification sirens, poles and related equipment located within 4

the City of Newburyport, Massachusetts had been dismantled and removed. Affidavit of Peter J. Matthews, $4, attached hereto.

These sirens, owned by the City, were the only means1!

1/ The remaining two sirens will be used for fire alarm purposes and will not be used for any purposes connected to emergency planning for the Seabrook Station. Matthews Affidavit, 15.

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V ' % 3;, n 33-c ). t c-p' to providefearly. notification and clear instruction to the

population of'Newburyport, oneLof the'MassachusettsJcommunities

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t . located within the plume exposure pathway'EPZ for the.Seabrook' Station'. .As aLresult,.the Applicants.have.not' complied with:10 C.F.R. S50.47(b)(5).1/

Massachusetts Attorney. General-James M. Shannon ("the

, , Attorney! General"'). respectfully submits'the'following late-filed contention in this proceeding and moves that :this Board 1! reopen the record in the on-site emergency' planning and safety phase for the limited purpose of addressingi the

' Applicants'. compliance with 10 C.F.R. S50.47(b)(5). The Attorney. General further requests that-this Board issue an order amending the on-site Licensing Board's Partial Initial Decision of March 25, 1987, ASLBP No. 82-471-02-06 to deny authorization to issue an operating license for operation nct jbf Any suggestion by the Applicants that this contention should not be allowed because they have developed an adequate aircraft-borne siren system should be rejected. The attached Affidavit of Gregory C. Tocci ("Tocci Affidavit"), discussed in detail below, demonstrates the fundamental flaws in the aircraft-borne approach.

3/ This contention and motion were initially filed with the on-site Licensing Board. That Board denied the motion on the ground that having issued its Partial Initial Decision it no longer had authority to consider the contention or motion, notwithstanding the Appeal Board's remand of several issues to the Licensing Board. ASLBP No. 88-558-01-OLR (October 26,  ;

1987). See ALAB-875 (October 1, 1987).  !

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in excess-ofL5% rated power-until the Applicants'have1

, demonstrated, after'a. full; evidentiary hearing, that they'have L ,

satisfied Section'50.47(b)(5).

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II. ARGUMENT i

A. The Attorney General Has Satisfied The Late-Filed L , Contention Standard.

Based on the suddenness and importance of the Newburyport

. siren-situation, the late-filed contention meets'the standards for admiasion under 10 C.F.R. S2.714(a)(1). First, until very recently, the'Newburyport sirens were mounted on standing poles L and no decision had been made to remove them. Matthews Affidavit, 14. Indeed, that decision was made in anticipation L

'of'the Applicants? filing of their own emergency. response plan.

That plan was filed on September 18, 1987 and indicates that.

the Applicants. relied on the now dismantled sirens for

' emergency notification of Newburyport residents. Seabrook Plan for. Massachusetts-Communities-("SPMC"), Plan Volume, Table 3.2-3. This contention would have been premature had it.been filed before the decision to remove the sirens had~been made --

l a decision virtually contemporaneous with the-filing of the SPMC' indicating the proposed use of the sirens.A!

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! '4/. Any claim that the June 30, 1986 date of the Newburyport City Council Ordinance (see Matthews Affidavit, 13) alters this conclusion would be erroneous. The Ordinance does not dictate a specific course of action for Newburyport with respect to the sirens and, therefore, the Attorney General could not have filed this contention until after the Mayor of Newburyport made his.own decision on the sirens.

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4 Therefore, "no adequately based contention could have been-i filed earlier," Philadelphia Electric Co. (Limerick Generating Station, Units.1 and 2), ALAB-806, 21 NRC 1183, 1190 (1985),

and there is good cause under 10 C.F.R. S2.714(a)(1)(i) for the failure to file this contention on time.

Second, as the Applicants themselves acknowledge in their Licensing Board filing on this issue,b! there is no means other than the filing of this contention by which the Attorney General's interest in ensuring that notification of the Newburyport population is addressed prior to low-power can be .

a protected. Therefore,-10 C.F.R. S2.714(a)(1)(ii) is satisfied.

Third, the Attorney General will provide witnesses to testify about the status of the siren system and the viability I of other means of public notification in the City. Those witnesses will include an expert witness to testify, along the lines of the attached Tocci Affidavit, about the adequacy of the Applicants' alternative, aircraft method of public notification in Newburyport. Therefore, 10 C.F.R.

S2.714(a)(1)(iii) is satisfied.

5/ Applicants' Response To Contention Cf Attorney General ,

James M. Shannon, Seacoast Anti-Pollution League, New England j Coalition on Nuclear Pollution and Town of Hampton, Motion To Admit Late-Filed contention And Reopen The Record at 4 (October 1, 1987) (" Applicants' Response").

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Fourth, no other party'has raised this issue in this proceeding._ Again as the Applicants admit (Applicants' Response at'4), no other party can represent the interests of the Attorney General on this important issue of the health and

. safety of Massachusetts citizens. Therefore, 10 C.F.R.

S2.714(a)(i)(iv) is satisfied.

Fifth, the issue raised here is narrow and will not result in undue delay of the proceeding. The Commission has already stayed the effect of the Licensing Board's Partial Initial Decision. See CLI-87-01 (unpublished) (January 9, 1987).

Moreover, the Appeal Board has reversed part of the Licensing Board's low-power decision and remanded two issues to that Board for further proceedings. See ALAB-875 (October 1, 1987). The Licensing Board has now entered a scheduling order for litigating those issues which allows discovery until ]

December 28, 1987. ALSBP No. 88-558-01-OLR (October 16, i

1987).b! Finally, the Appeal Board itself has retained i

jurisdiction over siren questions for other communities in the Seabrook EPZ. ALAB- 875 at 48. In short, the Newburyport siren j issue can be resolved without any greater delay than the remand and this Board's consideration of siren issues will already cause. Therefore, 10 C.F.R. 52.714(a)(i)(v) is satisfied.

6/ Unless the Licensing Board rules that notwithstanding the  ;

pendency of these issues low-power testing should proceed, l I low-power testing cannot proceed until the issues are i

I resolved. ALAB-875 at 49-50.

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B. The Attorney General Has Satisfied The Standards For Reopening Tua Record.

l The tests for reopening an evidentiary record are whether the issues could have been rai ed earlier, whether the motion addresses a significant safety or environmental issue and whether a materially different result would have been likely had the new evidence been considered initially. 10 C.F.R.

S2.734(a).

As described above, the Newburyport siren issue could not have been raised earlier. Therefore, the Attorney General has  ;

satisfied the 10 C.F.R. S2.734(a)(1) standard.

Second, the issue is a significant safety issue because no means exist presently for early notification and clear instruction to the Newburyport population, as required by 10 C.F.R. S50.47(b)(5). Any suggestion that this is not a .

significant safety issue ignores the Commission's own words, in promulgating 10 C.F.R. S50.47(d), that prior to issuing an operating license authorizing low-power testing, the applicant must meet the requirements of Section 50.47(b)(5). 47 Fed.

Reg. 30232, 30234 (July 13, 1982).

The Applicants, in their filing with the Licensing Board on this issue, casually assert that they have "put in place" an aircraft-borne siren system to remedy the Newburyport sitaation. Applicants' Response at 6. That claim is entirely without support.

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i Based on the limited information provided in the Applicants' Response and the affidavits attached to the Response, Gregory C. Tocci, an-acoustics expert retained by the Attorney General, analyzed the proposed aircraft-borne system.1! Tocci concludes that the system suggested by the l

Applicants is not an adequate emergency notification system for the area. Tocci Affidavit, 119-11. NUREG-0654 (November, 1980) and FEMA-REP-10 (November 1985) require that the system i

at a minimum provide both an alert signal and a message to the 10 mile EPZ population within 15 minutes and that the signal have a steady duration of at least 3 minutes. In order to meet these minimum standards (even without the signal repetition required by NUREG-0654) and based on optimistic assumptions, 38 helicopters (not the one aircraft hypothesized by the Applicants) would have to criss-cross the Newburyport area flying at a speed -- 6.7 miles per hour -- which may not even be possible at the required altitude. Tocci Affidavit, t 8-9.

Simply put, the Applicants' ill-conceived " alternative" cannot 7/ Not surprisingly given the system's inherent problems, the Applicants provide no explanation of how the system would work. See Affidavit of James A. MacDonald and Louis C.

Sutherland attached to Applicants' Response. For that reason, Mr. Tocci was forced to make certain assumptions to do his analysis. Discovery is essential to provide the information necessary for a complete analysis and an informed decision on this matter.

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.be sanctioned particularly without reopening ~the record an'd y i

' fully litigating an. appropriate contention.

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Moreover,7 the/ Applicants have.notleven attempted to meet; the.necessary-special alerting system general acceptance.

i criteria.under FEMA-REP-10 at E-18 to E-19'(November 1985).

'The design' report prepared by.the Applicants.does not. address

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an aircraft. system. . The Applicants' Response ~does not even-

' purport to describe the adequacy of the alerting' system, the  !

type.of aircraft to be used or the critical amounts of time required 1to notify pilots, prepare aircraft'and secure take-off. All of these issues must be addressed in the_ design report.. FEMA-REP-l'0 at E-18 to E-19.

More fundamentally, aircraft. alerting systems were never' intended to be any more than supplements to ground-based. sirens for geographical. areas where the more standard system would be infeasible. . FEMA-REP-10-at E-18. See Southern California-p Edison Co. (San Onofre Nuclear Generating Station,' Units 2-and i

3) ALAB-7.17,'17 NRC 346, 369 (1983) (combination of emergency-L vehicles., helicopters and existing siren coverage); Pacific Gas l-l and Electric Company (Diablo Canyon Nuclear Power Plant, Units y 1 and 2), LBP-82-70, 16 NRC 756, 773 (1982) (automobiles,

! off-road vehicles and helicopters to supplement sirens).

Aircraft systems were never intended, for good reason as the Tocci Affidavit clearly demonstrates, to supplant wholly a ground-based siren system.

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i The Tocci Affidavit establishes at the very least.that the lack of sirens in Newburyport is a serious safety deficiency which the Applicants have not and cannot easily remedy. The Applicants'-aircraft system at this point'is only a theoretical alternative based on little more than conjecture and meaningless generalizations. In short, public health and safety demand that the contention be admitted, the record reopened and the issue fully litigated.8/'

III. CONTENTION AND BASIS Contention: Applicants have failed to comply with the provisions of 10 C.F.R. S50.47(b)(5) and part 50, Appendix E, IV, D(1) and (3), because no means have been established to provide early notification and clear instruction to the populace of the City of Newburyport, Massachusetts.

Basis: The Applicants' emergency response plans provide that the populace within the City of Newburyport will be notified of emergencies by means of eight alert and notification sirens situated in the City. According to the Affidavit of Peter J. Matthews, attached hereto, six of the eight' sirens have been removed. The remaining two sirens will 8/ Because the Applicants have so palpably failed to establish a viable alternative to the Newburyport ground-based sirens and because the NRC has made clear that an applicant must comply  !

with section 50.47(b)(5) before a low-power license issues (47 l Fed. Reg. 30232, 30234 (July 13, 1982)), the Licensing Board I would have reached a materially different result had this issue I been raised earlier. Therefore, the Attorney General has )

satisfied 10 C.F.R. S2.734(a)(3).  !

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,.~not~ber used:for the. Applicants' emergency notification system.

No other means.have been provided to notify the public in-

Newburyport.in'the event'of an' emergency.

The Applicants have claimed.that they will establish an aircraft-mounted siren-system. . .According to the: Affidavit of l

Gregory C. Tocci,. attached: hereto, this. alternative system'isi not adequate.to provide early notification and! clear '

' instruction.because it.would take too long, require too many aircraft and involved intractable acoustic and technical l difficulties.

The; Commission has determined that the means toLnotify the population'within the plume exposure: pathway EPZ must be in place' prior toJ1ow-power operation. 47 Fed. Reg. 30232, 30234-l'

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l (July.13,:1982). . See Southern California' Edison Co. (San l Onofre Nuclear Generating Station, Units 2 and 3), LBP-82-3, 15 NRC 61, 191-195 (1982). That means is not'in place and low-power operation should'be denied unless and until it is.

j IV. CONCLUSION The preceding late-filed. contention should be admitted and the record of the on-site emergency planning and safety phase of this litigation should be reopened. Moreover, the decision authorizing the. issuance of an operating license for operation  ;

j not in excess of 5% of rated power should be amended to deny

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1 authorization until the Applicants have demonstrated the means j to provide early notification and clear instruction to the populace in the City of Newburyport in the event of a

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radiological emergency.

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i JAMES M. SHANNON ATTORNEY GENERAL COMMONWEALTH OF MASSACHUSETTS

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By:

'StepEen A. Jonas Assistant Attorney General  ;

Deputy Chief i Public Protection Bureau .

Department of the Attorney General l One Ashburton Place Boston, MA 02108 (617) 727-4878 DATED: November 13, 1987 11 -

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