ML19327B685

Necnp Brief on Certification of ALAB-922 Or,In Alternative, Intervenors Petition for Review of ALAB-922.* Appeal Board Effort to Recast History of Rule for Emergency Planning as Secondary or Discretionary Std Fails Utterly.Svc List Encl

ML19327B685
Person / Time
Site:	Seabrook
Issue date:	10/27/1989
From:	Curran D HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	NRC COMMISSION (OCM)
References
CON-#489-9385 ALAB-922, OL, NUDOCS 8911060277
Download: ML19327B685 (11)

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October 27, 1989 l CCLKliED l l UNITED STATES NUCLEAR REGULATORY COMMIS310N U W ". j k

I BEFORE THE COMMISSION ,  :

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In the Matter of ) rn.  :

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Public Service Company of )

< New Hampshire, et al. ) Docket Nos. 50-443 OL i

) 50-444 OL (Seabrook Station, Unita 1 & 2) ) OFF3ITE EMERGENCY  !

) I_ANNING l

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NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S ~

i BILIEF ON CERTIFICATIvN OF AIAB-922 OR, IN THE ALTERNATIVE, ,

INTERVENORS' PETITION FOR REVIEW OF AIAB-922 I Introduction l l.

On October 11, 1989, the Appeal Board issued an opinion con-  :

taining the unprecedented assertion that the Nuclear Regulatory [

Commission's emergency planning rule is a "second tier" safety  !

standard, whose terms are merely discretionary rather than -

required for protection of the public health and safety. The 1 Appeal Board ignores the plain language of the 1980 emergency planning rule, the preamble to the rule and the proposed rule, and the lengthy discussions between the Commissioners who promul-  !

gated the rule. Instead, it patches together an assortment of .

I minor details, ou.-of-context statements, and misinterpreted .

statutory and regulatory provisions in an effort to downgrade the 1 emergency planning standard. As discussed belcw, these distor-tions of the purpose and content of the emergency planning rule cannot withstand any degree of scrutiny.1 8911060277 091027 ,

gDR ADOCK0500ggg3 1 In ALAB-922, the first portion of the Appeal Board's deci-sion, relating to the question of whether the emergency planning rule is a first or second-tier standard, was not certified to the

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i I. The Energency Planning Rule Is a First-Tier Safety Standard.

{m y9l A. The plain language of the emergency planning rule 1  :

C As the Court of Appeals held in 1[ pion of Concerned i Scientists v. NRC, 824 F.2d 108, 114 (D.C. Cir. 19'7) o ("UCS I"), ,

i the "first-tier" level of safety measures is mandated by section '

182(a) of the Atomic Energy Act (42 U.S.C. 5 2232(a)), which l l

" commands the NRC to ensure that any use or production of nuclear  !

l materials ' provide (s) adequate protection to the health or safety l of the public.,u2 The discretion to impose additional "second-  ;

' tier" measures, which go beyond " adequate protection," is permitted by 5 161, which contains no reference to the "edequacy" f

of protective measures.3 There is no evidence that the commission utilized a two-tier (continued)

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U Commission; however, the Appeal Board later rejected motions for l reconsideration on the ground that this issue should be raised before the Commission. Memorandum and Order, dated October 24, i L 1989, at 2. NECNP's brief is addressed solely to this question.

NECNP also adopts and incorporates by reference the briefs filed ,

l by the Seacoast Anti-Pollution League and the Massachusetts Attorney General.

To protect Intervenors' interests in the event that the Commis-sion decides that tne first portion of ALAB-922 is not properly before it, this pleading ..s styled in the alternative as a peti-tion for review of that portion of ALAB-922. The petition for review is joined by SAPL und the Massachusetts Attorney General.

2 The Commission has consistently held that cost considera-tions are forbidden in interpreting the " adequate protection" standard embodied in the Act and Commission regulations. S.g.g Union of Concerned Scientists v. NR.0, 824 F.2d at 117, citina Maine Yankae Atomic Power Co., 6 AEC 1003 (1973).

3 Section 161(b), which governs promulgation of safety stan-dards, allows the Commission to impose standards that "it may l deem necessary to desirable to . . protect health or to mini-j mtze danger to 13+2 or property."

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i approach, or had even conceptualized it, when'it promulgated the 1980 emergency planning rule.4 In any event, one need look no farther than the text of the 1980 rule to see that the emergency l

planning rule is a primary safety requirement, because it is ,

i directly patterned a the language of i 182. Section 50.47(a),  :

which sets the overarching standard for emergency planning, .

echoes the " adequate protection" language of S 182 by requiring a reasonable assurance of " adequate protective measures" in the ,

event of a radiological emergency. If that were not enough, in ,

. promulgating the 1980 rule, the Commissioners themselves clearly i

expressed their intent to adopt the " adequate protection" stan-  !

dard in S 182 of the Act, and explicitly changed the standard in l i

the proposed rule from " appropriate" to " adequate" protective I

measures. Tr. of July 23, 1980, Commission Meeting at 30-47.

The Appeal Board complctely ignores the plain language of the rule -- in fact, it suggestc that for the Commission to hold [

to its emetging position that the c.mergency planning rule is an  :

" extra-adequate protection" stande.rd, 5 50.47(a) must, for all practical purposes, be ignored.5 With this preposterous sugges- l 1

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4 Egg brief of Massachusetts Attorney General. The Commission  ;

did not articulate the two-tiered standard until 1985, in defense of the backfit rule's use of cost considerations.

5 The Appcal Board posits that "given the ' extra-adequate pro- i taction' status of emergency planning requirements, the focus of any ' reasonable assurance' finding should be on the objective review of planning efforts and plan implementation for con-formance with the requirements of section 50.47(b) and the guid-ance in NUREG-0654/ FEMA-REP-1 (Rev 1), ' Criteria for Preparatien and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants,' rather than oa more subjective judgments about whether a particular plant affords an ' adequate' level of protection or entails too great a

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_4-tion, which stands principles of regulatory interprett. tion on  !

i end, the Appeal Board all but concedes that its characteri ation i of the emergency planning standard as "second-tier" is untenable.

i B. Scope of Section 161 ,

The Appeal Board finds " compelling" support for ascribing  !

second-tier status to the emergency planning rule in the fact that the 1980 rule claimed authority from Section 161 of the o

Atomic Energy Act, but made no referance to Section 182. The !

Appeal Board apparently considers that Section 161 is concerned l l

exclusively with the commission's authority to promulgate stan-dards that go beyond what is required for adequate protectien.  !

Leaving aside the inappropriateness of attaching such import to this obscure citation, Section 161 cannot be read so narrowly.  !

Section 161(b), on which the commission explicitly relied in i promulgating the 1980 rul.e, generally authorizes the Commission to promulgate standards governing "the possession and use" of special nuclear meterial. The commission is empowered to enact a range of safety standards, from those measures that are consid-ered "necessary" to " protect health or to mir:imize danger to life or property,' to those measures that are considered merely

" desirable" to achieve those ends. If a measure is u necessary" i te " protect health" or to " minimize danger," it is logically a -

minimum requirement that must ce met in order to achieve an ade-quate level of protection. On the other hand, "dosirable" (continued) degree of risk." ALAB-922, slip op. at 23-24.

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measures go beyond what is mircimally required. Thus, both

" tiers" of the Commission's regulatory schemt are encompassed by j i

Section 161(b).6 In relying on Section 161(b), the Commission l l

was merely invoking its broad authority to establish standards  !

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for the operation of nuclear reactors.

c. Significance of tne term " bolster" ,

1 The Appeal Board also relies heavily on rost h2g statements by the Commission which question the degree of importance placed by the Commissioners on emergency planning in 1980. ALAB-922 at 1

18, note 46. In promulgating the 1987 regulatory amendments for l utility-sponsorod emergency plans, the commission found that the j J

use of the word " bolster" in the 1980 rule indicated that emer- j 1

gency planning was viewed as a secondary " backstop" rather than a measure equivalent to engineered safety features. Taken in the I context in which it was first used, however, the word " bolster"  !

is clearly intended to convey the concept that emergency planning would be accorded the same degree of inportance as siting and j l

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Section 161(b) is not redundant to Section 182. Section 192 obliges the commission to determine that utilization or produr - ,

' tion fucilities will provide adcquate protective measures to the public health and safety; Section 161(b) generally authorizes the Commission to establish standards that are either necessary to  :

achieve that end, or desirable to provide additional levels of  ;

protection.  :

l It should also be noted that while the U.S. Court (c Appeals for the District of Cnlumbia Circuit has found that Section 161 permits the commission to impose safety meas 2res over and above what is required for " adequate protection" under section 182, it has not held, nor has it been asked to hold, that Section 161 is concerned exclusively with measures that go beyond what is required for adequate protection. Eag UCS I, 824 F.2d at 11,4, 118.

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engineered safety features. As explained in the 1979 proposed rule, The propoced rule is predicated on the commission's t considered judgment'in the aftermath of the accident at Three Mile Island that safe biting and design- '

engineered features alone do not optimize protection of ,

i the.public health and safety.- Before the accident it was thought that adequate siting in accordance with -

existing staff guidance coupled with the defense-in-

\ depth approach to design would be the primary public protection. Emergency planning was conceived as j"; secondary but additional measures to be exercised in ,

the unlikely event that an accident would happen. The ,

l 4 Commission's perspective was severely altered by the  !

9 unexpected sequence of events that occurred at Three  !

Mile island. The accident showed clearly thal the pro- i taction provided by siting and engineered safety fea-tures must be bolstered by the ability to take protec-tive measures during the course of an accident.  ;

i The commission recognizes that this proposal, to I view emergency planning as equivalent to, rather than i as secondary to, siting and design in public protec-tion, departs from its prior regulatory approach to l emergency planning.

44 Fed. Reg. 75,159, Cols. 1-2 (December 19, 1979). Thus, when viewed in the full context of the rule, it is clear that the Com- ,

mission's use of the word " bolster" was never intended.to imply  ;

t that emergency planning was less important than design and  !

siting.7 i D. Significance of 120-day remedial clock In the 1987 emergency planning rule amendments for utility l l

I 7: fact, there is nothing inconsistent about the us6 of the ,

term " bolster" to describe the function of a necessary safety feature. The concept of " backup" or " backstop" measures with ,

effectiveness and reliability that are equivalent to those of principal systems is a cardinsi element of NRC's defense-in-depth ,

strategy, as exemplified by the single failure criterion.

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plans. the Commis sion also cited the 120-day remedial clock for u operating plants as evidence that emergency planning is not on a  !

par with other safety standards. The Commission reasoned that  !

emergency planning could not be as vital as other safety stan-dards if the 1900 Commissioners were willing to insulate Ifconsees from shutdown for 120 days, even if a major deficieny i c in cmergency planning were found. ,

As demonstrated in the discussion immediately preceding the i vote on the 1980 rule, however, the Commissioners approved the 120-day clock with the exolicit understandina that it did not prevent them from shuttir.g down a reactor in the interim if a i serious safety problem arose.8 Tr. of July 23 Commission meeti ;

at 68-81. Rather than signifying the secondary role of emergency ,

planning, the four-month clock was intended to impress state and I local governments, over whom it had no direct control, that the Commission's tolerance for delayeo compliance with this important rule was limited.9 8 The language was adopted with the understanding that the Commission had " preserved the full rangt of possible Commission actions during the four months ..." Statement of Commissioner >

Bradford, Tr. st 81.

9 As Commissioner Ahearne explained:

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Let me try to remind you of one of ..he reasons why there is a month (sic) pericd in thare. These aren't reactors to be licensed. They are reactors that are licensed. This process concludes that the emergency l plan at one stage either had been or in this review 'e have now filed is not adequate. We have now put them on notice. Now, if it is a very severe p nblem the potential is there that they are on notice that they I

could be shut down. Remember, we are in many cases trying to reach beyond the licensee and trying to reach j to the state and local governments. That is the

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Moreover, it is standard NRC practica to' establish  !

I timetabiss for compliance with major safety requirements. During l ths same year that it promulgated tho emergency planning rule, the NRC gave licensees two years to correct widespread non-compliance with its " fundamental" environmental qualification l requirements. Petition for Emeraency and Remedial Action, CLI-50-21, .\1 NRC 707, (1980). When licensees failed to meet that deadline, it was exttnded again and a new timetable was codified .

.i n 10 C.F.R. 5 50.49. Similarly, the NRC built lead times and ,

provision for extensions into its emergency core cooling system regulations in 10 C.F.R. $ 50.46. As with its other safety l regulations, the NRC retained the authority to shut down any reactor whose noncompliance was deemed to pose a serious safety threat, despite the pendency of these grace periods.  !

I- II. The Mass AG's Testimony Was Admissible.

The focus of ALAB-922 is the admissibility of the Massachu- i actts Attorney General's testimony regarding the potential con-caquences of a radiological emergency at Seabrook. In rejecting this evidence, the Appeal Board never directly reaches tho ques-r (continued) inherent problem in a lot of this.

The point was that in doing that reaching we wanted to show we are really serious. The seriousness is that they have got four months to ccrrect that deficiency. ,

It is a fixed period of time. It is not the Commission saying the deficiency must be corrected, which is sort of indefinite, it is that here is a fixed pariod of time to correct the deficiency. That was the sense of the reason there was a fixed period.

Tr. at 70.

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, tion of whether the evidence would have been admissible under a first-tier emergency planning standard. However, at note 47, the l Appeal Board questions whether such testimony need be considered l under such a standard, given the D.C. Circuit's decision in Union i

gt concerned Scientists v. NRC, 880 F.2d 552, 558 (D.C.Cir. 1989)

("UCS II"), that "the ' adequate protection' standard may be given content through case-by-case applications of (the Commission's) technical judgment rather than by a mechanical verbal formula or ,

set of objective standards."

The Appeal Board misses the point. In Ucs II, the ,

petitioner unsuccessfully challenged the backfit rule's lack of general guidelines for distinguishing between the category of l safety measures considered to be necessary under the adequate [

protection standard, and the category of safety measures deemed  :

" extra-adequate." Here, Intervenors have never sought a generic standard for evaluating what constitute " adequate" protective measures. Instead, they sought to introdpas evidence that would

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assist the Licensing Board in giving content to the concept of I what constitutes'ad quate (or inadequate) protective measures at ,

Seabrook.

In fact, the specific circumstances of Seabroot made this evidence particularly relevant, because " adequate protective i measures" could not be found by mere reference to a " range of i protective actions." Such a range is nonexistent. Sheltering on i

l the beachet is so minimal and ineffective that it is not even

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o included in the New Hampshire plans, thus leaving the beach popu-lation with a single option of lengthy evacuation. Evidence regarding the effectiveness of this protective measure should have been admitted.

CONCLUSION Ten years ago, the chaotic aftermath of the Three Mile Island accident jolted the Commission into recognition of the importance of emergenry planning in saving lives during a nuclear disaster. As a result, the Commission elevated emergency plan- l ning to the status of a primary safety standard. The Appeal Board's effort to recast the history of the rule as a secondary I or discretionary standard fails utterly. The Seabrook emergency plans.must be judged against an objective standard of adequacy, informed by relevant evidence regarding the degree of protection i 1

afforded by the plans. 3 Respectfully submitted, ,

4 aw 4.5 Diane Curran '

HARMON, CURRAN & TOUSLEY 2001 "S" Street N.W. Suite 430 l Washington, D.C. 20009  :

(202) 328-3500 October 27, 1989 ,

I CERTIFICATE OF SERVICE ,

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l I certify that on October 27, 1989, copies of the foregoing

[ pleading were served by first-clues mail or as otherwise indi-cated on the parties to the attached service list.

/A u  %

Diane curran  ;

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.V SEABROOK SERVICE LIST l' Offsite Commission

, <td.:

*y Atomic Safety and ucensing Paul McFacnern, Eaq. R. Scott flill Whitton

'Kenneth M. Cart Doord Panet sa Ml' ark,Ilill Whilton

, Chairman US Nucicar Regulatory Comminion Shaines P.O. Dos 3m

& McEachern,89 03 31 End ,e US Nuclear Regulatory Commission Washington, D.C 20555 Maplewood Avenue 79 State Street Washingtort D C 20355 Porumouth, Nil 03801 Newtiuryport,MA 01950

' Docketing and Service Branca 6f f L

'1humas M. Roberta US Nuclear Regulatory Commmion Sandre Gavutas t%M i 'I' >  ; Diane bbotham Commmioner Wuhington, D.C. 20555 RfD 1. Dos 1154 U ^ k " RfD # 2 Bor 1260 US Nuclear Regulatory Commmon East Kensington,bli 03827 Putney,VP 05346 Washington, D C 20535 Stanley W. Knowles Board of Selectmen ' Thomas G. Dignan, Esq. Rkhard Donovan (James R. Curtin P.O. Dos 710 R.K. God it. Esq. TEMA Commisnoner North llampton, Nil 03826 Repes & Orsy 442 J.W. McCormack (POCil)

US Nuclear Regulatory Commiuion One International Place Boston,MA 02109 Washington, D.C 20555 Senator Gordon J. Ilumphrey Doston, MA 02110 2624 U1 Senate Senator Gordon J. Ilumphrey Kenneth C Rogers Washington, D.C 20510 Robert A. Backus, Esq. 1 Eagle Square, Ste 507 Commis6kmer (Atta. Tom Durack) Backus, Meyer & Solomon Concord, Nil 03301 US Nuclear Regulatory Commision 111 lowell Street Washington, D.C 20555 J.P. Nadeau Manchester, Nil 03105 Ashod N. Amitian, Esq.

Town of Rye ,

145 South Main Street J. Paul Do!!werk, Chair 155 Wuhington Road 'Nitrl A. Young. Esq. P.O. Dos 38 Atomic Safety & Ucensing Rye Newllampshire 03870 Edwin J. Reis, Esq. Dredford,MA 01835 Appeal Board Office of the General Counsel U1 Nuclear Regulatory Comm. Michael Santosuosso, Chairman US Nuclear Regulatory Commsn Judith II. Mizner, Esq.

Wuhington, D C 20555 Board of Selectmen Washington,DC 20555 Silvergtate, Gertoct, et al.

Jewell Street, RfD # 2 88 Broad Street lloward A. Wilber South llampton, Nil 03842 11. Joseph flynn Esq. Boston,MA 02110 Atomic Safety and ucensing Office of General Counci

' Appeal Board William Armstrong TEMA US NRC Civil Defense Director 500 C Jtreet S.W.

Wuhington, D.C 20555 10 Front Street Washington, D.C. 20472 'By overmght express Exeter, Nil 03&33 Alan S. Rosenthal Ocorge Dana Disbee, Esq.

Atomic Safety and Ucensing Calvin A. Canney Geoffrey M. Iluntington, Esq.

Appeal Board City Manager Office of the Attorney General US NRC City 11411 State llouse Annes Washington, D.C 20555 126 Daniel Street Concord, Nil 03301 Portsinouth, NI1 03801 Ivan ?!, Smith, Chairman Rkhard A. Itampe Esq.

Atom'] Safety and Ucensing Board Edward A.'Ihomas llampe and McNicholas US Nuclear Regulatory Comminaion ITMA 35 Pleasant Street Washington, D.C 20555 442 J.W.McCormack (POCll) Concord, Nil 01301 Doston,MA 02109 Dr. Rkhard F, Cole Gary W. Ilotmes, Esq.

Atomic Safety and ucensing Board Alfred V.Sargent, Chairman llotmes & Elha US Nuclear Regulatory Commission Board of Selectmen 47 Winnacunnent Road Washicgton, D C 20555 Town of Salisbury, MA 01950 llampton, Nil 03842 Kenneth A.McCollom Rep. Suzanne Dreiseth Mrs. Anne C Ooodman Atomic Safety and Ucensing Board Town of flampton Palls Board of Selectmen US Nucicer Regulatory Comminion Drinkwaret Road 13-15 New Market Road Washington, D.C 20555 llampton Fells, Nil 03S44 Lurham, Nil 03842 Robert R. Pierte, Esq. Phi!!ip Ahrens, Esq. Jane Doughty Atomic Safety and Ucensing Board Assistant Attorney Ocneral SAPL US Nuclear Regulatory Commission State llouse, Station #6 5 Martet Street Washington, D.C 20555 Augusta,MB 4 333 Portsmouth, Nil 03801 Atomk Safety and Ucensing Allen lampert John Tracconte, Esquire Appeal Board Panel Civil Defense Director Assistant Attorney Ocneral US N sclear Regulatory Comminion Town of Drentowood 1 Ashburton Place,19th floor Washington,D.C 20555 Exeter, Nil 03833 Boston,MA 02108 l

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