ML19256G428
| ML19256G428 | |
| Person / Time | |
|---|---|
| Site: | Rancho Seco |
| Issue date: | 12/14/1979 |
| From: | Bowers E, Cole R, Shon F Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 7912310278 | |
| Download: ML19256G428 (12) | |
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DEC 141978 >f
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UNITED STATES OF AMERICA cgy,.s. w,,
q NUCLEAR REGULATORY C05B1ISSION s42. %
g THE ATOMIC SAFETY AND LICENSINd BOARD
-4 e
Elizabeth S. Bowers, Chairman 12/14/79 Dr. Richard F. Cole, Member Frederick J. Shon, Member In the Matter of
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SACRAMENTO MUNICIPAL UTILITY
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Docket No. 50-312 (SP)
DISTRICT
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(Rancho Seco Nuclear Generating
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Station)
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REFERRAL OF A LICENSING BOARD RULING TO THE ATOMIC SAFETY AND LICENSING APPEAL BOARD On October 24, 1979, California Energy Commission (CEC) filed a motion requesting the Board to reconsider its ruling of October 9, 1979, that the issue of emergency response will not be considered or in the alternative, certify the question to the Commission.
CEC stated that the Board specifically found that the emergency response issues were within the scope of the proceeding but was in error when it determined the Douglas Point decision relative to rulemaking did not permit hearing the issue. !
-1/
Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79, 85 (1974).
2/
The question of CEC's responsibility of going forward on issues will be the subject of a separate Order.
c, 1664 125 4 912 310 M b
v.
. On November 8, 1979, Sacramento Municipal Utility District (SMUD) stated that it did not oppose reconsideration since it took the position that the emergency response was outside the scope.
It also pointed out that the proposed contention used the terminology " emergency planning procedures".
SMUD stated that the Commission in its May 7 and June 21, 1979, Orders
" revolve purely around assuring that the facility will respond safely to feedwater transients. 8/ This may include consideration of the Licensee's organization and personnel and even certain actions that could be labelled as in-plant emergency response E!
as it relates to that assurance."
(Footnotes omitted].
SEUD cone tends the Board need not reach the question of applying Douglas point since emergency planning is beyond the scope.
SMUD asked the Board to stay its ruling if on consideration it determined that emergency planning was acceptable and refer the matter to the Appeal Board.
SMUD also stated in this special proceeding it was unsure if the next level of review was the Appeal Board or the Commission.
~ 0n November 13, 1979, the NRC Staff responded by reiterating its position that off-site emergency planning issues were beyond the scope of the proceeding.
The Staff also contended that if the Board determined the issue was within the scope, the Advance Notice of Rulemaking read in conjunction with the Commission's Statement of Policy--Modified Adjudicatory Procedures, November 5, 1979, does not preclude the Board from hearing the emergency plan issue if otherwise appropriate.
The Staff stated it had no 1664 126 objection to referral if the Board adheres to its ruling on the emergency planning issues.
The Board has considered the position of the parties on this question and the majority of the Board affirms the ruling stated in its Order of October 9, 1979, for the reasons stated; to wit, the emergency plan issue is within the scope of this proceeding but barred by the planned rulemaking on that subject.
The rationale for this position is stated in the attached separate opinion of Dr. Cole and Mr. Shon.
Mrs. Bowers also reached the conclusion that the emergency plan issue should not be heard but on the basis that it is outside the scope of the proceeding.
A schedule is in place for discovery, etc. and the hearing (February 26, 1980) which recognizes that if the emergency plan becomes an issue there will be a subsequent discovery period fol-lowed by an evidentiary hearing on that issue. -
Although CEC requested the Board to certify this question directly to the Commission, we believe the appropriate action is to refer it to the Appeal Board under 10 CFR 6 2.785 for considera-tion.
THE ATOMIC SAFETY AND LICENSING BOARD
~
Rich F.
Cole, Me, er Frederick J. Shony' Member
/
W'N / W Dated at Bethesda, Maryland Elizybetn S.' Bowers, Chairman this 14th day of December 1979.
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. SEPARATE OPINION OF DR. COLE AND MR. SHON We hold to the Board's previous thinking that there is a reasonable nexus between emergency planning / response and occur-rence of feedwater transients.
Because of that nexus, emergency planning / response should not be outside the scope of this pro-ceeding.
We also hold to the previous Board ruling !
1 that because the Commission obviously intends to conduct rulemaking,3/
2 on this issue then the Douglas Point and Vermont Yankee lines of casesb/ apply and preclude our consideration of off-site emer-gency planning / response.
Were it not for the issue of Commission rulemaking on emergency planning and the Douglas Point and Vermont Yankee ALAB decisions, we would accept for hearing those conten-tions dealing with off-site emergency planning / response.
1/
Board Order ruling on scope and contentions (October 9, 1979).
-2/
Advance Notice of Proposed Rulemaking * *
- Adequacy and Acceptance of Emergency Planning Around Nuclear Facilities (44 Fed. Reg. 41483, July 17, 1979).
3/
NRC Policy Statement * *
- Planning Basis for Emergency Responses to Nuclear Power Reactor Accidents (44 Fed. Reg. 61123, October 23, 1979).
-4/
Potomac Electric Power Company (Douglas Point), ALAB-218, 8 AEC 79 (1974); Vermont Yankee Nuclear Power Corporation (Vermont Yankee), ALAB-36, 4 AEC 930 (1972); Long Island Lighting Company (Shoreham, ALAB-99, 6 AEC 53 (1973).
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5-The California Energy CommissionE! (CEC) and NRC Staff 5!
argue that Douglas Point does not apply.
CEC takes the view that the Douglas Point precedent applies, if at all, to preclude consideration of " generic" issues but that a rulemaking proceeding will not address the site-specific contentions which can only be decided in the context of this adjudicatory proceeding.
We agree that Douglas Point dealt with a generic issue (environmental effects of the nuclear reactor fuel cycle) while site-specific issues may be involved here.
Nevertheless, the rationale of Douglas Point is applicable for the following reasons:
1.
The Commission has recognized the importance of emergency planning / response and is already moving forward with its plans for rulemaking.
2.
The Commission's Policy Statement of October 23, 1979 demonstrates the depth of Commission-level interest in the subject by directing the NRC Staff "to incorporate the planning basis guidance into existing documents used in the evaluation of 5/. Motion of the California Energy Commission for Reconsid-
~
eration Or, In the Alternative For Certification to the Commission dated October 24, 1979.
-6/
NRC Staff Response to CEC's " Motion.
. For Reconsid-eration or in the Alternative, for Certification to the 7
Commission ' dated November 13, 1979.
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~
. state and local emergency response plans to the extent possible."2!
The policy statement also indicates that " Additional guidance will be pro-vided following this rulemaking.
This additional guidance can be expected to consider how local conditions such as demography, land use, and meteorology can influence the size and shape of the EPZs and to address other issues such as evacuation planning."
Clearly the intent here is to defer consideration of site-specific issues until the rulemaking is complete.
3.
The Commission's Policy Statement further states that " Specific implementation dates for full implementation of the task force recommendation and any others that are developed will be estab-lished as part of the ongoing rulemaking effort."
(emphasis added) 4.
Because of the above three factors, we would be forced to evaluate CEC's contention in the con-text of evolving regulatory standards, standards which will, when finally promulgated, be applied 7/
The Commission here referred to a joint EPA /NRC task force
~
report entitled " 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.
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-7 to this plant.
Under the circumstances, our con-sideration of this contention, and our resolution of it, would be of limited utility.
Further, it would need to be duplicated once the new regulatory standards are in place.
As we see it, the real value of the Douglas Point teachings is in avoidance of unnecessary duplication.
The following quo-tation from the Douglas Point decision strongly indicates that thrust:
"Our consideration in adjudicatory proceedings of issues presently to be taken up by the Com-mission in rulemaking would be to say the least a wasteful duplication of effort.
In short the Vermont Yankee line of cases stands for the proposition that licensing boards should not accept in individual license proceedings con-tentions which are (or are about to become) the subject of general rulemaking by the Commission."8/
We cannot agree with the NRC Staff's position that Commis-sion actions subsequent to its Advance Notice of Rulemaking have released us from any of the Douglas Point-Vermont Yankee rulings.
The Commission's Policy Statement of October 23 seems to us to be merely a demonstration that the Commission did not want to wait until the rulemaking was over to begin some improvements in off-site emergency planning.
The second Commission action 8/
ALAB-218, 8 AEC 79, 85 (1974).
}664
}3}
? cl'_ed by the NRC Staff as indicative of our release from Douglas Point, et al. was the Commission's statement - " Modified Adjudi-catory Procedures."E!
The procedures described in this Commis-sion statement, which at least temporarily suspend the "immediate effectiveness" rule, apply only to Initial Decisions authorizing LWAs, cps or OLs and do not apply to proceedings of this type of case which is, in effect, an enforcement proceeding.
We further feel that the Commission's latest action in this rulemaking matter 10/ bolsters our opinion to the effect that the Commission meant the Vermont Yankee line of cases to apply to our procedures.
In its Proposed Rule, the Commission offers several alternatives, all of which would, in effect, postpone any formal adjudicatory consideration of shutting down operating reactors because of non-conformity to the proposed rule until 180 days after conclusion of the current rulemaking (or January 1, 1981 whichever is earlier).
This surely indicates that the Com-mission does not intend us to apply the Proposed Rule, or the report on which it is based, in any present adjudication.
9/
Modified Adjudicatory Procedures.
Suspension of 10 CFR 52.764 and Statement of Policy on Conduct of Adjudi-catory Proceedings dated November 5, 1979.
(44 Fed. Reg. 65049, November 9, 1979).
10/
Emergency Planning, Proposed Rule, (44 Fed. Reg.
December 19, 1979).
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. One final note:
It is true that the Commission has directed the TMI-1 instant Board to hear emergency planning matters, b but that case is a special one in many ways.
It is, for example, the only hearing on TMI-2-inspired modifications in which the Commission has directed that the reactor remain shut down pendente lite.
For the reasons stated above, we would deny CEC's conten-tions dealing wich the off-site emergency planning issue.
Because of the importance of the issue, we support the request for referral.
Dr. Richard F. Cole
,/
Frederick J.
S)fon 77 Dated at Bethesda, Maryland, this 14th day of December, 1979.
11/
Order and Notice of Hearing, In the Matter of Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 1), August 9, 1979.
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. SEPARATE OPINION OF ELIZABETH S.
BOWERS The CEC issue (contention) before this Board is contained in CEC's filing entitled " Revised Statement of Issues of Concern to the California Energy Commission". 1/
It reads as follows:
"4.
Whether, notwithstanding measures taken and con-templated to deal with feedwater transient problems, the facility should be required to revise emergency planning procedures so that, in the event of future problems, persons in the immediate reactor area and in the facility's reason-able impact area will not be exposed to danger. [ Footnote deleted].
As stated in NUREG-0569:
'Although some improve-ments can and should be made to feedwater system reliability and to identify and correct design deficiencies, the occur-ance of feedwater transients cannot be eliminated...
The emphasis should be on coping and mitigating the consequences of feedwater transients.'
This issue will encompass certain of the same concerns raised in NUREG-0396 and a U.S. GAO Report EMD 78-110, March 30, 1979.
This issue will require analysis of whether the facility's current emergency plans and the state and local plans associated therewith are adequate, or whether changes should be required within a definite timeframeor before the facility is permitted to operate further.
This issue will also require inquiry into:
Whether the scope of accidents covered by the facility's emergency planning procedures should be expanded to cover planning for protection of Class 9 accidents, TMI-level incidents, and other more serious events not currently covered?
Whether accident notification procedures such as the criteria for requiring NRC notification used by SMUD should be revised?"
It is my opinion that the issue of off-site emergency plans is clearly outside the scope of this special proceeding and I 1/
Undated but serviced on August 20, 1979.
I664 13$L
. S!
need not reach the ruling in Douglas Point cn rulemaking.
The Commission did not consider the scope of Rancho Seco in a vacuum.
It had before it the consideration of other Babcock and Wilcox design operating plants.
The Commission Orders stating the specific issues and offering a hearing were issued for Rancho Seco on May 8, 1979; for Davis-Besse on May 16, 1979; and for Three Mile Island I on August 9, 1979. 3/ The Commission effectively modified the Rancho Seco Order on July 11, 1979 by adding the issue of management competence (which was set forth in the Davis-Besse Order).
Both Rancho Seco and Davis-Besse are silent with regard to the issue of off-site emergency planning although that issue was set forth explicitly in TMI-I as follows:
"3.
The licensee shall improve his emergency preparedness in accordance with the following:
(a)
Upgrade emergency plans to satisfy Regulatory Guide 1.101 with special attention to action level criteria based on plant parameters.
(b)
Establish an Emergency Operations Center for Federal, S t-e and Local Officials and designate a location and an alternate location and provide communications to plant.
(c)
Upgrade offsite monitoring capability, including additional thermoluminescent dosimeters or equivalent.
(d)
Assess the relationship of State / Local plans to the licensee plans so as to assure the capability to take emergency actions.
(e)
Conduct a test exercise of its emergency plans."
2,/
If I felt compelled to reach the question of rulemaking, I would concur with the rationale of Dr. Cole and Mr. Shon on this matter.
3,/
Toledo Edison Company and Cleveland Electric Illuminating Co.
(Davis-Besse Nuclear power Station) Docket No. 50-346-OL ;
Metropolitan Edison Company, et al. (Three Mile Island Nuclear Station, Unit 1) Docket No. 50-289.
1664 13
. Considering the Commission's action in enlarging the issues to be considered in Rancho Seco by the addition of the issue of management competence, I am confident that the Commission would have taken similar action on the off-site emergency plan issue if it determined it was appropriate for the Rancho Seco Board to consider this issue.
No such action has been taken by the Commis-sion in order to bring this issue within the scope of this pro-ceeding.
I do not know of any Commission Policy Statements which would change my opinion in this matter.
I recognize that the present issues, including management competence, require evidence on the procedures to be followed by SMUD relating to on-site emergency response.
I support the request for referral.
dA MJ' A-Eliza'beth S. Bowers, Chairman Dated at Bethesda, Maryland this 14th day of December 1979.
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