ML20247F276
| ML20247F276 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/24/1989 |
| From: | Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#289-8659 CLI-89-08, CLI-89-8, OL, NUDOCS 8905300040 | |
| Download: ML20247F276 (52) | |
Text
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- g65'1 UNITED STATES OF AMERICA
!GC W "I'
NUCLEAR REGULATORY COMMISSION MAY 24 P2 :51 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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Docket Nos 50-443 OL PUBLIC SERVICE COMPANY OF
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50-444 OL NEW HAMPSHIRE, et al.
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Off-site Emergency Planning
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(Seabrook Station, Units 1 and 2)
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4 NRC STAFF'S RESPONSE TO MASS AG'S MOTION FOR DIRECTED CERTIFICATION OF THE LICENSING BOARD'S ORAL RULING OF MAY 22, 1989, DISMISSING CONTENTION 19 (D) f.
,T 3
9 Sherwin E. Turk Counsel for NRC Staff May 24, 1989 l
hh53OOO40D90524 0
ADOCK 05000443 PDR 3 501
l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF 50-444 OL L
.NEW HAMPSHIRE, et al.
Off-site Emergency Planning (Seabrook Station, Units 1 and 2)
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NRC STAFF'S RESPONSE TO MASS AG'S MOTION FOR DIRECTED CERTIFICATION OF THE LICENSING BOARD'S ORAL RULING OF MAY 22, 1989, DISMISSING CONTENTION 19 (D) c.
Sherwin E. Turk Counsel for NRC Staff
.May 24, 1989
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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Docket No. 50-443 OL
'PUBLIC SERVICE COMPANY OF
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50-444 OL NEW HAMPSHIRE, et al.
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Offsite Emergency Planning
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(Seabrook Station, Units 1 and 2)
)
NRC STAFF'S RESPONSE TO MASS AG'S MOTION FOR DIRECTED CERTIFICATION OF THE LICENSING BOARD'S ORAL RULING OF'MAY 22e 1989, DISMISSING CON 7ENTION 19 (C)
On May 23, 1989, the Massachusetts Attorney General (Mass AG) filed a motion seeking directed certification of the Licensing Board's oral ruling of May 22, 1989, in which the Board dismissed Contention MAG Ex-19; and the Mass AG requests that the Appeal Board stay the effect of the Licensing Board's action pending Appeal Board review of the instant Motion. 1/ 'The NRC Staff files this response pursuant to the Appeal Board's Order of May 23, 1989, requiring responses to be filed by 9:00 AM on May 24, 1989.
For the reasons set forth herein, the Staff opposes the Motion and recommends that it be denied.
Background
.An NRC/ FEMA graded exercise of emergency plans for Seabrook Station was conducted on June 28-29, 1988. Contentions addressing the adequacy of
-1/
" Motion of the Attorney General of Massachusetts for Directed Cert-ification of the May 22, 1989 Order of the Licensing Board Granting the Applicants' Oral Motion to Reconsider the Admissibility of MAG Ex-19 Basis D and Rejecting That Contention for Lack of Jurisdiction Over the Issues Raised Therein" (" Motion"), dated May 23, 1989, at 3.
L i
1 the offsite emergency plans, as demonstrated in the exercise, were filed q
'before the Licensing Board considering offsite emergency planning issues on or'before September 21, 1989, pursuant to a schedule previously adopted by that Board.
For his part, the Mass AG filed a lengthy set of contentions addressing offsite emergency planning issues, including MAG J
Ex-19 (Attachment I hereto); 2_/ the Mass AG also filed a contention before the onsite Licensing Board primarily focusing on the performance of on .e personnel in assessing plant conditions during the exercise.
Responses to the contentions before the offsite Board were filed by the Applicants on q
September 28, 1988, and by the NRC Staff on October 13, 1988.
In their response, the Applicants asserted, inter alia,'that MAG Ex-19(D) raised an on-site planning issue and thus constituted an unwarranted attempt to reopen a closed record. 3/ The Mass AG' filed a reply on October 24, 1988, i
'in which he asserted that the contention was admissible because it 1
challenged the Applicants' onsite plans for issuing offsite protective actionrecommendations.S/ On December 15, 1988, the Licensing Board 1
-'2/
" Massachusetts Attorney General's Exercise Contentions Submitted in Response to the June 1988 Seabrook Initial Full-Participation Exercise" (" MAG Contentions"), dated September 21, 1988.
-3/
" Applicants' Response to Interveners' Contentions on the June 1988 Seabrook Exercise" (" Applicants' Response"), dated Sep+. ember 28, 1988, at 68.
4/
" Reply of the Massachusetts Attorney General to the FJ:sponses of the NRC Staff and the Applicants to the Massachusetts Attorney General's
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Exercist Contentions" (" MAG Reply"), dated October 24, 1988, at 54.
.__ ---__ _ - - _ - issueditsOrderontheadmissibilityofexercisecontentions,E/
admitting MAG EX-19 (limited to Bases A, B, and D) (Attachment 2 hereto).
Hearings on the admitted exercise contentions are currently in progress before the offsite Licensing Board. Testimony addressing the merits of MAG Ex-19 has been pre-filed by the Applicants, Staff and Mass AG, and is scheduled to be offered and examined in June 1989.
On May 18, 1989, the Commission rendered a Memorandum and Order (CLI-89-08) denying three motions seeking to stay the issuance of a low powerlicense.5/ Therein, the Commission reviewed the litigative record 1
with respect to the resolution of low power issues, and noted that every issue which che Interveners had raised concerning low power operation.
save one -- the onsite Licensing Board's rejection of the contention challenging operator performance during the exercise -- had already run the full course of appellate review within the agency.
Id. at 2.
The Commission noted that only appellate consideration of the onsite Licensing Board's rejection of the exercise contention remained to be completed, and that the Interveners had failed to show either (1) that they were likely to prevail on the merits in their appeal from the rejection of that contention or (2) that they would be irreparably injured by the issuance of a low power license; further, consideration of other relevant factors
-5/
" Memorandum and Order (Ruling on June 1988 General Exercise Contentions)",datedDecember 15, 1988. Two subsequent Orders, not relevant here, were issued by the Board on January 13, 1989, with respect to the admissibility of certain other contentions not including MAG Ex-19.
6/
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-89-08, 29 NRC (slip op., May 18,1989).
~
,\\
_ - - _ _ _ - - _ _ _ _ favored tF3 denial of the stay applications. Accordingly, the Commission denied tne Interveners' stay requests, and authorized the issuance of a low power license -- subject only to a brief housekeeping stay due to expire on or before May 25, 1989.
Id. at 29.
Faced with the imminent issuance of a low power license, on May 22 1989, the Interveners filed a petition seeking Commission reconsideration of CLI-89-08.
In support of their petition -- filed some eight months-after the Mass AG had filed Contention MAG Ex-19 -- the Interveners asserted for the first time that:
[T]here exists at present in the full power proceeding.
before the Atomic Safety and Licensing Board a contested issue that is material and relevant to the issuance of a low power license. As such, any low power licensing decisiopmust wait upon a decision on the merits of this issue.
In essence, the Interveners have now asserted to the Commission that the offsite Licensing Board's consideration of MAG Ex-19(D) constitutes a bar to issuance of a low power license, because the Applicants' METPAC computer model used in formulating protective action recommendations has "offsite aspects".
Reconsideration Petition at 3.
According to the Interveners, this contention " alleged that a fundamental flaw in the onsite plan had been revealed by the June 1988 exercise." Id.; emphasis in original.
1 i
7/
" Interveners' Motion for Reconsideration of CLI-89-08 and Renewed Motion for A Stay of the Issuance of A Low Power License in Light of the Present and Ongoing Litigation of An Issue Material to the Issuance of A Low Power License in the Full Power Proceeding"
(" Reconsideration Petition"), dated May 22, 1989, at 1-2.
l 1
L-mm___.____________________________._
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, Based upon the Interveners' statements in their petition before the Comission, on May 22, 1989, the Applicants presented an oral motion seeking reconsideration by the offsite Licensing Board of its December 15 decision admitting Contention MAG Ex-19(D).
In brief, the Applicants renewed their objection to the contention's admissibility on the grounds that the offsite Board lacked jurisdiction to consider the adequacy of low power issues -- which the Interveners now appeared to have asserted was the thrust of the contention. Tr. 22178-81, 22200, 22210-11, 22219-20 (Dignan). Upon consideration of argument by the Mass AG and Counsel for Applicants, the Licensing Board ruled that it lacked jurisdiction over Basis D of Contention MAG Ex-19, and it vacated its earlier decision admitting that portion of the contention as erroneous.
Tr. 22189-93, 22195-201, 22221-25 (Judge Smith). On May 23, 1989, the Mass AG filed the instant Motion seeking directed certification and a stay of the Licensing Board's oral ruling.
DISCUSSION A.
Directed Certification Is Unwarranted.
The Mass AG's Motion seeks interlocutor.y review of the Licensing Board's dismissal of Contention MAG EX-19 on jurisdictional grounds. 8/
Appeals of interlocutory orders are prohibited by 10 C.F.R. 5 2.730(f),
4
-8/
The Licensing Board's dismissal of Contention MAG Ex-19(D) is clearly interlocutory in nature and is thus reviewable as of right only upon the issuance of a final order. See, e.g., Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), ALAB-861, 25 NRC 129, 135 l
(1987); Public Service Co. of New Hampshire (Seabrook Station, Units l
1 and 2), ALAB-838, 23 NRC 585, 592 (1986); Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2),
ALAB-706, 16 NRC 1754, 1757 (1982).
_ _ __ __ __ -__ __ _ _ _ although a petition seeking discretionary review of such orders may be filedpursuantto10C.F.R.f9.718(1). Appellate review of interlocutory orders, however, "is disfavored and will be undertaken as a discretionary matter only in the most compelling circunistances." Arizona Public Service Co. (Palo' Verde Nuclear Generating Station, Units 2 and 3),
ALAB-742, 18 NRC 380, 383 (1983); accord, Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-271, 1 NRC 478, 484-86 (1975),
The standards governing requests for directed certification are well known, and have previously been addressed on numerous occasions in this proceeding. The Appeal Board has recently summarized these standards as follows:
It is well established that we will exercise our dis-cretionary authority pursoant to 10 C.F.R. 9 2.718(i) to direct certification of an interlocutory order of a licensing board "only where the ruling below either (1) threaten [s] the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter [can7not be alleviated by a later appeal or (2) affects the basic structure of the proceeding in a pervasive or unusual manner."
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),
ALAB-889, 27 NRC 265, 269 (1988) (footnote omitted).
Directed certification of the Licensing Board's ruling is unwarranted here, in that it neither threatens the Mass AG with "immediate and serious irreparable impact which, as a practical matter cannot be alleviated by a later appeal," nor does it " affect the basic structure of the proceeding in a pervasive or unusual manner".
The Board's action merely excluded from litigation a contention which the Board considered to be outside its jurisdiction.
If any error was committed by the Board, it can be fully
l redressed upon later appeal from any final order, like any other ruling excluding contentions, by remanding the issue to the licensing Board for further litigation in the full power proceeding. See, e.g., Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-906, 28NRC615,618-19(1988).
L The Mass AG argues that the Licensing Board's action threatens him with irreparable harm, in that the dismissal of this contention prevents him from having "all admitted contentions that are material and relevant to the issuance of a low power license decided on the merits prior to the issuance of any such license" (Motion at 4); this is asserted also to cause "an unusual or pervasive impact on the basic structure of the proceeding." Id. These assertions are without merit.
In the first instance, it shcald be noted that the Mass AG initially characterized his contentions before the offsite Board as generally relating to the adequacy of offsite plans and the issuance of a full power license. 9/ Indeed, the Mass AG filed a separate exercise contention before the onsite Board, dealing with the onsite performance of Appli-cants' personnel (an appeal from the rejection of that contention is now pending before the Appeal Board in the onsite proceeding). Later, when a discovery dispute arose between the Staff and the Mass AG concerning the
. scope of Contention MAG Ex-19, the Mass AG asserted that "It's an offsite issue, not an onsite issue."
(Tr. 15827); and when the Board 9/
See MAG Contentions at 1-3 (asserting his right to a hearing on "the exercise of the offsite emergency plans"; and discussing Commission
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case law concerning the materiality of exercise results "to full-powerlicensing").
-_ _____-__ - indicated some confusion as to whether the contention was properly an offsiteissue(Tr.15827),theMassAGasserted," itis,YourHonor.
It has nothing to do with the other contention [ filed before the onsite Board) which dealt with the response of control room players and others in the EOF who were looking at... the safety of the plant itself and responding to the accident." Tr. 15828 (Attachment 3). El The Mass AG's earlier characterizations of his contention thus appear to be clearly at odds with his current description of the issue as one which affects low power licensing. E! Indeed, during oral argument before the Licensing Board on May 22, 1989, the Mass AG recognized that "this Board did not M/ The Board indicated it would reexamine whether it properly had jurisdiction over the contention, noting that its Order admitting contentions had sought to avert a " jurisdictional void" with respect to decision-making on site, and that the METPAC issue appeared to raise an onsite issue. Tr. 15829-34, 15837-38. The Board later announced its conclusion that the contention was properly before 'c (Tr. 15874-75); and clarified that "we will begin the off-site litigation with the assumption that plant assessment is accurate" --
in which the Mass AG concurred, stating that he was only conr.erned with offsite conditions such as road conditions and population concentrations, "given the correctness of the assessment of the on-site conditions." Tr. 15902-03 (Attachment 3).
11/ The Mass AG appears to believe that the onsite Board has jurisdiction over contentions addressing the adequacy of onsite emergency plans only if those contentions do not assert the existence of offsite health and safety consequences; to the extent that a contention alleges that a failure in an onsite plan poses offsite health and safety consequences (i.e., "offsite aspects"), the Mass AG seems to believe that the issue is properly to be filed before the offsite Board.
See, e.g., Motion at 5 (asserting that MAG Ex-19 posed "a challenge in the full power proceeding to the adequacy of the onsite plan's methods and systems for assessing the offsite dose conse-quences of an accident"). There is no regulatory basis for such a demarcation of the Licensing Boards' respective jurisdictions, as l
indicated in the discussion infra.
I
.g.
and does not have jurisdiction over the issuance of a low-power license."
Tr. 22187. El Further, the Mass AG's current attempt to cast this contention as an issue which requires litigation prior to issuance of a low power license L,
is specious on jurisdictional grounds. The "offsite" Licensing Board's jurisdiction extends to full power issues only -- i.e., all issues other than "all safety and onsite emergency planning issues" which were separ-ated out for consideration by a separate "onsite" Board on September 9, 1985. El The Appeal Board has previously commented upon the Boards' jurisdictional bounds as follows:
In taking this action [ vacating ALAB-883), the Commission expressly left it to the Licensing Board Panel Chairman... to decide whether the public notification issue should remain with the Licensing Board concerned with onsite emergency planning matters or, instead, should he transferred to the differently constituted Licensing Board having jurisdiction over all othar emergency planning issues, including those concerned with the Massachusetts offsite plan.
(The question arose because, in general, the former Board was concerned with matters requiring resolution prior to low-power operation, while those matters relating to
_ full-power operation alone were within the domain of the latter Board.)
12/ Notwithstanding the Mass AG's recognition that the "offsite" Board lacks jurisdiction to decide issues relevant to the issuance of a low power license, he now contends that the excluded issue " runs to both the issuance of a full-power license and a low-power license"; that this Board's jurisdiction included "the offsite aspect of the onsite plan"; and that this issuc is material to both the full power and the low power licenses. Tr. 22188.
The simple answer to these o
assertions is that (1) the Mass AG misunderstands the jurisdictional limits of the "offsite" and "onsite" Boards, and (2) if the Board erred in its ruling, the Mass AG may later be able to litigate the issue with respect to the sole issue pending before the offsite Board
-- the issuance of a full power license.
See discussion infra.
-13/ See " Notice of Reconstitution of Board", dated September 9, 1985 TAitachment4 hereto).
_ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - _ - _ _ _ - Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),
ALAB-906, 28 NRC 615, 617 (Dec. 1, 1988; emphasis added).
In CLI-89-08, the Comaission similarly suggested that matters pertaining to the issuance of a low power license may properly be filed only before the onsite Board:
"That'[onsite exercise] contention was the sole contention pertaining, in
[IntervenorC] view, to the otherwise concluded "onsite" or low-power portion of the. hearing."
(Id.,at15;emphasisadded).
In sum, the Mass AG's METPAC issue should have been raised before the "onsite" Board, which had been established to consider all issues other than the adequacy of offsite emergency plans, i.e., to consider the adequacy of onsite plans and other matters relevant to the deter-mination as to whether a low power license may be issued. To the extent that any issue related to the adequacy of offsite emergency plans, it was not relevant to the issuance of a low power license and was therefore to be considered only by the "offsite" (i.e., " full power")
Licensing Board.
See 10 C.F.R. 69 50.47(d) and 50.57(c). E While it is undisputed that onsite planning issues may have "offsite aspects" --
indeed, all emergency planning issues do, by definition (see Tr. 22215) 14/ These regulations clearly indicate (1) that consideration of the state of "offsite emergency planning and preparedness" is not
~~
required prior to issuance of a low power license; (2) that the state of "onsite emergency preparedness" is to be based on "an assessment of the applicant's onsite plans" (including certain standards "with i
I offsite aspects"); (3) that the adequacy of such onsite plans is to be considered prior to issuance of a low power license; and (4) that I
a low power license may be authorized by a oresiding officer in a contested proceeding, upon motion by an applicant, "with due regard to the rights of the parties to the proceeding, including the right of any party to be heard to the extent that his contentions are relevant to the activity to be authorized."
. -- the adequacy of the onsite plan should have been raised for litigation before the "onsite" Board, the only Board having jurisdiction to consider the issue. Having failed to raise the issue before the onsite Board, the Mass AG may not now raise the issue in the full power proceeding in a collateral attack seeking to bar the issuance of a low power license.
Nor, for that matter, could he raise the issue in the low power proceeding, absent the filing of a motion to reopen the record and admit a late-filed contention there. No such motion has been filed, much less granted, and the Mass AG therefore may not raise this issue in any proceeding as a bar to low power licensing.
In sum, the Mass AG may raise this issue, if at all, only in connection with the issuance of a full power license; if a later appeal should result in a determination that the offiste Board erred in defining the bounds _ of its jurisdiction, the Mass AG would still be able to raise this issue in connection with the issuance of a full power license; that litigation could then proceed on remand, and the Mass AG will have incurred no irreparable harm.
The above discussion demonstrates that the " harm" postulated by the Mass AG e-that his "right" to a hearing on all contested issues relating to low power operation -- cannot possibly occur, in that the Mass AG has no right to litigate this contention in connection with the issuance of a low power license. This conclusion would be true even if the Licensing Board had not dismissed the contention on jurisdictional grounds, because the outcome of any litigation before that Board is simply irrelevant to a determination as to whether a low power license may be issued.
For the same reasorts, the Licensing Board's ruling did not affect the proceeding
. in an unusual or pervasive manner; even if the Board erred in defining its jurisdiction, that error can be remedied upon a later appeal from any final order. issued by the Board with respect to full power issues. E B.
The Board's Ruling Is Consistent With the " Notice of Reconstitution of Board."
The Appeal Board's Order of May 23, 1989, directed the Staff and
. Applicants to address the question of whether the Licensing Board's ruling was correct "in light of the last paragraph of the January 10, 1989 Notice of Reconstitution of Board sioned by the Chief Administrative Judge of the Atomic Safety and Licensing Board Panel". The Staff submits that the Licensing Board's ruling is consistent with this Notice.
First, the Notice indicates that the "offsite" Board " stands in the shoes" of the original Licensing Board established in 1981 to preside in this operating license proceeding. That much is uncontested.
Until October 1985, this Board considered all operating license issues raised in the proceeding.
The separate "onsite" Board was established in 1985 for the purpose of considering only those issues related to the issuance of a lcw power license -- i.e., all issues other than offsite emergency planning and preparedness. The January 1989 Notice further provides that the offsite Board "has general jurisdiction over all matters pertaining now or in the future to the application for a license to operate Units 1 and 2 of the 15/ It should also be noted that the Mass AG has nut demonstrated that the issuance of a low power license will result in irreparable harm.
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The Commission has previously indicated that low power operation is unlikely to result in such harm (CLI-89-08, slip op. at 7-11), and it indicated that "there is at least a reasonable question whether the exercise is material to a decision on the adequacy of the offsite plan for low power." Id. at 14 f
. Seabrook Station not otherwise expressly assigned to the onsite Board."
In other words, the "onsite" Board has now been specially assigned to consider offsite alert and notification' issues, and nothing more; the offsite Board continues to have jurisdiction to consider all other offsite issues..This statement does not confer jurisdiction upon the offsite Board to consider low power issues; jurisdiction over such issues passed long ago to the Appeal Board and the Commission, and no L', censing Board currently has jurisdiction over such matters. See, e.g., Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), ALAB-766, 19 NRC981,983(1984); Virginia Electric and Power Co., (North Anna Nuclear PowerStation, Units 1and2),ALAB-551,9NRC704,708-09(1979).
C.
A Stay Is Unwarranted.
The Mass AG included in his Motion a request that the Appeal Board "immediately stay the effect ot the dismissal of the relevant contention
.pending its determination on the merits of the Mass AG's request for directed certification." Motion at 3.
While the Mass AG failed to provide any discussion of the standards governing the grant of a stay, a brief review of the relevant factors indicates that none is warranted. As discussed above, the Licensing Board's dismissal of the contention could not have resulted in any harm to the Mass AG, in that its Consideration of the merits of Contention MAG Ex-19 could not have affected the issuance of a low power license; only the onsite Board had that authority, and no motion was filed in the onsite proceeding seeking to reopen the record and admit this contention.
Further, even if the Board erred in its ruling, that error may be corrected upon a later appeal from any final decision on y
L offsite emergency planning issues, so that the Mass AG will have incurred 1
I
no " irreparable harm". The Mass AG has not demonstrated that he is "likely to prevail on' the merits" in his challenge to the Board's jurisdictional ruling; to the contrary, the Board's ruling appears to be consistent with Commission law and regulations.
Issuance of a stay could result in harm to the Applicants, in that it may cause delay in the issuance of a. low power license, which is the Mass AG's objective (e.g.,
Motion at 3); and the public interest favors the issuance of a low power licensewithoutunnecessarydelay(seeCLI-89-08,at27-29).30 Accordingly, the request-for a stay should be denied.
CONCLUSION For the reasons set forth above, the Staff opposes the Mass AG's request for directed certification and for a stay of the Licensing Board's ruling.
Respectfully submitted,
/
fuaw L EI Sherwin E. Turk Senior Supervisory Trial Attorney Dated at Rockville, Maryland this 24th day of May, 1989 15/
Further, it should be noted that the Commission has already passed on the question of low power issuance and has denied Interveners' other
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requests for a stay, and that the Interveners have now filed their motion for reconsideration of CLI-89-08, claiming that the offsite Board's consideration of MAG Ex-19(D) precludes issuance of a low power license.. Thus this matter is presently before the Comission.
See generally, Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-910, 29 NRC 95 (1989).
k'
[A1taehmusti MAG EX 19:
The Exercise revealed a fundamental flaw in,the Seabrook Station Radiological Plan and Emergency Response Procedures in that during the Exercise the licensee's personnel 1
did not issue appropriate protective action recomraendations
(" pars) to the NHY Offsite Response Organization, the State of New Hampshire, or the State of Maine, as required by 10 C.F.R.
S 50.47(b)(10) and the guidance set forth in NUREG-0654,
.S II.J.7. and NUREG-0396.
This licensee failing, coupled with the high degree of reliance placed by NHY's ORO, the' State of New Hamsphire, and the State of Maine on the PARS provided by the licensee, precludes a finding that there is reasonable assurance that protective measures for the public can and will be taken in the event of a radiological emergency at Seabrook Station.
Exercise results which individually or collectively form the basis for this contention include the following:
A.
As described in detail in MAG EX 19 (incorporated herein by reference), the PARS issued by NHY's ORO were not These PARS were exactly appropriate in numerous respects.
those which were being recommended by the licensee at that and the ORO relied on these licensee PARS almost totally.
- time, The PARS issued by the State of New Hampshire were also B.
inappropriate in many respects, including the following:
i.
-m- - - _ - _ _ _ _ _ _ _ _. _ _ _ _ _., _ _. _, _ _. _. _ _ _ _ _ _
!R, *t
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1
}
}
1.
While evacuation of Seabrook, Hampton, Hampton Falls, Kensington, South Hampton, and North Hampton was recommended to the public at about 2:30 p.m.,
people in ERPA F (Brentwood, East Kensington, Exeter, Kingston, Newfields, and Newton) were not recommended to evacuate until almost 5:00 p.m.
Given the size of the release, the potential for increased releases of Iodines and Cesium if filters degraded or failed, and the uncertain and unfavorable meteorological conditions (particularly regarding wind speeds, wind direction, and the likelihood of precipitation), this ERpA should have been recommended to evacuate sooner.
As a result, thousands of residents in this ERPA who could have safely evacuated earlier were hit by the plume; and 2.
The residents of Stratham, Greenland, New Castle, Rye, and Portsmouth were never OSvised to evacuate but were advised to shelter.
Unfortunately, later that evening the plume passed over all of these communities with the possible exception of New Castle.
As a result of these inappropriate PARS, the chances were significantly increased that people in these areas would have received dosages in excess of PAGs.
These PARS issued by New Hampshire were exactly those PARS recommended to it by the licensee at that time, and state officials placed great reliance on them.
[v -
'C.
The State of Maine. issued no PARS to evacuate or shelter any of its towns during the Exercise. Indeed, because they relied totally on the' licensee's' PARS, Maine was unaware that an evacuation and/or sheltering PAR needed to be issued for Kittery,. Maine, and perhaps other towns as well.
The licensee's failure to make.such a PAR for Maine --
i.e.,
to extend a PAR to those just beyond the northern border of the g-
.EPZ -- had serious consequences because by about 8:20 p.m. on Day 1 of the Exercise, the plume reached Kittery and passed directly over it carrying sizeable concentrations of radioactivity.
Prior to that point the same factors noted above at B should have prompted the licensee to issue at least a sheltering and probably an evacuation PAR for that area.
The failure to do so significantly increased the likelihood that f
people in this part of Maine would have received dosages in excess of PAGs.
NUREG-0654 does not excuse the licensee from recommending protective actions outside the EPZ when necessary.
To the contrary, NUREG-0654 implies that this will happen as a matter of course and uses this as a justification for requiring detailed planning only out to about 10 miles.
Egg NUREG-0654, p. 12.
Beycnd 10 miles, ad hoc protective actions can perhaps be effective, but only if the state officials in charge have been advised by the licensee that such actions are recommended.
D.
In all the instances described above, the licensee's inappropriate PARS were derived from its METPAC.
f
i J. '
2 d
l-computer model.
It appears from what happened during the l
l-Exercise that this model has some fundamental flaws that cause it to fail to take into proper consideration all known facts as f
well as existing uncertainties in the generation of PARS.
It, among other things, fails to adequately consider ETEs, weather r
uncertainties including wind speed and directional changes, and release conditions.
In recommending PARS to offsite officials, licensee personnel in the EOF merely passed on copies of the METPAC print-outs without offering any guidance on how much reliance the PARS contained therein should be given.
a D
0.
- - - - - - - - - - - - - -, - = - - - - - -
j dY LB 12/15/88 vruTED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION C
ATOMIC SAFITY AND LICENSING BOARD
[~.
Before Administrative Judges:
Ivan W. Smith, Chairman
/gg pg Gustave A. Linenberger, Jr.
-3 8805514 Dr. Jerry Harbour
)
In the Matter of
)
Docket Nos. 50-443-OL
)
50-444-OL PUBLIC SERVICE COMPANY OF
)
(ASLBP No. 82-4 71-02-OL)
NEW RAMPSHIRE, 11 A1
)
(Offsite Emergency
)
Planning)
(Seabrook Station,
)
Units 1 and 2)
)
)
December 15, 1988 MEMORANDUM AND ORDER (Ruline on June 1988 General Exercise Contentions)
~
The Federal Emergency Management Agency conducted a full participation exercise for the Seabrook Station on June 28-29, 1988.
Interveners Massachusetts Attorney General (the lead intervenor), Seacoast Anti-Pollution League (SAPL), and New England Coalition on Nuclear Pollution (NECNP), joining with the Town of Hampton, submitted contentions.
We proceed directly to a -discussion of the Atterney General's contentions because his arguments on the legal issues provide a general legal backdrop to
~
exercise contentions.
e.
(
4 m___________
raih a litigtblo ictsuo which diffcra from that raised by t
basis j
Basi C, on the other hand, does appear to satisfy the ALAB-903 st dards.
Contention MAG EX 17 is admitted to the extent of bas C; in all other respects, it is denied.
MAG EX 1B r ises issues concerning the registration, radiological monit ing, and decontamination of evacuees.
Applicants and Staff t first objected only to that portion of basis G which assert the need to provide for the monitoring and decontamin tion of pets.
Although~the Attorney General concedes t t there is no regulatory requirement governing pets, he argues that, before a reasonable assurance finding can a made, some provision must be made for pets.
The Attornh General has raised a planning issue, not an exercise issue Moreover, this aspect of basis G does not approach bei g a fundamental flaw of the plan.
In its comments on ALAB-903 the Staff n'ow objects to the entire contention on the basis of the "sig ificant revision" standard of that decision.
We are inc1' ned to agree with the Staff, but will afford the Attorney eneral an opportunity to revise his contention pleadings to ddress the Staff's arounent.
\\
MAG EX 19 alleges that the Applicants' personnel did not issue appropriate protective action recommendations, that New Hampshire, Maine, and ORO placed a high degree of 0
9
~
~~
~
- 4 9 l ~~~ ~~'
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R
- ralienDo en th0cc PARS, and that ctn2CquCntly tha cxcrcico
'did not. demonstrate that; adequate ~ protective measures for the pub:,ic will be implemented 3 q
This contention is supported by the-following bases:
4 A.-
As described in detail in MAG.EX 11, the PARS' issued by ORO were not appropriate and were exactly those recommended by Applicants; B.
PARS issued by New Hampshire to Brentwood, East Kensington, Exeter, Kingston, Newfield;, and
-Newton and to Stratham, Greenland, New Castle, Rye, and-1
'Portsmouth, which were exactly the same as those l
recommended by Applicants, were not. appropriate;
~C.
Maine issued no PARS, although it should have 1
' issued one with~ respect to Kittery; and D.
The exercise demonstrated that METPAC, the Applicants' computer model from which its PARS'were derived, is flawed in that it fails to adequately consider ETEs, weather uncertainties, and release conditions.
Applicante, object to basis A on the ground that the fact that offsite response organizations followed their recommendations does not demonstrate a fundamental flaw, to a
basis C on the ground that there is no requirement to take Ad hgg protective actions in areak beyond the pluma exposure EP2,-and to basis D on the ground that no issue as to the performance of METPAC was raised by this exercise which L
I L ___
'l -
ctuld'nst havo'b On raicCd CarliCr.
Staff objcets thtt basis A does not raise an' exercise issue and is vague, and I
that bases B.2 and c concern protective actions outside the
- plupe' exposure EPZ_which need not be demonstrated.
1 In his reply, the Attorney General notes that the focus
)
of basis A is on the appropriateness of the Applicants' i
PARS, not on the fact that they were followod, that the towns referred to in basis B.2'are in fact within the plume i
exposure EPZ, that the fact that Kittery is outside the EPZ does not excuse Applicants from makin9 RA h2g PARS for that community if the exercise scenario made that necessary, and that, if.the exercise revealed flaws in METPAC, they are litigable here.
Contention MAG EX 19 is. admitted as it relates to Applicants'-'and New Hampshire's PARS.
The question whether the Applicant should have made PARS for areas outside the plume exposure EP3 does not question a major plan element as required by CLI-86-11.
The issue of the METPAC computer model could not have been raised earlier in that it alleges fundamental flaws in the model which were revealed by the exercise.
In commenting on ALAB-903 the Staff states that the MITPAC issue is "merely minor, readily correctable instance of performance error."
While it is quite possible that the problem (if one exists) is readily correctable, it
~
is not at all evident that it is a minor consideration i
l l
9 6
I.
___ _ _____ _ _ l l
- Both clam:nto cro icport:nt.
Therefore basis D is also admitted.
YJ.
0% 20 ell; gee tr.et tr.e exercise dese..etreted tr.;t OR does not have adequate facilities, equipment, displays,
'and her materials to support its operations.
It is supper d by the following bases:
A.
The Haverhill Staging Area, which~is essent al, was not demonstrated because local zoning
- .~
prohibit.its uses B.. T e ORO Media Center lacks the necessary equipment to adequately brief the media, resulting in confusion and lack of information for the public; C.
Withdra
- and D.
The traff
. cones used by the traffic guides are too small to be,e factive'at night.
Applicants object to th *s contention as unsupported by any litigable basis.
Specific 11y, they argue that basis A has been previously ruled to be n impermissible argument under the realism doctrine, and th t the allegations of bases B and D do not rise to the lav of fundamental flaws.
Staff raises essentially the same obje ions.
In his reply, the Attorney General relies on ALAB-900, lip op. at 30, for the proposition that the fact that a local overnment made it impossible to demonstrate the Haverhill fa ility does not mean that that demonstration was not reasonably chievable, although he also notes that the lack of such demo trr. tion e
^ - - - - - ' ' - - ' ~ ^ ~
,r 15812
~
L UNITED STATES NUCLEAR REGULATORY COMMISSION f
ATOMIC-SAFETY AND LICENSING BOARD Q1%
in E-j:
In the Matter of:
)
)
Docke t Nos.
PUBLIC SERVICE COMPANY OF
)
50-443-OL NEW HAMPSHIRE, et al.,
)
50-444-OL
)
OFF-SITE EMERGENCY (SEABROOK STATION, UNITS 1 AND 2)
)
PLANNING
[:, f
-TELECONFERENCE
- Thursday, March 9, 1989 U.S. Nuclear Regulation Commission 4350 East-West Highway Bethesda, Maryland
.The above-entitled matter came on for hearing,
,I pursuant to notice, at 2:30 p.m.
BEFORE:
JUDGE.IVAN W.
SMITH, CHAIRMAN Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 JUDGE JAMES H. CARPENTER, Member Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 JUDGE RICHARD F. COLE, MEMBER
'I Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 1
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APPEARANCES:
i >L (
For the Applicant:
THOMAS G. DIGNAN, JR.,
ESQ.
Ropes & Gray L
225 Franklin Street Boston, MA 02110 For the NRC Staff:
SHERWIN E. TURK, ESQ.
ELAINE CHAN, ESQ.
Office of General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 For the Federal Emeroency Management Auency:
H. JOSEPH FLYNN, ESO.
Federal Emergency Management Agency 500 C Street, S.W.
Washington, D.C.
20472 For the Commonwealth of Massachusetts:
(
ALAN FIERCE, ESQ.
Commo:awealth of Massachusetts One Ashburton Pf ce, 19th Floor Boston, MA 02100
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received the documents by Express Mail and we're expediting I
2 the' forwarding of.them to Massachusetts Attorney General's 3
office.
4 JUDGE SMITH:
All right.
5 MR. TURK:
Your Honor, there is one other point on 6
this that I would like to mention at this time.
7 The discovery request at issue concerns 10 8
Massachusetts Exercise Contention IST That contention P
Uo+
[
9 concerns whether the h generation, cosrective action 10 recommendation generation during the exercise was adequate.
I 11 We the Staff had initially seen this contention as 12 raising a challenge to the ORO's performance during the 13 exercise rather than to the on-site New Hampshire Yankee 14 recommendation of protective action recommendation.
(
15 Now in going back, I am still a little bit puzzled 16
'whether we really need to get into the Staff evaluation of 17 on-site personnel.
And I would be interested in having a 18 clarification on whether the contention in fact is permitted 19 to raise the on-site personnel's performance, which was the 20 subject of a Staff inspection rather than a FEMA inspection, 21 or FEMA exercise determination.
~,
22 JUDGE SMITH:
You are saying that the contention 23 by its terms, in your view, did not raise that issue?
Or 24 are you saying that that is beyond the realm of their 25 permissible -- beyond the litigation?
. i' Heritage Reporting Corporation (202) 628-4888 l
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.1 MR. TURK:
Until a point in mid-February of this i'
2 year,: we had assumed that the contention was addressing ORO, 3
and that it would be covered by the FEMA exercise report.
4 Only in mid-February-do we take a more liberal reading of 5
the contention and say, well, maybe the Mass AG's' office has 6
a point and that perhaps the Board intended to admit an 7
issue here dealing with the on-site perconnel's performance.
8 It's not entirely clear to us, and we would 9
appreciate clarification.
-10 MR. FIERCE:
I don't frankly understand, Your 11 Honor, how they could have missed this point when the very 12 first line in the contention says, "The exercise revealed a 13 fundamental flow in the Seabrook Station Radiological Plan I,
and Emergency Response Procedures in that during the 14 15 exercise the Licensee's personnel did not use appropriate 16 protective action recommendation," et cetera, et cetera, 17 JUDGE SMITH:
And your point is, and what ic your 18 point again, Mr. Turk?
19 MR. TURK:
Well, we frankly were confused on this 20 as to whether or not it's the ORO's performance in a 21 protective action recommendation that issue, or whether it's 22 the licensee's on-site protective action recommendations 23 which they then made to the ORO and the State of New 24 Hampshire.
25 MR. DIGNAN:
Your Honor, this is Tom Dignan.
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1 One thing we ought to go into this next, but I 2.
would point out --
3 JUDGE SMITH:
Can't hear you, Mr. Dignan.
4 MR..DIGNAN:
You can't hear me?'
5 JUDGE SMITH:
Now I can, yes.
6 Mr. Dignan?
Is anybody there?
7 MR. DIGNAN:
Yes, something's wrong here.
8 JUDGE SMITH:
Are you using a speaker phone?
4 9
One of these days, Mr. Dignan, I am going to come 10 marching in your office and find out what kind of a 11 telephone you have there.
I know there is something 12 systerious about it.
13 Are you there?
14.
Let's have a roll call.
k' 15 MR. DIGNAN:
Your Honor, can you hear me now?
16-JUDGE SMITH:
Yes.
17 MR. DIGNAN:
Okay.
18 JUDGE SMITH:
What's going on down there.
19 MR. DIGNAN:
Now, can you hear me now?
- 20 JUDGE SMITH:
Yes, great.
21 MR. DIGNAN:
Okay.
What I have is a speaker i
22 phone, but I am not using it.
Something went screwy here.
l 1
l 23 The thing is that all I wanted to bring up is 24 this.
If what I am hearing from the Commonwealth now is 25 that they somehow have a contention in here where they are 1
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. going to get at the performance of the on-site' people at
[
'2 Seabrook Station, I would remind.the Board that they tried 3
_to file a contention of that. nature with the On-site Board.
4-The'On-site Board threw it.out as late filed.
They are on 5
appeal to the Appeal Board with it right now.
6 MR. FIERCE: -Different contention.
Different 7
nature altogether.
8 MR. DIGNAN:
And the general theme of that whole 9
thing is that if the name of the game.was the performance of 10 the people on the site, it belonged over at the On-site:
11 Board when, as and if they filed it in the first place.
12 That has got a long history to it.
13 We have always viewed this contention as being a 14 performance contention.
That is to say, the performance of
(
15 the ORO in reacting to what they heard from whoever they 11 6 heard it from; not a question of the performance of the 17 peoplefon site.
That simply was never within the
'18 jurisdiction of this Board, and it was within the 19 jurisdiction of the other Board,.and they tried to get this 20 kind of stuff in late filed, and they lost it.
21 MR. FIERCE:
This contention has always been there 22 for everybody to read plainly for what it says.
If you read 23 the first sentence of the contention, the contention 24 statement itself.
25 MR. DIGNAN:
Well, in that case, it should not
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15827 1
have --
- (
2 MR. FIERCE:
It's an off-site issue, not an'on-3 site issue.
4 MR. DIGNAN:
In that case, Mr. Fierce, if that's l
5 your view of the contention, then I respectfully suggest, 6
Your Honor, it should not have been admitted.
The Board out 7
to reconsider having admit it,- and throw it out.right now.
8 MR. FIERCE:
The Board knows full well what it was 9
doing when it admitted this contention.
I think if you read 10 the Board's. decision on contentions, it's clear.
11 JUDGE SMITH:
We did not, in my memory, we did not 12 focus on the distinction between on site and off site.
We 13 were thinking generally about off site throughout all the 14 contentions that we have admitted.
I am going to have to go
/
15 back and look at our reasoning; see what the -- I don't 16 recall any briefing from the Staff or Applicants saying that 17 it was on site or off site.
I assumed that they thought it 18 was off site.
19 I know that we talked a great deal in our 20 contentions on the SPMC about where we believe that the on 21 site stopped and the off site begun, and that there was a 22 margin where it may be both.
I just don't know as I sit 23 here right now whether it should be in or out.
But_
L 24 apparently everybody thought it was clearly an off-site I
25
< contention.
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MR. FIERCE:
And it is, Your Honor.
It-has
('
2 nothing to d.o with the other contention which dealt with the 3
response'of control room players and others in the EOF who 4
were looking at --
5 JUDGE SMITH:
Yes.
6 MR. FIERCE:
-- the safety of the plant itself a:id l
7 responding to the accident.
8 JUDGE SMITH:
No, it was more than just a 9
change in the plant.
10 MR. FIERCE:
-- late for protective action.
11 JUDGE SMITH:
The contentions that we did not 12 accept in SPMC was that aspect of emergency action level 13 classifications.
14 MR. FIERCE:
It has nothing to do with that.
15 JUDGE SMITH:
Nothing.
This has nothing to do 16 with emergency action level classifications.
17 MR. FIERCE:
They have those classifications, but 18 it also looks to their plan and to an exercis,e etjective 19 which was for that organization to provide off-site 20 officials and appropriate authorities with protective action 21 recommendations for the off-sice public.
And if you follow I
22 it through, you will find that New Hampshire and the ORO 23 uses those recommendations and treats them with great l
24 significance.
And it turns out in many instances, we 25 believe, those off-site PAR recommendations that emanate i
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h 15829 1
.from the~Seabrook Station response organization were I
2 inappropriate.
3 JUDGE SMITH:
Well, I am not discussing now the 4
materiality of the issue.
I am discussing now the 5
jurisdiction of it.
6 MR. TURK:
Your Honor, let me note for the Staff l
7 that our initial reading of the contention was that it was a 8'
challenge to the protective action recommendations which 9
were made for protection of persons off site during the 10 exercise.
11 MR. FIERCE:
There is no rational reading of that 12 contention that you could come to that conclusion.
You are 13 trying to --
14 JUDGE SMITH:
Gentlemen, gentlemen --
(
15 MR. FIERCE:
-- my contention.
That's what you
~
16 are trying to do here.
17 MR. DIGNAN:
Let's assume Alan is right that there 18 is no rational reading.
They I would ask the Board to 19 relook at the contention and decide whether it was in their 20 jurisdiction in the first place.
21 MR. FIERCE:
I move that that motion is out of 22 place unless Mr. Dignan wants to file a motion for summary 23 disposition.
The contention has been admitted.
24 JUDGE SMITH:
Look, if we admitted a contention as 25 to which we don't have jurisdiction, then even then you 1
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15830 1
-don't have a contention.
We do not have the authority to do b
2' anything in this litigation where we don't have jurisdiction 3
even if the parties were to agree to it.
We will have to 4'
look at.it.
5 If it is intended to be a decisionmaking on site, 6
and don't forget, when we talked about the SPMC, we 7
' recognized that there had to be a place where the decision, 8
the protective action recommendations moved from on site to 9
off site, and that some issues may be right at the margin, 10 and that there would be no jurisdictional void.
I recall 11 that.
12 We will just have to go back and look at it again 13 and see where this falls.
14 MR. FIERCE:
Your Honor, if you are going to do lL S that, take a look at the same time at MAG Ex. 11, which is 16 another contention that was admitted and directly challenges 17 the way the ORO went about making protective action 18 decisions.
19 JUDGE SMITH:
Okay.
20 MR. FIERCE:
Mr. Turk's reading would be a 21 duplication, would turn MAG Ex. 19 into a duplication of a 22 contention that's already there.
23 JUDGE SMITH:
All right, we will do that this very 24 afternoon.
25 In the meantime, you are going to proceed with i
Ueritage Reporting Corporation j
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exchange of information so we don't lose time.
f 2
MR. TURK:
Yes, Your Honor.
We are doing that 3
even though we still have a feeling that we will be 4
producing things which are not within the jurisdiction of 5
the Board.
But we will produce and then argue.
6 JUDGE SMITH:
Yes.
Just avoid wasting time.
7 Now, does anybody recall offhand what the SPMC 8
contention was where that issue was raised?
I'll find it.
9
/P.
FIERCE:
The SPMC contention.
No, I don't 10 recall.
11 JUDGE SMITH:
That is where we set out our 12 understanding of where on site and off site emergency 13 actions generically speaking rested.
And we will go back to 14 that and see what guidance it gives us.
(
15 MR. TURK:
Your Honor, if I may also note for 16 context.
When Mass AG raised the contention before the On-17 site Board, they challenged certain aspects of the same 18 exercise carried out by the on-site personnel.
In the same 19 NRC inspection report which addressed those issues, that is, 20 whether there was questionable engineering judgment 21 exercised by on-site personnel, the same NRC staff 22 inspection report addressed whether the CAR recommendations 23 were appropriate.
And the Staff's conclusion was, yes, they 24 were.
25 But it was the same on-site inspection team, the i
1
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~
15832-1 same on-site inspection report addressing an issue which~
-2 Mass Ju3 has raised'before the On-site Board and-the issue 3
which they are raising here 4
HR. FIERCE:
I don't think there is any. question 5
that it's the same evaluators.
I-think this is the point..
6 Mr. Turk would like to draw the line r.t the difference 7
between on site and off site as anything having to do with 8
that organization.
That's clearly just not the case.
4 9
There are a number of aspects of Seabrook Station 10 ERO personnel which deal with off-site response, and this is 11 one of them.
12
' JUDGE SMITH:
.Mr. Fierce.
13 MR. FIERCE:
Yes.
.14 JUDGE SMITH:
How does this contention differ from
'15 the contention you proffered to the On-site Board?
16 MR. FIERCE:
If you take a look at that 17 contention,.Your Honor, it's primarily a technically-based 18 contention dealing with the inadequacy of the response.in 19-the control room and elsewhere to plant conditions and their 20 ability to assess the-accident on site to understand what 21 was happening with that accident on site.
22 JUDGE SMITH:
What does it have to do with i
23 protective action recommendations?
^
24 MR. FIERCE:
It doesn't have to do with off-site J
.25 protective action recommendations at all.
l l
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JUDGE SMITH:
Okay.
Well, we will go back and f=
2 look at it'.
3 MR. FIERCE:
Your Honor, and as you do that I want 4
to give you one additional suggestion, if I could.
5 Even though MAG Ex. 19 may appear to some t~
bave 6
Bases A, B, C, which was stricken pertaining to the State of l
7 Maine, and D, if you read the contention the way it was 8
intended to be drafted, it says, " Exercise results which 9
individually or collectively form the basis for this 10 contention include the following."
A, B,
C and D are 11 intended to be read together as if it were one basis.
12 The contention says, "Seabrook Station's emergency 13 response organization didn't issue appropriate protective 14 action recommendations," and here is why.
A, for the ORO it 15 d16. t do it.
B, for New Hampshire, it didn' t do it.
C, 16 for Maine, it didn't do it.
And D does stand somewhat 17 alone.
It says that to some extent it appears that what 18 happened and why the PARS were bad.
Something wrong with 19 the Medpac model.
And that, of course, is a Seabrook 20 Station emergency response organization tool.
21 JUDGE SMITH:
All right.
22 MR. FIERCE:
The ORO doesn't have Medpacs.
That's 23 one reason right there why Mr. Turk couldn't have read this 24 to be an ORO-related contention.
25 JUDGE SMITH:
Okay.
Heritage Reporting Corporation t
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15834 1
MR.. TURK:
It certainly was confusing to us, and
\\
2 we would welcome clarification.
3
_ JUDGE SMITH:.You know, I'll have'to confess to 4-being confused here because I have been aware of the 5
enntroversy discoverv on the Medpac model'and that it seems 6
to me to be largely an on-site aspect.
7 We will just go back and study it afresh and see 8
where we are.
We will do that this afternoon and try to 9
communicate tomorrow.
10 All right, do you have anything else this 31 afternoon?
12 (No response.)
13 JUDGE SMITH:
Could you give us a better idea of 14 what's happening on that ETE stipulation?
15 MR. DIGNAN:
Your Honor, I think from what I kt:ow 16 and I have not been active in the negotiations, my 17 colleague, Mr. Trout has been.
With your permission, I 18 would just as soon duck that one.
19 JUDGE SMITH:
Well, I 20 MR. DIGNAN:
Just simply because I understand 21 there is some controversy developing, but I don't know that 22 the cause of possible settlement would be furthered by 23 bringing it up before the Board at this time.
24 JUDGE SMITH:
Well, I don't want to do anything 25
-that might --
t Heritage Reporting Corporation l
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I
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15837 1
problem.
f' 2
JUDGE SMITH:
I am going to leave it alone.
l 3
MR. FIERCE:
Okay.
It's too hot right now, and we 4
are all waiting for further information.
l 5
JUDGE SMITH:
All right.
But time is running out.
6 MR. FIERCE:
We understand that.
7 JUDGE SMITH:
All right, anything further we can 8-be helpful or damaging to this afternoon?
9 (No response.
10 JUDGE SMITH:
All right, we will adjourn and then 11 get back to you tomorrow.
I don't know if we will,have a 12 transcript tomorrow or not, but we will try to get to that 13 Contention 19 this very afternoon, and announce our decision.
14 maybe this afternoon if possible, but no later than
'(
,_)
15 tomorrow.
16 If there is nothing further we will adjourn.
17 MR. FIERCE:
Can Ms. Chan stay on the phone so I 18 can speak with her?
19 MS. CHAN:
Yes, Alan, I will stay on the phone.
20 MR. DIGNAN:
This is Dignan.
I am signing off 21 now.
~
22 JUDGE SMITH:
Well, wait a minute, we have another 23 matter before you leave.
24 By way of inventory, the only thing that the Board 25 has before it now is that motion for sanctions, and decide i
'i Beritage Reporting Corporation (202) 628-4888
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15838 1
'whether MAG Centention 19 was properly admitted if it is an h
2 on-site contention.
s 3
Is anybody aware of any_other task we have before 4
us?
5 You know, we issued an order yesterday on the 6
financial qualification petitions.
7 MR. DIGNAN:
I haven't seen that.
t 8
JUDGE SMITH:
Well, that is done.
We denied those 9
petitions.
I 10 So are you aware of anything else?
11 MS. CHAN:
Your Honor, I believe there were a 12-couple of subpoenas by Mass AG before the Board for school 13 superintendents?
14 JUDGE. SMITH:
Ms. Chan, we faxed those and sent 15 them'by Express Mail yesterday.
16-MS. CHAN:
All right.
17 JUDGE SMITH:
Two out of the three; Mr. Block 18-withdrew one of them.
19 MR. TURK:
Your Honor, one other question about 20 scheduling.
With FEMA going first, what's the balance of 21 the proceeding going to look like?
22 JUDGE SMITH:
Well, you weren't prese; t yesterday
~
23 with a discussion between Mr. Traficonte and Mr. Dignan 24 which, as a consequence of the Board's prodding and Mr.
25 Traficonte's urging, we have asked Mr. Traficonte and Mr.
.(
Beritage Reporting Corporation (202) 628-4888
i 4
15844
,g
. UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC 3AFETY AND LICENSING BOARD
~
In the Matter of:
)
)
Docket Nos.
PUBLIC SERVICE COMPANY OF
)
50-443-OL NEW RAMPSHIRE, et al.,
).
50-444-OL
)
OFF-SITE EMERGENCY (SEABROOK STATION, UNITS 1 AND 2)
)
PLANNING EVIDENTIARY HEARING
- Monday, March 13, 1989 Nuclear Regulatory Commission 4350 East-West Highway Bethesda, Maryland l'
The above-entitled matter came on,for hearing, pursuant to notige, at 2:00 p.m.
BEFORE:
JUDGE IVAN W.
SMITH, CHAIRMAN Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 JUDGE JAMES H. CJ.RPENTER, MEMBER Atomic Safety and Licensing Doard U.S. Nuclear Regulatory Commission Washington, D.C.
20555 JUDGE RICHARD F.
COLE, MEMBER Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 l (
l i(.
Heritage Reporting Corporation
_/
(202) 628-4888 I
):
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15874
~
1 MR. TRAFICONTE:
We're seeking an alternative we 2
would like some discovery in the event that the impact on a 3
schedule would be viewed negatively then we would say, well, L4 we are going to have to do it the old-fashioned way as Mr.
5 Dignan.says and just get him on the stand so we can find out I
6 at that point what some of these written documents that we 7
have reviewed mean.
8 JUDGE SMITH:
To back up a minute, the record does N/
9 not reflect the outcome of our prehearing conference on 10 Thursday in which the Board was asked to clarify or rather 11 exercise contention 19 was appropriately in the proceedina.
12 The argument being that it was a protective action l
13
. recommendation or the adequacy of protection action
')
14 recommendations made by the on-site staff to off-site i
15 officials and the off-site ORO I guess.
16 We ruled after the prehearing conference and 17 orally off the record informed the parties that we believe 18 that the contention is properly in the proceeding.
And we 19 referred to the logic, the reasoning that was used with 20 reppect to, I think it was the initial contention 56 which 21 was also a protective action recommendation contention.
22 We believe that the logic that we ue*,_,ere is the 23 same rationale as should be used here_and that is, the 24 protective action recommendation, number one, that there is 25 no void and jurisdiction between the off-site board and off-
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15875
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1 site board.
2 And some matters are purely on-site as_are 3
emergency action levels and some matters are purely off-site 4
as most everything in the proceeding is, but protective 5
action recommendations are right at the plant -- at thg_
6 authorities boundary between on-site and off-site and are 7
really on the off-site side and that is somewhat of an 8
arbitrary positioning.
And for that reason we believe that 9
the contention is an appropriate one.
10 That's my explanation -- that explanation I just 11 made is not intended to supersede reasoning that we used in 12 respect to Attorney General's contention 56.
It is just 13 simply intended to bring the record up to date what our 14 reasoning was.
15 With that, would you go ahead with your problem.
16 With that understanding, Mr. Turk, I know that you disagree 17 with that as well as you disagree with our original ruling.
18 But knowing that is in the case why is there a problem with 19 presenting a witness?
20 MR. TURK:
Well, there is no problem for getting a 21 witness, Your Honor, and we are in the process of trying to 22 identify who the most appropriate person or persons may be.
23 I do have a problem with the Mass AG's motion 24 which I would like to respond to.
But firs't responding to 25 your question we will be putting on a witness and we will i
Heritage Reporting Corporation (202) 628-4888
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1 JUDGE SMITH:
What Mr. Fierce read that peaked his l
2 curiosity and it peaked mine.
They're interesting notes.
I 3
think you should ask those questions.
But go ahead follow 4
your way.
You have that right.
5 Anything further on this issue?
~~
i 6
MR. TURK:
Your Honor, what I'm taking out. cf this -
7
-- from Mr. Fierce is that he didn't trust in interviewing 8
or deposing Staff witnesses who were familiar with the PARS 9
generated at three locations: the control room; the TFC; and 10 the EOF.
11 In particular, he didn't trust Mr. Perrotti's 12 notes.
And at least at this point -- am I to assume the 13 universe 'of the' types of individuals I should be thinking of i
14 to see who the best persons may be.
15 MR. FIERCE:
Well, I would take another look at 16 that second to the last paragraph in the letter of January 17 24th.
There are two exercise objectives at issue and they 18 are both described there.
19 From my standpoint right now I have two interests:
20 I want the most knowledgeable person about each of those two 21 objectives.
And I'm interested in Perrotti.
22 MR. TURK:
Now, those are assessing conditions 23 that support the formulation of off-site PARS.
And 24 secondly, formulating off-site PRAs.
l 25 MR. FIERCE:
That's right.
They are two separate
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(202) 628-4888 i
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15902 l
1 exercise objectives.
Il 1
I 2
MR. TURK:
One of these is fairly broad, Alan.
3 You say, assessing conditions that support the formulation 4
of off-site PRA.
1 5
HR. FIERCE:
It's not my language, it comes right 6
out of the objective.
7 MR. TURK:
I know.
But in terms of the scope of 8
your contention I think you maybe going a little too far._
9 Because you're asking for everything that may have happened 10 on-site including the assessment of what the condition of 11 the plant was.
I think that's your first contention for the 12 on-site board rather than something here.
13 MR. FIERCE:
They both concern off-site protective
)
14 action recommendations.
15 JUDGE SMITH:
Well, I think we made clear in our 16 earlier ruling of contention that we will begin the off-site 17 litigation with the assumption that plant assessment is 18 accurate.
19 MR. FIERCE:
That's fine, I have no problem with 20 that, Your Honor.
The conditions I'm concerned about is 21 assessing for purposes of formulating PRAs would be such 22 conditions as whether off-site road conditions; population; 23
, concentrations; unususi events; all of the various other 24 factors that could influence PRA decision-making, given what 25 you just said.
Given the correctness of the assessment of
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Heritage Reporting Corporation (202) 628-4888
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s.
1 15903-
}l f1l the on-site condition.
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2' MR. TURK:
That's really assessing off-site a
I 3 conditions.
L L4
' MR. FIERCE:
That's" right.
5 MR. TURK:
We will work on it today, Your Honor.
m i
6 JUDGE SMITH:
Thank you.
7-New.the' stipulation.
j 8
HR. FIERCE:
Can.you hold on one second, Your 9
Honor.
10 JUDGE SMITH:
Yes.
11 MR. TRAFICONTE:
Yes, John Traficonte.
12 JUDGE SMITH:
All right, we are ready now,-Mr.
~
13 Traficonte, for your concerns on the stipulation.
(.
14 MR. TRAFICONTE:
Well, it was primarily on Friday 15 that I was concerned and I called Mr. Fierce after talking 16 with Mr. Dignan, I was concerned that I didn't think the 17 parties in fact had'a meeting of the minds as to the 18 significance and proper interpretation of a stipulation 19 which had been signed, but which had not yet been approved 20 by the. Board concerning ETE issues.
21 And I gave Mr. Fierce a very brief thumbnail 22 sketch of my understanding of how the agreement or 23~
stipulation had basically come unglued.
24 I had talked to Mr. Dignan and we were in a rather 25 odd position'of both threatening each other with seeking to
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Heritage Reporting Corporation (202) 628-4888
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O UNITED STATES OF AMERICA NUCLEAR REGULATORY C0fMISSION
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859401 ff PUBLIC SERVICE CO. OF NEW HAMPSHIRE. ET AL.
H y Seabrook Station, Units 1 and 2 vnfA l
(DocketNos.50-443-OLand50-444-OL)
[ASLBPNo. 82-471-02OL]
NOTICE OF RECONSTITUTION OF BOARD Pursuant to the authority contained in 10 C.F.R. I 2.721, the Atomic Safety and Licensing Board for_Public Service Company of New Hampshire, et al. (Seabrook Station, Units 1 and 2), Docket Nos.
50-443-OL and 50-444-OL, is hereby reconstituted by appointing l
Administrative Judge Sheldon J. Wolfe as Chairman of this Licensing Board for all safety and onsite emergency planning issues in place of Administrative Judge Helen F. Hoyt, who is temporarily unable to continue to serve.
As reconstituted, the Board is comprised of the following t
Administrative Judges:
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Sheldon J. Wolfe, Chairman Dr. Enneth A. Luebke W
Dr. Jerry Harbour D
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,i All correspondence, documents and other material shall be filed withthieBoa in accordan:e with 10 C F R...I2.701(1980). The address of the new Board member is:
Administrative Judge Sheldon J. Wolfe, Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission Washington, D.C.
20555
- 6 Robert M. Lazo Acting Chief Administrative Judge Atomic Safety and Licensing Board Panel Dated at Bethesda, Maryland, this 9th day of September,1985.
l 9
4 9
4 5
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_-____--__-______-____m
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i UNITED STATES OF AMERICA h[dN'O NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD'S M In the Matter of
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crs e p
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Docket Nos. 50-44300LP r..,
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PUBLIC SERVICE COMPANY OF
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50-444 OL Liv e NEW HAMPSHIRE, g al.
Off-site Emergency Planning.
(Seabrook Station, Units 1 and 2
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO MASS AG'S MOTION FOR DIRECTED CERTIFICATION OF THE LICENSING BOARD'S ORAL RULING OF MAY 22, 1989, DISMISSING CONTENTION 19 (D)" in the above captioned proceeding have been served on the following by deposit in the United States mail, first class or,
. as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's
- internal mail system, this 24th day of May 1989:
Ivan W. Smith, Chairman (2)*
H. J. Flynn, Esq.
Administrative Judge Assistant General Counsel Atomic Safety and Licensing Board Federal Emergency Management U.S. Nuclear Regulatory Commission Agency Washington, DC 20555.
500 C Street, SW Washington, DC 20472 Richard.F. Cole
- Administrative Judge Calvin A. Canney Atomic Safety and Licensing Board City Hall U.S. Nuclear Regulatory Commission 126 Daniel Street Washington, DC 20555 Portsmouth, NH 03801 Kenneth A. McCollom John Traficonte, Esq.
Administrative Judge Assistant Attorney General 1107 West Knapp Street Office of the Attorney General Stillwater, OK 74075 One Ashburton Place,19th Floor Boston, MA 02108 Diene Curran, Esq.
Harmon, Curran & Tousley Geoffrey Huntington, Esq.
2001 S Street, NW Assistant Attorney General Suite 430 Office of the Attorney General Washington, DC 20009 25 Capitol Street Concord, NH 03301
' Philip Ahrens Esq.
Assistant Attorney General Office of.the Attorney General State House Station
- Augusta ME 04333
___-_m_
._m
___.___________.._______________________.____.-____.____.___m__.__.-____.m-____._
! )
Robert A. Backus, Esq.
Peter J. Matthews, Mayor l
Bac'.as, Meyer & Solomon City Hall 116 Lowell Street Newburyport, MA 01950 l
Manchester, NH 03106
]
Mrs. Anne E. Goodman, Chairman Paul McEachern, Esq.
Board of Selectmen Shaines & McEachern 13-15 Newmarket Road 25 Maplewood Avenue Durham, NH 03824 l
P.O.. Box 360 i
Portsmouth, NH 03801 Hon. Gordon J. Humphrey United States Senate
{
Charles P. Graham, Esq.
531 Hart Senate Office Building McKay, Murphy & Graham Washington, DC 20510 100 Main Street Amesbury, MA 01913 Barbara J. Saint Andre Esq.
Kopelman & Paige, P.C.
Sandra Gavutis, Chairman 77 Franklin Street Board of Selectmen Boston, MA 02110 RFD #1, Box 1154 Kensington, NH 03827 Michael Santosuosso, Chairman Board of Selectmen William S. Lord South Hampton, NH 03827 Board of Selectmen Town Hall - Friend Street Ashod N. Amirian, Esq.
Amesbury, MA 01913 Town Counsel for Merrimac 145 South Main Street R. Scott Hill-Whilton, Esq.
P.O. Box 38 Lagoulis, Clark, Hill-Whilton Bradford, MA 01835
& McGuire 79 State Street Richard R. Donovan Newburyport, MA 01950 Federal Regional Center Federal Emergency Management Agency Allen Lampert 130 228th Street, S.W.
Civil Defense Director Bothell, Washington 98021-9795 Town of Brentwood 20 Franklin Robert R. Pierce, Esq.*
Exeter, NH 03833 Atomic Safety and Licensing Board Panel William Armstrong U.S. Nuclear Regulatory Commission Civil Defense Director Washington, D.C.
20555 Town of Exeter 10 Front Street Thomas G. Dignan, Jr., Esq.
Exeter, NH 03833 Robert K. Gad, III, Esq.
Ropes & Gray Gary W. Holmes, Esq.
One International Place Holmes & Ellis Boston, MA 02110 47 Winna*,unnet Road Hampton, NH 03842
[.
i:
L. I J. P. Nadeau' Ms. Suzanne Breiseth Board of Selectmen Board of Selectmen 10 Central Street Town of Hampton Falls i-Rye,<NH 03870-Drinkwater Road Hampton Falls, NH 03844
' Judith H. Mizner, Esq.
79 State Street'_
Atomic Safety and Licensing Newburyport, MA' 01950 Board (1)*
U,S. Nuclear Regulatory Commission L
Washington, DC' 20555 L
Robert Carrigg Board of Selectmen f
Town Office Atomic Safety and Licensing 1
Atlantic Avenue Appeal' Panel-(8)*
North'Hampton, NH 03862 U.S. Nuclear Regulatory Comission Washington, DC 20555 Ms. Elizabeth Weinhold
-3 Godfrey Avenue Docketing and Service Section*
Hampton, NH 03842 Office of the Secretary U.S. Nuclear Regulatory Commission:
Washington,'DC 20555 L.)
d Sherwin E. Turk Counsel for NRC Staff 4
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