ML20010C291

Answer in Opposition to Applicant 810804 Motion for Protective Order.Applicant Arguments Are Absurd & Indicative of Lack of Concern for Public Safety.Certificate of Svc Encl

ML20010C291
Person / Time
Site:	05000471
Issue date:	08/10/1981
From:	Shotwell J MASSACHUSETTS, COMMONWEALTH OF
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8108190321
Download: ML20010C291 (7)

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~~ AUG 131981 > TM NUCLEAR REGULATORY COMMISSION 4

6 Office of t':e Seactvf Dettics & Scnico q, 6 Before the Atomic Safety and Licensing Board

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BOSTON EDISON COMPANY, et al. ) Docket 471 (Pilgrim Nuclear Generating ) - 5]{j / S,3 Station, Unit 2) )

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C011MONWEALTH'S ANSWER TO C D ,% ,

APPLICANTS' MOTION FOR Db P' '

6' A PROTECTIVE ORDER 0. d\

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On July 24, 1981, the Commonwealth filed a Motion to Ccmpel Answers to its Fitrt Set of Interrogatories to Boston Edison Company Relative to Emergency Pla.nning. On August 4, 1981, the Applicants filed an Answer to said Motion to Compel and a Motion for a Protective Order (despite lengthy protestations to the effect that they were under no obligation i to file such a motion).

The Commonwealth finds the Applicants' arguments as set forth in their pleading of August 4 patently absurd and indicative of a lack of concern for public safety. Translated into plain English, the Applicants' arguments amount to the fcllowing: The Applicantsonly obligation is to demonstrate that preliminary plans exist to evacuate the population within 950J

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8108190321 81C816 0PDR ADOCK O$000471 PDR

f ten miles of the plant. They have no obligation to ascure that people will not die or contract cancer or to assure that people can be evacuated within any particular period of time or without being exposed to radiation. Thus, according to the Applicants, any evidence which they may have as to the lumbers of people who wil die or contract cancer in the event of a severe accident at Pilgrim II is irrelevant and will be withheld from the citizens of Massachusetts and from the Board. Certainly, no rule promulgated by the Nuclear Regulatory Commission pursuant to its mandate under the Atomic Energy Act to ensure the safe operation of nuclear power plants is susceptible to this interpretation.

The Commission's Final Regulations on Emergency Planning are not susceptible to this or any of the other interpretations proposed by the Applicants. The Regulations and Commission decisions require that the Board assess, during this construction permit proceeding, the feasibility of evacuating people or taking other protective action in the event of an accident at Pilgrim II. See 10 C.F.R. 50, App.E,Section II;1/ Consumers Power Company (Midland Plant Units 1 and 2) 1/ The relevant language of the Rule is as follows:

"The Preliminary Safety Analysis Report shall contain cufficient information to ensure the compatibility of proposed emergency plans for both on-cite areas and the EPZs, with facility design features, site layout, and site lccation with respect to such considerations as access routes, surrounding population distributions, land use, and local jurisdictional boundaries for the EPZs . . . "

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ALAB-123, 6 AEC 331, at 342 (1973); Southern California Edison Company, et al. (San Onofre Nuclear Generating Station Units 2 and 3), ALAB-248, 8 AEC 957, 961-63 (1974). Since evacuation, sheltering, and other emergency actions are planned as a means of protecting the public, any assessment of the feasibility of 1mplementing such actions necessarily entails a decision as to whether the particular actions planned will adequately protect the public. And that judgment, in turn, cannot be made without reference to the accident consequences against which such protection must be afforded.S/

Accident consequences are also relevant to the determination which the Board must make, pursuant to 10 C.F.R. 50, App. E, as to the appropriate size and configuration of the Pilgrim II EPZ's.S! Contrary to Applicants' assertions, the EPZ's for any given site are not " fixed" at areas of about 10 and 50 miles in radius. While "[g]enerally, the plume exposure 2/ Applicants grossly misrepresent this Board's ruling on Class 9 accident consequences in their attempt to eliminate all consideration of public safety from this emergency planning review. The Board has not " excluded consideration of Class 9 accidents generally in this construction permit proceeding," as Applicants claim, but has decided only that the Applicants need not prepare a Class 9 Environmental Impact Statement to satisfy the requirements of the National Environmental Policy Act.

3/ The Applicants repeatedly refer to their proposed EPZ's as if they have already been determined to be of the appropriate size and shape. Having thus misrepresented the authority of their proposed boundaries, they then refuse to respond to interrogatories wt ch fail to accord their proposals this same status.

pathway EPZ for nuclear power plants . . . shall consist of an area about 10 miles (16 km) in radius and the ingestion pathway EPZ shall consist of an area about 50 miles (80 km) in. radius,"

the size of the EPZs for any particular reactor "shall hg determined in relation to local emergency response needs and capabilities as they are affected by such conditions as demography, topography, land characteristics, access routes, and jurisdictional boundaries." 10 C.F.R. 50, App. E.Section II, n. 2. The Applicants try desperately to limit consideration of these site - specific factors to the means by which protective actions will be taken, saying that the only relevant inquiry is "how" protective actions will be implemented. That limitation, however, ignores the explicit statement in the Rule that these local factors are significant to an assessment of emergency response needs, as well as capabilities. By this reference the Rule recognizes that site-specific factors of the type enumerated may influence accident consequences and, hence, emergency response needs.

Thus, accident consequences have not been abandoned by introudction o'f the EPZ concept.d/

The Applicant's arguments, then, reduce to the proposition that the safety of the citizens of Massachusetts is totally )

I irrelevant to whether Applicants have demonstrated the 1 l

4/ It is certainly interesting to note that the Applicants l have provided no citations in support of their thesis that l replacement of the LPZ with the EPZ as the " touchstone" of l emergency planning boundaries " represents an abandonment of a consequences based emergency planning rationale."

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feasibility of evacuat sn or the adequacy of their emergency plans. Applicants, of course, go to great leng' L3 to avoid making their argument in such plain terms, at one point even suggesting that they are entitled to provide an answer to an interrogatory which they admit is " virtually meaningless" because of some perceived defect in the question asked.E/

The Commonwealth trusts that this Board will reject the Applicants' arguments and overrule their Motion for a Protective Order. Any other ruling would be contrary to the express terms of 10 C.F.R. 50, App. E and the Atomic Energy Act of 1954.

Respectfully submitted, By  % .

' M O C-JO, % N SHOTWELL ~

Assistant Attorney General Environmental Protection Division Public Protection Bureau Department of the Attorney General One Ashburton Place, 19th Floor Boston, Massachusetts 02108 (617) 727-2265 Dated:

5/ A defect which, in fact, does not exist. The Commonwealth specifically asked the Applicants to define their terms if they responded that "saf e" evacuation was, in their judgment, possible.

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'l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD b

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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, Unit 2) )

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CERTIFICATE OF SURVICE I hereby certify that the within Answer has been served on the following by deposit of copies thereof in the United States Mail, first class mail, postage prepaid this 10th day of August, 1981:

Andrew C. Goodhope, Esq. Henry Herrman, Esq.

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Chairman Room 1045 Atomic Safety and 50 Congress Street Licensing Board Boston, Massachusetts 02109 3320 Estelle Terrace Wheaton, Maryland 20906 Mr. & Mrs. Alan R. Cleeton 22 Mackintosh Street Dr. A. Dixon Callihan Franklin, Massachusetts 02038 Union Carbide Corporation P.G. Box Y William S. Abbot, Esq.

Oak Ridge, Tennessee 37830 Suite 925 50 Congress Street Dr. Richard F. Cole Boston,. Massachusetts 02109 Atomic Safety and Licensing Board Thomas G. Dignan, Jr., Esq. I U.S. Nuclear Regulatory Ropes & Gray Commission 225 Franklin Street Washington, D.C. 20555 Boston, Massachusetts 02110 Patrick J. Kenny, Esq. Atomic Safety and Licensing

. Edward L. Selgrade, Esq. Appeal-Board Deputy Director U.S. Nuc3 ear Regulatory Mass. Office of Energy Commission Resources Washington, D.C. 20555 73 Tremont Street Boston, Massachusetts 02108 l

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Atomic Safety and Licensing Office af'the Secretary Board Panel Docketing and Service Section U.S. Nuclear R6gulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington,-D.C. 20555 Chief Librarian Jack R. Goldberg Plymouth Public Library Office of the Executive North Street Legal Director Plymouth, Massachusetts 02360 U.S. Nuclear Regulatory Commission William S. Stowe, Esquire Washington, D.C. 20555 Boston Edison Company 800 Boylston Street Thomas S. Moore, Chairman Boston, Massachusetts 02199 Atomic Safety and Licensing Appeal Board Francis S. Wright, Esquire U.S. Nuclear Regulatory Berman & Lewenberg Commission 211 Congress St.

Washing ton, D.C. 20555 Boston,itassachusetts 02110 Christine N. Kohl, Esquire Dr. John H. Buck Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Stephen H. Lewis R. K. Gad III U.S. Nuclear Regulatory Ropes & Gray Commission 225 Franklin Street Office of the Executive Boston, Massachusetts 02110 Legal Director Washington, D.C. 20555 , j b . Ic t. A Jo Ann Shotwell '-'

Assistant Attorney General (Environmental Protection Division Public Protection Bureau Department of the Attorney General One Ashburton Place, 19th Floor Boston, Massachusetts 02108 (617) 727-2265 l