ML20237E820
| ML20237E820 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 12/18/1987 |
| From: | Jonas S MASSACHUSETTS, COMMONWEALTH OF |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#487-5125 OL-1, NUDOCS 8712290207 | |
| Download: ML20237E820 (17) | |
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1 DOCKETED USHRC UNITED STATES OF AMERICA __
NUCLEAR REGULATORY COMMISSION ~87 DEC 21 P4:13 . - .
ATOMIC SAFETY AND LICENSING APPEAL BOARD g g.,, ,,3 ,,_ .
BEFORE ADMINISTRATIVE JUDGES: [pc.H C 3 ~ ;", (*;,]
. o .n Alan S. Rosenthal, Chairman Gary J. Edles Howard Wilber
) Docket Nos.
In the Matter of ) 50-443-OL-1
) 50-444-OL-1 PUBLIC SERVICE COMPANY OF )
NEW HAMPSHIRE, et al., ) (On-Site EP)
) December 18, 1987 (Seabrook Station, Units 1 and 2) )
)
SUPPLEMENTAL MEMORANDUM OF ATTORNEY GENERAL JAMES M. SHANNON IN RESPONSE TO APPEAL BOARD MEMORANDUM AND ORDER OF NOVEMBER 25, 1987 INTRODUCTION On November 13, 1987, Attorney General James M. Shannon
(" Attorney General") filed his Motion To Admit Late-Filed Contention and Reopen the Record concerning the removal of emergency notification sirens, poles and related equipment from the City of Newburyport, Massachusetts. On November 24, 1987, the Applicants filed their response, challenging the procedure chosen by the Attorney General to present this issue to the Appeal Board. On November 25, 1987, the Appeal Board rejected the challenge, directed the Applicants and the NRC staff to 8712290207 PDR ADOCK h hPDR 43 G
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d file responses addressed to the merits of the Attorney General's motion and suggested that the responses address "whether it is the applicants' burden to establish at this juncture that the required alternative in their emergency notification planning for Newburyport does not give rise to a significant safety issue, rather than the Attorney General's l
burden to demonstrate to the contrary." The Attorney teneral submits this memorandum on the burden of proof issue.1!
The Attorney General respectfully urges that the burden of 1
persuasion should rest with the Applicants because he has presented evidence " sufficient to require reasonable minds to inquire further" whether a significant safety issue has been l raised. The Applicants must bear this burden because in the on-site proceedings and up to the filing of the motion to reopen they had not submitted any material indicating that an alternative public notification system existed. Shifting the 1
burden to the Attorney General merely because the need for the l
alternative arose after the record was closed would create the risk of compromising public health and safety, would be 1/ Because the scope of this memorandum is limited at the Appeal Board's direction and because the Applicants' response will likely present certain additional information on their l
alternative emergency notification procedures, the Attorney l
General expects that a reply brief will be necessary. By filing this limited memorandum, the Attorney General does not waive the right to request permission to file a reply brief.
Counsel for the Applicants have represented that they will not oppose such a request.
.s inconsistent with fundamental principles of burden of proof in NRC practice and would set a troubling precedent for future proceedings.
ARGUMENT A. The Applicants Bear The Burden Of Proof On All Emergency Planning Issues.
Under the Administrative Procedure Act, 5 U.S.C. S556(d),
"the proponent of a rule or order has the burden of proof." In NRC proceedings for an operating license, the applicant is the proponent of the license and, therefore, bears the burden of proof. 10 C.F.R S2.732. More particularly, Congress intended, through the Atomic Energy Act, that the party seeking to build or operate a nuclear power plant would bear the ultimate burden of proof in any Commission proceeding for a construction permit or operating license. Consumers Power Co. (Midland Plant, Units 1& 2), ALAB-315, 3 NRC 101 (1976). That intent reflects the Congress' desire "to make certain that public safety [is] a paramount issue at every stage in processing applications for commercial use of nuclear power." Id. at 103.
The Commission and its boards have refused to alter this fundamental burden or to place it on an intervenor.2/
I 2/ Of course, in NRC practice, an intervenor bears the initial responsibility of presenting evidence "' sufficient to require I reasonable minds to inquire further' to insure that its I contentions are explored at the hearing." Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 340 (1980); Midland, supra, 3 NRC at 110-112. See Vermont Yankee Nuclear Power Corp. v. NRC, 435 j U.S. 519, 553-54 (1978).
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4 The applicant must carry the burden of proving that its off-site emergency plan has complied with the Commission's emergency planning rules and guidelines. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2),
CLI-86-22, 24 NRC 685, 690 (1986); Metropolitan Edison Co.
(Three Mile Island Nuclear Station, Unit No. 1), ALAB-697, 16 NRC 1265, 1271 (1982); C,onsumers Power Co. (Big Rock Point Plant), LBP-82-77, 16 NRC 1096, 1097 (1982). See Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041, 1048 (1983) (the Applicant carries the burden of proof on all safety issues).
That burden does not abate after a permit or license is issued when the applicant seeks another license, Power Reactor Development Co. v.
International Union of Electrical Radio and Machine Workers, 367 U.S. 396, 411 (1961) (issuance of construction permit does not render operating license automatic), when the holder of a license is asked to "show cause" why it should not be revoked, Midland, supra, 3 NRC 101, I or when an intervenor seeks to suspend the license, Union Electric Co. (Callaway Plant, Units 1 and 2), ALAB-346, 4 NRC 214 (1976) (request to suspend based on judicial invalidation of portions of uranium fuel cycle rule).
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Although general in nature, these principles have application here. Simply put, in order for the Commission to j fulfill its responsibility to preserve and protect public e
health and safety, the Applicants must bear the burden of persuading the agency that they have met the emergency planning regulations and guidelines.
B. The Relevant Emergency Planning Regulations And Guidelines Impose Burdens The Applicants Have Not Met And Require Information The Applicants Have Not Supplied.
The Commission's regulations, 19 C.F.R. 550.47(b)(5),
impose a planning standard that the means to provide early notification and clear instruction to the populace in the EPZ in the event of an emergency have been established.
The NRC and FEMA have specifically and explicitly imposed on applicants the burden of demonstrating that these means exist. Criteria For Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants, NUREG-0654, FEMA-REP-1, Rev. 1 at 45 (November, 1980) and its draft analogue for utility plans, Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants (Criteria for Utility Off-site Planning and Preparedness Draft Report for Interior Use and Comment), NUREG-0654, FEMA-REP-1, Rev. 1, Supp. I at 11 (November, 1987) state that "[i]t shall be the licensee's responsibility to demonstrate that such means exist, regardless of who implements this requirement." The former document emphasizes that "NRC and FEMA also recognize
0 that the responsibility for demonstrating that such a system ic in place rests with the facility licensee." NUREG-0654, FEMA-REP-1, Rev. I at 3-1.
The same document adds the following:
Each organization shall establish administrative and physical means and the time required for notifying and providing prompt instruction to the public within the plume exposure pathway Emergency Planning Zone. Id. at 45.3/
NUREG-0654 makes plain that the emergency plan itself must include a description of the physical means for alert and notification. Id. at 3-1.
FEMA imposes an additional requirement. The applicant must submit a " design report" for the alert and notification system. The report must describe how the physical means will ensure alert and notification and " include a detailed description of each special alerting method [such as an aircraft system) and the rationale for employing this method as a proposed part (or all) of an alert and notification system."
Guide for the Evaluation of Alert and Notification Systems for Nuclear Power Plants, FEMA-REP-10 at E-3, E-4, E-15 (November, 1985). Because of the peculiar problems of such a system, the design report must include additional information if the applicant contemplates the use of an aircraft system:
3/ The draft supplement, NUREG-0654, FEMA-REP-1, Rev. 1, Supp.
1, containing criteria for use in evaluating utility plans, imposes a virtually identical requirement. Id. at 11.
b The sound system, if any, to be employed in l alerting the public via aircraft should be described. The design report should include an analysis demonstrating that the sound system can provide an intelligible alerting signal at ground level throughout the geographical area requiring coverage.
The airfield and storage location for the aircraft and its distance from the area to be covered should be specified.
Specifically, the design report analysis of the time required to alert individuals should include, among other pertinent factors, the amount of time required:
- To notify the pilot or alternate, who is available 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> a day, 7 days a week;
- For the pilot to reach the aircraft:
- To prepare the aircraft for flight;
- For the aircraft to take off; and
-For the aircraft to reach the area to be alerted. Id. at E-18 to E-19.4/
Once the emergency notification sirens in Newburyport were removed, the information by which the Applicants hoped to demonstrate that means exist to provide early notification and clear instruction to the Newburyport populace became completely I useless. Although the Applicants have now provided some information about the airborne system to the NRC Staff, that information is belated and incomplete.
4/ The Seabrook Station Public Alert and Notification System l Final Design Report (January, 1984) contains no mention of aircraft mounted sirens. The Report relies exclusively on the use of stationary sirens for all of the Massachusetts communities within the EPZ.
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L The Applicants did not even attempt to meet NRC and FEMA regulations and guidelines until after the on-site proceedings closed. FEMA guidelines and NRC precedent leave no doubt that the alternative chosen by the Applicants was designed as a special system for limited use in " geographical areas (e.g.,
l hiking trails and hunting and fishing areas)" where sirens may l not be feasible. FEMA - Rep - 10 at E-18. Airborne siren systems were never intended wholly to supplant a stationary siren system, as the Applicants propose here. For these reasons, the Applicants should continue to shoulder the burden of demonstrating that an adequate alternative to the stationary siren system can and does exist.
C. The Applicants' Burden Is Not Shifted In The Context Of This Motion To Reopen, i The Applicants will argue that once these issues are raised in the context of a motion to reopen, the burden shifts to the movant. There is authority for the proposition that because delay can be caused by a motion to reopen, the burden of persuading the board to reopen the record rests on the movant.
E.g., Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-598, 11 NRC 876 (1980). Compare 10 C.F.R. 52.732 with 10 C.F.R. 52.734.
However, this particular motion is sui generis. The typical motion to reopen addresses new information that casts a different light on matters in the record, provides additional grounds for the movant's position, or raises questions about 8-
b evidence presented by the Applicants. Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1, (1986) (recent investigations cast doubt on character and competence of utility); Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2 and 3),
LBP-82-ll7B, 16 NRC 2024 (1982) (new information that salt drift from plant would cause damage to cropland relative to final environmental statement); Diablo Canyon, supra, 11 NRC 876 (earthquake occurring after licensing board decision cast doubt on board's seismic analysis and plant's compliance with Commission's design criteria); Kansas Gas and Electric Co.
(Wolf Creek Generating Station, Unit No. 1), ALAB-462, 7 NRC 320 (1978) (new evidence, relevant to NEPA review, that the I applicant was considering conversion alternatives); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-359, 4 NRC 619 (1976) (need for plant and financial capability of utility should be reexamined because growth of electric power demand 1
! not as great as expected).
The evidence presented in the Attorney General's motion is fundamentally different in kind from that raised in the typical motion to reopen. The evidence renders completely obsolete the sole category of information on which the Applicants rely to meet a well-recognized safety requirement.
Since the dismantling of the Newburyport sirens the Applicants cannot point to their emergency response plans or
4 their design report to support a finding that they have the means to provide notification to the Newburyport public in an emergency. Initially, the burden of persuading the Commission that means exist rests squarely on the Applicants. They should not be permitted to escape that burden merely because the sirens were removed after the Licensing Board's decision, rather than before. See Palo Verde, supra, 16 NRC at 2032 n.6 (citing Cincinnati Gas & Electric Co. (Zimmer Nuclear Power Station, Unit 1), LBP-82-54, 16 NRC 210 (1982), rev'd on other grounds, CLI-82-20, 16 NRC 109 (1982) for expressing doubts that normal motion to reopen standards apply where reopening is requested on an issue which has not been heard previously). If Applicants' argument were accepted here, applicants in future cases could remain silent on the emergency notification system they would substitute for the one that can no longer be used and leave the movants without any basis to identify that system, much less assess its adequacy. They could not then meet the burden imposed upon them.
Shifting the burden here is also unfair to the Attorney General. In the typical motion to reopen situation, the movant can point to some information explored in the closed proceedings, as well as the newly discovered information, to show that a significant safety issue pertains. Here, the significant' safety issue can be viewed as the adequacy of 5!
I 5/ See Part D, infra.
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an alternative. system to provide emergency notification that has been described by the Applicants only after the proceedings closed and discovery rights expired. The burden appropriately lies with the party with near exclusive knowledge of the matter i
- addressed. See Union Electric Co. (Calloway Plant Units 1 and l
L 2), ALAB-348, 4 NRC 225, 231 (1976) (motion to suspend i
! construction permit).
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Finally, a balancing of the interests implicated by a motion to reopen shows'that the burden should be on the Applicants. On the one hand, a motion to reopen can create delay in administrative proceedings after the record is closed and put off the consummation of the proceedings. On the other hand, a motion to reopen may well raise important public health and safety issues that cannot be ignored merely because their appearance did not coincide with the schedule for the i proceedings.
The Board fundamentally has asked the question: who should bear the burden of an unexpected circumstance? The answer is in' great measure a matter of assessing the countervailing interests involved, not of penalizing or.e party for unfortunate timing. Had the new information presented here only raised questions about matters well-developed in the record, the interest of administrative efficiency could well be deemed to prevail over other interests. However, where, as here, the pre-motion to reopen record contains nothing to support the
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Applicants' position on a system which the NRC and FEMA have recognized is inappropriate for its intended use, the interest of preserving the public health and safety must prevail and the burden should remain on the Applicants.
In short, the Attorney General urges the Board to adopt the standard applicable at an earlier stage in the licensing proceeding--the Applicant bears the ultimate burden of persuasion once the interveners have presented evidence
" sufficient to require reasonable minds to inquire further."5!
D. Even If The Burden Is Placed On The Attorney General, He Has Met That Burden And Raised A Significant Safety Issue.
Even if the Board finds that he bears the burden, the Attorney General has met it and demonstrated that a significant safety issue is involved. Providing the means for early notification and clear instruction to the populace inside the EP2 is required by NRC and FEMA regulations and guidelines precisely because of obvious and significant safety concerns.
The removal of the means relied upon by the Applicants to protect the 23,481 residents of Newburyport2! is, on its face, a significant safety issue.
1/ The papers filed by the Attorney General amply satisfy this standard.
7/ This figure is taken from the Applicants' Seabrook Plan for Massachusetts Communities, Plan, Table 3.6-1 (September 18, 1967).
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If the Board, as it suggests in its November 25, 1987 Memorandum and Order, goes further and requires the Attorney General to demonstrate that the alternative means are, by some i
measure, inadequate, the Attorney General has met this burden as well. The motion to reopen and the attached affidavit of Gregory C. Tocci demonstrate serious and fundamental problems with the airborne system. To the extent the Applicants rely on their recent submission to the NRC Staff, the Attorney General, if the Board permits, will establish the fatal flaws in that submission as well.
CONCLUSION For all the foregoing reasons, the Appeal Board should find that the Attorney General has presented evidence sufficient to require reasonable minds to inquire further and should impose upon the Applicants the burden of persuading the Appeal Board that no significant safety issue has been raised.
Respectfully submitted, JAMES M. SHANNON ATTORNEY GENERAL COMMONWEALTH OF MASSACHUSETTS
, - v' < h
' Stephen A . J6nas '-
Assistant /Ittorney General Deputy Chief Public Protection Bureau One Ashburton Place Boston, MA 02108 (617) 727-4878 DATED: December 18, 1987 13 -
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DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION. 1 7 DOC 21 P4 :12 ATOMIC SAFETY AND LICENSING APPEAL 0tfgKb SECiit N Y BEFORE ADMINISTRATIVE JUDGES:00C gtg/.yfi VICL Alan S. Rosenthal, Chairman Gary J. Edles Howard Wilber
) Docket Nos.
In the Matter of ) 50-4 4 3-OL -1
) 5 0-4 4 4-OL -1 PUBLIC SERVICE COMPANY OF )
NEW HAMPSHIRE, et al., ) (On-Site EP)
) December 18, 1987 (Seabrook Station, Units 1 and 2) )
)
CERTIFICATE OF SERVICE I, Stephen A. Jonas, hereby certify that on December 18, 1987, I made service of the SUPPLEMENTAL MEMORANDUM OF ATTORNEY GENERAL JhMES i
M. SHANNON IN RESPONSE TO APPEAL BOARD MEXORANDUM AND ORDER OF NOVEMBER 25, 1987, by depositing in the U.S. mail, first class postage paid, addressed to, or as indicated [*), by mailing copies thereof with Federal Express, prepaid, and by hand as indicated by [**) for delivery to:
Sheldon J. Wolfe, Chairperson Emmeth A. Luebke Atomic Safety & Licensing Board Atomic Safety & Licensing 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 Third Floor Mailroom Third Floor Mailroom Bethesda, MD 20814 Bethesda, MD 20814 Dr. Jerry Harbour Sherwin E. Turk, Esq.
Atomic Safety & Licensing Board Office of the Executive Legal U.S. Nuclear Regulatory Director Commission U.S. Nuclear Regulatory Commission East West Towers Building Tenth Floor 4350 East West Highway 7735 Old Georgetown Road Third Floor Mailroom Bethesda, MD 20814 Bethesda, MD 20814
1 H. Joseph Flynn, Esq. Stephen E. Merrill Assistant General Counsel Attorney General Office of General Counsel George Dana Bisbee Federal Emergency Management Assistant Attorney General Agency Office of the Attorney General 500 C Street, S.W. 25 Capitol Street Washington, DC 20472 Concord, NH 03301
- Docketing and Service Paul A. Fritzsche, Esq.
U.S. Nuclear Regulatory Office of the Public Advocate Commission State House Station 112 Washington, DC. 20555 Augusta, ME 04333 Roberta C. Pevear Diana P. Randall State Representative 70 Collins Street Town of Hampton Falls Seabrook, NH 03874 Drinkwater Road Hampton Falls, NH 03844 Atomic Safety & Licensing Robert A. Backus, Esq.
Appeal Board Panel Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516 I
Washington, DC 20555 Manchester, NH 03106 Atomic Safety & Licensing Jane Doughty Board Panel Seacoast Anti-Pollution League U.S. Nuclear Regulatory 5 Market Street ..,
Commission Portsmouth, NH 03801 ,,
Washington, DC 20555 " '
Paul McEachern, Esq. J. P. Nadeau ' j" Matthew T. Brock, Esq. Board of Selectman ;
Shaines & McEachern 10 Central Road 25 Maplewood Avenue Rye, NH 03870 . hf',
P O. Box 360 - s 9ortsmouth, NH 03801 .
Sandra Gavutis, Chairperson Calvin A. Canney Board of Selectmen City Manager RFD 1, Box 1154 City Hall -
Rte. 107 126 Daniel Street E. Kingston, NH 03827 Portsmouth, NH 03801 Senator Gordon J. Humphrey Angelo Machiros, Chairman U.S. Senate Board of Selectmen Washington, DC 20510 25 High Road
( (Attn: Tom Burack) Newbury, MA 10950 Senator Gordon J. Humphrey Peter J. Matthews 1 Eagle Square, Suite 507 Mayor Concord, NH 03301 City Hall (Attn: Herb Boynton) Newburyport, MA 01950
n Donald E. Chick William Lord Town Manager Board of Selectmen Town of Exeter Town Hall 10 Front Street Friend Street Exeter, NH 03833 Amesbury, MA 01913 Brentwood Board of Selectmen Gary M. Holmes, Esq.
RFD Dalton Road Holmes & Ellis Brentwood, NH 03833 47 Winnacunnet Road Hampton, NH 03841 Philip Ahrens, Esq. Diane Curran, Esq.
Assistant Attorney General Harmon & Weiss Department of the Attorney Suite 430 General 2001 S Streat, N.W.
State House Station #6 Washington, DC 20009 Augusta, ME 04333
- Thomas G. Dignan, Esq. Richard A. Hampe, Esq.
Katherine Selleck, Esq. Hampe & McNicholas Ropes & Gray 35 Pleasant Street 225 Franklin Street Concord, NH 03301 Boston, MA 02110 Beverly Hollingworth Edward A. Thomas 209 Winnacunnet Road Federal Emergency Management Hampton, NH 03842 Agency 442 J.W. McCormack (POCH)
Boston, MA 02109 Willian Armstrong Michael Santosuosso, Chairman Civil Defense Director Board of Selectmen I Town of Exeter Jeuell Street, RFD 2 l 10 Front Street South Hampton, NH 03827 l Exeter, NH 03f,35 Robert Carrigg, Chairman Anne E. Goodman, Chairperson Board of Selectmen Board of Selectmen Town Office 13-15 Newmarket Road Atlantic Avenue Durham, NH 03824 North Hampton, NH 03862 Allen Lampert Ivan Smith, Chairperson Civil Defense Director Atomic Safety and Licensing Town of Brentwood Board Panel 20 Franklin Street U.S. Nuclear Regulatory Commission Exeter, NH 03833 Washington, DC 20555
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Gustave A. Linenberger Charles P. Graham, Esq.
Atomic Safety & Licensing Board McKay, Murphy & Graham U.S. Nuclear Regulatory Old Post Office Square Commission 100 Main Street East West Towers Building Amesbury, MA 01913 4350 East West Highway Third Floor Mailroom Bethesda, MD 20814
- Gary J. Edles
- Alan S. Rosenthal, Chariman Atomic and Safety Licensing Atomic Safety & Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission
- Howard Wilbur Atomic and Safety Licensing Appeal Board U.S. Nuclear Regulatory Commission f;[. [ ,
Stephen A. Jonas Assistant'Ittorney General Deputy Chief Public Protection Bureau DepartF#nt of the Attorney General-One Asrcarton Place 3oston, MA 02108-1698 (617) 727-4878 Dated: December 18, 1987 ,
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