ML20154G584

Motion to Admit Exercise Contention Or,In Alternative,To Reopen Record.* Board Should Admit Contention Set Forth as Exhibit 1.Affidavit of Rd Pollard Encl

ML20154G584
Person / Time
Site:	Seabrook
Issue date:	09/16/1988
From:	Backus R, Brock M, Traficonte J, Weiss E BACKUS, MEYER & SOLOMON, HAMPTON, NH, HARMON & WEISS, MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE, SHAINES & MCEACHERN
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20154G589	List: ML20154G584 ML20154G597
References
CON-#388-7092 OL, NUDOCS 8809210018
Download: ML20154G584 (14)

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< 7d 2' DCD EiEO UWRC UNITED STATES OF AMERICA .g gp g pg g NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY and LICENSING BOARD OF8K.,JT.: i .<

GOCni.iM L . rm Before Administrative Judges: *

Sheldon J. Wolfe, Chairman Emmeth A. Luebke Dr. Jerry Harbour

)

In the matter of ) Docket Nos. 50-443-OL ^

) 50-444-OL PUBLIC SERVICE COMPANY OF ) (Onsite EP)

. NEW HAMPSHIRE, ni al. ) September 16, 1988 i

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(Seabrook Station, ) -

Units 1 and 2) )

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l MOTION TO ADMIT EXERCISE CONTENTION OR, IN THE ALTERNATIVE, TO REOPEN THE RECORQ I

INTRODUCTION The Massachusetts Attorney General ("Mass AG"), New England Coalition Against Nuclear Pollution ("NECNP") the Seacoast Anti-Pollution League ("SAPL") and the Town of Hampton, New Hampshire ("Intervenors") file this motion with the onsite Licensing Board to admit the contention set forth in full i.t Exhibit 1 attached hereto. In the alternative, the Intervenors seek to have this Board reopen the record for the purpose of ,

admitting this contention which raises an issue not previously in controversy between the parties.

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J THE CONTEllTIQtLAT_ISSilE On review of the exercise conducted at the SeLbrook Nuclear Power Station on June 27 - 29, 1966, it appears that serious defects and inadequacies exist in the licensee's current onsite emergency response staff including the Technical Support Center

("TSC") and Emergency Operating Facility ("EOF") staff, with

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regard to their fundamental capacities to comprehend and diagnoso existing plant conditions and to identify and perform the necessary and essential corrective actions in the event of a nuclear accident as prescribed in the Seabrook Station Radiological Plan and Emergency Operating Pr..cedures. .

These -

defects and inadequacies in the current staff reflect an inadequate staff training program. They provide concrete evidence that the present predicament in which Public Service of New Hampshire ("PSNH"), the Lead Owner of Seabrook, finds ,

itself has had a deleterious effect on the quality and competence of the existing Seabrook Staff.I' Moreover, it is 1/ The Chief Executive Officer of PSNH, Robert J. Harrison, filed an affidavit with the United States Bankruptcy Court for the District of New Hampshire on August 12, 1988. At paragraph 9.1 Harrison stated:

Instability in the willingncur, er ability of Public Service  ;

and other Joint Owners to meet tneir financial '

responsibilities to the Seabrook project jeopordizes the confidence and morale of the existing staff at Seabrook station.

The present levels of staff competence revealed by the June exercise may reflect personnel changes as well as the effects of lowered confidence and morale among the remaining staff.

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obvious that a poorly trained onsite emergency staff unable to quickly and accurately interpret the reactor's status and take appropriate and required mitigating actions represents a serious and unacceptable increased level of risk to the public particularly under conditions of low power operation. Egg NRC Final Rule, 47 Fed. Reg. 30232, 30234 (July 13, 1982)(becease "operators should have sufficient time to prevent a radioactive release from occurring" at low power operation, only a finding I as to adequacy of onsite but not offsite emergency planniny and preparedness is required), i JURISDICTION .

This newly filed contencion arises out of the June 1988 exercise which included in addition to an exercise of the af' site plans of the State of New Hampshire and the utility for the Seabrook 2pZ, an exercise of the Licensee's own QDsite Seabrook Station Emergency plan. As a consequence, this contention is appropriately filed at this juncture with this l onsite Board.A#

l 1/ Ostensibly, the offsite Board has taken jurisdiction over .

the litigation of the June 1988 oxercise. However, the offsite J Board indicated in its July 29, 1988 Order ruling on the admissibility of certain contentions filed in respond to the SpMC, that its jurisdiction wa- limited to purely offaite 4

emergency planning issues, ar.d did not extend to onsite emergency planning issues even if they had offsite planning a consequences. Moreover, this exercise contention runs to a material issue involved in the authorization to issue a low l power license, a subject historically within the province of

< this Board.

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THE CONTENTION IS TIMELY FILED t This contention should be admitted for adjudication because it clearly identifies the regulations that are violated, describes in detail the nature of that violation ' and A F

provides the requisite factual basis and specificity to insure proper notice to the Staff and Applicants of the matters to be litigated. Moreover, the contention is timely filed and not subject to any higher standard for admissibility.A' That this contention is timely filed flows from the following considerations:

1) 10 CFR 50.47(d) makes clear that a low power license- '

may issue only after the NRC has determined that the "state of i

l onsite emergency preparedness provides reasonable assurance that adequate protective measures can and will be taken."

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(emphasis supplied), i l

1/ As an "exercise" contention, the attached contention  ;

identifies planning standards set forth at 10 CFR 50.47(a),  !

(b) and (d) and Appendix E and avers that the actual conduct of d

the exercise has revealed fundamental defects or flaws n the l state of emergency preparedness as to those standards.

i j 1/ Two distinct out-of-time arguments might be raised: 1) the

' l exercise was on June 27 - 29, 1988 and this contention is filed ,

on September 16; and 2) a pID on onsite issues has been issued

, and the record "closed" as to the matters raised in this l contention. On the first point, the deadline for "exercise ,

contentions" is September 21, 198f.. The Intervenors file this single contention, as it were, a few days early because of

their increasing concern about the possibility of precipitous l

action resulting in low power operation. The text above l j addressr3 the second point in extended detail, t l

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2) This determination is made by the NRC on the basis of

an evaluation and review not only of the licensee's onsite plan

! but of the arercise ni that plan. First, the finding required 1,

i is that adequate protective measures can "and will" be taken, l

indicating that the implementation capability of the onsite plan is at issue. Second, 50.47(d) states further that "[t]he NRC will base this finding on its assessment of the applicant's emergency plans against the pertinent standards in paragraph (b) of this section and Appendiz E of this part." 50.47(b)(14) states that "(pletiodic axercises are (will be) conducted to evaluate major portions of emergency response capabilities -

Appendix E states that the licensee's emergency "plan shall describe provisions for the conduct of emergency preparedness exercises as follows: Exercises shall test the

( adequacy of timing and content of implementing procedures and i

methods. . . . and ensure that emergency organization personnel I f are familiar with their duties." Appendix E. IV. F. Third, l

the Staff's Standard Review plan makes clear that onsite preparedness findings require review of licensee plan exercises in addition to the evaluation of the plans themselves. Een Safety Evaluation Report ("SER"), HUREG 0896 (March 1983) st 13-20 which states that an onsite preparedness adequacy finding requires "(aleceptable findings from an onsite appraisal to esta'blish that the applicant's plan is capable of being implemented." As a consequence, the licensee's onsite plan

4 exercise results are relevant to a material issue necessarily addressed and decided by the Commission prior to the issuance of a low power license.

3) It follows, therefore, that the Intervenors have a right rooted in the Atomic Energy Act to a hearing on the issue of whether the exercise of the licensee's onsite emeroency glan does or does no t _ rey _e a l I f undAmen t a l flaw in that ol_an and that an opportunity for such hearing must be provided prior to the issuance of a low power license. San Union of Concerned Scientists v. NRC, 735 F.2d 1437, 1443 (D.C. Cir. 1984) ("UCS 4

v. NRC"). -

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4) It also follows from UCS v. NRC, id. at 1443-1444 that hearing rights that attach to an emergency plan exercise may i

not be lawfully restricted by requiring an intervenor to seek I to reopen closed proceedings in order to secure those rights if no earlier opportunity to raise issues presented by the relevant exercise was provided.

5) Finally, the June 27 - 29, 1988 exercise of the I

licensee's onsite emergency plan is the only relevant exercise I l

on the basis of which the Commision could now find that for i purposes of low power operation there is reasonable assurance t

that the state of onsite emergency preparedness is adequate.

a) There have been earlier exercises of the ,

l Licensee's onsite emergency plans. Ett SER, tUREG 0896, Supp.  !

4 (May, 1986) at 13-8. These exercises were reviewed and evaluated and a finding made by the NRC Staff at that time that l

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e licensee onsite emergency preparedness was acceptable and met '

the standard for issuance of the low-power license. SER, Supp.

4 at 13 -17.E#

b) floweve r , at least until a low power license actually issues, each licensee onsite plan exercise is and should be treated by the NRC as superceding its predecessor for purposes of satisfying the requirement that there be adequate '

licensee onsite preparedness. First, Appendix E requires that l

the licensee plan be exercised yearly. If a low power license ,

4 has not issued within a year of such an exercise, a new q exercise would be required for this pertinent Appendix E

• standard to be met as is required by 50.47(d). Obviously, this required new exercise would be evaluated by the NRC and form the basis of any finding that would support subsequent issuance of a low power license. Second, an adequate exercise of onsite emergency staff two or three years ago does not support a present finding of adequate preparedness if a later exercise reveals fundamental flaws in the training of the present staff  ;

and a current inability to implement the licensee's onsite 5/ This Board in its March 1987 partial Initial Decision at 67 '

also reiterated that the "state of onsite emergency (

preparedness" met the applicable standard and that a low-power '

licenae was, therefore, authorized. This Board's iteration of  !

the earlier May, 1986 Staff conclusion was not itself a  !

) "finding" on the record. In fact, no contention was ever

) before this Board on this issue. Thus, as a technical matter, this issue was never jurisdictionally shifted for purposes of i

10 CFR 50.57(c) from the Director of Nuclear Reactor Regulation to this Board. As a result, no record before this Board opened or closed on this issue.

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plan. Thus, a subsequent fundamentally flawed exercise musi form the basis of an NRC finding that onsite preparedness is t not adequate because any other finding will simply be unsupported by the record and otherwise be arbitrary and capricious. Third, the NRC evaluation document generated after l the June 27 - 29, 1988 licensee onsite plan exercise stated:

Although there ere areas identified for corrective action, the NRC team determined that within the scope and limitations of the scenario the Licensee's performance demonsttated that they could implement their i Emergency plan . . . in a manner waich would l adequately provide protective measuras for the health and safety of the public.

Licensee management acknowledged the -

findings . . . . (Report No. 50-443/88-09 at 6 attached as Exhibit A to Affidavit of Robert rollard submitted with the Contention) i c) As a result, any NRC finding of adequate licensee onsite emergency preparedness which would support the issuance  ;

of a low power license pursuant to 10 CFR 50.57(c) would now be based on the June 27 -29, 1988 exercise and the NRC's inspection report.  !

6) Because the June, 1988 exercise is the relevant  !

exercise with regard to the issue of onsite preparedness and this issue is material to low-power licensing AL_ar.Anoded2Rd by_the commission, the Intervenors have a right to fully  ;

i litigate the gnsite planning aspects of that exercise prior to i l

low-power operation. To require an otherwise well-pleaded J

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contention presenting these issues to meet further or higher standards of admissibility based on some notion that the opportunity to raise these issues has long since come and gone in light of earlier exercices which are now !.rrelevant to licensing would deny those participational rigris, REQPIllillG _THE RECORQ In the alternative, this prof erred contention meets 'te procedural standards for reopening a record to admit a late-filed contention after the issuance of a partial initial decision. 10 l'FR S 2.734 and S 2.714(a)(1)(i)-(v). -

The 5-Part Late-Filed Contention Standard ($ 2.71413)(11)

(i) As noted, as an exercise contention this contention is timely filed although it is flied af ter an onsite pID has issued. Even if it is deemed to be late-filed, there is good cause for the failure to file on time. This contention obviously could not have been filed before the results of the June 27-29, 1988 cxercise, on whic% any issuance of a Seabrook low power license will now be based, became availab10. The llRC inspection report referenced in the contention and in the accompanying Pollard Affidavit was received by the Intervenors or or about July 15, 1988. The exercise scenario documentation (the 1988 FEMA /!lRC Graded Exercise) which provides the factual context for a proper technical understanding of the Station i

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Staff's actions and responses was not received by the Mass AG until the week of August 15, 1988. Finally, as noted above, by order of the offsite Licensing Bosrd dated August 19, 1988, the deadline for submission of exercise contentions was set at l September 21, 1988.

(ii) There is no means other than by filing and admission

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of this contention whereby the Interveners' interest in i ensuring that the licensee's onsite Station Staff is adequately I

trained and able to respond to an accident will be protected

, before the issue of a low power licenso. The NRC Staff, acting i

l through the Inspection Report has already made its finding on.

4 July 7, 1988 that notwithstanding the noted exercise weaknesses, the level of onsite preparedness is adequate for low power operation.

2 (iii) The Intervenors will contribute to the development 1

of a sound record by providing an expert witness who will

! analyze the emergency response actions taken by che Seabrook Station staff and describe in detail the manner in which those l actions reflect the failure of that staff to comprehend the 1

i significance of plant conditions and identify the appropriate j measures needed to prevent any further plant deterioration and/or further offsite radiological releases.

(iv) No other party has raised or is raising this issue.

I (v) At the moment, admission of this contention will not i

delay issuance of a low power license which is presently stayed

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pending resolution of the Massachusetts EpZ siren issues. The contention will broaden the proceeding to encompass the issue of licensee onsite preparedness but is an area absolutely vital to the safety of the public particularly in the absence of adequate offsite emergency plans during low power operation.

The Standard for_Re-Ocenina the Record (E 2.7341 (1) A motion at this juncture to reopen the record for the purpose of litigating an exercise contention arising out of the June 27-29, 1988 exercise is timely flied.

(2) The inadequate state of onsite preparedness at the -

Seabrook Station raises fundamental and significant safety and environmental issues particularly for low power reactor operation. If, as alleged, the Station response staff is not adequately trained to respond appropriately to a reactor accident then the public is directly put at risk by low power operation.

(3) Finally, although no contention had been admitted raising the issue of the adequacy of the state of onsite training and preparedness, had the issue been open before this Board, the evidence set forth in the accompanying affidavit would have likely resulted in the absence of a finding by this Board that onsite preparedness is adequate it the Seabrook Station.

o For all of the reasons set forth above, this Board should admit the Contention set forth as Exhibit 1.

Respectfully submitted, JAMES M. SHANNON SEACOAST AliTI-POLLUTION LEAGUE ATTOR!iEY GEllERAL COMMOliWEALTH OF MASSACHUSETTS

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John Traficonte Robert A. Backus, Esquire Assistant Attorney General Bachus, Meyer & Solomon Nuclear Safety Unit 116 Lowell Street One Ashburton Place P.O. Box 516 Boston, MA 02108 Manchester, ilH 03105 (617) 727-2200 (603) 668-7272 TOWN OF HAMPTON, 11EW HAMPSHIRE NEW EtiGLAND COALITION ON NUCLEAR POLLUTIOtt Matthew T. Brock, Esquire Ellyn Weiss, Esquire' Shaines & McEachern Harmon & Weiss 24 Maplewood Avenue 2001 "S" Street N.W.

P.O. Box 360 Suite 430 Portsmouth, tiH 03801 Washington, DC 20009 (603) 436-3110 (202) 328-3500 Dated: September 16, 1988 f

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EXHIBIT 1 J01NT INTERVENORS ON-SITE EXERGSMRIEhrION L The present state of onsite emergency preparedness at r

Seabrook, as revealed by the results of the June 27 - 29, 1988  ;

graded exercise does not provide reasonr/ ole assurance that adequate protective measu.res can and will be taken in the event I

of a radiological emergency pursuant to 10 CFR 50.47(d), and i 1

does not support a finding that low power operation "can be conducted without endangering the health and safety of the  !

public" pursuant to $50.57(a)(3). That exercise disclosed l

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fundamental deficiencies in the onsite energency plan (the i

j Seabrook Station Radiological Emergency plan, tl "plan") with [

respect to the following pertinent planning stant a- $s:

i 1) 10 CFR 50.47(b)(2) which requires "adequate otaffing (

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] to provide initial facility accident response in key functional '

areas . . . at all times, (that] timely augmentation of {

I j response capabilities is available and (that] the interfaces i

among various onsite response activities and offs!te support  !

t and response activities are specified";

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] 2) 10 CFR 50.47(b)(14) which requires that "(pletiodic I exercises (be) conducted to evaluate major portions ot' l J emergency response capabilities . . . and (that) deficiencies

• I l identified as a result of exercises or drills (bel corrected";

j 3) 10 CFR 50.47(b)(15) which requires that

"(r}adiological emergency response training (be] provided to

) those who may be called on to assist in an emergency"; and ,

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4) 10 CFR Appendix E, IV.A.2a. which requires that a l

licensee onsite emergency plan provide a "detailed discussion of: a. Authorities, responsibilities and duties of the  !

individual (s) who will take charge during an emergency"; and f IV. F. which requires that "[e]xercises shall test the adequacy  ;

of timir.g and content of implementing procedures and methods .

. . and ensure that emergency organization personnel are familiar with their duties."

BASIS: The Seabrook Station Radiological Emergency plan provides for the establishment at the time of an emergency of the Technical Support Center ("TSC") and the Emergency Operations Facility ("EOF"). PlanatSections6.1.1and6.1.5 The personnel at the TSC and EOF are expected to use the emergency operating procedures to assist in recognizing an emergency condition in order to prescribe the actions necessary to correct the conditior, plan at 1-2. A demonstration of the ability of these personnel to analyne station conditions and parameter trends and to develop potential solutions for placing the reactor in a safe stable condition was one of the objectives of the June, 1988 graded exercise in order to establish the adequacy of this fundamental aspect of onsite emergency preparednoss. As described in more detail in the accompanying Affidavit of Robert D. pollard, which is incorporated herein by reference as a portion of the basis of this contention, the exercise revealed that fundamental deficiencies exist in the current state of onsite emergency preparedness precluding the flRC finding which is prerequisite to issuance of a low power license.