ML19209B885

Motion to Defer Evidentiary Hearings on Emergency Planning & Class 9 Accidents,Scheduled to Begin on 790827.Concerned That Topics of Hearings Will Be Given Only Superficial Attention.Certificate of Svc Encl

ML19209B885
Person / Time
Site:	05000471
Issue date:	07/27/1979
From:	Wright F MASSACHUSETTS, COMMONWEALTH OF
To:
References
NUDOCS 7910110098
Download: ML19209B885 (11)

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UNITED STATES OF AMERICA -

NUCLEAR REGULATORY COMMISSION

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In the Matter of )

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BOSTON EDISON COMPANY, et al. ) Docket No. 50-471

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(Pilgrim Nuclear Generating Station, )

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MOTION OF THE COMMONWEALTH OF MASSACHUSETTS TO DEFER THE FORTHCOMING EVIDENTIARY HEARINGS ON EMERGENCY PLANNING AND CLASS 9 ACCIDENTS For the reasons set forth in more detail below, Intervenor Commonwealth of Massachusetts (the Commonwealth) hereby moves this Board to defer the evidentiary hearings now scheduled to commence in Plymouth on August 27, 1979. At issue during these hearings will be three interrelated contentions of the Commonwealth on which the Board has yet to take any evidence: (1) that a Class 9 accident analysis should have been undertaken by the Staff as part of its NEPA review, (2) that given the population densities, transportation networks, land use and other unique characteristics of the area surrounding the proposed Pilgrim 2 site, no emergency plan can be developed that will adequately protect the population at risk in the event of a major radiological accident and (3) that Boston Edison's (BECo) preliminary emergency plans, as set forth in 1'~0 307 C) 5[

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Its PSAR, are inadequate under Appendix E to 10 CFR Part 50 and the proposed amendment thereto.

For some time now it has been a matter of growing concern to the Commonwealth that in the rush to complete hearings on BECo's construction permit application only the most superficial attention will be given to the all-important area of emergency planning and ac~cident mitigation. As a result of the accident at Three Mile Island, there are almost. daily changes in policy and safety requirements being announced by the NRC, the most recent of which will be discussed below, but the pressure to complete the taking of evidence in this case is so great at this point that the substance and impact of these changes threatens to be all but lost.

That delays in this proceeding have occurred in the past should not prevent this Board from slowing the pace when the occasion calls for it, and this is clearly such a time. When the staff's first FES was *ound to be inadequate by the Board, no one quest.oned i

the fact that delay was necessary in order for the NEPA analysis to be done again. Similarly, some delay is again required, this time so that the Board's ultimate resolution of the Commonwealth's remaining contentions will be fair, thorough and reflective of the profound regulatory changes currently taking place in this area.1/ The Commonwealth, it must be emphasized, is as anxious as any 1/ In asking that the August evidentiary hearings be deferred, the Commonwealth is not proposing that this entire proceeding come to a halt. Briefing could certainly commence on those issues, such as need for power and financial qualifications, that have been fully litigated.

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other party to see these proceedings concluded as expeditiously as possible; its consumers, af ter all, will ultimately be asked to bear the increased construction costs that delay always entails. In this instance, however, ceferral of the August hearings is clearly warranted and well worth the attendant CoS ts .

On May 24, 1979, this Board accepted two contentions proposed by the Ccmmonwealth with respect to the issue of emergency planning.2/ By stipulation of all parties except ,

the Applicant, these contentions were later redrafted and ccmbined 8,nto one:

Given the guidelines es tablished in Appendix E to 10 CFR Part 50 and the propceed smendment thereto (43 FR 37433) ,

1) An acceptable emergency plan cannot be develope <* to protect persons within and beyond the LP, of the proposed site; and 2/ As originally drafted, the Commonwealth's contentions were as follows:

1. Given the populatine densities , transportation networks, land use and other unique characteristics of the area surrounding the proposed Pilgrim 2 site, no emergency plan can be developed that will adequately protect the public in the event of a major m 'diological accident.

2. The applicant's preliminary plans for protecting the public in the event of a major radiological accident at the Pilgrim site, ac set forth in its Preliminary Safety Analysis Report, are inadequate under the guidelines established in Appendix E to 10 CFR Part 50 and the proposed snendment thereto.

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2) The Applicant's preliminary emergency plans as set forth in its Preliminary Safety Analysis Report are inadequate.

On July 20, 1979, this Board announced its intention to commence evidentiary hearings on the emergency planning and Class 91/ contenticns on August 27, 1979, with direct testimony of witnesses to be filed on or before August 10, 1979. Tha Commonwealth had' argued against this schedule, noting that the Commission had just issued an advance notice of proposed rulemaking on the very subject of emergency planning,1/ and that changes in the Ccmmission's rules and regulations would undoubtedly be forthcoming, changes that in all likelihood would substantially affect resolution of the Ccmmonwealth's contention.

1/ The Ccmmonwealth's contention with respect to Class 9 accidents is that the Staff erred in concluding that neither NEPA nor the NRC's own regulations require an evaluation of the consequences of Class 9 accidents in comparing Rocky Point with its alternative sites. See " Comments of the Commonwealth of Massachusetts on the Draf t Supplement to the Final Environmental Ststement for Pilgrim Unit 2',' pp. 20-47. In support of this contention the Commonwealth has already filed the testimony of Phillip Herr, but because the issues involved in both the Class 9 and emergency planning contentions are so similar, the two will be heard together. Indeed, recent NRC directives issued with respect to emergency planning have considerable bearing on Dr. Herr's testimony, which may have to be revised accordingly. In any event, the two contentions are so interrelated that it continues to make sense to group them together; if emergency planning is to be deferred for any period of time, so should Class 9 accidents.

4/ See Notice of Proposed Expedited Rulemaking on the Adequacy and Acceptance of Emergency Planning Around Nuclear Facilities, 44 Fed. Reg. 41483 (July 17, 1979), attached hereto as Exhibit A.

1'~0 310 Whatever the correctness of the Board's original decision, another recently announced change in NRC policy with respect to emergency planning has made it all the more imperative that the forthcoming hearings be deferred, if not for the six months the NRC has said it will require to formulate new emergency planning rules, at least for a sufficient amount of time to allow all parties to analyze and respond to this most recent change. On July 20, 1979 at a meeting in Bethesda, Maryland, BECo officials were informed by ,

Harcld Denton, Director of the NRC's Office of Nuclear Reactor Regulation, that a number of interim requirements with respect to emergency planning had been formulated by one of the task forces working on the accident at Three Mile Island, and that the effect of one such provision vould be to require BECo (as well as any other applicant for a construction permit) to demonstrate the feasibility of emergency measures out to a radial distance of 10 miles from the reactor site. Director Denton's informal advice to BECo became official NRC policy on July 23, 1979, when SECY 79-450 was released, a copy of which is attached hereto as Exhibit B. A portion of that document addresses the issue of capability to take appropriate emergency actions, and requires that this capability will be extended to a distance of ten miles as soon as practical, but not later than January 1, 1981. SECY 79-450, pg. 2, paragraph 5.

Expansion of the zone of concern from the 4.25 miles that had heretofore been insisted on by the staff to ten miles 1O 31I

affects both aspects of the Ccmmonwealth's emergency planning contention, and greatly increases the amount of data gathering and analysis that must be performed by BECo, the Staff, the ACRS and the intervenors befcie the issue can be meaningfully brought to this Board for resolution. The first part of the Commonwealth's contention questions whether evacuation of the area of concern is feasible.' Rather than looking only at the limited land area within the LPZ, however, the inquiry now must extend all the way out to ten miles, and deal with such diverse f actors as population distribution, transportation routes, atmospheric dispersion characteristics, and the impact of both summer residents and transient tourists visiting the many historic sites and recreational facilities in the area.

Complicating this analysis is the f act that the Bourne Bridge, one of only two exit routes off Cape Cod, lies just beyond the 10 mile perimeter, and while not technically within the zone of concern, certainly warrants some consideration.

The second part of the Commonwealth's contention goes to the preliminary showing that an applicant mus.t make, under 10 CFR 550.34 (a) and Appendix E to Part 50, with respect to the emergency plans that will ultimately be relied upon once the facility goes on line. All BEco has done thus far is to make reference, in its PSAR, to the emergency plans prepared for Pilgrim I. See PSAR, Section 13; SER, Section 13.3. The Pilgrim I plans addressed emergency planning only within the 4.25 mile LPZ for Unit 1, however, so that once again SECY 78-450 will require a greatly expanded showing than has thus 1O 312 far been submitted. As with the feasibility issue, these preliminary plans will first have to be developed by BECo, reviewed by the Staff and the ACRS,.and responded to by the intervenors, all of which activity must now occur prior to the scheduled commencement of hearings on August 27th.

The Commonwealth's concern with the scheduling problems precipitated by issuance of SECY 78-450 is twofold. First, it will' have only two weeks, from August 10 to August 27th, te review BECo's submission and the Staff's analysis thereof; BECo ,

will be filing a supplement to its PSAR and the Staff a supplement to the SER, and traditionally far more time is allowed between the submission of such documents and evidentiary hearings thereon. The shortness of time, of course, becomes even more critical in this instance, where the subject matter is complex and of acute public concern, and where its underlying assemptions have recently been undergoing almost daily transformation. In addition, the Ccmmonwealth will have no opportunity under the present schedule to file written testimony in response to these documents; to the extent that they can be challenged at all, under the present schedule it will only be by means of cross-examination at the evidentiary hearing.1/

1/ By separate motion filed this day the Commonwalth is requesting that the filing date for the testimony of its witness Jan Beyea be deferred until September 7, 1979. Dr.

Beyea's testimony relates to one discrete area of concern, however, and it is not anticipated that we will be able to use him to refute all aspects of the PSAR and SER supplements.

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The Ccmmonwealth's second concern goes to the integrity of the entire deliberative process with respect to the issue of emergency planning and Class 9 accidents. To a large extent the health and safety interests of the public are protected not only by this Board's resolution of contested issues, but by presumed expertise that BECo's technical staff brings to bear on any given subject as well- as the review function performed by the Staff and the ACRS and the scrutiny provided by the intervenors ' own experts . In short, this Board cannot be expected to decide technical matters in the first instance; it must draw upon the work of others, work that in all instances should be of the highest quality and completeness. In *.he rush to complete hearings on BECo's application for a construction permit, both BECo and the Staff are attempting to accelerate a process that the public interest requires be deliberate, thorough and never hurried. There cannot help but be subtle pressure to take shortcuts, and the Commonwealth itself is already experiencing difficulty in fully preparing and mastering what amounts to an entirely new set of rules and assumptions with respect to emergency planning and accident mitigation. This Board's authority to control the pace of licensing proceedings has beeri repeatedly recognized, see, e.g., In the Matter of Offshore Power Systems, ALAB-489, 8 NRC 194, 199-208, and it should be exercized in this instance to assure that the work done by all parties to this proceeding is of the highest quality.

1' 0 314 Wherefore, for the above-mentioned reasons, the Commonwealth respectfully requests that the forthcoming evidentiary hearings on emergency planning and Class 9 accidents be deferred for at least two months.

By its attorney, s} ~ .

FRANCIS S. WRIGHT Assistant Attorney General Environmental Protection Division Public Protection Bureau ,

One Ashburton Place, 19th Floor Boston, Massachusetts 02108 (617) 727-2265 1O 315 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g\ Pt / e, N +.

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In the Matter of: )  %, -

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BOSTON EDISON COMPANY, et al. )

) Docket No. 50-471 (Pilgrim Nuclear Generating )

Station, Unit 2) )

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CERTIFICATE OF SERVICE.

I, FRANCI9 S. WRIGHT, hereby certify that the foregoing

" Motion of the Commt wealth of Massachusetts For Enlargement of Time Within Which to File the Testimony of Witness Jan Beyea" and " Motion of the Commonwealth o.' Massachusetts to Defer the Forthcoming Eviden-tiary Hearings on Emergency Planning and Class 9 Accidents"have been served on the following this 27th day of July 1979 by depositing copies in the United States Mail, first class postage prepaid:

ANDREW C. GOODHOPE, ESO. MARCIA E. MULKEY, ESQ.

Chairman, Atomic Safety and BARRY H. SMITH, ESQ.

Licensing Board Office of the Executive U.S. Nuclear Regulatory Commission Legal Director Washington, D.C. 20555 U.S. Nuclear Regulatory Comm'n Washington, D.C. 20555 DR. A. DIXON CALLIHAN Union Carbide Corporation Atomic Safety and Licensing P. O. Box Y Board Panel Oak Ridge, Tennessee 37830 U.S. Nuclear Regulatory Comm'n Washington, D.C. 20555 Da. RICHARD F. COLE Atomic Safety.and Licensing Board NILLIAM S. ABBOTT, ESQ.

U.S. Nuclear Regulatory Commission 50 Congress Street, Suite 925 Washingt a, D.C. 20555 Boston, MA 02109 Atomic Safety and Licensing Appeal Mard OFFICE OF THE SECRETARY U.S. Nuclea2; Regulatory Commission Docketing and Service Section Washington, D.C. 20555 U.S. Nuclear Regulatory Comm'n Washington, D.C. 20555 lO 316

MR. DANIEL F. FORD MR. AND MRS. ALAN R. CLEETON 1208 Massachusetts Avenue 22 Mackintosh Street Cambridge, Mass. 02138 Franklin, Mass. 02038 HENRY HERRMANN, ESQ. DALE G. STOODLEY, ESQ.

151 Tremont Street Boston Edison Company Boston, Mass. 02111 800 Boylston Street Boston, Mass. 02199 CHIEF LIBRARIAN Plymouth Public Library . GEORGE H. LEWALD, ESQ.

North Street Ropes and Gray Plymouth, MA 02360 225 Franklin Street Boston, Mass. 02110 EDWARD L. SELGRADE ~

Deputy Director Covernor's Massachusetts Office of Energy Resources 73 Tremont Street Boston, MA 02108

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FRANCIS S. WRIGHT As<.istant Attorney General Er.vironmental Protection Division Public Protection Bureau One Ashburton Place, 19th Floor Scston, Massachusetts 02108 (617) 727-2265 1O 317