ML19351A737

Intervenors Brief on Appeal of LBP-89-28.* Ruling Considered Irrational & Should Be Reversed on Basis That Board Arbitrarily Ignored Substantive Evidence of Programmatic Failure & Personnel Mismanagement.W/Certificate of Svc

ML19351A737
Person / Time
Site:	Seabrook
Issue date:	12/19/1989
From:	Brock M MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#489-9624 LBP-89-28, OL, NUDOCS 8912270263
Download: ML19351A737 (81)

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i UNITED STATES OF AMERICA.

NUCLEAR REGULATORY COMMISSION

• 09 DDC 20 P3 :55 ATOMIC-SAFETY AND LICENSING APPEAL BOARD O

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Before Administrative Judges:

Thomas S. Moore, Chairman G. Paul Bollwerk, III Howard A. Wilber

)

In the Matter of ) Docket Nos. 50-443-OL i

) 50-444-OL PUBLIC SERVICE COMPANY )

OF NEW HAMPSHIRE,_ET AL. )

)

(Stabrook Station, Units 1 and 2) ) December 19, 1989

)

INTERVENORS' BRIEF ON APPEAL OF LBP-89-28 t

I COMMONWEALTH OF MASSACHUSETTS JAMES M. SHANNON

. ATTORNEY GENERAL l

Matthew T. Brock Assistant Attorney General Nuclear Safety Unit Department of the Attorney General One Ashburton Place Boston, MA 02108 Dated: December 19, 1989 8912270263 891219 DR ADOCKOSOOOgg3

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ic ATOMIC SAFETY AND LICENSING APPEAL BOARD Before Administrative Judges:

Thomas S. Moore, Chairman G. Paul Bollwerk, III Howard A. Wilber 3

In the-Matter of )

)

) Docket Nos. 50-443-OL-PUBLIC SERVICE COMPANY ) 50-444-OL OF NEW HAMPSHIRE, El AL, )

)

L(Seabrook Station, Units 1 and 2) ) December 19, 1989

__ )

INTERVENORS' BRIEF ON APPEAL OF LBP-89-28 COMMONWEALTH OF MASSACHUSETTS JAMES M. SHANNON ATTORNEY GENERAL Matthew T. Brock Assistant Attorney General Nuclear Safety Unit Department of the Attorney General One Ashburton Place Boston, MA 02108 Dated: December 19, 1989

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L' TABLE OF CONTENTS

1. Statement of Facts........................................ 3

2. Applicants' Low Power Testing Is Material To Full Power Licensing.......................................... 10

3. The Licensing Board Committed Reversible Error By Rejecting Contentions Solely For Failure To Meet The Reopen The Record Standard........................... 15 A. Application of Reopen Standard...................... 15

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B. The Board's Closure of the Record................... 23 l l

3. Intervenors ' Low Power Testing Contentions Meet The  !

Reopen The Record Standard............................... 26 l

4. The Licensing Board's Rejection of Certain Low I Power Testing Contentions On Grounds Other Than The Failure To Meet The Reopen Standard Is i Reversible-Error......................................... 40 l 5.- Conclusion............................................... 47 1

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TABLE OF AUTHORITIES CASES Commonwealth of Mass. v. NRC, 878 F.2nd 1516 (First Cir. 1989)....................................... 12 Interstate Commerce Commission v. Jersey City, 322 U.S.-503, 64 S.CT. 1129, 88 L.Ed 1420 (1944)........ 22 Mazalesli v. Truesdell, 562 F.2nd 701  !

(D.C. Cir. 1977)........................................ 37 Mobil Oil Coro, v. ICC, 685 F.2nd 624 (D.C. Cir. 1982).................................... 21, 22 l Oyptershell Alliance v. NRC, 800 F.2nd 1201 (D.C. Cir. 1986)........................................ 22 Poller v. Columbia Broadcastina System, j

368 U.S. 464 (1962)..................................... 38 .;

San Luis Obisoo Mothers For Peace v. NRC, 751 F.2nd 1287 (D.C. Cir. 1984).................. 2, passim Sartor v. Arkansas Gas, 321 US 620 (1943)............... 39 State of Ohio v. NRC, 814 F.2nd 258 (6th Cir. 1987)...... 4 Union of Concerned Scientists v. NRC, 735 F.2nd 1437 (D.C. Cir. 1984)................. 10, passim NUCLEAR REGULATORY COMMISSION DECISIONS Georcia Power Co. (Votgle Electric Generating Plant, Units 1 and 2), A LA B-8 7 2 , 26 NRC 127 (1987)............. 27 Lona Island Lichtina Co. (Shoreham Nuclear Power Station) CLI-86-11, 23 NRC 577 (1986)............. 41 Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1) A LA B-9 0 3 , 28 NRC 499 (Nov. 10, 1988)................................. 17, passim Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1) CLI-89-1, 29 NRC 89 (1989).................................... 21, 27 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2) A LAB-7 2 8 ,

17 NRC 777 (1983)............................. ......... 11 b

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Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2) CLI-89-8, 29 NRC 399 (1989)...... 3 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2) ALAB-916, 29 NRC 434..................... 24 Public Service Comoany of New Hamoshire (Seabrook Station Units 1 and 2) ALAB-918, 29 NRC 473 (1989).. 42, 43 Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station). LBP-81-12, 13 NRC 557 (1981)....................................... 25 Vermont Yankee Nuclear Power Coro. (Vermont Yankee

' Nuclear Station) ALAB-138, 6 AEC 520 (1973)..... 27, passim Vermont Yankee Nuclear Power Core. (Vermont Yankee Nuclear Power Station) A LAB-919 , NRC (July 26, 1989), sl. op....................,......... 46, 47 STATUTES 42 U.S.C. 52239 (a)..................................... 15 REGULATIONS 10 C.F.R. 2.714.................................. 3, passim 10 C.F.R. 92.734................................. 2, passim 10 C.F.R. 52.749 (b).................................... 40 10 C.F.R. 2.751a......................................... 3 10 C.F.R. 52.752......................................... 3 10 C.F.R. 550.57.................................... 10, 42 47 F.R. 30232 (1982).................................... 41 50 F.R. 19323 (58/85)...................................41 51 F.R. 19536 ( 19 8 6 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 0 51 F.R. 19539 (1986)................................ 19, 22

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION  ;

ATOMIC SAFETY AWD LICENSING APPEAL BOARD L

Before Administrative Judges:

Thomas S. Moore, Chairman G. Paul Bollwerk, III Howard A. Wilber

)

In the Matter of ) Docket Nos. 50-443-OL

) 50-444-OL PUBLIC SERVICE COMPANY )

OF NEW HAMPSHIRE, EI E. )

)

(Seabrook Station, Units 1 and 2) ) December 19, 1989

)

INTERVENORS' BRIEF ON APPEAL CP LDP-89-281/

The Massachusetts Attorney General, Seacoast Anti-Pollution League, and New England Coalition on Nuclear Pollution

("Intervenors") submit this brief in support of their appeal of LBP-89-28, the Seabrook Licensing Board's Memorandum and Order rejecting all o? Intervenors' low power testing contentions.

As primary support for its decision, the Licensing Board 1/ Intervenors state that this filing as well as all other Intervenor ef forts made af ter November 18, 1989 to seek additional intra-agency appellate review of the Seabrook licensing action reflects no intention or purpose to elect to continue such intra-acency review in deroaation of Intervenors' rights to have " final agency licensing action" (which LBP-89-32 under Commission regulations, federal statutes, and case law constitutes) reviewed by the cognizant Court of Appeals.

Instead, Intervenors file all such pleadings only to ensure that no argument will lie at any later date that they f ailed to exhaust administrative remedies.

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p asserted that the contentions failed to satisfy the regulatory f oriteria to reopen a closed record.A/ The Board thereby r

. improperly applied the reopen standard'to burden and bar Intervenors' hearing rights conferred under the Atomic Energy Act. The Board's action also was taken in direct disregard of the mandate of the Court of Appeals, prohibiting application of the reopen standard in these circumstances, and gives' rise to a judicial presumption of agency bad faith. San Luis obispo Mgthers For Peace v.

NRC, 751 F.2d 1287', 1317 (D.C. Cir. 1984).

Independent of tnis error, the Licensing Board arbitrarily ignored substantial evidence of programmatic failure, pervasive mismanagement involving senior plant personnel, and the safety significance of these deficiencies, as found by both Staff and Intervonor experts. Predictably, this led the Board to rule, irrationally, that the low power testing contentions did not meet the reopen standard or certain other regulatory predicates for admission.

Intervenors request this Board to reverse (or vacate) and romand LBP-89-28, to direct the admission of Intervenors' low power testing contentions, and, following reasonable discovery, to order a hearing thereon. Intervenors also request this -

Board to revoke the license authorization, if still extant, 1

1 1/ 10 CFR 52.734(a) (" reopen standard").

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F 4 until the hearing is completed and the issues raised by the contentions are resolved.2/

ETATEMENT OF FACTS on May 16, 1989, the Commission issued to Applicants an

= operating license to conduct low power testing at Seabrook .

Station. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2) CLI-89-8, 29 NRC 399 (1989).

On May 31, 1989, prior to the close of the record in the full power licensing proceeding, the Massachusetts Attorney General filed a motion to hold open the record pending completion of low power testing then scheduled to begin in June, and pending any lit.igation arising from these tests.d/

2/ To the extent this Board determines that the Commission has taken exclusive jurisdiction over any part of the relief requested (e.g. revocation), Intervenors ask in the event they prevail in this appeal, that this Board direct the request for relief to the Commission.

A/ The Massachusetts Attorney General (" Mass AG") moves that this Board hold open the record in the Seabrook full-power proceeding pending two events both of which are material and relevant to the issuance of a full-power license. These events are: 1) the testing presently contemplated pursuant to a recently issued low-power operational license; and 2) the required yearly onsite exercise presently scheduled for the week of September 25, 1989. In addition, the Mass AG requests that this Board. assert its jurisdiction over any litigation arising from these two material events, schedule a pre-hearing conference pursuant to 10 C.F.R. 2.751a, 2.752 and 2.714 at which a schedule for the filing of contentions may be set, and permit the Mass AG (and other Intervonors who may be so l

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1 While this motion remained pending,-and the record open, Applica.ts conducted low power physics testing. On June 22, Applicants performed a natural circulation test.E/

Subsequently, based upon limited press reports, Intervenors learned that Applicants failed to properly conduct the natural  ;

circulation test, that the reactor had been shutdown, and that the Staff had issued a confirmatory action letter (CAL) suspending further testing at-Seabrook Station. Intervenors, however, still lacked the information requisite to formulate '

admissible contentions. LDP-89-28 at 27. (Newspaper articles are not sufficient without more to meet the reopen standard if that standard were to be applied.

5 State of Ohio v. NRC, 814 F.2d 258, 262 (6th Cir. 1987)). Nevertheless, in the face of 1

(footnote continued) inclined) the necessary access and observational opportunities to enable the timely formulation and filing of contentions.

See, MOTION OF THE MASSACHUSETTS ATTORNEY GENERAL TO HOLD OPEN THE RECORD PENDING LOW POWER TESTING AND THE REQUIRED YEARLY ONSITE EXERCISE AND FOR OTHER RELATED RELIEF (May 31, 1989) at 1-2 (" Motion To Hold Open The Record").

5/ The natural circulation test was the first integrated plant operational test. See, Final SALP Report, Enclosure 1 at 6 (Dec. 4, 1989). This test was intended to verify the ability of the reactor coolant system to remove heat by means of natural circulation. FSAR Table 14.2-5 (sheet 25.) Applicants identified this test in the FSAR as part of the initial test program. The FSAR was submitted by Applicants as part of their application for an operating license.

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an express Motion to Hold Open the Record, and with extant material licensing issues unresolved, the Board denied the Motion and closed the record on June 30. T28290. At that time, Intervenors advised the Board:

I would like, in the form of a clarification, we are intending, and I think I mentioned this once before, but we are intending to file a contention arising out of the events of lant week during low-power testing.

It happcns that, as the Board is aware, as part of this motion, we were asserting a right to litigate the events of low-power testing, and we believe now there is such an event loosely defined. We are not sure exactly what occurred yet, but we have some sense of what occurred.

Subsequently, following issuance of Applicants' Response to the CAL,5/ Intervenors learned more of the f ailed test program, and of Applicants' willful violation of test procedures. Jnfra. On July 21, Intervenors timely filed their first low power testing contention and requested a hearing on the identified deficiencies.2/ The contention alleged, inter alia, that Many plant personnel, including operators, and New Hampshire Yankee Management, deliberately disregarded test procedures which required shut down of the reactor, when pressurizer levels fell below test criteria due to a failed valve.

1/ See New Hampshire Yankee Response to Confirmatory Action Letter 89-11 (July 12, 1989) (" Response to CAL").

2/ See, INTERVENORS' MOTION TO ADMIT CONTENTION, OR , IN THE ALTERNATIVE, TO REOPEN THE RECORD AND REQUEST FOR HEARING (July 21, 1989) (" July 21 Motion")

The contention (hereafter "JI-LP-1") was timely filed. LBP-89-28 at 27.

I Even when repeatedly notified of the violation by NRC inspectors in the control room, plant operators and management continued to operate the facility in violation of test procedures and initially refused to shut down the reactor.

Plant personnel's willful disregard of test procedures as well as NRC notifications of a violation, demonstrates serious deficiencies in training and management; and raises serious safety concerns due to the poor judgment of plant personnel, their unwillingness to admit error, and refusal to properly and timely respond to abnormal plant conditions.

Subsequently, senior management personnel provided inaccurate and incomplete information to NRC on the shut down, refused to acknowledge the seriousness of the procedural noncompliance, and even suggested restarting the reactor prior to resolution of these issues. JI-LP-1.

These assertions were supported by Intervenor experts who opined that Applicants had violated the commission's quality assurance regulations, and that this " carries with it significant safety implications.aE/ Based upon these evente, and when considered with prior operations errors identified by the Staff, Intervenors' experts also concluded that there is as

" pattern of procedural noncompliance at the Seabrook Station."l' R/ Minor /Sholly affidavit, Attachment A to July 21 Motion at Pp 22, 23.

2/ 14. at Pp 26.

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The contention then identified certain operations, management, and training programs and procedures requiring significant review and revision prior to operation. JI-LP-1 Basis B. This was consistent with Applicants' own corrective action plan. Applicants' Response to CAL, Enclosure 1.

Subsequently, the NRC Staff issued its own report on.these events. The Staff concurred with Intervenor experts that Applicants' low power failures were safety sianificant.

6.2 Safety Sianificance of Personnel Performance The failure of the operating crew to trip the reactor when required by the test procedure during the June 22nd test; the failure of test group personnel to recommend tripping of the reactor at that point and the failure of management present in the control room to exercise their responsibilities in this situation, despite the fact the plant was being operated under a Technical Specification Special Test Exception, is safety sianificant. Also, the apparent willingness of management to proceed with testing following the June 22nd occurrence without first completing a thorough review and causal factor assessment is safety sianificant.12/ The Staff also concluded that Applicants had acted in apparent contravention of the Commission's Quality Assurance Regulations.

We remain concerned with the lack of action by managers in the control room on June 22, 1989, during the five minutes a test criterion was exceeded, particularly since this condition was identified to licensee management by an NRC representative.

The failure to trip the reactor when required and the failure to promptly review and resolve any associated 12/ Augmented Inspection Team Report No. 50-443/89-82 ("AIT Report"). (Emphasis Supplied).

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l personnel performance implications associated with the failure to tr,1p requirements. w,are potential violations of NRC 4 On August 28, 1989, Intervenors filed additional contentions primarily to reflect the new and clarifying information from the AIT Report.12/ This was supported by a supplemental expert affidavit. These contentions asserted, inter alia,

1) Additional' Bases to JI-LP-1 alleged additional violations of QA regulations based upon inadequate training, management, and operations practices which led to valve failure -

and delay in reactor shutdown (Bases F, G, H);

2) JI-LP-2 alleged serious defects in the maintenance and quality control practices regarding valves and the possibility of design defects in the valve system. AIT Report at $ 4.3.3.

As the AIT Report continues:

4.3.4. Valve Failure Cause It is concluded that the MS-PV-3011 steam dump valve failure cause is apparently inadequate valve maintenance or design. Licensee personnel failed to follow through on a pending work order and failed to recognize and resolve a maintenance problem with the steam dump valves. In addition the licensee failed to 11/ Letter of William T. Russell to PSNH (Aug. 17, 1989) at 1-2. (Cover Letter to AIT Report).

12/ INTERVENORS' MOTION FOR LEAVE TO ADD BASES TO LOW POWER TESTING CONTENTION FILED ON JULY 21, 1989 AND TO ADMIT FURTHER CONTENTIONS ARISING FROM LOW POWER TESTING EVENTS OR, IN THE ALTERNATIVE, TO REOPEN THE FECORD AND SECOND REQUEST FOR HEARING (Aug. 28, 1989) (" August 28 Motion").

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adhere to test procedures by failing to assure that the required test prerequisites and initial conditions were met before commericing the test.

Applicants therefore had signed off on a test prerequisite confirming the availability of the steam dump valve, when in fact there was an open work order pending.

3) JI-LP-3 alleged violations of QA procedures based upon inadequate staffing and procedures to safely conduct start up testing. '

on October 12, 1989, while Applicants' low power license remained suspended, and with substantial corrective actions uncompleted,12/ the Licensing Board concluded, irrationally, that the low-power testing contentions did not raise a "significant 12/ For the last six months, Applicants have been involved in significant corrective actions in response to their low power failures, including revisions to the Seabrook Station Management Manual, Startup Test Program, and Post Trip Review '

Procedures. Applicants' Response to CAL Enclosure 1 pp 2-4 : '

Applicants have also dismissed the Vice President-Nuclear Production from his duties related to Seabrook Station, Id. at 2, and the Staff is engaged in retesting all of the Seabrook operating crews. Exhibit 1 to this brief, attached. Staff counsel previously denied that this operator retesting was related to the low power testing failures. See NRC STAFF'S RESPONSE TO MASSACHUSETTS ATTORNEY GENERAL'S MOTION TO EXPEDITE APPEAL AND APPEAL BOARD ORDER OF OCTOBER 26, 1989 (October 27, 1989) at p.3.n.4. (" Staff Response to Expedited Appeal").

Staff counsel is ill informed. See Exhibits 1 and 2 attached.

As of the date of this filing, corrective actions continue.

See, Applicants' Reply to Notice of Violation (November 17, 1989), Exhibit 3, hereto.

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safety issue," as required by the reopen standard," and rejected the contentions. LBP-89-28 at 43, 54.1SI APPLICANTS' LOW POWER TESTING IS MATERIAL TO FULL POWER LICENSING By rejecting Intervonors' low power testing contentions, the Board violated Intervenors' rights under the Atomic Energy Act to a hearing on all issues material to the grant of a full power license. UCS v. NRC, 735 F.2d 1437 (DC Cir. 1984). In this case, the materiality of low power testing to licensing is manifest.

First, low-power testing is par Eg material to the issuance of a full-power license under circumstances, as here, in which Applicants have conducted testing pursuant to a low-power license, in advance of a decision to grant a full-power license. Having elected this regulatory path with its particular regulatory consequences, Applicants are required to successfully complete that testing in order to demonstrate that Applicants meet the minimum regulatory requirements for a Iq11-power license, which include:

(3) There is reasonable assurance (1) that the activities authorized by the operating license can be conducted without endangering the health and safety of the public, and (ii) that such activities will be conducted in compliance with the regulations in this chapter. 10CFR 5 50.57(a)(3).

l 1A/ Certain other contentions were rejected, improperly, based i upon different alleged pleading defects. The Board therefore, did not reach the issue of application of the reopen standard to these contentions. Discussed Infra.

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Plainly, these preconditions to full-power licensing are placed in issue, and tested, by the low-power test program.

(T)he low-power test program is part of the Seabrook initial test program. The program is conducted to assure that the facility performs as designed and can be operated safely, that plant and emergency operating procedures are adequate, and that plant personnel are knowledgeable and prepared to operate the facility in a safe manner.11/

Therefore, once Applicants conduct low-power testing befcre full power licensing, they must successfully complete those tests orier to receipt of a full-power license.15/

11/ See NRC Staff Response to Intervenors' " Motion to Admit contention, or In The Alternative, To Reopen The Record, And Request For Hearing." (August 18, 1989), Partlow and Norses Affidavit at p.3.

15/ In Intervenors' view, low power testing is a material component of full-power licensing whether conducted, as here, before licensing, or alternatively, af ter licensing but before full power operation. As this Board noted:

Low power testing is a normal, necessary and expected step in the life of every nuclear plant. This is true whether such testing is planned under the authorization of a separate fuel loading and low power testing license . . ,

or scheduled as the first step toward operation under authority of a full power license. Pacific Gas & Electric Cp2 (Diablo Canyon Nuclear Power Plant, Units 1 and 2)

A LA B-7 28 , 17 NRC 777, 794-5 (1983).

Therefore, whether as a condition precedent or subsequent to full power licensing, low power testing is material to that license and to the right granted by that license to operate at full power. Regardless of which regulatory path is selected by an Applicant, Intervenors have a right under the AEA to a hearing on low power testing. This Board, however, need not reach this broader issue since the focus here is solely on the materiality of prelicense testing, and Intervenors' rights to a hearing prelicensing.

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Second, the Staff has suspended Applicants' low-power license and presently has barred Applicants from operating at anY level of Power.12/ CAL 89-11.

VP-NP asked if it would be acceptable to re-establish reactor criticality and then to hold in the standby mode.

NRC (Wiggins) responded no and VP-NP/NRC agreement was reached that reactor restart would be deferred pending NRC concurrence with the restart CAL response. Applicants' Response To CAL at Enclosure 4, p. 11.

Before Applicants can even restart the reactor, they must therefore demonstrate adequate corrective actions and obtain Staff concurrence. In this case, and independent of all other considerations, the Staff has made low-power testing relevant and material to full-power licensing. Indeed, since Applicants have indicated their intent to abandon further testing pursuant to the 12y-power license, the 2nly present relevance of the i license suspension, and corrective actions, is to full-power licensing.

Beyond dispute, Applicants' low power testing performance is material to full power licensing.

12/ It is irrelevant to the present appeal that the NRC did not formally designate this action as a " suspension" since, regardless, Applicants must demonstrate adequate corrective actions to address their low-power failures prior to operation. See CAL. Therefore low power testing in this case is material to a decision to grant a full power license. In addition, the Court of Appeals has stated plainly that it is the substance of the NRC's action, not the label which NRC chooses to apply, that controls. Commonwealth of Mass. v. NRC,

, 878 F.2d 1516 (First Cir. 1989).

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I Third, the commission previously represented to the court of Appeals that there must be successful preoperational testing prior to issuance of an operating license. By necessary inference, the commission also has recognized the importance of successfully completing the entirq initial test program prior to licensing, when the reactor is critical and safety concerns are enhanced, at least to the extent the program is actually tested prior to license issuance.1EI Prior to the issuance of an operatina license, an applicant must conduct preoperational tests to ensure that structures, systems, and components will perform satisfactorily in service.

In addition to creonerational tests, an applicant must perform low-power tests (up to 5% rated power) and power ascension tests before commencina full-power operatigni Engineering judgment is often necessary to determine which tests are to be conducted, and to what degree various components and systems must be tested. Judgment must be used to decide whether the test results, which may include unanticipated responses, actually demonstrate that there is reasonable assurance that systems or components will perform satisfactorily in operation. Evaluation of emergency preparedness exercises does involve judgment, but so does preoperational testing. It is entirely reasonable that the two be treated similarly in the licensing process.

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13/ This discussion appears in the Staff's Brief in Union of Concerned Scientists v. NRC, No. 82-2053 (July, 1983) at Sc and N.7, and p. 32, and is included as Exhibit 4 to Mass AG's Motion to Hold Open the Record. (May 31, 1984).

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Intervenors concur that emergency exercises and the initial test program (e.g. preoperational and low power testing) should be similarly treated in the licensing process. Therefore, since the Court of Appeals ruled that emergency exercises arg material to licensino, and must be subiect to AEA hearing

.richts,AA/ so too must the results of the low-power testing.

Fourth, the Court of Appeals has recognized that certain regulatory requirements to assure the competence of plant operators, must be satisfied before issuance of an operating license. Necessarily these issues, which are addressed by the low power testing contentions, must be material to, and a precondition for, that licensing.

Before it may issue an operatina license for a nuclear oower olant, the Commission is required by its regulations to find that "the facility will operate in conformity with the application as amended, the provisions of the Act, and the rules and regulations of the Commission;" and "[t]here is reasonable assurance . . . that the activities i authorized by the operating license can be conducted without endangering the health and safety of the public";

and "[t]he applicant is technically . . . qualified to engage in the activities authorized by the regulations."

Essential to these findina is a determination that the plant's reactor operators have been crocerly trained and licensed. Mothers for Peace, supra, 751 F.2d at 1309.

(Emphasis supplied).

For reasons stated, it is beyond serious dispute that i Applicants' low power testing in this case is material to a  ;

1 decision to grant a full power license for Seabrook Station.

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THE LICENSING BOARD COHMITTED REVERSIBLE ERROR BY REJECTING CONTENTIONS SOLELY FOR FAILURE TO MEET THE REOPEN THE RECORD STANDARD

h. Acolication of ReoDen Standard since Applicants' low-power testing is material to a decision on full-power licensing, Intervenors are entitled to a hearing on these issues raised by contention before that license issues.2E/ UCS v. NRC, 735 F2d 1437 (DC Cir. 1984).

The Court of Appeals has expressly prohibited the Commission from burdening Intervenors' AEA hearing rights on material licensing issues by subjecting profferred contentions to the reopen standard, with its more onerous evidentiary requirements for contention admission. This violates the Atomic Energy Act.

(W)e cannot conclude that the opportunity to seek reopening was an adequate substitute for the hearing guaranteed petitioners as a matter of right under 5189(a). In order to obtain reopening, petitioners were required to show that they possessed new evidence which was timely;

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11/ filn any proceedina under this chapter. for the arantina, susoendino, revokina, or amendir.a of any licenas or construction permit, or application to transfer control, and in any proceeding for the issuance or modification of rules and regulations dealing with the activities of licensees, and in any proceeding for the payment of compensation, an award or royalties under Sections 2183, 2187, 2236(c) or 2238 of this title, the Commission shall arant a hearing upon the request of any persons whose interest may be affected by the proceeding, and shall admit any such person as a party of such proceeding. Act, 5189(a); 42 U.S.C. 52239(a). (Emphasis supplied.)

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' material in the sense that it would have resulted in a different outcome had it been known earlier; and safety-significant. None of these three criteria applies to requests for a hearing under section 189(a). Under the latter provision parties need only show that their " interest may be affected" by a proceeding to bring about one of eight specified types of commission action.

At most, parties must show that a.particular issue is " material" in order to prevent its exclusion from a hearing under section 189(a);

this much our decision in Union of Concerned Scientists v. Nuclear Reculatory Commission establishes. But the material issue requirement implicit in section 189(a) is significantly different from the material evidence requirement of the Commission's reopening criteria. In most cases, as here, the latter requirement will impose a substantially more onerous burden on parties than the former.

Under the Commission's reopening standards, evidence is material only if "a different result would have been reached initially had the material submitted in support of the motion been considered." Citations omitted. Under Union of Concerned Scientists, a party need not show that a particular issue, or evidence adduced concerning it, would determine the outcome of the licensing process. San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287, 1316 and n.167. (DC Cir. 1984).

Thus the material issue standard of ECS, not the heightened evidentiary burden imposed by the reopen standard, is the appropriate test for admissibility of Intervenors' low-power testing contentions.21/ Plainly, the low power testing contentions rais e issues which are material to licensing, whether or not these is sues are judged " safety significant" or outcome determinative.

11/ Of course, the contention must provide the requisite basis and specifity. 10 C.F.R. 52.714.

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r Neither the Staff nor Applicants appear to challenge this position, nor could they, credibly, since the contentions concern, inter alia, the failures of primary programs and senior plant personnel, that led to license suspension and the present prohibition on operat' ion at any level of power.

Indeed, the Licensing Board ruled that JI-LP-1 filed July 21, and most supporting bases, " meet the threshold test for alleging ' fundamental flaws' as required by ALAB-903."

LBP-89-28 at 24.22I Obviously the Board must have found that this contention raised issues " material" to licensing, and was adequately supported with basis and specificity. 10 CFR 52.714. Therefore, the contention should have been admitted.

Instead, the Licensing Board subjected this contention, and JI-LP-2,22! to the reopen standard, and rejected them solely for failure to meet this standard. LBP-89-28 at 41-42, 54.

This is reversible error. More, it is presumptively bad faith.

22/ The balance of the bases in the July 21 contention alleging " training allegations" was found " defective" by the Licensing Board as failing, pursuant to ALAB-918, to meet the fundamental flaw standard. LSP-89-28 at 24-25. This erroneous ruling is discussed, Infra.

22/ See LBP-89-28 at 24-25, 51-54. The remainder of the low-power testing contentions (i.e., JI-LP-1 Bases F, G, H and JI-LP-3, filed August 28) were erroneously rejected for other alleged pleading defects. Discussed Infra, j l i

Our holding that consideration of a request to reopen the record does not satisfy the requirements of section 189(a) should preclude such Commission error in the future. In the unlikely event the Commission repeats its mistake, this

! court would have no choice but to cresume bad faith on the part of the commission and act accordinolv. Mothers fqr Peace, supra at 1317. (Emphasis supplied.)

The Licensing Board never attempts to come to grips with these arguments raised by Intervenors, and offers no credible rationale for disregarding the mandates of MRS and Mothers for Peace. See LBP-89-28 at 14-15.

As an initial effort to distinguish EC1 from the present licensing proceeding, and to deny Intervenors a hearing, the Board comments that:

the only regulation MES addressed was 10 CFR $2.206 which the Court noted is a rule of " unfettered discretion" which is to be compared with the reasonable procedural rules for accepting issues for NRC litigation such as sections 2.714 and 2.734. LBP-89-28 at 15 citing MCS, supra, 735 F2d at 1449.

This is not accurate. At the cited page, the MCE Court does np1 " note" that $2.206 is a rule of " unfettered discretion." 735 F.2d at 1449. Indeed, the Court there does not even discuss 52.206,11/ and certainly does not qualify its prior discussion prohibiting application of the reopen standard to burden AEA hearing rights. Id. cf 735 F.2d at 1444 n.11. Even if the ECS Court's discussion could somehow be read to include a ZA/ The Court rather considered, and rejected, a Commission argument that emergency exercises should fall within an Administrative Procedure Act exemption to AEA hearing rights.

I

comment on the " unfettered discretion" of the $2.206 rule, the Licensing Board is utterly at a loss to reconcile the same prohibition on the reopen standard in Mothers for Peace, a licensina oroceedino, rather than involving a 52.206 petition.

The Board apparently gives up the effort at rational analysis stating that "whatever the holdina of Mothers for Peace," the Board will not be swayed from its decision to apply the reopen standard. Egg LBP-89-28 at 15.

As an alternative effort to distinguish the controlling law of MCS and Mothers for Peace, the Board, following Applicants' lead, states that $2.734 was adopted after this decision (Mothers for PeaG2) and with " cognizance" of that case.

LBP-98-28 at 15 citing Statomtnt of Consideration, 51 Fed. Reg. 19539 (May 30, 1986). The Board, however, completely fails to address h2g the Commission took " cognizance" of Mothers for Peace in a manner that would permit, consistent with the AEA, application of the reopen standard to Intervenors' lew power testing contentions.

Although, the Board does not bother with an analysis, perhaps it intended to adopt Applicants' claim that Mothers for Peace only rejected one of the " decision generated" standards 4 for reopening - i.e. "the one which required the movant to show that a different result would obtain." According to Applicants, since the rule subsequently promulgated was less

" draconian" (i.e. materially different result would be or would l 1

have been likelv), the present reopen standard can be applied in the present circumstances. Egg LBP-89-28 citing Applicants' Answer at 15. Aside from inventiveness, the argument has no support in ECS or Mothers For Peace, since these cases prohibited all heightened evidentiary burdens (including e.g.

the requirement to show a significant safety issue as well as the " decision generated" standard).

The argument also lacks support from the Commission's own statement of Considerations. The Commission itself notes that, p_r_Ler to promulgation of the reopen rule, h21h " decision generated" standards (i.e. "would have been reached" or "might have been reached") had been applied and approved by the NRC Boards. "The Commission has, at various times, endorsed both standards without differentiating between them." 51 F.R. 19536 (May 30, 1986.) While noting that Mothers For Peaps had cited the "would have been reached" standard, the Commission nowhere indicates this reference formed the basis for the Court's prohibition on the reopen standard, and indeed it did not.

Rather, it is apparent the Commission merely sought, in its reference to Mothers For Peace, to clarify a pre-existing ambiguity in the case law as to the appropriate " decision generated" standard but n21 to comment on when the standard could, or could not, be applied consistent with the AEA. ,

Finally, pursuant to Mother For Peacq, both " decision generated" standards in this case would impose a more onerous

\

\

r i

P evidentiary burden on Intervenors $189(a) hearing rights and would violate the AEA. Egg Mothers.for Peace at 751 F.2d at '

i 1316. Therefore, the reopen standard cannot lawfully be applied to the low power testing contentions.  !

The Licensing Board's predictable, ar.d abject, failure of l analysis, therefore, only buttresses the presumptive bad faith ,

I~

which attaches to the Board's actions.

of course, Mothers For Peace also recognizes the circumstances, n21 presented here,-where the reopen standard ,

may properly be applied.

Where as here the agency has taken final action on a matter i that is peculiarly within its realm of expertise, we will not require the agency to reopen its proceedings except upon a clear showing of abuse of discretion or of extraordinary circumstances.

Mothers for_ Penna at 1317-1318 quoting Mobil 011 Corp. v.

ICC 685 F.2d 624 (D.C. Cir. 1982). (Emphasis supplied).

Therefore, where a hearing has been held on all material issues raised by the requester, See UCS at 1443, where the record has been closed, and where a final decision has issued, then it is both reasonable and lawful to apply the reopen standard to contentions filed subsequent to those events.AE/

21/ Egg Mothers For Peace at 1317 to 1321. The Staff previously argued that Intervonors were improperly challenging the reopen standard rule (i.e. 62.734(a)) in this proceeding.

See Staf f Response to Expedited Appeal, Supra at 7. (October 27, 1989). This is patently inaccurate. Instead, Intervenors challenge the misapplication in this case of an otherwise valid i regulation. Also, in case law cited by the Staff, 14. at 7-8, I

the Commission did not reach the issue of the proper application of the reopen standard in the circumstances presented in this case. Soo Id. citing CLI-89-1 29 NRC 89,93.

This strikes an appropriate balance between In':ervenors AEA i hearing rights and the need for finality in agency decisions. ,

As the Court in Mpbil Oil, (cited in Mothers For Peace at 1317-1318) providest Both the Supreme Court and this court consistently have subscribed to the rule that administrative agencies are not to be required to reopen their final ordera 'except in the most extraordinary circumstances'." The rationale underlying this rule was articulated by the Supreme Court in Interstate Commerce Commission v. Jersey City, 322 U.S.

503, 514-15, 64 S.Ct. 1129, 1134-1135, 88 L.Ed 1420 (1944):

If upon the coming down of the order litigants might demand rehearings as a matter of law because some now circumstance has arisen, some new trend has been observed, or some now fact discovered, there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening. It has been almost a rule of necessity that rehearings were not matters of right, but were pleas to discretion. And likewise it has been considered that the discretion to be invoked was that of the body making the order, and not that of a reviewing body.

Where as here the agency has taken final action on a matter that is peculiar 11y within its realm of expertise, we will not require the agency to reopen its proceedings except upon a clear showing of abuse of discretion or of extraordinary circumstances. Mobil Oil, supra, 685 F.2d at 631-632.

This is also consistent with the Commission's Statement of Considerations promulgating the reopen standard rule, and more recent comment from the Court of Appeals approving application of the reopen standard.15/

21/ Egg 51 F.R. at 19539 (May 30, 1986) ("The purpose of this rule is not to foreclose the raising of important safety issues, but to ensure that, once a record has been closed and gJl timelv raised issues have been resolved, finality will attach to the hearing process. Reg also, Oystershcll Alliance y, US NRC, 800 F.2d 1201, 1203 (DC Cir. 1986) (reopen standard approved for contentions filed after issuance of "what was intended at the time to be its final merits decision with respect to the Waterford-3 facility"). (Emphasis Supplied).

p In this case, no decision to grant a full power license had issued at the time Intervenors' requested a hearing, through their low power testing contentions, on issues material to that decision. Therefore, the reopen standard could not lawfully be applied in this case.

In addition, until low power testing occurred, necessarily these programmatic, performance, and implementation deficiencies, in both personnel and plant systems, could not be scrutinized in the hearing process, Intervenors had no prior opportunity to raise these issues, and the Board had no basis to previously consider them.

Accordingly, the issues raised by the low power testing contentions must "be subject to public hearing because they are material to NRC's licensing decision," ans MCS at 1445 n.14, and these hearing rights cannot be burdened with reopen standard. Id. at 1444 n.11.

Ex The Board's Closure of the Record Independent of this error, the Licensing Board could not rationally, or consistent with the AEA or due process, close the evidentiary record in the face of imminent and material licensing issues. As discussed, gupra, Intervenors specifically moved to hold open the record and requested a hearing on low power testing before the record closed.22/

12/ Motion To Hold Open Record (May 31, 1989), discussed E.upra.

l

The Board denied the Motion, although at that time the Staff had issued a confirmatory action letter and suspended Applicants' low power license. See CAL, Exhibit 2 to July 21 i

Motion.

These material licensing issues therefore were extant before the record closed and obviously required resolution beforg a full power license could issue. By artificially l 1

" closing" the record, the Board sought to place licensing issues, which the Board itself must have reccanized would be material to a full oower licensino decision, beyond the reach of Intervenors' AEA hearing rights. However, (o)nce a hearing on a licensing proceeding is' begun, it must encompass all material factors bearing on the licensing decision raised by the requester. '

UCS v. NRC, 735 T.2d 1437, 1443 (DC Cir. 1984).

The absurdity of the Board's action further is revealed when Intervenors subsequently filed contentions, which the Board itself found were timelv. LBP-89-28 at 27. Yet, because of the prior artificial " closing" of the record, the Board proceeded to burden Intervenors' hearing rights with the reopen standard.2S/ This circumvention of Intervenors' hearing rights must be rejected.

21/ The Board claimed it lacked " jurisdiction" to hold open the record, T28287-8, although it was granted jurisdiction "over all matters pertaining now or in the future to the application for" a license to operate Uni.ts 1 and 2 of Seabrook Station . . . ALAB-916 (May 24, 1989).

• v ,

I With limited exception,2E/ the sole basis relied upon by the Board to reject JI-LP-1, filed July 21,2E/ and portions of JI-LP-2 challenging the testing and maintenance of valve 12/ The Board claimed that Intervenors' July 21 contention Bases B.2, B.5, and C, " amount to no more than an allegation of the need for supplemental training," and therefore are

" defective." LBP-89-28 at 24-25.)

12/ The Board never reached a definitive conclusion as to whether this Contention met the late filed standard,

2. 714 (a) (1) (1) , as a basis to support its ruling. LBP-89-28 at 27 (timeliness), 44-45. Nevertheless, although not relied on as a basis for decision, the Board's comment on the qualifications of Intervenors' experts that "they have not demonstrated any particular qualifications to address the issues set out in the contention", LBP-89-28 at 44, Warrants a response. As the Board itself observed, the issues raised by contention are "(i)n essence . . . a human factors matter."

Id. Had the Board reviewed the very citation provided by Applice.nts on the qualification issue, see Applicants' Answer to Intervenors' Motion to Admit Contention (Aug. 7, 1989) at 22 n.56 citing Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station) LBP-81-12, 13 NRC 557, 614 n.13 ,

(1981), it would have learned that Mr. Minor jointly sponsored expert testimony on operator trainina and human factors enaineering, and that Mr. Minor took the lead in presenting testimony on the human factors issue. Id. In addition, witnesses Minor and Sholly have 35 years of experience in nuclear operations including advising on testing and safety related issues. Egg Minor /Sholly resumes as part of Attachment A to July 21 Motion to Admit Contention. The Board's stated respect for "the experience and technical nuclear expertise possessed by Messrs. Minor and Sholly" should have extended to the issues raised by contention. See LBP-89-28 at 44.

Independent of Intervenors' experts, however, Intervenors have satisfied the requirement to present evidengt in support of the factual and/or technical bases for their contention, see CLI-89-1, suora, by incorporating as bases Applicants' admissions that their training, operations, and management programs must be revised, and the circumstances surrounding reactor shutdown and license suspension. See Applicants' Response to CAL, Attachment B to July 21 Motion; See also Staf f AIT Report, Exhibit 2 to August 28, Motion.

l

systems,11/ was for failure to meet the reopen standard.

LBP-89-28 at 41-42, 54. The Licensing Board has flagrantly violated the Atomic Energy Act and strengthened the presumption of bad faith to this action. This decision should be reversed, and the cited contentions remanded for hearing prior to the grant of a full power license.

INTERVENORS' LOW POWER TESTING CONTENTIONS MEET THE REOPEN STANDARD If contrary to URS and Mothers for Peace this Board approves application of the reopen standard to the low power testing contentions, Intervenors meet that standard as follows.

Egppen Standard The Licensing Board ruled that Intervenors' low power testing contentions did not meet the reopen standard. '

LBP-89-28 at 24, 54.12/ To place this flagrant error in context requires a brief discussion of the reopen standard.

In order to prevail on a request to reopen the record, the movant must demonstrate that (1) its motion is timely, i.e., that the issue it now seeks to raise could not have ,

been raised earlier; (2) the motion addresses a significant safety or environmental issue; and (3) a materially different result would be or would have been likely had the 11/ Basis B and the portion of Basis C were deemed timely and adequately pleaded. LBP-89-28 at 51, discussed Infra.

12/ The Board did not reach this issue as to contentions JI-LP-1 Bases F, G, H and JI-LP-3, which were rejected, improperly, for other alleged pleading defects. This error by the Board is disc ussed, Infra.

newly proffered evidence been considered. 10 C.F.R. 5 2.734 (a) (1)-(3) . See, e.g., Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), A LA B-87 2 , 26 NRC 127, 149-50 (1987). Furthe rmore, "[t]he motion must be accompanied by one or more affidavits which set forth the factual and/or technical basis for the movant's claim" that the three criteria noted above have been satisfied. 10 1

C.F.R. 5 2. 734 (b) . This supporting material "must be set forth with a degree of particularity in excess of the basis and specificity requirements contained in 10 C.F.R.

f2.714(b) for admissible contentions. Such supporting information must be more than mere allegations; it must be tantamount to evidence."

Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1) CLI-89-1, 29 NRC 89, 93 (1989). See LBP-89-28 at 25-26.

This Board has provided a further gloss on contention admissibility under the reopen standard.

In other words, to iustify the crantina of a motion to recoen the movina Daoers must be strona enouah, in the licht of any oDoosina filinas, to avoid summary disoosition. Thus, even though a matter is timely raised and involves significant safety considerations, no reopening of the evidentiary hearing will be required if the affidavits submitted in response to the motion demonstrate that there is no genuine unresolved issue of fact, i.e., if the undiscuted facts establish that the apparently significant safety issue does not exist, has been resolved, or for some other reason will have no effect upon the outcome of the licensing proceeding.

Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Station) A LAB- 13 8 , 6 AEC 520, 523 (1973). (Emphasis Supplied).

Intervenors provided the requisite " evidence" to require record reopening by expert affidavit,2I/ by Applicants' 12/ See Minor /Sholly affidavits incorporated as Bases to the low power testing contentions filed July 21 (Attachment A) and

! August 28 (Exhibit 3).

- 27 -

e admissions,1S/ by Staff investigative report on the circumstances surrounding the suspension of the low power license,2E/ and by reference to prior staff inspection reports from the public record which, in combination with the June 22 events, establish "a pattern of procedural noncompliance at Seabrook Station." E J.1- LP-1 Based upon this evidence, the Licensing Board ruled that JI-LP-1 met the fundamental flaw standard of ALAB-903,22/ and was timely filed. LBP-89-28 at 24, 27. By finding that JI-LP-1 met the fundamental flaw test, necessarily the Licensing Board had to conclude that the contentions presented allegations of serious and significant safety deficiencies. As the Board observes:

23/ See Applicants' Response to Confirmatory Action Letter 89-11, Enclosure 4 (Attachment B to July 21 contention JI-LP-1).

11/ See AIT Report incorporated as basis to August 28 '

contentions.

lf/ Minor /Sholly affidavit Pp 26 (July 21, 1989), Attachment A to July 21 contention.

22/ Except as to Bases B.2, B.5, and C, the " training allegations." LDP-89-28 at 23-25. As to these bases the Licensing Board ruled them " defective" for failure to meet the fundamental flaw test. The impropriety of extending this test for exercise contentions to low power testing is discussed, i

i Infra.

i l

I In this case the contention alleges . . . serious deficiencies in essential elements of NHY's personnel ,

training, policies, management competence and attitudes, and other operational elements which were revealed by the noncompliance of June 22. LBP-89-28 at 19, 23.11/

These " serious deficiencies", when viewed against the purposes of low power testing 1E/ must be deemed to present significant safety issues, and therefore to satisfy this criterion of the reopen standard. $2. 734 (a) (2) .

In addition, since the contention alleged a fundamental flaw, the Board had to have found that these deficiencies not only would "li):ely", but if proven at hearing must, prevent licensing. DEI Therefore, the contention met the " decision generated" criterion (i.e. materially different result likely) of the reopen standard. 52.734 (a) (3) .

Finally, the Board ruled that JI-LP-1 was timely filed.

Sec 52.734 (a) (1) ; LBP-89-28 at 27.

1E/ Although the Board claims, irrationally, that these allegations are inaccurate, see LBP-89-28 at 23, the Board restrains itself to avoid a premature merits review at the '

" contention screening stage." Id.

22/ "(T)he low power test program is part of the Seabrook initial test program. The program is conducted to assure that the facility performs as designed and can be operated safely, that plant and emergency operating procedures are adequate, and that plant personnel are knowledgeable and prepared to operate the facility in a safe manner." LBP-89-28 at 19-20.

12/ See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1) A LAB-903 NRC (Nov. 10, 1988). (A fundamental flaw in the plan is a deficiency that would preclude a reasonable assurance finding).

I on its face, therefore, JI-LP-1 met all Commission criteria to reopen a closed record. 52.734(a). To prevent a hearing, however, the Licensing Board proceeded to place the contention "in context", conducted a " trial" by judging conflicting opinions in expert affidavits, ruled on disputed issues of material fact without hearing, adopted incomplete or ,

inconsistent testimony presented by affidavits crafted by staff counsel, and simply ignored issues of witness credibility, in order to summarily dispose of the contention. The Board thereby twisted the summary disposition concept approved by this Board to judge a motion to reopen, see ALAB-138, quoted sunra, to deny Intervenors' their $189a hearing rights.

First, the material issues of disputed fact include:

1) The Board claims the low power testing event "was an aberration." LBP-89-28 at 42(2); see also Id. at 43(9). This is disputed. Minor /Sholly affidavit (July 21, 1989) Pp 26

("the procedural noncompliance of 22 June 1989 is not an isolated event, but is rather part of a pattern of procedural noncompliance at Seabrook Station. Moreover, the 22 June 1989 event is much more serious since it represents a pervasive noncompliance, involving the entire shift crew on duty at the time of the incident").

2) The Board claims "(t)he failure to trip resulted from a narrow omission in training and briefing . . . .

LBP-89-28 at 42(3). This is disputed. The Board's finding is l l

1 l

l l

contradicted by the extensive corrective actions, still ongoing after six months, which Applicants and Staff have deemed >

necessary to address the low power failures, Egg Applicants' Response to CAL, Enclosure 1, by the Staff's suspension of Applicants' license, still extant, and by Intervenor experts.

Minor / Shelly af fidavit (Aug. 28, 1989) Pp 12-18,

3) The " Board claims "(t)here is no evidence of willful (i.e. with knowledge) noncompliance with NRC regulations or agreed upon procedures." LBP-89-28 at 42(5). This is disputed. Minor /Sholly affidavit (Aug. 28, 1989) Pp 14 and provisions of AIT Report cited therein. In addition, the failure of senior plant personnel to promptly respond to NRC notifications for reactor shutdown substantially refutes the Board's finding. Egg Martin /Eselgroth affidavit, supra, at A.11.

4) The Board claims "(t)here is no evidence that NHY management (with the possible exception of the Unit Shift supervisor) present in the control room knowingly allowed (sic) test limits to be exceeded." LBP-99-28 at 42(6); see also Id.

at 43(8). This is disputed. Egg Martin /Eselgroth af fidavit, suora at A.11 ("(T)he NRC also informed the Startup Manager and the Test Director that the test criterion was exceeded in sufficient time for them to recommend to shift supervision the tripping of the reactor").

7-~e >

Y 4

5) The Board claims "(t)here is no evidence that NHY '

misled the NRC in reporting the events or was not-fully forthright." LBP-89-28 at 42(7). This is disputed. As

acknowledged by the Board itself earlier in its decision, NHY subsequently admitted that post event reports from Applicants to NRC were " inappropriate" and that "(t)he Vice President-Nuclear Production lost-his job as a result of his post-trip communications and perspective." LBP-89-28 at 32, 37 n.14.

6) The Board claims that the issues raised in the low power testing contentions are "best left in their (NRC Staff's) hands." LBP-89-28 at 43(11). This is disputed. The Staff previously approved low power testing obviously before Applicants were substantially prepared to conduct the test in conformance with procedures and established safety praccices.

Regardless, the Board cannot summarily dismiss Intervenors' independent right to a hearing under the AEA to material licensing issues.

Second, although the staff affidavits offered to oppose Intervenors' contention are structured by Staff counsel to illicit negative responses, a closer reading demonstrates that the affiants acree with many core facts cited by Intervenors I

that establish the severity, and safety significance, of Applicants' procedural non-compliance, sufficient to satisfy the criterion of the reopen standard. 5 2.734 (a) (2) .

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gm p

.The startup test group had responsibility to interrupt or terminate the test in the event that required plant conditions were not maintained.- However, no such recommendation was made to the shift operating crew by the test group even though the Startup Manager was made aware of the NRC's concern about the plant being below a manual trip criterion. The overall direction given'by the test organization durin,9,the performance of this test was  ;

inadequate. A.7. w During the conduct of 1-ST-22 and at the time when plant conditions had reached the reactor trip criterion associated with pressurizer level, there were several plant management observers in'the control room with the authority  :

to direct shift supervision to terminate testing and/or plant operations when conditions adverse to safety are observed. The managers either did not know the reactor trip limits were exceeded or did not inform shift supervision or otherwise act to correct the failure to trip.

the reactor when required.- A.7.

The failure of the operating crew to trip the reactor when required by the test procedure during the June 22nd test; the failure of test group personnel to recommend tripping of the reactor at that point; the failure of management present in the control room to exercise their responsibilities in this situation, despite the fact the plant was being operated under a Technical Specification Special Test Exception; and, the apparent willingness of management of proceed with testing following the June 22nd occurrence without first completing a thorou,qh review and causal factor assessment was unacceptable. w A.7.

41/ Citations are to the affidavit of Thomas T. Martin and Peter W. Eselgroth (Aug. 16, 1989) filed with NRC STAFF RESPONSE TO INTERVENORS' " MOTION TO ADMIT CONTENTION, OR IN THE ALTERNATIVE, TO REOPEN THE RECORD, AND REQUEST FOR HEARING" (Aug. 18, 1989).

42/ In the AIT report, the Staff used the term " safety sianificant", rather than merely " unacceptable", to describe these identical failures. See AIT Report at 56.2, cf Martin /Eselgroth affidavit at A.7. This unexplained change in key language from the AIT Report, heightens the concerns on the l credibility of the Staff affiants, which could not fairly be

! tested without a hearing. Summary disposition therefore was inappropriate. See further discussion, Infra.

[, 1 The NRC also informed the Startup Manager ~and the Test ,

Director-that the test criterion was exceeded in sufficient time for them to recommend to shift supervision the tripping of the reactor. The failure of the Startup Manager to communicate NRC concerns to the shift crew and his failure to recommend termination of the test upon learning that the test criterion was exceeded, as was his responsibility, is of concern. The Test Director did inform shift supervision of NRC's concerns, but his failure to recommend test termination as was his. responsibility is also of concern. A.11.

(W)e do agree that the Vice President-Nuclear Production failed to recognize the seriousness of their procedural non-compliance, and even suggested restarting the reactor without adequate prior review or resolution of this issue

. . . . The Vice President was subsequently relieved of his responsibilities for nuclear matters by the licensee.

A.13. .

The NRC found that the operators did not clearly understand the requirements for test procedure compliance.

The NRC has not determined how operators came to this imoroner understandina of test procedure reauirements. The licensee has revised procedures and is conducting training to correct the operators' misunderstanding. A.19.

.(Emphasis Supplied).

As a matter of law, these core facts, concurred in by the Staff, and which in substance form part of the basis for Intervenors' low power testing contentions, present significant safety issues sufficient to satisfy 2.734 (a) (2) , even when placed in the " context" of Applicants' overall performance record. The deficiencies are pervasive, and involve the most senior plant management and operations staff.43/ I" "ddIDI "'

12/ During the natural circulation test, there were more than 5 0 New Hampshire Yankee personnel, including 6 management and 31 o perators, participating or observing in the control room. Applic ants' Response to CAL, Enclosure 4 at 5. Many of these senior pe rsonnel had authority to shut down the reactor, yet failed to act See Minor /Sholly affidavit at Pp 19, Attachment A to July 21 M otion to Admit Contention.

- 34 -

i i

the Staff's efforts to minimize the safety significance of the

-low power testing events, by citing to other tests where Applicants, apparently, complied with their own procedures, is plainly refuted by Applicants' own recognition of the need for extensive review and revision of operations and management programs, which are still ongoing 6 months later. Egg e.g.

+

Applicants' Reply to Notice of Violation (Nov. 17, 1989 and i l

Enclosure 1 to Applicants' Response to CAL) . The Staff's-  ;

position is also impeached by their suspension of the low power license (or " constructive suspension") which still remains in j effect, and by the extraordinary, mandatory retesting of all operator crews at Seabrook Station. Exhibits 1 and 2 attached. j In addition, it is beyond serious dispute that the Staff's decision to permit Applicants' to receive a low power license was premature and ill advised. If the deficiencies revealed by low power testing had been known, that license could not have lawfully issued. Clearly, by suspension or constructive suspension of Applicants' low power license, and the present prohibition on operation at aDY level of power, CAL-89-11, the Staff has demonstrated by its actions that a different licensing result would likely have occurred. 5 2. 714 (a) ( 3 ) .

The greater safety concerns posed by full power operation only underscore the safety significance of the low power debacle, i

Indeed, even when pressed by Staff counsel, the Staff affiants j can only speak with uncertainty, and equivocation en this issue.

l l

F s

A25:- Based on our current knowledae of the event, we are not aware of any condition that would require a material chance in the Reaion's earlier recommendation. .The identified potential violations of license conditions and NRC requirements are causo for requiring corrective actions; however, the licensee staff's failure to implement their procedure and program requirements _does not necessarily imoly those requirements and our recommendations must be changed. Corrective actions by the licensee will likelv involve an appropriate combination of procedure enhancements, staff selections, training and assessments of success. The NRC will assure that the ,

licensee has adequately reviewed the event and identified lessons learned, developed appropriate plans and schedules for corrective actions to prevent recurrence, and is adequately implementing those  ;

activities.

i The Staff's opinion based upon an incomplete review and retesting, is equivocal and uncertain, and provides no basis to summarily dispose of Intervenors' expert opinions that

Applicants' low power failures in personnel performance are I

safety significant,dS/ and therefore must be resolved nrior l to full power licensing. See LBP-89-28 at 43, Pp 12.AEI E

dA/' Minor /Sholly affidavit at Pp 17 (Aug. 28, 1989); cee also Minor /Sholly affidavit at Pp 23 (July 21, 1989) (procedural noncompliance has "significant safety implications") .

33/ If the Staff later claims, with greater certainty, that t the low power testing failures are resolved, the record still '

must be reopened for hearing since 1) the Staff's conclusions are disputed by Intervenor experts and other record evidence;

2) the Staff's credibility is now at issue; and 3) the unlawful delay in a hearing occasioned by the Board's decision cannot be remedied by subsequent Staff claims of new information, inaccessible to Intervenors.

l 1

Third, the Board's effective grant of summary disposition of JI-LP-1 was improper in view of the issues of credibility, motive, and intent raised by the contentions, a) Although Staff Affiants D2H state that many identified failures by Applicants are merely "unaccentable",SSI these identical concerns were previously identified by.the Staff in its AIT Report as " safety siunificant". AIT Report at $6.2.

The Staff finding of " safety significant(ce)" in the AIT Report strongly corroborates the importance to safety of the concerns raised by Intervenors' contention, and indicates that Intervenors have met their burden under the reopen standard. $

2.734 (a) (2) . In addition, the obvious and deliberate omission, without explanation, of important language from the AIT Report as to safety significance, undercuts the credibility of the Staff-affiants and raises legitimate questions as to the completeness of the Staff affidavits on material issues.

Issues of credibility are particularly 111 suited to summary disposition. See Mazalesli v. Truesdell, 562 F.2d 701, 717 (DC Cir. 1977).

b) JI-LP-1 raised issues of corporate character, motive, and intent, involving procedural noncompliance.A2/ For example, operators deliberately disregarded the test 15/ See Staff Affidavit at A.7.

l l- 12/ See JI-LP-1 BASIS A. Issues regarding corporate character i were further raised following receipt of the AIT Report. See JI-LP-1 BASIS H. (Aug. 28, 1989).

i e

o criterion for manually tripping the reactor,SE/ and the Staff itself made a preliminary finding (absent from its subsequent affidavit) that Applicants' "(d)esire to successfully complete the test"SEI influenced the decision to deviate from test procedures that required reactor shutdown. The Staff's efforts to explain away the noncompliance solely as a misunderstanding is not credible in view of Applicants' failure to shut down the reactor promptly, even after beina express 1v advised of the procedure noncompliance by the NRC Staff. See Martin /Eselgroth l affidavit at A9, cf All.ESI These issues of plant safety, f

I which implicate Applicants' motive and intent, were not proper subjects for summary disposition by the Board. E22 E913 er v .

Columbia Broadcastina System, 368 U.S. 464, 473 (1962).

3) Summary disposition is inappropriate since there is a difference in expert.ooinion as to the safety significance of l the low power events. It has long been established that the  ;

appropriate weight to give expert opinion evidence should be fairly tested by examination in a hearing, instead of by 48/ See Supplemental Sholly/ Minor Affidavit (Aug. 28, 1989)

Pp. 14.

12/ See Memo from Charles J. Harghney to Charles E. Rossi (July 13, 1989) Encl. 2 p2 (Attached as Exhibit 4).

! 12/ See also Enclosure to AIT Report, NRC OBSERVATIONS l REGARDING SEABROOK NATURAL CIRCULATION TEST; Applicants' i

Response to CAL, Encl. 4 at 6.

38 -

V i

summary disposition. Eartor v. Arkansas Gas, 321 US 620, 627 (1943).

Intervenors met their burden to reopen the. record in this proceeding on the issues raised by these contentions. At a minimum, material issues of fact remain in dispute, and issues of credibility are presented by the record. Since the undisputed facts on the record do Dat demonstrate that these issues involving plant safety "do() not exist, ha(ve) been resolved, or for some other reason will have no effect on the outcome of the proceeding," ALAB-138 at 523, guara, the record should be reopened and a hearing held on JI-LP-1.

JI-LP-2 In contention JI-LP-2, Intervenors alleged serious defects in maintenance and quality control of plant valves and valve systems.E1/ The contention was supported by cited provisions of the Staf f AIT Report and Intervenor experts concluding, inter alia, that these " valve maintenance and design problems" were " safety significant" and "must be resolved before resuming operation."EAI 21/ JI-LP-2 provides that " low power testing has disclosed serious defects in the maintenance practices regarding valves and the quality control of such maintenance practices and the possibility of design defects in certain steam dump valves, in violation of 50 CFR Appendix B, V, XI, and XVI." JI-LP-2 (Aug.

28, 1989).

12/ Minor /Sholly affidavit at Pp 11 (Aug. 28, 1989).

r The Licensing Board found Basis B and identified portions of Basis C were timely filed and "an adequately pleaded contention." LBP-89-28 at 51. The Board acknowledged that the Staf f af fiants did Dal " expressly address () the issue of the overall quality assurance program for-equipment as alleged by Contention JI-LP-2." LBP-89-28 at 52. Therefore, ng Staff.

experts were presented to even attempt to rebut Intervenors' QA contention, or the safety significance of the issues presented.

In an incoherent opinion, however, the Board indulged in bare speculation and conjecture, recognized that resolution of these issues before operation was in accord "with the Applicants' long term plans", and baldly concluded that Intervenors "do not make out a case" of a " pervasive breakdown" in the QA program. LBP-89-28 at 54.

This ruling is irrational, without record support, and must be reversed.EE!

THE LICENSING BOARD'S REJECTION OF CERTAIN LOW POWER TESTING CONTENTIONS ON GROUNDS OTHER THAN THE FAILURE TO MEET THE REOPEN STANDARD IS REVERSIBLE ERROR.

JI-LP-1 Bases B.2, B.5, C.

The Licensing Board appeared to reject as " defective" the

" training aspect" of JI-LP-1 for failure to allege a 12/ This is also contrary to the Commission's own summary disposition rule. Since the statements and opinions of Intervenor experts on JI-LP-2 were not specifically opposed, see 10 C.F.R. 52.749(b), Intervenors prevailed on their contention, at least to the extent necessary to gain admission and a hearing on their contention.

l

s

" fundamental flaw" as defined in ALAB-903.EA/ The Board thereby committed error.

First, the Board improperly made new law by extending the fundamental flaw test for emergency exercises to contentions asserting defects revealed by low power testing. The fundamental flaw standard arose in the context of two rulemakings, and the decision in MCS, which addressed the.

limited issue of the litigability of emergency exercises. 47 F.R. 30232 (7/13/82 ) ; 50 F.R. 19323 (58/85); see also Long Island Lichtina Co. (Shoreham Nuclear Power Station) CLI 86-11, 23 NRC 577, 581 (1986) (in view of prior rulemaking and Court review further rulemaking on fundamental flaw standard for exercise contentions unnecessary). The Board's application of the fundamental flaw standard in this caso exceeds the boundaries of the Commission's rulemaking and has been arbitrarily extended to impermissibility burden Intervenors' rights under the AEA to a hearing on issues material to licensing.

LA/ Basis B.2, B.5, and C. See LBP-89-28 at 24-25. In its later discussion of the reopen standard, the Board does not separately address these contention bases. The Board does rule, however, that "(o)verall training of NHY operations and management is good. Remedial steps have been taken to address any deficiencies in the training program." LDP-89-28 at 42.

Precisely why these programmatic failures, which include the

" safety significant" failure to adhere to procedures, age Minor /Sholly affidavit (Aug. 28, 1989) at Pp 14, may be l summarily excluded from the hearing process is not revealed by l the Board.

l l

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3 i'.

Second, even if the fundamental flaw standard is applicable to the low power testing contentions, the cited bases meet that standard and should be admitted. Basis B.2 and B.5, respectively, challenge, as inadequate, the training and management procedures for the operations shift crew and management training programs on grounds, inter alia, that the entire shift crew and additional operators and management representatives in the control room, numbering more than 40 Staff,EE/ individually and collectively, failed to exercise authority to timely shut down the reactor. Basis C cites to failures in the training programs for operators and technical .

and management staff.

The failure of many operators and management personnel to comply with test procedures and NRC notifications for plant shutdown, or to accurately report events to NRC following shutdown, demonstrates the pervasive and fundamental defects in the cited programs and procedures. JI-LP-1 Basis C.3 These dsticiencies in training are directly linked to failures in the training programs and procedures mandated by the FSAR, see Basis C, which in turn are incorporated into the application for an operating license, and represent a condition of licensing. 10 CFR 5 50. 57 (a) (2) ; cf ALAB-918 at 24 (asserted weaknesses in training "do not implicate the Applicants' emergency plan itself at all").

51/ These individuals were participating or observing, as part of the FSAR commitment to training. Applicants' Response to CAL-89-11, Enclosure 4 at 5.

In addition, the pervasive failure of plant management to-adhere to test procedures or to respond to NRC' notification involving the need for reactor shut down, suggests significant revision to the cited programs and procedures is required.

Indeed, Applicants are performing an extensive review and revision of the startup test program and procedures, Seabrook Station Management Manual, and operations procedures, which are still ongoing 6 months after the low power debacle. See Applicants' Response to CAL, Enclosure 1.E5I In these circumstances, Intervenors have duly alleged, even if applicable, a fundamental flaw in the cited programs and procedures, as defined in ALAB-903, and as refined in ALAB-918.

Since these allegations are duly supported by expert affidavit, Applicants' admissions, and Staff documents, the Board could not summarily dispose of these issues without hearing. See e.o. Applicants' Response to CAL, Enclosure 1.

JI-LP-1, Bases F. G, H. JI-LP-2 Basis A, and JI-LP-3. The additional contention bases to JI-LP-1 filed August 28 alleged, inter alia, inadequate training and poor operational quality (BASIS F) , inadequate maintenance procedures (BASIS G), and

' issues of management training and corporate character (BASIS H). These allegations were based principally upon, and expressly referenced to, the AIT Report, with limited 56/ Cf ALAB 918 at sl. op. 24 (" deficiencies would only require minor modifications to several plant operating procedures").

4 additional support from certain Staff Inspection Reports, and' t Applicants CAL response, as specifically cited in the body of each basis.E2/ Intervenors therefore set forth with the requisite specificity the factual bases and relevant-documents to support these contentions.

In response,-Applicants challenged the newly proferred bases-on grounds inter alia, that Intervenors " possessed ample information on these very issues well before the issuance of the AIT Report."EEI Applicants cited to alleged information pre-existing the AIT report which purportedly would have permitted Intervenors to raise these issues earlier.

As presented by the parties, the Licensing Board essentially was required to review the specific provisions of the AIT report and other documents cited in Intervenors' contentions, and compare this information with that cited by Applicants to resolve the timeliness issue.

The Licensing Board did not even attempt this inquiry as to JI-LP-1~ BASES F, G, and H, provided no analysis at all of pl/ See August 28, 1989 Contentions, Exhibit 1 to Intervenors' Motion for Leave to Add Bases.

11/ See Applicants' Response to "INTERVENORS' MOTION FOR LEAVE TO ADD BASES TO LOW POWER TESTING CONTENTION FILED ON July 21, 1989 AND TO ADMIT FURTHER CONTENTIONS ARISING FROM LOW POWER TESTING EVENTS OR, IN THE ALTERMATIVE, TO REOPEN THE RECORD AND SECOND REQUEST FOR HEARING" (Sept. 11, 1989) at 3-5.

l-l 44 -

JI-LP-3,EE/ and rejected these contentions apparently since the issue primarily required review of two discrete documents (i.e. CAL Response and AIT Report) which posed too great a task for the Board.

The Second Motion, except as noted below, fails because it does not clearly inform the Board and the NRC Staff about-the issues sought to be litigated. It does not inform the Applicants about the charges against which they must defend. In that it does not adequately separate new information from previously available information, we also conclude that the Second Motion is not timely under the standards of 10 C.F.R. $ 2. 73 4 (a) (1) , again, except as noted below.

L None of these bald claims can withstand scrutiny. First, on its face the cited contentions do clearly inform a

! reasonable decision maker and the parties of the issues to be litigated. Indeed, Applicants' Response challenging each assertion as untimely necessarlij establishes that Applicants understood the issues raised, even to the point of alleging these issues had previously been available for litigation.

Second, most disturbingly, the Licensing Board simply abdicated its judicial responsibilities to conduct a reasonable review of discrete documents (i.e. AIT Report, CAL Response, cited Inspection Reports) to determine if an admissible contention is presented.

l l

12/ See LBP-89-28 at 54. This contention (JI-LP-3) challenged as inadequate, inter alia, the staffing and procedures to safely conduct startup testing. The Board's reasons for rejecting JI-LP-1 BASES F, G, and H apparently were intended to apply equally to support rejection of JI-LP-3. Id.

Thus, licensing boards are expected to undertake a thoughtful, albeit non-merits, review of any document,

' information, theory, postulated accident scenario, etc. , -

that is claimed to provide the basis for contention. This review may even include consideration of the fact that the underpinnings of the document on which a contention is based have been subsequently repudiated by the document's own source.

Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear '

Power Station) ALAB-919, NRC , (July 26, 1989), sl.

op. 32-33.

The Board did not even attempt this inquiry. LBP-89-28 at ,

47-48. According to the Board, even though Intervenors ID their contentions orovided painstakinalv soecific citations to j

the documents relied on to support the contention,5E/

Intervenors were supposed to perform some additional analysis to " separate new information from previously available information". LBP-89-28 at 47. There is no regulatory support for such a proposition beyond the basis and specifity, with clear citation to supporting documents, which Intervenors provided in their JI-LP contentions. Even when Applicants provided additional information in support of their timeliness

,12/ The relevant Contention Bases included specific cites principally to the AIT Report, and, in addition, the CAL Response, and a few Staff Inspection Reports. All of these documents were generated as part of the licensing process and had either been filed in this proceeding (AIT Report and CAL Response) or presumably were readily available for review by the Board as public documents (Staff Inspection Reports), if it was so inclined.

t challenge to the contention, however, the Board did not bother.

to review the issue further.E1/

Finally, most astonishingly, having utterly failed to consider the contentions, supporting documents, or arguments of the parties, in order to make a reasoned decision on timeliness, the Board nevertheless proceeded to rule that JI-LP-1 BASES F, G, and H and JI-LP-3 were not timely' .

LBP-89-28 at 48. This is patently irrational.

CONCLUSION The Licensing Board blatantly disregarded the mandate of MCS and Mothers for Peace by rejecting contentions solely for failure to meet the reopen standard. The failure of the Board to support this action with any credible rationale strengthens the presumption of bad faith. The Board also ignored 61/ Intervenors recognize that a " rule of reason", see Vermont lanhea, supra, sl. op. at 38, should be applied such that parties must provide reasonably specific citation to documents relied upon to support contentions. Intervenors submit, however, that this was clearly done in this case. The Licensing Board could not lawfully reject the contentions based upon its own failure to perform its judicial role to conduct a reasonable inquiry into the basis (including timeliness) for the contentions. For this reason, the Board was similarly irrational in rejecting JI-LP-2 BASIS A (alleging a pattern of reporting incomplete work items as complete) primarily for failure of Intervenors to file with the contention two Staff Inspection reports referenced in BASIS A. Having stridently criticized Intervenors for their " blizzard of information" filed on the JI contentions, LBP-89-28 at 47, the Board i proceeded to reject contentions for failure to augment that i " blizzard" with public documents presumably readily available.

l

[.1 h

controlling law on the proper application of the reopen standard and made a travesty of the summary disposition rules.

LBP-89-48 is irrational, should be reversed, and the relief

. ranted as requested herein.

~g v

COMMONWEALTH OF MASSACHUSETTS JAMES M. SHANNON ATTORNEY GENERAL

\

Matthew T. Brock Assistant Attorney General Nuclear Safety Unit One Ashburton Place ,

Boston, Massachusetts 02108 617-727-2200 Date: December 19, 1989 i

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I:=a*: a. Br wn, President se:

Cn'ef incut1n offIcor '

New Nampshire Yankee Qivision Post Offi:e ton 300 l Seacre:t, New nampshire 03874 l Gentlemen: i

$wefect:

NRC EVALUATICN OF SEA 8400K STATION, UNIT 1 v

. CPERATOR PROFICIENCY

n aat::r: e5,sation

e ae: on Septemeer 7, 1989, between Mr.

Mr. 8eter Eselgroth. Joseph Grillo Unit 1

• e an sRC eva h.a tion of eperator proficiency. Chief. PhR 3ection. arrangeme ,

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e See

NRC:et s :I en'rg to :enduct the evaluation of all a s :ecea:er ;1, gnit 1989.1 simulator, using .NRC-coveloped scenarios during the The scenarios will cover various types of ercad evolu-t :e/t'ars ents and will not te limited to the use of the (0P5 b :efea ':P t e NRC

.ill

e ecessary 'staf f to adequately develop scenarios for the evaluati:n, ea; ; :y Oct::er :r you 11, 1989. to furnish the reference material listed in Attach *

ae ::e ations :ersen to assist in the valid tiAlso, we will need one simulator in

evele:ec ey tre NRC. a on of the simulator scenarios agree *emt trat taey will not knowingly divulge the sce f acility :erseneel and not be involved in further training of th ,

e operators a'ter val cation of the scenario contents.

tre scre:v's and finalite our needs. Future c mmunications will confirm Your c:::eration with us in this matter is appreciated .

tions at  ::n=erning this matter, please contact Mr. Peter (selgrothIf 215 307-5211. , o f my s ta f f, you have any sincereiy, o 1 noeert m. cai , Chier ECENEO 0,eratices e,anch Division of Reactor Safety

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AT. MIM E 4 I de laaBJe1/ofF.* skt 0 But Robert Calle, re-

,% gional operatione chief -

. WP of the NRC's Division of Reactor Safety, said the test may to moved 1

.* up of other NRC hur-

k. dies to full power oper-attons have been com-g *L pleted.

He added, however. '

that tf the evaluation turns up problems with sia control room crews.

it could hold up a 11 cense for the plant.

JAMS $ $ NAN 3, mag y go,NON "After the problems m that came up at Sea.

t - ' brook during the low-g power testa, we thought

^ it was a good idea to l take a look at all oper-l ating crews. from top h* OEQ to bottom." explained Calle. who laformed bf k New Hampshire Yan .

kee of the testa la a let-ter.

3 O M W Massachusetta Atter.

l ney General James Shannon. a vocal plant Sy NICK TATE critic, said the decialot l

Nuclear Regulatory la a setback for Sea.

l-Commission officiale brook which will push said yesterday they back reactor offichle' predletions that the will conduct a compe- plant would win an tency test of Seabrook i

Nuclear Station opera- NRC license by year's

! e nd.

tors Dec. Il to see if 'This is a fundamen-i problems that surfaced during low power test- tal safety issue." he Ing have been correct- said. But Yankee ed. spokesman Rob Wil-The evaluation,  !!ams said the deelslon whleb sa NRC offletal la not a setback and said is typleally per- that we look forward formed at trouble pta- to demonstrating the gued Americas nuclear profielency of our oper-reactors, was touted as ators/*

a victory for plant ett-ties, who aajd it will l push back the leeuance of a full power license for the $4.5 billion plant.

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1, New Hbmpsh RECEIVE 00E0 6 mag

,, . m m senier dhesentW Oiel operve 1 08ker Nfy.It144 h

November 17, 1949 1

i' Director. Office of taforcessat l United States' Nuclear tegulatory Commissies Vechington DC 20533 l'

i Referencess ,

(a) Facility operating License NPF.67, Docket se. 30 443 (b) USWRC Letter dated August 17.1949, 'Ntc Region ! Augmented Inspection Team (A.It) !aspectima (30 443/49 43) of the l

Natural V. Ciresisties

f. Russell testtrava-to 3. A. at se4 brook Station. Dalt l' l

(c) USNRC Letter dated October 23,1949, 'Wesics of Violation and Proposed Tapeettion of Civil Penalty $30,000 (WRC

tnepection Report No. 30 443/09-42)' W. f. Russell to 3. 4.

trova (d) NMT Lettet WYN 491333 dated Oc:ober $1,1989, 'New ,

Hampshire Yankee Corre:tive Action F16a,' ?. C. Feigenbaum '

to W. 7. Russell

,. . sub's:te Reply to a Motice of violation Gentlemens In accordance with t)e requirements of the Notice of Violation and tropcsed Imposition of Civil Penalty (R4ference (c)), New tampshire Yanket hereia provides its reopense to the cited violatione (taclosure (1)). New Rampshire Yankee does not conteet the proposed civil penalty, and includes herewith (taclosure (1)J payment in the aarunt of $30,000.

New Vampshire Yankee has implemented a comprehensive corrective action plan to ensure that events. auch as that described in the Wotice of violation, do not reeceur et feebroek statton.

Should you have any questions concerning ear reopense, pistes contact Mr. Jeries M. Feschel. Regulatory Compliance Manager, et (403) 474 9521 extension $171.

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Yery truly yours.

kb fed C. Folgenbaua Inclosures

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• l gg,,,ger. Office of gatoresnest Nevenber 17, 1969 i- fagted Statte Neelear lessistory commission Page 8 L

l ces Mr. Willlaa t. Russell Regional Admintetrator

- United 8tates puolear Regulatory C.muniesion Region !

478 A11endele Road King of Prussia, PA 19408 Hr. Vieter Norsee, Project Manager Project Direeterste !.s United States Nuclear Regulatory Casalesien  !

Divietoa of teacter Projecte 1 Washingtea, DC 30585 Mr. Antese C. Corne MC 8ealer Resident !aepetter P.O. Sea 1149 seabreek. Nu 03474 pocument Centrol Desk United 8tates Nuclear Regulatory Coasissies Vashington, DC 20555 i

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v o; Wow 5espehire Yeahoe Nevester 17e 1889

1. During the performanas of 8:artup feet Procedure 18f.12 en June -

88. 1960, the startup Mae.ater, the Shift feet Director, and the i feet Director beense rare of a condities adverse to quality. but f ailed to ensure that the candition was promptly corrected.- The adverse condition consisted of the pressoriser level dropplag netow '

i the trip criterla spe:ified in the test procedure and the failure -

of the operattene ste!! to trip the reacter as required.

2.

Subsequent to the Juss 22 litt failure to praappy effect a athual

• reacter trip as requi:ed by the criterien in Staccup feet Frecedure 187 33. Licensee asugement did set promptly identify and terrect associated perseasel ;4rfen:ance failures in that assagement initially ende a decision to teouse teetlag without cesplettal 4 detailed and thorough saalyste of the underlying causes of the event and without earneting the related bussa performance deficiencies.

itatewst i

New Rampshire Yankee does not dispu:e the violations as stated above. '

Cetailed reopenses for each violation tre provided heter.

Violation A.1 taanansa l "he Cperating Shift failed to :3mply with the Natural Circulaties feet Procedure 147 22, by not immeflately manually tripplag the resetor when the pressuriser level decreased bolse the teet's 172 asaani trip criterios, the f ailure to strictly adhere to the Startup feet precedure use an l aseceptable deviaties fres WIY epers: Lag po*1cy.

"he operating Shif t did att natully trip the reactor because the Unit shift Superviser (Uss) misiatorpreted the in preestariser 1svel velas specified la the test precedure to be test to:1mination guidanee, rather than a reactor trip criterien.

Correctivet Action As 1sumadiate corrective a: ion. Metinge were held with each of the shif t crews to review the policy on pror.edure complianee.

Additionally, the Freeldest issued a semerandum to all personnet verking at'Seabrook Statloc re esphasistag the requiremost that all procedures are to be felleved.

1 4 '

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New saapshire Yankee Wevember 17, 1989 i

\

New tempshire Yankee deve'1eped and tesued a comprehemelve pel clearly define precedure adherence requiseneste for all NET activitte the Ntrt pelary ese issued as past of WWY precedure 10000 and was  !

(

' Hansgement Manual and. the operatioos Managem!

being provided precedure rempliance to Seabrook pelley. station site eagleyees en the enhancedTra j j

completed and the makeup sessiet.e are scheduled to b November 30, 1989.

inte$ rated into the senere1 hployee trainias (SIT).Addittenelly l Violatina A.2 taesensa i

the step in startup feet Procedure 1-8711 was signed eoff confirm i

availability of the Maia steam Dump systes because the Startup did not require that open reteste, (or applicable work requesu i prior to the conduct of a Startup feet. . be reviewed The Hala Steam Dump tystem wee l

during the tsorgency Feedwater Testial 12, 1989 et Juneseneidered t .

the June St 1989 preparatary activittee for the Natural Circ l, and wee use i l u ation feet.

corrective Aetien_ l 1

i power Ascension feet Program (FATP) and inc e i t

review test support open Work tequeste setivities le operable. and veruy that the equipment required october 25,198e, and wee issued on November it.1969.The Traintag to FAfD was re for the test crews temposed of PA?P ,and es a one operatio crew per expotted by weekJanuarybacia, 13, 1994. causeasing on December 4,1944, with comple Violation A.1 laanensa Test was not effective.the pre-test briefing given to theua:rew on performin

The reacter t:1p criteria information was dieseminated to the crew membere, bit .he requirement to perform a a reacter trip at 173 preessaiser level vse not dieeussed with each test crew

r. ember and wee not fully understood by the entire crew.

Additionally. _ the baels for the incluelen of the 178 preneuriser level reactor trip critation veo involved not discussed, la the test. not vue it understod by the appropriata personnel ,

Startsp Qat Departmaat assagement and the rhift i Superintendent prepared to perfore did not ensure the test. that all test crew pereoaneleywere adequ e

0 i

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New taspehire Yaakee 1' Nevesber 17, 1949 correceive Aetion Power Asceneien feet Progras 7%e (PAtt).the startup feet Program hecr PATP requires then a prior to the test crew assuming the shift. comprehensive presh that a11 test crew seabers will understand t.he test criteria 7te brieflag will e expected plant response and regaired actions. ,

.that describes the reseen the test is belag co:Ju!

critorie, test esthode and test osotrels.  ;

i the PAtP has been reviewed by 801C and was lee ad on Itovember 17 ,

\

i 1949. the response test A.2.

to Violation crews will be testsed en tho' Pa*P to tie being reviewed sad revised to include the aboveTherequirements) .

on the30,slaulater, November 1949. are currently echaduled g for Etc 1 i

violation A,a Reenense i

the pre test briefing given to the crew perforslag .he test vue faad eguate.

The procedure page containing the reactor trip criteria wee diesemina the test crew members but was not discussed la desa!' during th e briefing.

o presented to the test crew as a whele.he octual briefing wie Land detail and the trip criteria was act discussed wish 4e enties crewThe bri Startup test Department management and the shift supriatendent .

e to fail d ensure that all teet crew personnel were adequately ;repared to perfors t test.

Corrective Aetloa '

• est Program orgaal:the 4 tion. startup feet Departasat has tem replaced by t the respeselbility for all asteeta of the PATP to include eA PAtt Kannsuring all The PAtt teatains a requirener.t that each briefing document. naaa PAf? tes appreval cycle and will be use.d to conduct The the pre-s PATP, Procedure AM 4.1 and the opraticas Management Manual (CP contain guidance for all PAtt or operations personnel to rates aar issue thet la not understeed ce to stop an evolution if they de aat understand their responsibilities in the conduct of e test .

The CFHM and SH e.1 November 10, revisione 1989, contathir g this guidane.a were issued en and November 13,1e49, roept:tively. ,

Additionally, the test crewe, cor.pened of PAtt and operation nel, person will be trained on the PATP prettamaatic requiremente and the speett PATP tests as discussed in the response to VI. elation A. A.

4

v New taapehire Yankee sevenber 17, 1989 Vialatlam Li taa aa-i l The fatture of Startup feet Department esmagement personnel to oneure that the reactar vos promptly tripped was due to an inadequacy la the assignment of pereena6 respensibilit!*e and requiremente se defined La the Startup feet Progras Beeeripties. When the feet Director was aware that the Ohtt shif t superviser hoew that the trip criterien had been escoeded, he withdrew f t:a further internation la order to allow the licensed operatore to take the appropriate actions to eentret plant parametere. The startup personnet et shif t and in the Centrel geen ebeuad have taken prompt action ,

go terreet ce condities adverse to gus11ty by ensuring that the Operettote

. pereennet vere aware of the requires. eat to trip the reactor.

Corrective Action The Stutup feet Program Descripties has been enhanced and revised to becess the power Ascension feet Pro regu.iremente for ceaprehensive pre. shift gram (PAfp). prier brieflage The pAfp to thetactudes test l crew ensuming the shaft to ensure that the crew understands the test i

criteria, espected plant response and required actions. Addittenally,

! the ?A"P requires the test precedures to provide additlenal guidance for teminating the test and exiting the test procedure when egulpaent

! maltum:: lone eesus during teettag er test limite are escoeded. The PAtp het been reviewed by 801C and was issued as precedure 8N 4.1 em Nevesber 17, 1949.

The test PAf? test precedures are being revised. The thirteen (13) PAf7 pucedures, which require test crew trainlag on the simulator, are curnatly scheduled for senc review by Wevenber 30,1e49. The remaiatts PAfp test precedures, which do set involve significant test crew ittersstien (such as data taking proceduree), are currently schedu'.e4 for Sole review by Decanber 31, 1949.

The PAf7 providee esplicit guidance for the PAf7 and operatione personsal regarding test tosiainaties and test interruption.

Additiaally, the reopensibilities of PATP personnel are defined includ!.sg their responsibility to ensure that the test is conducted according to the precedure. Rach test crew will recofre traising on the PAf7 and the Ladividual test precehree as dieeussed in the response te violation A.2. The trainit.g will include the deftaitions of respasileilities for each of the pereennel en the test crew.

Violation a.1 1aseensa subsequent ta the reacter trip, New Nampsh. ire Yankee annagement took action to initiate e review of the Natural Circulation test Procedure and the polieles ca procedure compliance. Towever, the WNY management personnel who participate! La the 6:00 p.m. eenforen:o call vish WRC togien I en June 22nd had not cca;ieted their analysis of the event and therefore did not yet have suf ficient tsformatica to completely discuse the procedural non-compliance end the pre;osed corrective acttr.o. In addition to being unable at that time to diersee specific detaile on the procedatal inadequacies and the a '

e

_ , _ . , , . . , - . . . _ - - = ~ * - - ~ ~ * * ~ ' ' ' ' ' ' ' * ~""'" ~~~~

.  ;

. Set 56apebite Yankee* i sevenber 17. 1988 i

• M manageoest did set effectieely taummieste to the WRC their

, estegnaties of the sorteuesese of the presedare sentemplisace the >

l the setiene planned to more faity evaluate the event sad to

provost reeverense.  ;

e statemente esde by eene Nyt pereennel. which supported the settens takes or met taken by the operattag crew, were inspgepriate and did not represorth the M precedure templiance l pelley. .  :

e Statessate made by same Nf7 pereer. net, which Ladleated Wrt vse i ceneidertas restarting the reactor prior to the eenpletten sad evaluatien of a total event analysis, were laappropriate and did not accurately represent Ntf petity or the adetet6ading of the M President, terrattive Aatian ,

i the Vice Freefdent . pustear production vos relieved of his duttee reisted to teshroek Station em June it.1949. The petities use replaced by the tseeutive Director . Petloor producties and staffed sa July La. 1,49.

The Power Aeconstea feet Program was revised to regates that an hont i tvaluattoa tesert be templeted prior to recesswading rasetor restart if an unplanned reseter trip should secur during poeer ascension testing.

Addittenally, the poet trip leview precedure will be revised prior to Nevenber 17. 1949, to assure that heaa performanae lessee are

, specifically sidressed 6ad any cerrective actions are identified se part of the restart reediaese de<& sten makia6 process; 1

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EXHIBIT 4 i

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$ 2 8 tag e

htMotAW0tt FORT Charles I. Rossi, Director h Division of Operational Events Assessment FR0li:

Charles J. Haughney, Chief Events Assessm nt Cranch Division of Operational Events Assessment 5ttJECT:

THE12, July OFtRATING 1989 - RfACTOR$ (VENTS HEETING MEETING 49 26 On July 12,1989, brief senior managers fremACR$, NRRan Rtl Operating Reactors Events meeting (89 Of fices on events which occurre,d since our, Commission $taff, and Regional The list cf attendees is included as Enclosure 1.last meeting on July 5,1989.

The in Enclosure events 7. discussed and the significant elements ofnethese ev presented in Enclosure A tummary

3. of reactor scrams for the week ending ,

into the NeC performance indicator program.One significant event was id Original esseti Wt charles J. Haushnea Charles J. Haughney, Chief Events Assessment Branch Division of Operational Events Assessment Encletures:

As stated cc w/teci.:

See Next Fage tis 12tEUTICM Ctetral File EA8 Peading File Circulating Copy, EAB Staff Mtteardon, EA8 RBenedict (A8 (Kilgert. SECT FOR l1,61 91 F 69.

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b./............  ;:............:............::............: -

. .:07/f

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. .t/29. . :07/b89 ..........:............:......  :  :  :  :

OFFICIAL RECORD CCFY

.t

.g-

' I CC:

. Hurley, NRR i

p. ai,a,iie, ,R. H. $ilver. NRR

,* ,'fkOW. NRR J. $niezek, NRR E. Jorean, At00

• Nerses tRR J. Taylor. E00 . Wessman,, NRR i E. Beck.iord, RES J. Hayes. NRR W. Russell, RI E. Adensen, NRR

5. Ebneter, all ,

i

8. Davis, R!ll R. D. Martin, Rly i J. 8. Martin, RV W. Kane, RI L. Reyes, Ril E.' Greenman. Rill L. Callan, R!y l

R. Ilmmerman. RV S. Yarga. NRR '

B. Boger, NRR .

G. Laines, NRR l L. Shao, HRR B. Grires, NRR F. Congel, NER l E. Weiss. A[00 T. Partin. E00 '

J. Lieberman. OE J. Guttmann. SECY A. Thacani. Nsn S. Rubin. AE00 J. Forsyth. IMO '

R. Barrett, NRR i M. Harper, A[0D R. A'ewlin, GPA H. Alderean, ACR$

g I

• 1. ,,. a.g  !

j% i

, [

UNil:0 states i 5' NUCLE AR REGUL ATORY COMMIS$10N e

• • S m otew o c.sosse ,

%, i

• e.,e Mj$g t

PEPCRANDUM FOR:

Charles E. Rossi. Director Division of Operational Events Assesseient

• F80M:

Charles J. Houghrey, Chief i Events Assessment Branch i Division of Operational Events Assessment

$UBJtti:

THE OPERAtlkG REACTORS (VENTS MttTING July 12. 1989 - PttTING E9 16 brief senior ranagers from tiRRCn July IP 1989, an Operating Reactors Eve ACR$ St$

Of fices on events which occurre,d since our Cemistica Staff, anc Regional ire list of attendees is included as inclosure 1.last resting on 'uly $. 1989, The everts 2.

in Inclosure discussed and the significant elerents of these events are presente presented in inclosure A sumary

3. of reactor scrats for the weet ending 07/09/89 is into t,be f;ct performance indicator program. Ore sigrificant event was identifi Charles J. H g ey, Chief

.s Events Asses nt Branch Divisien of Operah.'. tuod usassinent inclosures:

As stated cc w/ incl.:

See Next Page l

i INCLC$1/Rt 1 I

l Ll$7 0F 4TTttletts CRERAT1hG REACTOR $ EvtNT$ BRitFING (89 26)

July 1*,

t 1989 KAME ORGAf.12AT10N NAME ORGANIZATION

$. Varge NRR/0RP J. Oyer 0. Tondi NRR/stLS Ot00 J. Partlow J. Zwolinksi NRR/ORi$ R. Wesseen NRR/ADP t W. Scott  !!RR/CLPQ P. Chopra NRR/P01 1 W. Troskeski Of flRp/$ttg L. Reyes D. Matthews NRR/0RP Ril C. Rctst C. Vandenburgh NRR/R$18 flRR/00tA C. Haughney liRR/00EA J. Guttmann $tCY G. Wuneer A. Vietti Cook CCH/JC NRR/R02 2 E. Butcher NRR/l(Rg R. Letel hRR/C0tA W. Johnson Rt C. Trimble OCM/JC H. Alderman R. Benedict ACR$

hRR/00tA J. Hayes

. E. Adensam NRR/CEF NRR/PD).2

$. Saba NRR/$tLB F. Pesa NRR/$tLB R. Kendall fiRR/00tA P. Baronewsky NRR/00tA J. Bess RIV R. Veccruff 14RR/C0tA G. Ma rir.o J. Occchew R($/0$1R NRR/AC$P M. Rearcon N. Fieles NRR/OctA ARR/00EA J. Carter flRR/00tA

ENCLO5URE 2

.  ;

OFERATING REACTORS EVENTS ERIEFING ES-26 EVENTS ASSESSNENT BRANCH LOCATION: 11E-11, WHITE FLINT i WEDNESDAY, JULY li, 1989, 11:00 A.M.

SCAEhCCK UNIT 1 Mt.NUAL REACTOR TRIP WITH COMPLICATIONS (UPLATE) (AIT)

CRYSTAL RIVER Lli!T 3 ONSITE ELECTRICAL DISTRIELTION SYSTEM PROBLEMS SUMI'.ER trilT 1 DEGRACED GRID V0LTAGE

i 89- E SEAERCCK UNIT-1

[4tff t REACTOR TRIP WITH CCPPLICATICf!S (UFDATE) (117)

JUNE 22, 1959 ELCELLU A MINOR TRAhSIENT OCCURRED WHILE CONDUCTING T STARTUP TEST.

THE REACTOR WAS'MAhCALLY TRIPPED %FROM POWER. ABOUT CIlli A STEAM DUMP VALVE (SDV) TO THE MAIN CONDENSER F CLOSEC CN DEMAND (MANUALLY FROM THE CONTROL ROOM), RESULTI PRlhtPY SYSTEN FERIURBATICN.

S AFETY Sl(fl'FICiBIE REACTOR IN lHE TEST FF0CEDUFE.

OFERA110N OCCURRED OUTS!CE ThE BOUNCARY Il!CUSSICs o

CN JUNE ::,1959, ThE llCENSEE CONCUCTED A NATURAL CIRCULATICN TEST AT LCV PCWER FCF PURPOSES CF CPERATOR TRA!NihC.

e c

TPIS EVENT UAS FERFOREEL CN THE LICE!:SEE's S!!1ULATOR lHE NA1CRAL CIRCULATION TEST KAS CCNSISTELT WITH FSAR CUltELINES ANC REGULATORY GUIDE 1.EE, 'INITI AL TEST PROGRAl's FCP K ATER-C00LEC NUCLEAR PkR PL ANTS".

O SH00TLY AFlER 1 RIPPING THE RCPs, RCS TEMFEFATURE AtT FRESSURlICR LEVEL CECREASED.

o TChFERATURE ANL LEVEL FURTHER CECREASED EECAUSE OF A CPEh SEY.

o THE TEST PROCEDURE CALLS FOR A MANUAL REACTOR TRIP I LEVEL CECREASES TO 17%.

PRESSURIZER LEVEL CECREASEC EELOW 17%

FOR 4 TO ! MINUlES, EUT THE REACICR WAS h0T TRIPPED.

o THE CFERATORS SUCSECUENTLY TRIPPED lhE REACTOR AFTER P c

PRESSURE AND LEVEL HAD BEEN RES10 RED AND LERE RAPIDLY THE PL ANT RESPONSE TO THE TRANSIENT lhlTI ATED BY TRIPPING C THE RCF's ( AND TO THE SDV FAILURE) FAS AS EXPECTED.

C0t1T ACT : J. THOMFSCN SIGEVENT: _hD_

t EEENCF". 'r r:o en - s - tv ' ' * ' - ' - ' - "

I SEAERCCX UNIT 1 -;-

8s-20 .

o THE RAFID INCREASE IN RCS PFESSLRE AFTER L 17% WAS DLE TO TIIE CLOSURE OF THE SLV. CVCS LETD0kNi '

L ACK OP P2R SPRAYS, AND CONTINUED CNCS CHARGING.

ThE PRESSURE >

O RESPChSE WAS AS EXPECTED GIVEN THE ABOVE CO o AT NO TIME WAS ANY SAFETY SYS1EH BYPASSEL O THE INITIAL TEST C0hDIT!0NS RECUIRED THE R AT LOW POWER (LESS THAN 5%).

THIS WAS ACHIEVED BY:

(1)AND HEAVY EORATION (1150 PPM) DUE TO THE NE (2) CONTLOL "A",

ROD BANK "L" AT 130 STEPS (0UT OF

E STEPS) .

DANKS "L*,

c AhD "C" WERE FULLY WITHDRAWN. '

CONSECUENCES OF A RCD WITHCRAKAL ACC10ENT UND CONDIT101:

S ARE SCUNCED BY THE SAFETY ANALYSIS.

AD R G GS (PEEllHINARy,l o

THE OFERAT0kS SFCULD HAVE TRIPPED THE REACT LEVEL CECREASEC TO 17%, EUT DID NOT, L

FAILURE TO ACHERE TO TEST PROCEEURES RESU CF PROCECURAL IMPORTAllCE AND CESIRE TO SUC TEST (ThE OFERATORS HAD CONTROL OF THE REACTOR; THE ECLNEARi CCNDITIONS KERE CONSERVATIVE),

c AN APPARENT HIERARCHY OF IMPORTANCE EXISTED E (TES1 FROCEDURES NOT CONSITERED AS IMPORTANT AS PROCELLRES AND TECH SPECS).

o ThERE APPEARS TO BE NO GENERIC lhPLICATIONS REG OF PROCEDURES OR ECUIPMENT PERFORMANCE FROM ThE EVENT, FCLLOWUP o

THE PkCJECT MANtGER AND THE REGION WILL FOLLOW LONG CCERECTIVE ACTION.

o

! CEST/RSB WILL DETERMlNE APFRCFRIATENESS CF CONDUC hATURAL CIRCULATION TESTS WITH ThE REACTOR CRITICAL LSING CECAY HEAT.

. . i

. i 32111 1.

PLANT SPtClFlt DATA BA$[0 ON INITIAL REVIEW OF $0.72 REPORT 5 FOR THE Witt 0F INTEREST. PERIOD 15 HION!GNT SUNCAY TbR00GN ,

M10 NIGHT SUNCAY. SCRAM 5 ARE OtFINED AS REACTOR PROTICTIVf

• ACTUATIONS WHICH Rt3 ULT IN R00 MOTION. AND [XCLUC[ PLANNED TESTS OR $CRANS A5 PART OF PLANNEC SHUT 00WN IN ACCOR0 alice WITH A PLANT PROCEDURt. THERE ARE 111 REACTORS HOLDING AN OPERATING LICIN$t.

2.

COMPLICATIONS: RECOVERY COMPLICATE) BY E0VIFMENT FAILURES OR PERSONNEL ERROR $ UNRELATED TO CAU5  : OF SCRAM.

3. PER50NktL RELATED PROBLENS lhCLUDE HLHAN ERROR, PROCitVRAL DEFICIENCIES. AND PANUAL STEAM GENERATOR LEVEL CCNTROL PROBLEMS.

4 "0THER" INCLUDES AUTOMATIC $ CRAMS ATTRitutt0 TO ENYlRONMENTAL CAU5t$ (LIGHTN1hG), SvtitM Ct$1GN, OR UNKNOWN CAUSE.

1 ha nin

'm UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'89 00: 20 P3 :55 ATOMIC SAFETY AND LICENSING APPEAL BOARD Before Administrative Judgest fhc ,

Thomas S. Moore, Chairman G. Paul Bollwerk, III Howard A. Wilber

)

In the Matter of ) Docket Nos. 50-443-OL

) 50-444-OL PUBLIC SERVICE COMPANY )

OF NEW HAMPSHIRE, EI M,. )

)

(Seabrook Station, Units 1 and 2) ) December 19, 1989

_)

CERTIFICATE OF SERVICE i I, Matthew T. Brock, hereby certify that on December 19, 1989, I made service of the enclosed INTERVENORS' BRIEF ON APPEAL OF LBP-89-25 by Federal Express as indicated (*) and by first class mail 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

• 0ccketing and Service

• Thomas G. Dignan, Jr.

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

• Mitzi A. Young, Esq. Phillip Ahrens, Esq.

Edwin J. Reis, Esq. Assistant Attorney General U.S. Nuclear Regulatory Commission Department of the Attorney General office of the General Counsel Augusta, ME 04333 11555 Rockville Pike, 15th Floor Rockville, MD 20852 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 Commission 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 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. Amirian, Esq. Senator Gordon J. Hunphrey 145 South Main Street U.S. Senate P.O. Box 38 Washington. DC 20510 Bradford, MA 01835 (Attn: Tem 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

-2 -

Paul McEachern, Esq. William S. Lord Shaines & McEachern Board of Selectmen 25 Maplewood Avenue Town Hall - Friend Street P.O. Box 360 Amesbury, MA 01913 Portsmouth, NH 03801

• G. Paul Bollwerk, Chairman

• Thomas S. Moore, Cha i rman Atomic Safety & Licensing Atomic Safety & Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 10555 Washington, D.C. 10555

• Howard A. Wilber Jack Dolan Atomic Safety & Licensing Federal Emergency Management Agency -

Appeal Board Region 1 U.S. Nuclear Regulatory Commission J.W. McCormack Post office &

Washington, D.C. 10555 Courthouse Building, Room 442 '

Boston, MA 02109 George Iverson, Director Alan S. Rosenthal M.H. Office of Emergency Management Atomic Safety & Licensing State House Office Park South Appeal Board 107 Pleasant Street U.S. Nuclear Regulatory Commission ,

Concord, NH 03301 Washington, DC 10555 Respectfully submitted, JAMES M. SHANNON ATTORNEY GENERAL d ~~

Matthew T. Brock Assistant Attorney General Nuclear Safety Unit Department of the Attorney General one Ashburton Place Boston, MA 02108 (617) 727-2200 l

l Dated: December 19, 1989