ML20246E268
| ML20246E268 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 08/21/1989 |
| From: | Curran D HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., NEW ENGLAND COALITION ON NUCLEAR POLLUTION |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#389-9075 OL, NUDOCS 8908290053 | |
| Download: ML20246E268 (15) | |
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U. hY gtnijN August 21, 1989 UW' UNITED STATES NUCLEAR REGULATORY COMMISSION g 22 P12.06.
BEFORE THE COMMISSION
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) @[yPC *M LIn the Matter of )
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Public Service Company of )
New Hampshire, et al ) Docket Nos. 50-443.OL
) 50-444 OL (Seabrook Station, Units 1 & 2) ) OFFSITE EMERGENCY'
) PLANNING
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NEW ENGIAND COALITION ON NUCLEAR POLLUTION'S.
OPPOSITION TO APPLICANTS' REQUEST FOR AN EXEMPTION FROM THE REQUIREMENT TO; EXERCISE THE ONSITE EMERGENCY PIAN
-WITHIN A YEAR PRIOR TO ISSUANCE OF OPERATING LICENSE OR,'IN THE ALTERNATIVE, REQUEST FOR A HEARING ON APPLICANTS' APPLICATION Introduction Faced with the regulatory requirement for another onsite exercise before the Seabrook reactor can receive a full power license,-the Applicants have petitioned the Commission for an exemption under 10 C.F.R. 5 50.12(a). The petition must be rejected out of hand for failing, on its face, to satisfy either prong of the 5 50.12(a) standard, both of which Applicants must satisfy.in order to receive-an exemption.1 First, Applicants fail utterly to demonstrate that an equi-valent level of safety could be achieved in the absense of an exercise. Not only does the petition gloss over the fact that 8908290053 890821 PDR ADDCK 05000443 G PDR l .
1- .The New England Coalition on Nuclear Pollution ("NECNP")
also joins in the appositions to Applicants' petition filed by l- the Commonwealth of Massachusetts and the Seacoast Anti-Pollution League. NECNP notes that most, if not all, of the documents referenced in this brief are appended to the Commonwealth's brief, and'thus have not been attached here.
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- half-of the onsite staff remains untested in an exercise, but it fails to grapple 1with, let alone mention, the serious _ defects in operator training'and competence that were. demonstrated in the
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last exercise and in the low power test conducted onlyLa month ago. The failure of Applicants' petition'even to discuss the significance of the low power test failure only confirms that Applicants continue to fail to take its implications seriously.
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Under these' circumstances, there is no conceivable safety justification'for allowing Applicants to avoid the conduct of another exercise.
Moreover, the "special circumstances" cited by Applicants as necessitating this waiver amount only to a wish for protection from litigation that may result from a failed exercise. Such a motive can hardly be conceived of as the type of "special circum-stances" recognized by the rule. What Applicants need is not an
-escape from the-exercise requirement, but the successful comple-tion of an exercise by.a competent, well-trained staff. No leng-thy hearings can frustrate Applicants if there are no problems worthy of litigation. .To exempt Applicants from the exercise requirement for the purpose of sheltering them from the scrutiny of a public hearing would defraud the public of their hearing rights and make a mockery of the Commission's regulatory scheme.
Applicants' petition is not worthy of further deliberation.
However; in the extraordinary event that the Commission decides it warrants consideration, the New England Coalition on Nuclear j l
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. Pollution requests a hearing on whether it should be granted. .
Because other issues related to this exemption request are cur-rently before the Licensing Board, and because the Licensing Board is best equipped to consider the extensive factual issues surrounding this. application, NECNP urges the Commission to remand the application to the Licensing Board.
ARGUMENT I. On Its Face, Applicants' Request Fails to Satisfy the Requirements of 10 C.F.R. 5 50.12.
In order to obtain a regulatory exemption under 10 C.F.R. S 50.12(a), Applicants must demonstrate both that the issuance of the exemption would pose no undue risk to the public health and safety and.that "special circumstances" exist which warrant the granting of the exemption. In evaluating whether Applicants meet this two-pronged standard, the Commission must bear in mind that, in order to protect the integrity of its regulatory schene, the Commission should resort to regulatory exemptions only as " safety valves" for use in the most unusual circumstances. WAIT Radio
- v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969). See also In the Matter of Cleveland Electric Illuminating-Co. (Perry Nuclear Power Plant), LBP-85-33, 22 NRC 442, 445 (1985) (" Petitions for waivers or exceptions should be granted only in ' unusual and com-J pelling circumstances,'" citing North States Power Co.
(Monticello Nuclear Generating Plant, Unit 1), CLI-72-81, 5 AEC 25, 26 (1972). As the Court found in WAIT Radio, an agency
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should not " tolerate evisceration of a rule by waivers." Id. at 1159.
The courts have traditionally placed a " heavy burden" on waiver applicants so that "one of the foremost advantages of rulemaking -- the formulation and effectuation of agency policy with a minimum expenditure of time and resources -- will not be undermined by the necessity for continuous case-by-case adjudica-tion." Industrial Broadcasting Co. v. FCC, 437 F.2d 680, 683 (D.C. Cir. 1970) (citing WAIT v. FCC, 459 F.2d 1203 (D.C. Cir.
1972).) See also Safety-Kleen Corn, v. Dresser Industries, 518 F.2d 1399, 1403 (U.S. Ct. of Cust. and Pat App. 1975) ("adminis-trative agencies should be bound by their own rules and regula-tions, so that an agency's power to suspend its own rules pur-suant to a potentially all-inclusive waiver or suspension provi-sions, ... must be closely scrutinized especially where the sub-stantive rights of a party in the administrative process may be adversely affected.") As demonstrated below, Applicants have not met their burden of demonstrating that S 50.12 is satisfied here.
A. Applicants Have Not Demonstrated That Noncompliance ;
With the Exercise Requirement Would Pose No Undue Risk I to the Public Health and Safety.
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- 1. Applicants petition is nothing more than a bald attack on the onsite exercise requirement.
In order to qualify for an exemption under 10 C.F.R. S 50.12, Applicants must demonstrate, inter alia, that the proposed exemption "will not present an undue risk to the public health and safety." S 50.12(a). There can be no doubt that the Commis-
r sion considers the requirement for an onsite exercise within one year of licensing to be essential to protection of the public from undue risk. The requirement was part of the emergency plan-ning rule promulgated in 1980, when the Commission stated that its emergency planning requirements "are based on the sig-nifican>;o of adequate emergency planning and preparedness to ensure adequate protection of the public health and safety." 45 Fed. Reg 55,402 (August 19, 1980). The Commission also recently affirmed the importance of the timing of the onsite exercise when it refused to include onsite exercises in an amendment that extended the time for offsite exercises from one to two years before issuance of a full power license. As the Commission noted, it is important to exercise the many new personnel who may be retained in the last twelve to eighteen months before opera-tion, who nust be ready to carry out onsite emergency planning functions.2 52 Fed. Reg. 16,823, 16,825 (May 6, 1987). Given the importance of compliance with the onsite exercise requirement in assuring adequate protection of the public health and safety, no exemption may be granted unless the Commission finds that Applicants have demonstrated some other means of satisfying the regulation's purpose and providing an equivalent level of protec-l 2 Despite the fact that Applicants switched from a construc-tion mode to an operational mode in 1986, this rationale is applicable to Seabrook, where approximately half of the emergency response personnel have not participate in any exercise. See Applicants' Application at 2.
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I L tion.
Rather than' demonstrating the existence of additional measures to. compensate for the requested noncompliance with the exercise requirement, Applicants make a general claim that they-have already exercised the onsite-plan several times. However,-
as Applicants concede, approximately half of their operators have never participated.in an exercise. Applicants also attempt to discount the importance of. conducting'an additional onsite exercise by citing the purportedly high level of training and the
" depth" of experience of the Emergency Response' Organization.
However, NRC regulations already require that the members of the Applicants' emergency response staff must be trained. See 10 C.F.R. Part 50, Appendix E. Obviously, when it promulgated the regulation, the Commission considered that exercises were neces-sary in addition to training of staff. Applicants have offered nothing that 1s not already required by the regulations.
In'effect, Applicants are asking the Commission to determine, as a general matter, that the requirement to exercise the onsite staff shortly before licensing is unnecessary to pro-vide an adequate assurance of safety. The Commission, which only two years ago reaffirmed the importance of conducting the onsite exercise within a year of licensing, should not permit the evis-ceration of this requirement through an exemption for Seabrook.
- 2. The 1988 Exercise and Applicants' Operating Expe-rience To Date Demonstrate No Grounds for Granting An Exemption.
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Moreover,. Applicants' experience to date with the' June, E '1988, exercise and the low power test sharply contradicts its claims that its operators are prepared to handle an emergency at Seabrook. Following the exercise in June of 1988, Inspection <
Report 88-09, prepared by the NRC Staff observers of the exercise, concluded that the Technical Support Center and Emer-gency Operations Staff displayed " questionable engineering judg-
. ment-and/or did not address. technical concerns" in a number of important respects.3 Based on this Inspection Report, Inter-3 For example, the Inspection Report concluded that:
-- Neither the EOF or TSC staff questioned a release of grater.than 7000 curies per second with only clad damage.and no core urcovery;
-- 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.
Inspection Report 50-443/88-09, dated July 7, 1988, at 5. A copy of-this'1nspection Report is attached to the Massachusetts
- Attorney General's response to Applicants' exemption application.
Shortly following the submission by Interveners of a conten-tion on the problems identified in Inspection Report 88-09, (see note 4, infra), the Staff issued Inspection Report 88-10, in which an NRC Staff inspector who did not observe the exercise reversed the findings of I.R. 88-09. In a November 9, 1988, Memorandum in Reponse to Board Order of October 25, 1988, Inter-venors demonstrated that I.R. 88-10 was inconsistent and con-fused, and did not sufficiently address the problems identified in I.R. 88-09. While the Licensing Board ultimately dismissed Interveners' contention in LBP-89-4, 29 NRC 62 (1989), affirmed, ALAB-918, June 20, 1989, the conclusions of I.R. 89-09, on which the contention is based, are highly relevant to the question of
venors also submitted a contention to the Licensing Board chal-lenging the adequacy of Applicants' responses during the exercise to demonstrate that Applicants qualified for a low power operat-ing license.4 complete fail-Most disturbing in this regard is Applicants' 1989, low ure to even mention the disastrous results of the June, power test, in which reactor operators and managers ignored exceeded setpoints and continued to run the reactor, even after The test failure resulted repeated warnings from NRC inspectors.
in the unusually harsh sanction of suspending the low power license.
The NRC Staff is now also considering the imposition of "Seabrook Broke Safety fines on Applicants. Attachment 1, According to Rules," Washington Post, August 20, 1989, at A 13.
it NRC, had the same thing happened during full power operation, The "could have compromised plant safety." Attachment 1.
inspection team assigned to investigate the accident found
" safety significance" in the operators' and managers' behavior during the test, as well as the " apparent willingness of manage-ment to proceed with testing following the June 22nd occurence
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(continued) whether Applicants are entitled to a regulatory exemption.
or, In the Alterna-4 See Motion to Admit Exercise contention, While this tive, to Reopen the Record, dated September 16, 1987.
contention was later dismissed as a challenge to Applicants' affirmed, ALAB-918 operating license [LBP-89-4, 29 NRC 62 (1989),
(June 20, 1989)], the issues it raises are highly relevant to whether Applicants can sustain their heavy burden of qualifying for a regulatory exemption.
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without-first completing a thorough review and~ causal factor assessment." Egg Inspection Report 50-443/89-82, dated-July 28, 1989. Among the inspection team's serious criticisms were that the test revealed'a lack of adequate pre-test briefings, inadequate supervision in the control room, and a lack of recent training on the startup test program. Id., Encl. 2.
It is extraordinary _that Applicants, who claim to have fully assimilated and appreciated the significance of their errors, failed to discuss the relevance of these grave indications that
.its operators are not sufficiently trained or competent to respond.to an emergency at Seabrook. By itself, the failure to acknowledge the relevance of the low power test to the Applicants' petition is grounds for denying this petition, and raises serious questions regarding Applicants' qualifications to
-operate the Seabrook nuclear reactor.
B.' Applicants Have Failed to Demonstrate "Special Circum-stances" That Are,Either Cognizable or Sufficient to l Justify Granting an Exemption.
Moreover, the "special circumstances" alleged by Applicant j are so unremarkable and common to the regulated industry that to recognize them would allow the exemption to swallow the rule.
Every regulated utility faces the delays caused by legitimate litigation of safety issues in Section 189a hearings. Moreover, litigation does not occur automatically following an exercise --
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if the exercise is successful, there is nothing to litigate.
While, given their previous record, Applicants may understandably I
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fear that.another onsite exercise may result in failures that render them vulnerable to litigation, this is not a legitimate excuse'for avoiding the exercise.5 Equally important, none of Applicants' claims regarding the costliness of delays are cognizable under the Atomic Energy Act.
Egg Union of Concerned Scientists v. NRC, 842 F.2d 108 (D.C. Cir.
1987).- As discussed above, the Commission has already determined that' conduct of an onsite exercise within one year before licens-ing is.necessary for.the adequate protection of the public health and safety. Just as the costs to Applicants of complying with the onsite exercise requirement could not have been considered when it was promulgated, they may not be considered now in evaluating the merits of Applicants' wiu tur petition.
II. If the Commission Decides Not to Reject Applicants' Petition Out of Hand, It Should be Referred to the Licensing Board
.for a Hearing.
As discussed above, Applicants have failed to show any grounds for even considering their application to exempt Seabrook from the requirement to exercise the onsite emergency plan within a year before licensing. If the Commission should decide the l
5 In fact, in another case, the Commission has already estab-l i lished an alternative and less draconian means of avoiding a potential " endless loop" of exercise-related litigation similar to the one complained of here. In the Shoreham case, the Commis-sion established an expedited schedule for exercise litigation that was designed to accelerate the litigation while at the same time preserving the parties' rights under the Atomic Energy Act and the Administrative Procedure Act. 28 NRC at 570. See Long Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1),
CLI-88-9; 28 NRC 567, 570 (1988).
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application warrants further examination, however, it must offer the public an opportunity for a hearing on the change to the operating license application. Sge Union of Concerned Scientists
- v. NRC, 711 F.2d 370, 380 (D.C. Cir. 1983) ; Sholly v. NRC, 651 F.2d 780 (per curiam), vacated on other arounds, 459 U.S. 1194 (1983). In order to seek an exemption, Applicants should be required to modify their operating license application and submit it to the Licensing Board for the conduct of adjudicatory hear-ings. See Lona Island Liahtina Co. (Shoreham Nuclear Power Sta-tion, Unit 1), CLI-84-8, 19 NRC 1154 (1984).
If the Commission orders an adjudicatory hearing on this application, NECNP seeks the establishment of a schedule that would allow a reasonable opportunity for the formulation of con-tentions. In the short time available to respond to Applicants' petition, it has not been possible to conduct any meaningful research into the bases for the broad factual assertions made by Applicants in support of their m.otion. The documents that must be reviewed would include staffing records, training records, and inspection reports following exercises.6 The hearing schedule 6 While a greater opportunity is needed to investigate the factual bases offered in support of Applicants' petition, it should be noted that NECNP and other interveners have already identified a number of issues that would be relevant to the issuance of an exemption. In their contention on the 1988 exercise, filed September 16, 1988, and in their recently filed contention regarding the low power test, Interveners' Motion to Admit Contention, Or, In the Alternative, to Reopen the Record, and Request for Hearing, dated July 21, 1989.
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i should also allow for a reasonable period of discovery after the admission of contentions.
CONCLUSION The Commission should not allow its onsite emergency plan-ning regulations to be undermined by Applicants' broad claims that an onsite emergency planning exercise within one year of licensing is unnecessary. Nor should it accede to claims of hardship that are commonplace to the industry, and which result from the exercise of statutorily guaranteed rights of participa-tion in licensing decisions. To grant such a request would invite widespread requests for exemptions, with legitimate grounds for complaint if the same treatment were not given to all applicants. In effect, it would allow the exemption provisions in 10 C.F.R. 9 50.12 to swallow the rule.
Moreover, if Applicants have demonstrated anything over the last two years, it is that the successful completion of another onsite exercise is absolutely essential if the Commission and the public are to have any reasonable assurance that the Seabrook reactor can be operated safely. By itself, Applicants' failure to recognize this fact calls into serious question the depth of their commitment to safety and their qualifications to operate the plant at all.
pectfully submitted, M*
Diane Curran HARMON, CURRAN & TOUSLEY 2001 "S" Street N.W. Suite 430 Washington, D.C. 20009 (202) 328-3500 August 21, 1989
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- ATTACHMENT 1
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"- SUNnAY, AUGUST 20,1989 4 gg j i
Seabrook Broke Safety Rules ,
Boston Globe "O'perators had a specific require-BOSTON-The failure by Sea- nient" to shut down the plant "and brook nuclear plant operators to fol- did not do so," said Ebe McCabe, low their rules during low-power the NRC official who oversees fed- ,
have compro- eral inspectors stationed at the ;
tests in June inised plant safetycould,it if' had occurredNew llampshire facility. "That during different operating condi- omission . . . is unacceptable to us."
tions, the Nuclear Regulatory Com- McCabe said, however, that in nission said.
the stable conditions that existed The NRC, in its first exhaustive , during the low-power test, plant review of flawed operations at Sea- temperature and pressure never irook on June 22, listed six areas rose high enough on June 22 to where the plant apparently violated threaten the public. Ile said possi-federal safety rules. That many ci- ble NRC sanctions could follow tations typically result ,in penalties meetings early next month.
or other strong enforcement ac-tions, NRC officials said Friday.
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'89 NJG 22 R2:06 CERTIFICATE OF SERVICE grt i.
I certify that on August 21, 1989, copies df>Lthe' fore' going pleading were served by overnight mail or first-class l'Idail on all parties to this proceeding, as designated on the attached service list.
Diane Curran
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9 SEABROOK SERVICE LIST l -
Offsite Commission e
Atomic Safety and Licensing Calvin A. Canney Richard Donovan "Kenn:th M. Carr Board Panel City Manager TEMA Ch:innan US Ni. clear Regulatory Commasion City Hall 442 J.W. McCormack (POCII)
US Nuclear Regulatory Commission Washington,D.C 20555 126 Daniel Street Boston,MA U2109 l
l Washington,D.C 20555 Portsmouth, N11 03801
' Docketing and Service Branch Michael Santosuosso, Chairman
- Diomas M. Roberts U.S. Nuclear Regulatory Commusion Robert A. Backus, Esq. Board of Selectmen -
Commissioner Washington,D.C 20555 Backus, Meyer & Sotomon Jewell Street, RFD # 2 US Nuclear Regulatory Commission til 1mell Street South Hampton,NII 03842 Washington, D.C 20555 Judith IL Mizner, Esq. Manchester,NH 03105 Silverglate, Gertner, et al. Ashod N. Amirian, Esq.
- hmes R. Curtiss 88 Broad Street 'Sherwm E. Turk. Esq. 145 South Main Streci Commissioner Boston,MA 02110 Office of General Counsel P.O. Box 38 US Nuclear Regulatory Commission US Nuclear Regulatory Commission Bradford,MA 01835 l
l Wr.shington, D.C 20555 J.P. Nadeau Washington, D.C 20555 Town of Rye Diomas G. Dignan, Esq.
- Kenneth C Rogers 155 Washington Road H. Joseph Flynn, Esq. R.K. Gad II, Esq_
i Commissioner Rye,Newllampshire 03870 Office of General Counsel Ropes & Gray l . US. Nuclear Legulatory Commbsion TEMA One International Place Washington, D.C 23555 Senator Gordon J. ]!umphrey 500 C Street S.W. Boston, MA 02110 2624 1 Eagle Square. Ste 507 Washmgton,D.C 20472 J. Paul Bollwerk, Chair Concord, Nil 03301 Atomic Safety & Licensing George Dana Bisbee, Esq.
Appeil Board William Armstrong Geoffrey M. Huntington, Esq. _
US Nuclear Regulatory Comrs. Civil Defense Director Office of the Attorney General "By Overnight Mail Warhington,D.C 20555 10 Front Street State House Annex !
Enter,NII 03833 Concord. Nil 03301 Howard A.Wilber l Atomic Safety and Licensing Senatcr Gordon J. llumphrey Richard A.Hampe Esq.
Appeal Board US Senate Hampe and McNicholas US NRC Washington, D.C 20510 35 Picasant Street Washington, D C 20555 (Attn. Tom Burack) Concord, Nil 03301 Alzn S. Rosenthat Edward A. Thomas Gary W, llotmes, Esq.
Atomic Safety and Licensing TEMA Holmes & Elhs l Appeal Board 442 J.W. McCormack (POCII) 47 Winnacunnent Road US NRC Boston, MA 02109 llampton, Nil 03842 Washington,D.C 20555 Alfred V. Sargent Chairman Mrs. Anne E. Goodman Ivan W. Smith, Chairman Board of Selectmen Board of Selectmen Atomic Safety and Licensing Boai11 Town of Salisbury,MA 01950 13-15 New Martet Road US Nucicar Regulatory Commistion Durham, Nil 03S42 Washington, D.C 20555 Rep. Suzanne Breiseth Town of Harnpton Tails Jane Doughty Dr. Richsrd F. Cole Dnnkwr,ter Road SAPL Atomic Safety and Licensing Boart Hampton Talls,NH 03S44 5 Market Street US Nuclear Regulatory Commission Portsmouth,NII 03801 Washington, D.C 20555 Phillip Ahrens, Esq.
Assistant Attorney General John Traficonte, Esquire Kenneth A.McCollom State flouse, Station #6 Assistar.t Attorney General l Atomic Safety and Licensing Board Augusta,ME 04333 1 Ashburton Place,19th Floor US Nuclear Regulatory Commasios Boston,MA 02108 Wtshington, D C 20$55 Allen lampert Civil Defense Director Stanley W. Knowles Robert R. Pterce, Esq. Town of Brentowood Board of Selectmen Atomic Safety and Licensing Board Exeter,NH 03833 P.O. Box 710 US Nuclear Regulatory Commasion North flampton, Nil 03826 Washington, D.C. 20555 Paul McEachern, Esq.
Shaines & McEachern R. Scott Hill-Whilton Atomic Safety and Licensing P.O. Box 360 lagouls, Clark, Hill-Whilton Appett Board Panet Maplewood Avenue and McGuire US Nuclear Regulatory Commission Portsmouth,NH 03801 79 State Street Washington,D.C 20555 Newburyport,MA 01950 Sandra Gavuta 1 RfD 1. Box 1154 Diana Sid:botham j East Kensington, Nil 03827 RTD # 2 Box 1260 (
Putney,VT 05346 l 1
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