ML20246E411
| ML20246E411 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 08/21/1989 |
| From: | Jonas J A, Shannon J MASSACHUSETTS, COMMONWEALTH OF |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20246E416 | List: |
| References | |
| CON-#389-9074 OL, NUDOCS 8908290123 | |
| Download: ML20246E411 (23) | |
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' UNITED STATES OF AMERICA
- NUCLEAR REGULATORY COMMISSION Y}i,j:
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BEFORE THE COMMISSIONERS:
'89 A$ 22 R2:02 -
Kennoth M. Carr, Chairman gp
! Thomas M. Roberts '*'
l Kenneth C. Rogers DOCdig. dy'/ f,' ,' ' + Ei
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James R. Curtiss In the Matter of ) Docket No.(s) 50-443/444"Ob/
) (Emergency Planning Issues)
L PUBLIC SERVICE COMPANY'OF'NEW )
l HAMPSHIRE, at 11 ) August 21, 1989 L' '
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Seabrook Station, Units 1 and 2) )
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l RESPONSE OF MASS AG TO APPLICANTS' APPLICATION FOR AN EXEMPTION FROM THE REQUIREMENT OF 10 C.F.R.~PART 50. APPENDIX E. SECTION IV F.1.
On August.11, 1989, the Applicants filed an application
("the Application") under 10 C.F.R. S 50.12(a) for an exemption i'l from the requirement'of 10 C.F.R. Part 50, Appendix E, S IV.F.1. that an onsite emergency planning exercise be-
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conducted within one year before the issuance of a full-power license for Seabrook.
The Application is an assault on public health and safety and an affront to the processes of this agency. Its most salient features ~are its startling. omission of material facts and its assumption that litigation over significant safety matters can be disregarded when tactically and financially convenient for the-Applicants.
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8908290123 890821 3 DR ADOCK 0500
b O o Missing.from the Applicants' recitation of staff experience and participation in exercises is any mention of the failed performance of the onsite staff the last two times they were tested. On June 22, 1989, the NRC suspended low-power testing at Seabrook when the onsite staff willfully disregarded operating procedures as well as the NRC Staff and attempted to minimize and inaccurately portray the event after the fact.
The NRC Staff has since characterized that behavior as l " unacceptable" and " safety significant" and has prohibited further plant operation until adequate corrective actions are L established. lOne year er.rlier, at the most recent onsite exercise at Seabrook, the NRC Staff concluded that the Technical Support Center ("TSC") and Emergency Operations l
Facility (" EOF") staff " displayed questionab)e engineering
- j. judgment and/or did not recognize or address technical concerns" in five critical areas. On top of all of this, the adequacy of the onsite plan itself is still very much at issue l in the SpMC litigation. The exercise should be repeated and the onsite staff carefully and fully scrutinized.
Equally disturbing is the Applicants' attempt to use the Application as a form of sanction for the Mass-AG's alleged impropriety of opposing the licensing of their nuclear power plant. Of course, no sanctionable behavior has occurred and, therefore, the Applicants cannot and do not seek formal ,
sanctions. If there is a problem to be fixed through the Applicants' extraordinary exemption request it is not apparent
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w l-from their papers. In fact, their real complaint appears to be that the Licensing Board may become so convinced of staff inadequacies as a result of their performance at the upcoming exercise that the matter could not be resolved for over nine months, running up against the next full-participation exercise.
7 ARGUMENT l
A. . The' Application Attempts To Resolve Disputed Factual Issues In Litigation _Before The Licensing HnArd And Is An Inacoropriate Use of 10 C.F.R. E 50.12.
I The tactic being employed by.the Applicants is transparent. They are attempting to resolve highly disputed factual issues regarding the training, experience and competence of their onsite staff outside of its appropriate forum -- the ongoing proceeding before the Licensing Board.
With their Application generally and with its specific request not to delegate its consideration to any subordinate board, Application at 2, the Applicants hope to persuade the Commission to leapfrog the administrative process by preempting 1
- ongoing litigation before the Licensing Board and resolving 1 l i hotly disputed facts without the requisite hearing under the Atomic Energy Act. The Commission should soundly reject that invitation.
L As a more narrow procedural matter, the Applicants have chosen the wrong vehicle for their request. The language of 10 C.F.R. S 2.758 indicates that it is the exclusive mechanism for l
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~ waivers or exceptions from Commission rules involving litigated matters-in ongoing adjudication. The provision itself is entitled " Consideration'of Commission rules and regulations in adjudicatory proceedings." Subsection (b) begins "[a] party to an adjudicatory proceeding involving initial licensing . . .
may petition .:. .. Other parties to the proceeding have a right to. file a response. 10 C.F.R. S 2.758(b). In contrast, L 10 C.F.R. S 50.12(a)'says nothing of ongoing adjudications or l
l parties thereto and does not explicitly permit a reply to exemption requests.. The comparison strongly suggests that the Commission ~, in promulgating the.two rules, created S 2.758 and not S 50.12(a) for issues already subjected to litigation.
In Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-86-24, 24 NRC 769, 774 n.5 (1986), the Commission allowed'a S 50.12 rather than a S 2.758 petition to proceed in an operating license proceeding because it was "not directly related to a contention in the operating license proceeding."
It went on to say that which provision should be used depends on the' circumstances of each case. Id. Egg Cleveland Electric Illuminating Co. (perry Nuclear Power Plant), LBp-85-33, 22 NRC 442 (1985), aff'd, ALAB-841, 24 NRC 64 (1986).
In this case, the training and performance of the onsite staff 1is very much the subject of ongoing litigation in the.
-agency. On July 21, 1989, the Interveners filed their contention concerning the onsite staff performance during low-power testing at Seabrook. There they put the subject of the Application here directly at issue:
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plant personnel's willful disregard of test procedures as well as' NRC notification of a violation, demonstrate serious-deficiencies in L
training and management; and raises serious safety concerns due to the poor' judgment of plant personnel, their' unwillingness to admit error,'and refusal to properly and timely respond to abnormal plant conditions.
The entire contention is attached to Exhibit A,'with incorporated bases in Exhibits D and E.
On May 31, 1989, prior to the close of the SpMC hearing,-
the Mass AG requested that the' Licensing Board hold open the l
record.pending, inter alia, the completion of the September, 1989 onsite exercise and the admission of acceptable contentions related to the exercise.1# While the Licensing Board denied the request, it did so only because it viewed itself as having " authority" to hear the matter. San SpMC Transcript pp. 28287-28290, attached as Exhibit C.
In addition and contrary to the Applicants' belief that the onsite plan has been found to meet all NRC criteria (Application at 8), the Licensing Board is now considering, as part of the SpMC litigation, two fundamental flaws alleged in the onsite plan. First, the Mass AG has' alleged defects in the Applicants' METpAC computer as a dose projection and dose comparison model. Those allegations raise "offsite aspects" of the.onsite plans under S 50.47(b)(5). Sam 53 Fed. Reg. 36958, 36960 (September 23, 1989) (NRC rule change on emergency planning requirements for low-power license). As the Mass AG stated in its proposed Findings of Fact, Rulings of Law and Conclusions submitted to the Licensing Board on August 14, 1989:
1/ That motion is attached hereto as Exhibit B.
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6.3.7. PAR generation and execution during the graded exercise revealed-. . . several fundamental flaws in the emergency plans exercised-requiring revisi'on.of those plans and a-remedial exercise. Specifically, all the plans rely to a significant extent on METPAC which: 1) ignores.groundshine as a component of dose; 2) ignores the already released radioactive time when it makes its dose savings
. comparison between evacuation and shelter; 3) cannot be effectively used to model windshifts even though windshifts are equal in importance to the duration of a release in calculating comparative doses; 4) does not reflect any
. realistic assessment of the actual sheltering.
available to the permanent Massachusetts population; and 5) contains outdated ETE information which is.not appropriately formatted to permit reasonable comparison of dose savings for a.given community.as between sheltering and evacuation.
Egg also Mass AG Proposed Finding 6.1.61.D.4.
Second, the Mass AG has put at issue, and the Licensing.
Board is currently considering whether the June 1988 exercise demonstrated fundamental flaws related to the inconsistency and incoherence of the precautionary beach closing criteria among the onsite plan,'the SPMC and the NHRERP. Egg Mass AG Proposed Findings of Fact 6.1.61.A-6.3.2.1.
Finally, the onsite staff's performance at the most recent exercise and with respect to non-beach closing issues is still
'in litigation before the agency. Egg cenerally, PSNH, CLI-89-08, 29 NRC (1989). On June 20, 1989, the Appeal Board affirmed the Licensing Board's rejection of the Interveners' contention. ALAB-918, 29 NRC . However, the Interveners petitioned the Commission for review of the Appeal
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'4 Board decision on July 10,.1989. The Commission ~ extended the.
time in which the Commission may review ALAB-918 to August 18, 1989.
In short, the performance, experience and training of onsite staff, the subject of the pending Application, is also the subject of ongoing litigation before the agency. The Commission should reject Applicants' invitation to intrude upon established litigative procedures by granting an exemption which may moot issues already under active consideration by the Licensing Board. Under the circumstances, the Licensing Board should'be given the opportunity to address the Application, in.
relation to'the issues before it in the SpMC. The mechanism for that is a S 2.758 waiver petition. For this reason alone, the S 50.12 Application should be denied.A B. The Applicants Have Not Shown And Cannot Show That The Exemption Will Not Present An Undue Risk To The public Health And Safety.
The Applicants' first burden is to demonstrate that their exemption is:
Authorized by law, will not present an undue risk to the public health and safety, and [is]
consistent with the common defense and security.
2/ In the Perry case, the Licensing Board concluded that the Applicants had no obligation to file a petition under S 2.758.
It ruled that way primarily because the petitioner's claim was not a S 2.758 claim -- that the regulatory requirement did not serve its underlying purpose in that case -- but rather a S 50.12 claim -- that compliance would result in costly delays in operation. 22 NRC at 445. In this case, the Applicants have made a S-2.758 argument and are obligated to pursue a S 2.758 petition.
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10 C.F.R. S 50.12(a)(1). They fail to do so. Recognizing that the principle issue is whether granting their request would present an undue risk to the public health and safety, they equate that factor with the " adequacy of the onsite emergency plan itself and the ERO's implementation thereof." Aeolication at 8. . They argue that the Licensing Board's Partial Initial Decision, LBP-87-10, 25 NRC 177, approved the onsite emergency plan and that the plan has been successfully exercised three times since.1986. Therefore, they conclude, it would be'"of marginal utility" to hold another exercise.
'Of course, the plan itself has not been approved.
Important' features such as the adequacy of the METPAC system and'the precautionary beachiclosing criteria are still very much in doubt and.are being considered in the SPMC proceeding.
The performance of onsite staff at low power testing and the June 1988 exercise demonstrated fundamental deficiencies in the onsite staff and raised serious and current concerns about the safety of plant operation. Those events, ignored by the Applicants here, not only doom their arguments for an exemption, they present a paradigmatic case for holding another
' exercise.
On June 22, 1989, with the reactor running at approximately 3% of full power, plant operators were performing a natural ciculation test (1-ST-22). At approximately 12:26 p.m. steam dump valve MS-PV-3011 went full open. The pressurizer level, l.
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which.had been slowly. decreasing, continued to decrease due to cooling of the primary side by steam released through the l stuck-open. steam dump. valve. At approximately 12:29 p.m.,
pressurizer level. decreased-below 17%, which according to the requirements of the test procedure required a manual: trip of the reactor.A#
On three separate occasions, NRC personnel notified NHY personnel that the reactor should be tripped. .First Minor /Sho11v Affidavit T 10. Senior supervisors and management personnel were aware of the problem and initially refused to shut'the reactor down. The reactor was not tripped until 12:36 p.m. when the Unit Shift Supervisor ordered a manual trip in anticipation of exceeding a manual trip criterion of 2340 psig pressurizer pressure. First Minor /Sholly Affidavit T 10.
After the incident, senior management personnel at NHY provided inaccurate and incomplete information to the NRC, refused to acknowledge the seriousness of the procedural non-compliance and even suggested restarting the reactor ~ prior to the resolution of these issues. NHY Manacement Effectiveness Analysis Reoort, NHY Performance During and Following the Natural Circulation Test of June 22, 1989, issued July 10, 1989, at 24-26, attached as Exhibit E-.
The deliberate failure to follow test procedures and the lack of candor by management in the post-event period were 3/ These matters are explored in a July 21, 1989 dpiat Affidavit of Grecory C. Minor and St.evgp C. Sholly ("Elisi Minor /Sholly Affidavit"), attached as Exhibit D.
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l significant enough to the NRC that it suspended Applicants' low power license prior to the completion of the testing.
Confirmatory Action Letter (CAL) 89-11, June 23, 1989, attached as Exhibit F. This suspension remains in effect pending the establishment of adequate corrective actions. Id.
The NRC Staff's review of these events appears in Inspection Report No. 40-443/89/82, released on August 19, 1989 and attached as Exhibit G. The report confirmed the events as described above and added the following:
- 1) "[p]lant equipment was not ready to support the June 22nd test" (an open work order for the valve existed);
- 2) training for the natural circulation test had not been conducted recently enough;
- 3) the pre-testing briefing conducted by the Testing Director was inadequate; and
- 4) the Shift Supervisor did not effectively supervise the test and the overall direction of the test was inadequate.
Most important, the inspection team reported that both the flawed performance of the staff and management during the test and management behavior after the test were " safety significant." As the team concluded "[n]either shift operator, the key test group personnel nor the managers present in the control room during the June 22nd test demonstrated an adequate understanding (of the need for strict adherence to procedures I during these tests]." Report No. 50-443/89-82 et 7-8, i
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29-30.A#
On July 7, 1988, tho NRC Staff issued Inspection Report No.
50-443, 88-09 assessing TSC and EOF staff performance at the June 1988 onsite exercise. The Staff concluded that in five major respects NHY staff " displayed questionable engineering judgment and/or did not recognize or address technical concerns." NRC Staff Inspection No. 50-443/88-09, attached as Exhibit H. The Staff later reversed field after the Interveners moved to admit a contention based on the poor performance. NRC Staff Inspection Report No. 50-443/88-10.
The Interveners submitted two affidavits of Robert pollard to the Licensing Board which demonstrated both that the exercise revealed serious deficiencies in the knowledge and training of TSC and EOF staff on criticcl matters and that the NRC Staff's explanations for reversing itself were technically baseless.
4/- Two months earlier, Inspection Report 89-3 (2/28/89-4/24/89) had identified a series of incidents which
" highlighted a potential reduction in attention to detail in the conduct of routine plant operations."
Two involved failures to properly position and lock a valve to prevent potential boron dilution of the reactor coolant system. Another concerned the generation of a reactor trip signal when steam generator levels were allowed to drop to the trip setpoint while in wet layup. A fourth event involved the inadvertent opening of a pressurizer power operated relief valre during I L C testing. While none of these incidents had significant safety impact, they may indicate a potential weakness in what has been to date, an excellent operating record.
See First Minor /Sholly Affidavit 1T 24, 25.
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Sgg Affidavit of Robert Pollard and Second Affidavit of Robert Pollard, attached as Exhibits I and J.E#
In short, NHY; personnel have utterly failed in their.two most recent attempts to demonstrate adequate onsite planning and staffing; Far from being of " marginal utility" another exercise prior to licensure is critical to avoiding undue risk to'public health and safety. For this reason alone the
- Application should be denied.E#
C. No Special Circumstances Warrant An Exemotion.
- 1. Application Of The Regulation In These Circumstances Would Precisely Serve The Purpose Of The Rule (E 50.12(a)(2)(ii) is not met).
In its rule change to. extend from one'to two years the time within which a full participation exercise must be conducted prior to full-power operation, the Commission expressly rejected 5/ The rulings of the_ Licensing Board refusing to admit the Interveners' contention and the affirmance by the Appeal Board were based only on timeliness grounds. LBP-89-04, 29 NRC 62 (1989), aff'd ALAB-918, 29 NRC (1989). Given the procedural posture of the Interveners' motion to admit the contention and/or reopen the record the Boards could not have addressed the merits of the matter. Therefore, those rulings do not affect the significance of the factual issues raised by the contention and the Pollard Affidavits. These issues are very much alive and must be considered by the Commission in ruling on the Application. When so considered, the Commission will. conclude that the June 1988 onsite exercise was a dismal
-failure and an exemption from repeating it prior to full power licensure would pose a substantial risk to public health and safety.
5/ To obtain an exemption, Applicants must meet the requirements of S 50.12(a)(1) and the special circumstances under S 50.12(a)(2). Egg 50 Fed. Reg. 50764, 50765 (December 12, 1985).
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a proposal to similarly alter the timing of the onsite 1
- exe'rcise. . 52 Fed. Reg.. 16823 (May 6, 1987). That alone should
. be sufficient to reject.the Application. I In addition, The: Commission articulated the purposes of the one year onsite exercise. rule.- Those purposes would be l
l particularly well served by applying the rule to Seabrook's questionable onsite staff.
The purposes are:
'l) to. ensure that the licensee's new personnel are adequately and promptly trained and thLt existing licensee personnel maintain'their emergency response capability; 2).to have pre-operational emergency planning exercises.as close as practicable to the time of licensing; and
- 3) to provide an additional measure of public safety in light of the diminished frequency of full participation exercises.
Sag' generally, 52 Fed. Reg. 16823 (May 6, 1987).
.ith respect to the'-first purpose, the Applicants maintain that it would not be served because their staff is not newly L -
hired and many have been exercised before.
Aeolication at 11.
The Applicants simply ignore Commission language unhelpful to their position. The purpose is to maintain the capability of existing personnel as well as to train new personnel. That purpose would be well served by another exercise before licensing, particularly in light of the recent performance of those individuals. Moreover, as the attached Second 1
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LMinor/Sholly' Affidavit (Exhibit K)1# demonstrates, the p
7 experience of existing'Seabrook personnel is not nearly as L , impressive as the Applicants would have the Commission believe.. In the key decisionmaking positions, more than half 1'
of the ERO staff have not participated in'an_ERO exercise in their position; more than one quarter have'not participated'in
'any role; and less'than 40% participated in the June, 1988 exercise. Second Minor /Sholly Affidavit 11 12, 14. Finally, the management shakeup said to have occurred as a result of the test failures provide additional justification for holding the exercise prior.to licensure. Id. 1 13.
'With respect to the second purpose, the Applicants again make their arguments by ignoring Commission language. The Commission's' desire is:to have grg-operational exercises as close as practicable to'the time of licensing. 32 Fed. Reg. at 16825. . The explicit and obvious context of the rule change and the reaffirmance of the one year rule for onsite exercises is pre-licensing. Egg generally 52 Fed. Reg. 16823. The Commission views the results of these exercises as material and relevant to licensing. Egg id. at 16824 (with UCS v. NRC, 735 F.2d 1437 (D.C. Cir. 1984), cert denied, 460 U.S. 1132 (1985)
"it has become necessary to permit litigation in contested proceedings over the results of pre-licensing exercises.").
2/ Joint Affidavit of Grecorv C. Minor and Steven C. Sholly Regardino Aeoligants' 10 CFR 50, Accendix E.Section IV.F.1.
Exemotion Recuest To Defer Conduct of An Exercise Of The Onsite Emeroency Plan For Seabrook Station, dated August 21, 1989.
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Holding exercises'the-results of which provide information-important to.the agency for its' licensing decisions after that decision has been made obviously makes little sense.
Third, the Applicants. completely ignore that the Commission viewed the one year requirement as an important safety measure necessary to justify its liberalizing the timing of the full participation exercise amendment. San 52 Fed. Reg. at 16825
(" freedom" of licensees limited by one year rule); 16826 i
(changes in emergency procedures would be tested yearly for onsite plans); 16827.(Commission still supports principle of holding exercises close in time to commercial operation as indicated by retention of one year rule for onsite exercises).
The last full-participation.- exercise for Seabrook was held fourteen months ago. That exercise will be even more distant
-in the past before a full-power license could issue. With unpracticed offsite authorities another onsite exercise before licensure-is all the more important.E#
Finally, this is a special circumstance related to the nature of the Seabrook organization which makes application of the rule even more compelling. The offsite plan for Massachusetts is utility sponsored and relies on New Hampshire Yankee's Offsite Response Organization ("NHYORO"). One of the H/ It is also notr aorthy that the Applicants' request is open ended. Should the license not issue until June, 1990, the onsite staff.will have been untested for two years. Judging
'from the Application, the Applicants would also request an exemption from the full-participation exercise, leaving offsite authorities similarly unpracticed. Egg Application at 14.
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.e reasons-for liberalizing the full-participation exercise C requirement was that emergency organizations _offsite.were assumed to be well practiced.with " ongoing responsibilities for all types of emergencies." 52 Fed. Reg. at 16825. That.is not the case for.NHYORO, which has no responsibility beyond radiological' response. The yearly onsite exercise is needed to
' balance against this lack of practice.
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- 2. Any Hardship Associated With Compliance Is Neither Undue Nqr Excessive (C 50.12(a)(2)(iii) is not met).
The Applicants' claim of undue hardship is that litigation on a September, 1989 exercise could not be completed before June 29, 1990, when the next-full-participation exercise would be held. They would then be forced to defend any attempt to litigate the results of that exercise as well. Acolication at 12-14. They argue that had the Commission been aware of a situation like this in 1987, it would have changed the onsite exercise rule as well as the full participation rule. The argument lacks any foundation whatsoever, and, when stripped to its essence, is little more than an expression of unhappiness with a process that gives nuclear plant opponents adjudicatory rights.E' 2/ It was unnecessary for the Applicants to attach the colorful quote of Attorney General Shannon to their papers.
Egg Application at 13 n. 22. If there is one undisputed fact in this proceeding it is that the Mass AG opposes the licensing of Seabrook. Surely the Applicants understand by now that the Mass AG hopes to prevent licensing by winning this case.
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, jf* Thel 1987 rule change-could not 7 have been. clearer on'this
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- ', The Commission has not-based its acceptance of-the two;yearLrequirement-for_ holding a full
-participation; exercise on the time needed>to litigate the results of such exercise. Rather, as indicated above and in response to comment
.#.11, the Commission has-determined'that a two-year cycle is.an appropriate: Period of~ time for holding full participation exercises.
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52 Fed. Reg. at.16827. The Commission properly avoided a
-rationale at odds with the hearing rights in S 189a.of the Atomic Energy Act. The rule change was based on technical conclusionsland not on dissatisfaction with the pace'of litigation. As a corollary, the Commission did not retain the one:. year'requirment for onsite exercises because it viewed the length of litigation for those exercises as acceptable. . It'did so'only.because the one-year cycle was a technically
-appropriate period of time for holding those exercises. Sam" Part C(1), suora.
Moreover, the situation hypothesized,by the Applicants has three questionable assumptions, none of which the Commission can properly entertain. First, the Applicants assume that the Licensing Board will approve the SpMC in all respects.
Application at 9. By-accepting that assumption the Commission
.would prejudge the results of the hearing without having heard a single witness or reviewed a single document. That result would make a mockery of the hearings and the Interveners' due process rights. Second, the Applicants assume that the Interveners' appeal of LBP-88-32, the Licensing Board's 3
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= decision on the New Hampshire Emergency Response Plan would be roundly unsuccessful. Again, the Commission is in no position to and could not properly speculate on the outcome of the appeal before the Appeal Board. Third, the Applicants assume that the. litigation of the onsite exercise could not be completed for nine months. Bf doing so they show little faith in a set of rules which severely limit the opportunity of L ' Interveners'even to get to a hearing, particularly in light of 1
recent rule changes restricting the admissibility of contentions and the " fundamental flaw" standard for exercise contention admissibility, 54 Fed. Reg. 33118 (August 11,.1989);
'Lono Island Lichtino Co. (Shoreham Nuclear Power Plant),
ALAB-903, 28 NRC 499 (1988). If the Interveners were successful in reaching a hearing on the upcoming exercise it
'would be because the exercise raised genuine safety concerns.
The_ Commission simply cannot accept the Applicants' third assumption without concluding that the lengthy litigation would !
be needed to address problems with the exercise.1E#
i 1D/ The Applicants make a halfhearted attempt to resolve an inherent but obvious inconsistency between their arguments here and their argument before the Licensing Board that the Mass AG has no right to litigate the onsite. exercise before full-power. 'Acolication at 16 n. 26. Obviously, if they really believed that claim there would be no need to press for an exemption based on their " endless loop" of litigation theory.
As'the Commission itself put it in the 1987 rule change, "With regard to. litigation [ sic] the results of the exercise, under UCS v. NRC, 735 F.2d 1437 (D.C. Cir. 1984), it is clear that the results of exercises are litigable in the operating license proceeding, irrespective of when those exercises are held, so long as holding of an exercise is a pre-license requirement." 52 Fed. Reg. at 16827. In CLI-89-08 at 11, the Commission specifically ruled that an admissible contention on an onsite exercise would be litigated in the full-power proceedings.
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.,A The. Applicants' concerns about, delay costs are in reality m
complaints'that the agency's adjudicatory processes serve no U purpose.11 _Their frustration is understandable but cannot-be, permitted to prevail over legitimate safety issues raised by the public'in the only manner permitted by agency rules -- in litigation.
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- 3. The public Interest Is Not Served By An E
Exemotion ($ 50.12(a)(2)(vi) is-not met).
Implicitly. proclaiming themselves spokesmen for the "real" public interest, the Applicants equate it, cor.veniently, with getting Seabrook on line. As an initial matter, the need for the power'to be supplied'by a nuclear plant is not a proper consideration in a S 50.12(a) application. That issue is relevant only for an exemption request brought under S 50.12(b) l related to the issuance of a construction permit. The Commission could easily have made power needs relevant to a S 50.12(a) application but chose not to do so.
As'the Appeal Board said 16 years ago:
[ nepal is in sharp contrast to the scheme of the Atomic Energy Act. Though prospective
!, endangerment of the environment-(even if substantial) may not provide an irreparable obstacle to the licensing of a nuclear power facility, public health and safety is an entirely different matter. .Unless the safety findings prescribed by the Atomic Energy Act and the regulations can be made, the reactor does not obtain a license -- no~ matter how badly it may be needed.
1 L ll/ The Commission should also note that the Applicants are i attempting to take advantage of their own delay. They were not I required to schedule the onsite exercise for September 30, 1989 and could have scheduled it earlier in order to avoid the litigation delay they fear.
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Maine Yankee Atomic0 Power-Co.-(Maine Yankee Atomic Power Station), ALAB-161, 6 AEC.1003, 1007 (1973) (emphasis added).
'More fundamentally, neither the affidavit of the-CEO of New Hampshire' Yankee nor the affidavit of James Watkins, accurately depicts the current power situation in New England. Neither Mr. Brown nor Admiral Watkins reveals that NEPOOL had excess capacity this summer to sell to neighboring grids; that power usage is up just 0.9% in 1989; that a consortium of New England utilities are working on a significant energy efficiency project'which will further reduce demand; and that as recently as'one week ago'one area utility received over 10 times what it had. requested in cogeneration bids. Egg aenerally attached affidavits of Sharon Pollard, Secretary of Massachusetts Executive Office of Energy Resources.(Exhibits L and M).
Finally, Mr. Brown understandably ignores a New Hampshire Business and Industry Council survey which demonstrates that the price for Seabrook's expensive power will be a vast number of businesses leaving the region. Exhibit L 4 9. The region does not need and can ill-afford Seabrook's power.
D. In Order To Comply With The Atomic Energy Act Hearina Richts Must Attach To The Application.
The attempted use of the exemption mechanism here provides a powerful example of the need for an adjudicatory hearing on an exemption request in order to be consistent with S 189a of the Atomic Energy Act. As the Commission held in Carolina j Power & Liaht Co. (Shearon Harris Nuclear Power Plant).
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CLI-86-24( 24 NRC2 7691(1986) the-crucial factor in determining whether a. hearing should be granted on an exemption request.is b
whether,there are material.issuesEof fact. In this: case, material issues.of fact exi'st on every factual claim raised'by the Applicantsi
- 1) the adequacy of the onsite plan;
'2) the adequacy'of staff performance in prior tests and exercises;
- 3) th'e adequacy of experience levels.of onsite personnel; and
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T 4) the'needs for.Seabrook power in the region.
With the exception of number 4) every issue is in litigation before the' agency on'a hotly disputed _ factual' record. The hearing rights'of the Interveners in ongoing litigation as well as the adjudicatory: processes of the agency would be destroyed by granting the Application.12 The Mass-AG does'not want to add another layer of litigation on an already enormous and
' complex case. But if this exemption is to be seriously considered, it must be done in the context of a full hearing.
where the factual-issues can be fully, although regrettably redundantly explored. At that hearing, issues which.have been-or'will shortly be presented elsewhere in the agency would be-presented again. Yet another litigation front will have been 12/ It.is not lost on the Mass AG and should not be lost on' the Commission that the Application calls upon the Commission not.only~to preempt but to prejudge virtually every aspect of the Seabrook litigation, none of which is before it. A more arbitrary and capricious result could hardly be imagined.
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~1 created,' and for'.little reason. However, if'the-Commission intends-to go down this path, the~ Mass AG must and'hereby does,-
formally' request'a full hearing on the matter, beginning with a scheduling order for the submission.cf contentions. The Applicants'will have created.the very " mischief" about which they.so' bitterly complain..
CONCLUSION' The Application should be denied.
Respectfully submitted, JAMES M. SHANNON ATTORNEY GENERAL Stephe6 X onas Deputy A rney.. General .
Chi.ef, P lic Protection Bureau-Matthew T. Brock Assistant Attorney General Nuclear Safety Unit' One Ashburton Place Boston, MA 02108 (617) 727-2200
.Date: August 21, 1989
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9 EXHIBIT A
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