ML19256E735
| ML19256E735 | |
| Person / Time | |
|---|---|
| Site: | 05000471 |
| Issue date: | 10/24/1979 |
| From: | Beverly Smith NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 7911150104 | |
| Download: ML19256E735 (7) | |
Text
b NRC PUBLIC DOCUMENT RGOM UNITED STATES OF AMERICA 10/24/79 NUCLEAR REGULATORY COMMISSION dly,,
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD A
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p p b-In the Matter of
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A-BOSTON EDISON COMPANY, et al.
Docket No. 50-471
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NRC STAFF RESPONSE TO BOARD INQUIRY ON IMPACT OF RULEMAKING ON COMMONWEALTH OF MASSACHUSETTS CONTENTION ON EMERGENCY PLANNING The Staff is filing this response to the Board's question of whether the
" Advanced Notice of Proposed Rulemaking - Adequacy and Acceptance of Emer-gency Planning Around Nuclear Facilities" (Advanced Rulemaking) precludes consideration of the Commonwealth's contention on-emergency planning.U n I
the opinion of the Staff, it does not.
This conclusion is based on the following factors:
(1) the proposed Amend-ment to Appendix E contemplates the Board considering the question of emergency planning beyond the LPZ; (2) the Comission has concluded as a matter of policy to extend emergency planning to about 10 miles for the airborne pathway and about 50 miles for the ingestion pathway; and (3) the Comission has adopted a policy of going forward with all licensing proceedings.
U 44 Fed. Reg. 41483. July 17, 1979.
U The contention raised by the Commonwealth is as follows:
Given the guidelines established by Appendix E to 10 CFR Part 50 and the proposed amendment thereto (43 FR 37433):
- 1) An acceptable emergency plan cannot be deve-loped to protect persons within and beyond j J33 )g 7
the LPZ of the proposed site; and
- 2) The Applicant's preliminary emergency plans as set forth in its Preliminary Safety Analysis Report are inadequate.
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Licensing Boards have been cautioned in numerous decisions not to accept contentions which are (or about to become) subject to general rule-making by the Comission. Potomac Electric Power Comoany (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79, 85 (July 1974);
e Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),
ALAB-56, 4 AEC 930 (June 1972), aff'd ALAB-179, 7 AEC 159 (1974), rev'd NRDC v. NRC, 547 F.2d 663 (D.C. Cir.1976), rev'd on other grounds sub. nom.
Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978); Long Island Lightino Comoany (Shoreham Nuclear Power Station), ALAB-99, 6 AFC 53 (1973).
This longstsnding admonition by the Appeal Board is based on:
(1) its un-willingess to introduce issues which apply with equal force to all reactors, i.e., generic, in individual proceeding; and (2) a desire not to duplicate the rulemaking effort in individual proceedings.
Vermont Yankee, ALAB-56, suora at 935; Douglas Point, supra at 83; Vermont Yankee Nuclear Power Corp.
(Vermont Yankee Nuclear Power Station), ALAB-179, 7 AEC 159,163. However, notwithstanding the prohibitions set forth in these decisions, we do not believe that their rationale is controlling in the present proceeding given the express action taken by the Comission with regard to the specific emer-gency planning issue raised by the Comenwealth's contention.3/
E Recently a licensing board, relying on Douglas Point, supra, dismissed contentions relating to emergency planning, concluding that because it is the subject of rulemaking, it is not a proper subject for litigation in individual proceedings. Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station) slip op_. at 20 (October 1979). This case should not be controlling in this proceeding.
Rancho Seco is an op9 rating plant. A hearing is being held concerning the issues identified in a Comission Order dated May 7,1979. Although the Board ruled that emergency planning was within the scope of that pro-ceeding, presumably because of the framing of the Order, it is clear that they are not obligated to make findings, as is this Board, with respect to Appendix E to Part 50 and 10 C.F.R. 5534(a)(10) and 50.40.
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. 2.
While the advanced rulemaking currently before the Comission does addrass various generic emergency planning issues, the one most important issue to this proceeding--distance for planning--has previously been considered by the Comission, and, as will be discussed below, the Comission has provided the Board with interim policy guidance on this matter. The other issues under consideration in the Advanced Rulmaking are gemane primarily to an operating license proceeding and thus most are not relevant to this proceeding.
The first such policy guidance was set forth by the Comission in its proposed amendment to Appendix E,10 C.F.R. Part 50.
In promulgating the proposed amendment to Appendix E (43 Fed. Reg. 37473 (August 1978)), the Comission observed "that continued implementation of its practice (of reviewing] the possible need for emergency plans beyond the LPZ as necessitated by circum-stances in the vicinity of the site is required." And that "[p]ending the
... promulgation of a final rule, the proposed amendment (should] be used as interim guidance in reviewing an Applicant's emergency plan for a construction permit." Ibid. Later, this guidance was further refined by the Comission's prtrnulgation of the NRC Policy Statement--Planning Basis for Emergency Responses to Nuclear Power Reactor Accidents (Attactynent 1). The NRC Policy Statement adopts the guidance contained in " Planning Basis for the Development of State and Local Government Radiological Emergency Response Plans in Support of Light Water Nuclear Power Plants," NUREG-0396, EPA 520/1-78-016, dated December 1978.
(Joint Task Force Report).
In this report, the major recomendation of the Joint Task Force was the establishment of two Emergency Planning Zones (EPZ's)--
one EPZ about 10 miles from plume exposure (airborne); the other EPZ about 1333 111
50 miles for the ingestion pathway. Thus, adoption of these guidelines by the Commission clearly extends emergency plenning beyond the LPZ for all plants.
In addition, on October 10th and 23rd, letters were sent by the Staff to all CP applicants which set forth inter alia new requirements for emergency planning.
These requirements will be in addition to those already contained in Appendix E.1/
Finally, or. October 4,1979, the Comission issued an Interim Statement of 5
Policy and Procedure _/ setting forth its views on how licensing proceedings should be conducted while the Comission considers changes in the procedures by which it exercises supervision over adjudicatory licensing decisions. The Interim Policy Statement authorizes the licensing Boards to continue with li-censing proceedings, and for the Staff to present evidence on the implications of the Three Wie Island accident for resolution as they relate to a particular proceed i_no -
Conclusion Thus, given the Comission's interim guidance directing consideration of the need for emergency plans beyond the LPZ and its adoption of the recomendations contained in NUREG-0396 for the establishment of an EPZ of about 10 miles, we do not believe that the present proposed Comission Rulemaking on the Adequacy and Acceptance of Emergency Planning Around Nuclear Facilities should serve as a bar to the Board's consideration of the Comonwealth's contention relating AI The letter of October 23, 1979 has been sent to the Board and Parties under separate cover.
5j This policy statement was sent to the Board and parties on October 23, 1979.
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5-to the required distance for emergency planning. Moreover, given the Comis-sion's express directive that "the Staff is authorized to proceed with licensing reviews and present evidence on the implications of the Three Mile Island accident for resolution of proceedings now before Atomic Safsty and Licensing Boards" (Statement of Policy at 2), we cannot conclude that it would be inappro-priate for this Board to continue with the emergency planning phase of this proceeding.
Respectfully submitted.
Ba rry H. Smi th Counsel for NRC Staff Dated at Bethesda, Maryland this 24thday of October,1979 1333 113
UNITED STATES OF A" ERICA NUCLEAR REG'JLATOP.Y C0". MISSION BEFORE THE ATO: TIC SAFETY A*;D LICENSING BOARD In the Matter of
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c0ST03 EDISON COMPANY, et al.
Docket No. 50-471 (Pilgrim Nuclear Generating Station,
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO BOARD INQUIRY ON IliPACT OF RULEMAKING ON COMMONWEALTH OF MASSACHUSETTS CONTENTION ON EMERGENCY PLANNING" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class o'r, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 24th day of October,1979.
Andrew C. Goodhope, Esq.
Henry Herrnann, Esq.
3320 Estelle Terrace Room 1045 Wheaton, Maryland 20906 50 Congress Street Boston, Massachusetts 02108 Dr. A. Dixon Callihan Mr. and Mrs Alan R. Cleeton Union Carbide Corporation 22 'tackintosh Street P. O. Box Y Franklin, 'tassachusetts 02038 Oak Ridge, Tennessee 37830 The Board of Selectmen
- Dr. Richard F. Cole Town of Plymouth Atomic Safety and Licensing Board Plymouth, Massachusetts 02360 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 William S. Abbott, Esq.
50 Congress Street, Suite 925 George H. Lewald, Esq.
Boston, Massachusetts 02109 Roces & Gray 225 Franklin Street.
Boston, Massachusetts 02110 Michael B. Meyer Assistar.t Attorney General Dale G. Stoodley, Esq.
Utilities Division Boston Edison Company Public Protection Bureau 80') Boylston Street One Ashburton Place Boston, Massachusetts 02199 19th Floor Boston, Massachusetts 02108 1333 114 h
.
- Atomic Safety and Licensing
- Docketing and Service Section Appeal Board Office of the Secretary U. S. Nuclear Regulatory Comission U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555
- Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Comission Laurie Burt, Esq.~
Washington, D. C.
20555 Assistant Attorney General Commonwealth of Massachusetts Mr. Lester B. Smith Environmental Protection Division Director of Conservation One Ashburton Place,19th Floor Massachusetts Wildlife Federation Boston, Massachusetts 02108 P.O. Box 343 Natick, MA 01761 Francis S. Wright, Esq.
Stephen M. Leonard, Esq.
Assistant Attorneys General.
Environmental Protection Division Public Protection Bureau One Ashburton Place, 19th Floor Boston, Massachussetts 02108 Patrick J. Kenny, Esq.
General Counsel Massachusetts Governor's Office of Energy Resources 73 Tremont Street h4g Boston, Massachusetts 02108
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Bafry H. Smith Counsel for NRC Staff 1333 115