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affected local governments must conduct a joint exercise of emergency plans in cooperation with the NRC licensee; and, any deficiencies in the planning identified by FEMA must be corrected before FEMA will grant approval. If a State and/or local government (s) refuse to submit plans to FEMA for review and/or refuse to participate in the joint exercise, it is an open question whether FEMA, and ultimately the NRC, can make the requisite findings.

This is precisely the situation at the Shoreham plant on Long Island, where the State of New York and the County of Suffolk have refused to participate in emergency planning in light of their convictions that there is no way they can adequately protect their citizens in the event of a serious reactor accident. In July 1986, the NRC issued an interlocutory decision which presumed state and local government cooperation in the event of an emergency. Emergency planning issues are currently before the NRC Licensing Boards in the Shoreham case. No full power license has been issued by the NRC.

The situation is muddied somewhat by the fact that in P.L. 96-295, Congress directed that the NRC could issue an operating license only if there were adequate State and local emergency response plans approved by FEMA, or in the absence of such plans "there exists a State, local, or utility plan (emphasis added) which provides reasonable assurance that public health and safety is not endangered" by operation of the plant. However, given the complexity of emergency planning, the requirement for coordinated actions, and the delicate questions of usurpation of government authority, to permit a utility plan to replace the required State and local plans in jurisdictions where State and local governments have refused to participate would raise many serious legal and practical questions. These issues doubtless will be litigated in the courts.

PSN: EFPORTS TO CIRCUMVENT THE TEN MILE EMERGENCY PLANNING

REGULATION AND NRC'S ROLE IN THAT PROCESS

The Subcommittee investigation has established that PSNH initiated its "update' of the Seabrook Probabilistic Safety Assessment in order to determine if there was a defensible technical argument for seeking to reduce the emergency planning zone around the Seabrook nuclear power plant. If the NRC should concur and take formal action permitting PSNH to reduce the size of the zone in which emergency planning is required from 10 miles to 2 miles or less, the effect will be to exclude Massachusetts from the emergency planning process.

The utility and its consultant have held a series of discussions with the staff of the Nuclear Regulatory Commission regarding the scope, substance, and direction of these studies.

Legitimate questions may arise in the minds of the public about whether it serves the public interest to have the NRC staff deeply involved in precisely that work product upon which it must provide recommendations to the Commission. When cooperation becomes too close, the interests of the regulated and the regulators blur, and the public understandably may question whether or not the NRC staff (and thus the Commission) is rendering an impartial judgement on matters brought before the Commission for a regulatory ruling -- even when the facts underlying such suspicions may be innocent. This issue of credibility is particularly important in contested or controversial regulatory decisions, where the integrity of the regulatory process must be maintained without even a hint of a lack of impartiality if that process is to continue to benefit from the public trust.

In the case of Seabrook, it becomes disturbingly difficult to discern the licensee's objectives and work from those of the NRC staff, given the close cooperation of the two groups over the entire period of these studies. We have uncovered troubling evidence of NRC staff's guidance of the licensee's work -- indeed, cooperation in setting its objectives and stipulating its intent. The staff's disregard for appearances may even have engendered suspicion, at times, regarding regulatory practices which may be reasonable and customary. This is particularly unfortunate, especially in light of the controversy surrounding Seabrook and the Seabrook licensing process.

We provide below a chronology and accompanying account of the history of the relevant events. We again caution you that there may be omissions, insofar as we have yet to receive full responses to our inquiries.

SIGNIFICANT PSNE ACTIVITIES

In December, 1983 Public Service of New Hampshire (PSNH) completed its Probabilistic Safety Assessment (PSA) for the Seabrook plant. PSAs focus on events and analyses that present major sources of risk to the public. They are analytical tools used to increase overall understanding of risks, failure probabilities, and possible weak links in reactor systems and components. In 1984, a review of the Seabrook PSA by the Lawrence Livermore Laboratory was initiated, but was halted before completion because the utility was experiencing financial difficulties. According to a PSNH chronology supplied in response to a Subcommittee data request, internal discussions of a new update to the PSA began in March 1985, and contractor work to "update the PSA was initiated shortly the

thereafter.

Public Service of New Hampshire commissioned the consulting firm of Pickard Lowe and Garrick (PL&G) -- who had done the work on the original PSA -- to do the work on the update. Comments by PSNE officials have indicated that the utility initiated the update so that additional options would be available to the company in the event problems developed with Massachusetts over emergency planning. William Derrickson, Senior Vice-President of New Hampshire Yankee (a division of PSNH), stated before a Subcommittee of the the Advisory Committee on Reactor Safeguards (ACRS) on September 26, 1986:

"We started this effort some time ago because we had been getting indications from the State of Massachusetts that in fact what happened last Saturday might happen (i.e., the decision by Governor Dukakis to refuse to submit emergency plans).... I am not sure whether or not we would have done it anyway."

In September of 1985 PL&G finished a draft of the "Seabrook Station Risk Management and Emergency Planning Study," the document that constitutes the technical basis of the PSA update. The document was circulated for peer review in September, and the first peer review meeting took place in October. The final version of the study was completed in December, 1985.

In April, 1986 PSNA released a companion study entitled "Seabrook Station Emergency Planning Sensitivity Study." This document sought to demonstrate that the Seabrook containment was so strong that the objectives of federal emergency planning regulations, as embodied in NUREG-0396, could be met even if the emergency planning zone around Seabrook were reduced to a size of 2 miles or less.

PSNH submitted the Seabrook Station Risk Management and Emergency Planning Study and the Emergency Planning Sensitivity Study to the NRC for review on July 21, 1986. The NRC refers to the two documents together as the Seabrook Station Probabilistic Safety Assessment Update" -- the "SSPSA Update.' In these documents taken together, PSNH contends that an emergency planning zone of a 2 mile or even l mile radius may be justified for Seabrook. Since current regulations require a 10-mile emergency planning zone around nuclear power plants, NRC would have to grant PSNH an exemption from the regulations in order to permit a reduction of the Seabrook EPZ to less than 10 miles (absent some other avenue of regulatory relief).

NRC STAFF RESPONSE

The Subcommittee investigation has uncovered troubling evidence that the NRC staff was involved in the process early on, that their contributions have been substantial, and that these early contributions may have helped shape the very documents which were then submitted to them for formal review. Moreover, comments made as part of the review process subsequent to submittal to the NRC appear to indicate a lack of impartiality -- in essence, a tendency to appear as though the NRC staff was working in tandem with the utility to accomplish the utility's objective.

In order to understand the flow of events, it will be helpful to review these events in the context of a rough chronology of NRC participation. A fuller chronology, though perhaps still incomplete, is appended to this memorandum. The chronology has been reconstructed by Subcommittee staff from documents provided in response to Subcommittee requests and from interviews with the NRC staff and others. The documents from which the chronology is derived are also attached.

CHRONOLOGY OF EVENTS

Although PSNH formally submitted the SSPSA Update to the NRC

y, 1986, the Subcommittee investigation has revealed evidence that strongly suggests that the NRC was involved in the development of the SSPSA Update -- more specifically, the Seabrook Station Risk Management and Emergency Planning Study (RMEPS) -- at least one year prior to the actual submittal by the utility. As noted above, PSNH has informed the Subcommittee staff that it held its first internal discussions regarding an update to the Seabrook PSA in March, 1985. However, NRC and utility documents indicate that in July, 1985 at least one member of the NRC met with the utility to discuss the SSPSA submittal and "the regulatory process including the reassessment of emergency preparedness requirements." This NRC staff member has been deeply involved in proposals to reduce the size of the EPZ generically. To date, neither the NRC staff nor the utility has provided to the Subcommittee full details of this meeting.

In September and October 1985, the NRC and PSNA legal counsel met and held telephone conversations pertaining to a possible

rulemaking petition and the consideration of reducing or eliminating the 10-mile emergency planning zone at Seabrook. The rationale used in these early discussions for justifying changes to the emergency planning process was the application of new source term research -- not the allegedly unusual strength of the containment. (In later discussions, NRC staff suggested to that they not use new source term assumptions in arguing for an EP% reduction.)

Further NRC-PSNH discussions in an October, 1985 conference conference call indicate that NRC staff had become involved in discussing with the utility the appropriate stategy for developing the RMEPS. The NRC staff was concerned that:

"the approach Seabrook was taking on
demonstrating the ability to reduce the EPZ
appeared to be different from what (NRC staff)
understood in an earlier discussion."

Further still, NRC staff noted that:

"...What he (NRC staff) explained to PSN in
previous discussion was that the approach
Seabrook will need to take is to compare the risk
of Seabrook to the risk of typical reactor
(WASH-1400) used as a basis for the regulation.
(He) suggested Seabrook review NUREG-0396 --- in
the comparison it would be good to compare
feature by feature."

(See attached NRC staff notes] In these discussions, it appears that NRC staff was actually rejecting one approach and suggesting another that the utility should take to, in effect, justify circumventing a regulation. This series of comments, made in October, 1985, strongly suggest that the NRC staff to some degree was directly involved in the actual development of the basic thrust of the RMEPS, which was not published in final form until December, 1985.

According to PSNH and the NRC, there was little contact between the two regarding the subject of the SSPSA Update between October, 1985 and June, 1986, save for one telephone call in Pebruary between William Derrickson and Harold Denton, Director of NRC's division of Nuclear Reactor Regulation.

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