ML20247B563

Petition for Review of ALAB-918.* Appeal Board Decision Should Be Reviewed Based on Issues Raised by Intervenors Sept 1988 Onsite Exercise Contention Considered Significant Matters Affecting Public.W/Certificate of Svc

ML20247B563
Person / Time
Site:	Seabrook
Issue date:	07/10/1989
From:	Traficonte J MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE
To:	NRC COMMISSION (OCM)
References
CON-#389-8906 ALAB-918, OL-1, NUDOCS 8907240152
Download: ML20247B563 (13)

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DOCKEii:0 UNC L '89 JJL .I4 :P4 :00 i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIGN'. .

uuCr m COMMISSIONERS:

Kenneth M. Carr, Chairman Thomas M. Roberts Kenneth'C. Rogers James R. Curtis

) Docket Nos. 50-443-OL PUBLIC SERVICE COMPANY'OF .). 50-444-OL NEW HAMPSHIRE- ) (Onsite Emergency

) . Planning Issues)

(Seabrook Station, nits 1 and 2) )

) July 10, 1989 PETITION FOR REVIEW OF ALAB-918 INTRODUCTION Pursuant to 10 C.F.R. $2.786(b), the Massachusetts Attorney General (" Mass AG"), SAPL and NECNP (collectively the

" Interveners") petition for Commission' review of ALAB-918, the-Appeal Board's June 20, 1989 affirmance of.LBP-89-4, 29 NRC 62, the Licensing Board's denial of Interveners' September 1988 motion to admit an onsite exercise contention.

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ARGUMENT 1 1

I. THE CONTENTION FILED IN SEPTEMBER 1988 ON THE JUNE EXERCISE WAS NOT LATE-FILED AND SHOULD NOT HAVE BEEN SUBJECT TO THE FIVE STANDARDS OF S2.714(a)(1) AT ALL.

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Following the Licensing Board, the Appeal Board held that '

as a threshold matter the Interveners' June 1988 onsite l

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exercise contention was late-filed "because [it] was not filed i within the time constraints of the Commission's rule

[S2.714(b)]." ALAB-918, slip opinion at 11. According to the Appeal Board, these " time constraints" would have required that this contention be filed in the spring of 1982, 15 days prior to either a special prehearing conference or the first prehearing conference held after the notice of hearing. ( Te<

notice of hearing was published on October 19, 1981, 46 Fed.

Reg. 51330, setting November 19, 1981 as the date for filing a  !

request for hearing. A Licensing Board was constituted December 7, 1981. 46 Fed. Reg. 59668) l A. By prior practice the various Licensing Boards assigned jurisdiction over Seabrook licensing matters had modified these time constraints. Indeed, many contentions were filed in the year,s after 1982 in the Seabrook proceeding which were not subject to late-filed standards. In fact, if the 1/ All matters of law argued here were put before the Appeal Board in Interveners' February 13, 1989 brief or in oral argument on April 21, 1989 with the exception of argument based on post-April 1989 rulings by the Appeal Board and the Commission. These rulings were not available at the time the matter was submitted to the Appeal Board and, obviously, the Appeal Board was itself aware of them independently before June 20, 1989.

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Appeal Board's'" time constraints" were uniformally. applied in h

this proceeding', every emeroency plannino contention filed in l'986'(on the New Hampshire plan) and in 1988'(on the utility's

substitute Massachusetts plan and-the June 1988 exercise) was late-filed.

B. In~this specific instance, by order ~of August.19, 1988 p (memorializing in part rulings made at a prehearing conference l'

held on August 3 and 4, 1988) the Smith Board' set September 21, 1988 as the filing deadline for exercise contentions. Thus,

"[a]dditionalatime for filing the supplement [containing a list of contentions]" was granted in'this case and the September 16 filing was'not " late-filed."A# The Smith Board'had plenary

' jurisdiction over exercise issues. Subsequent NRC decisions indicate that the Smith Board: a) would have had jurisdiction over this contention; b) could have entertaine this contention along with other June 1988 exercise contentions; and c) may 2/. In granting such additional' time, the Smith Board should be

. deemed to have balanced the 5 standards in favor of such additional-time. Although logically there can only be one

'"first prehearing conference", there'may~be a series of special prehearing conferences and thus a series of filing triggers pursuantito 52.714(b). The timing of a special prehearing conference is 90 days after the notice of hearing "or such other time as the Commission or the presiding officer may deem appropriate." 10 C.F.R. S2.751a(a). Finally, at a special prehearing conference, the presiding officer may " establish a schedule for further action." These procedural regulations permitted the Smith Board during the August 3 and 4, 1988 prehearing conference to set the September deadline for contentions.

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Twell have thereby taken jurisdicti.on over.the issuance of'a low 1 l

k power license.1# Thus,'the deadline for filingLexercise o  ;

1 contentions was. September 21, 1988. Contentions filed on or

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before that date were treated as timely filed. Becausetthe litigableTissues raised in the onsite exercise contention run to both low-power and full-power, Interveners chose to file the

. contention with the Licensing Board which at the time appeared-

.to have jurisdiction over the issuance of the low-power-

. license.- If the Interveners had until September 21 to filo exercise contentions they did not waive that right by filing one"such contention on September 16 with a Licensing Board they

- reasonably believed had jurisdiction.over.the' low-power-6- license.A# The filing deadline set by the Smith Board was.

met.

3/ The Wolfe Board held in LBp-89-04 at 4 that the Commission gave it jurisdiction over'the subject matter of the September 1988.-motion in its December 21, 1988 decision, CLI-88-10.

However, in CLI-89-08 at 14 n.14, the Commission noted that CLI-88-10 "did not decide that the issue was one properly before the Onsite Board, but simply required that the Onsite Board decide it before low power." Subsequently, the Appeal Board'noted in ALAB-916'at 7-8 that.: 1) jurisdiction of the "onsite" Board in September 1988 was limited to the single issue'of public notification; and 2) the Smith Board had.

jurisdiction over exercise issues including those with "both full and low power' ramifications."

1/ It appears in retrospect that the Smith Board would have been the appropriate Board even if Interveners sought to litigate these issues prior to low nower as well as full power licensing. In light of the circumstances, Interveners should not be denied the benefit of a timely filing because they filed with what turned ou.t to be the wrong Board. Had the Interveners filed this onsite exercise contention with the Smith Board requesting that that Board assert jurisdiction over onsite issues And low power licensing, that Board would have undoubtedly refused to do so. Egg, e.g., Smith Board's July 22, 1988 Memorandum and Order (on SpMC Contentions), slip (footnote continued) x_-__-_-_____-___--__ _ -_

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t II.'BY TREATING THE CONTENTION AS LATE-FILED THE LOWER BOARDS VIOLATED THE ATOMIC ENERGY ACT.AND DENIED THE INTERVENERS i

' AN ADEQUATE OPPORTUNITY FOR A HEARING Assuming that'the Commission's procedural regulations

' require.that the September 1988 onsite exercise be treated as D

late-filed because it was not filed in.1982 pursuant to S2.714(b), such a result denies the Int'ervenors' rights to a j

hearing under S189a of'the' Atomic Energy Act ("AEA").

-A. Interveners had a right to litigate the June 1988 exercise because it is material to the Commission's licensing ,

decisions. Subjecting every contention arising out'of that exerr

1. automatically to the late-filed contention standard Egg UCS v. NRC, 735 impermissible burdens that hearing right.

F . 2 d ' 14 37 , 14 4 2-14 4 4 . As the Appeal Board noted in ALAB-918 at 14 (cit 9 tion omitted) "the lateness factors were placed in the rules to give the hearing boards ' broad discretion in the Automatically circumstances of individual cases....*"

subjecting the public's right to a hearing on all matters arising.after 1982 to such " broad discretion" is virtually indistinguishable from requiring that the record be reopened (footnote continued) j op. inion at 82-85 (distinguishing between onsite and its offsite jurisdiction); and Smith Board's May 22, 1989 ruling expunging 3 j

MAG-Ex 19 Basis D at Tr. 22,190 et sg2 Moreover, Interveners <

filed the September 1988 contention with the Appeal Board and the Commission noting in a letter to the Chairman of the Commission that a dispute over jurisdiction was anticipated.

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for exercise litigation which the UCS Court held violated the AEA.

The Appeal Board failed to persuasively distinguish UCS.

It interpreted the UCE holding as limited to those circumstances in which "a party's statutory hearing rights on a material licensing issue [ hinged] upon the agency's unfettered discretion to reopen the record." ALAB 918, slip opinion at 13 n.21 (emphasis supplied). But UCS rejected a . discretionary standard for a hearing not only an unfettered discretionary standard. In fact, the record reopening standard, like the late-filed standard is not an exercise in " unfettered" discretion. There are express criteri for both.E' Even as an exercise of " fettered" discretion, the Court expressly rejected the record reopering standard as a violation of the AEA. San _Luis Obisoo Mothers for Peace v. NRC, 751 F.2d 1287, 1312, 1316-1317 (D.C. Cir. 1984).

B. To the extent that Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041 (1983) mandates that the September 1988 contention be subject to a discretionary late-filed standard, then Catawba violates the AEA. It is not a reasonable procedural requirement to automatically subject every contention filed after 1982 to the l 5/ In 1984, when MCS and Mathers for Peace were decided, the record reopening standard was not codified at $2.734. 51 Fed.

Reg. 19535 (May 30, 1986). Nothing hinges on this because the codified standard in all relevant particulars was taken from then existing case law and remained discretionary.

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late-filed contention standard.N# "[N]o procedural requirement can lawfully operate to preclude from the very outset a hearing on an issue both within the scope.of the petitioner's interest and germane to the outcome of the proceeding. If it had'that effect, the requirement would not-merely be patently unreasonable but, as well, would render nugatory Section 189a hearing rights." ALAB-687, 16 NRC 460, 469 (1982).

III. INTERVENERS DID.MAKE OUT GOOD CAUSE FOR LATE-FILING A. Interveners did file the onsite exercise contention promptly after receipt of the' materials necessary to frame an admissible contention. The contention was filed 2 months after receipt of the July 15, 1988 Inspection Report and only 1 month after receipt of the exercise scenario documents. The latter documents were necessary to the September contention because the July 6 inspection report did not set forth in sufficient detail the exercise accident scenario and the exercise 1/ The Appeal Board misses the point when it asserts that the "UCS case does not prohibit placing reasonable procedural requirements upon the filing of late-filed contentions."

'ALAB-918, slip opinion at 13 n.21. The relevant question is how reasonable the requirements were which resulted in the contention being treated as late-filed in the first place.

Even if a procedural requirement were reasonable assuming a contention was late-filed, the NRC must act reasonably in determining which contentions are late-filed. Because the contention filed on the June 1988 exercise was considered automatically late-filed even though that exercise is material to licensing, the procedural requirements for a hearing on this exercise issue were nat reasonable.

2/ Space limitations prevent further argument that Catawba as interpreted and applied to this contention violates the AEA.

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r Lobj ect ives.. 'The contention and initial supporting' affidavit L .

p are basedi.. on an analysis'of accident scenario events and the-corresponding onsite' personnel responses which required detail not'available until the week of August 15,~1988 (Cf. . Inspecticia .

Report No. 50-443/88-09 at 3 Hith September 16, 1988 Pollard' Affi' davit.at 1T 10, 11 and 12.):

B. Interveners.also=had-good cause for late-filing because they relied'onlthe Smith Board's September 21 deadline.

for the's'ubmission of exercise contentions.

' IV. THE-APPEAL BOARD ERRED IN HOLDING.THAT THE ONSITE EXERCISE CONTENTION DID NOT MAKE OUT A FUNDAMENTAL FLAW

-Following its earlier decision;in~Shoreham, the. Appeal Board held that the exercise contention did not make out a

" fundamental flaw" 'in the onsite emergency plan because no "significant revision of the plan" would be necessary to correct the alleged flaw. In making this determination, the Appeal Board noted at 24-25: 1) that the contention concerns emergency operating procedures and not the emergency plan; 2) that supplemental training could be readily provided and thus such a deficiency would be "readily correctable"; and 3) training itself is not part of the onsite plan.

The Appeal Board's interpretation of a " fundamental flaw" as a flaw requiring a "significant revision of a plan," in turn

- understood.as an asserted defect in planning that is not "readily correctable" so limits the litigable. issues arising out of emergency exercises as to violate the hearing rights set

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forth in the-AEA. : Interveners' hearing' rights extend to the

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results of an emergency plan exercise to the extent those resultsLare considered by the NRC to be material to licensing.

-Exercise.results.are material.if they indicate deficiencies of

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such a nature and kindEthat would affect the decision to

- license. 'A serious deficiency in training 1as revealed by.an c exercise - 'for example, the absence of adequately trained L . -

L emergency staff'- .would obviously affect the decision to 1'

i license. Thus, such training deficiencies would be material L

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' and, therefore, litigable under UCS v. NRC and Lona Island Li.ghting Co (Shoreham Nuclear Power Station, Unit 1),

- CLI-86-11, 23 NRC 577, 581 (1986). The fact, if it is a fact, that training deficiencies might be "readily correctable" has

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- nothing whatsoever to do'with the materiality of such erarcise results. It would_be quite absurd for the NRC, having discovered through an exercise that' key emergency response staff are untrained, to ignore that fact in a licensing decision because of how easy it might be to train such staff.

And_if the NRC.quite properly would require corrective action prior to licensing then such exercise results are litigable.

The Appeal Board's additional pleading requirement for a fundamental flaw -- that an alleged planning defect not be "readily_ correctable" -- has no basis in logic or law.

CONCLUSION The Appeal Board's decision should be reviewed because the I

issues raised by the Interveners' September 1988 onsite j

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<, l exercise contention are significant.mattersLaffecting the public health and safety and'the disposition of that contention presents-several important procedural issues.

g ,. Respectfully-submitted, J A M E S' M'. SHANNON ATTORNEY GENERAL

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' John Traficdnte

. / Chief, . Nuclear Saf etyl Unit Public Protection Bureau One Ashburton Place' Boston, MA 02108 (617) 727-2200-m ONl BEHALF'OF:

NEW ENGLAND COALITION ON NUCLEAR POLLUTION Diane Currans;Esq.

Harmon, Curran & Towsley Suite'430 2001 S Street, N.W.

Washington, DC 20009' (202) 328-3500 SEACOAST ANTI-POLLUTION LEAGUE Robert A. Backus, Esq.

Backus,,Meyer & Soloman-116 Lowell Street' P.O. Box 516 Manchester, NH 03106 (603) 668-0730 l

Dated: July 10, 1989

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E UNITED STATES OF AMERICA '"ifNpf NUCLEAR REGULATORY COMMISSION I

'89 JL 14 P4 :00 In the Matter of ) Docket No h 0j4,4'3-OLh

) 505444-OL PUBLIC SERVICE COMPANY )

OF NEW HAMPSHIRE, _E _T _A _L . )

(Seabrook Station, Units 1 and 2) ) Jaly 10, l'989

)

CERTIFICATE OF SERVICE I, John Traficonte, hereby certify that on July 10, 1989, I made service of the within PETITION FOR REVIEW OF ALAB-918 by First Class Mall, by Federal Express as indicated by [*] or by hand as indicated by [**] to:

• Ivan W. Smith, Chairman *Kenneth A. McCollom Atomic Safety & Licensing Board 1107 W. Knapp St.

U.S. Nuclear Regulatory Commission Stillwater, OK 74075 East West Towers Building 4350 East West Highway Bethesda, MD 20814

• Dr. Richard F. Cole

• Robert R. Pierce, Esq.

Atomic Safety.& Licensing Board Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814

• Docketing and Service ** Thomas G. Dignan, Jr.

U.S. Nuclear Regulatory Commission Ropes & Gray Washington, DC 20555 One International Place Boston, MA 02110

• Sherwin E. Turk, Esq. Richard Donovan U.S. Nuclear Regulatory Commission FEMA Region 10 Office of the General Counsel 130 '228th Street, S.W.

11555 Rockville Pike, 15th Floor Federal Regional Center Rockville, MD 20852 Bothell, WA 98021-9796 w -_ - -_

N H. Joseph Flynn, Esq. Atomic Safety &. Licensing Assistant General Counsel- Appeal Board Office of General Counsel U.S. Nuclear Regulatory Commission Federal Emergency Management Washington, DC 20555 Agency 500 C Street, S.W.

Washington, DC 20472 Robert A. Backus, Esq. Atomic Safety & Licensing Board Backus, Meyer &-Solomon U.S. Nuclear Regulatory Conmission 116 Lowell Street Washington, DC 20555 P.O. Box 516

-Manchester, NH 03106 Jane Doughty Dianne. Curran, Esq.

. Seacoast Anti-Pollution League Harmon, Curran & Towsley  !

-Five Market Street Suite 430 i Portsmouth, NH 03801 2001 S Street, N.W.

Washington, DC 20008 Barbara St. Andre, Esq. Judith Mizner, Esq.

Kopelman & Paige, P.C. 79 State Street 77 Franklin Street' Second Floor Boston, MA 02110 Newburyport, MA 01950 Charles P. Graham, Esq. R. Scott Hill-Whilton, Esq.

Murphy & Graham Lagoulis, Hill-Whilton & Rotondi 33 Low Street 79 State Street Newburyport, MA 01950 Newburyport, MA 01950 Ashod N. Amirlan, Esq. Senator Gordon J. Humphrey 145 South Main Street U.S. Senate P.O. Box 38 Washington, DC 20510 Bradford, MA 01835 (Attn: Tom Burack)

Senator Gordon J. Humphrey John P. Arnold, Attorney General One Eagle Square, Suite 507 Office of the Attorney General Concord, NH 03301 25 Capitol Street (Attn: Herb Boynton) Concord, NH 03301 Phillip Ahrens, Esq. William S. Lord Assistant Attorney General Board of Selectmen Department of the Attorney General Town Hall - Friend Street Augusta,.ME 04333 Amesbury, MA 01913

• Alan S. Rosenthal, Chairman

• Thomas S. Moore Atomic Safety & Licensing Atomic Safety & Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway i l Bethesda, MD 20814 Bethesda, MD 20814 l I

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• Howard A. Wilber *Kenneth M. Carr Atomic Safety & Licensing Chairman Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 11555 Rockville Pike East' West Towers Building Rockville, MD 20852

.4350 East ~ West Highway Bethesda, MD 208140555

• Thomas.M. Roberts, Commissioner *Kenneth C. Rogers, Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852 Rockville, MD 20852

• James R. Curtiss, Commissioner U.S. Nuclear Regulatory. Commission 11555 Rockville Pike Rockville, MD 20852 Respectfully submitted, JAMES M. SHANNON ATTORNEY GENERAL l

l J-~ l dC c-dohn Traficonte

/dhlef, Nuclear Safety Unit v One Ashburton Place Boston, MA 02108 (617) 727-2200 I

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