ML20010C918
| ML20010C918 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 08/17/1981 |
| From: | Rogin E ORRICK, HERRINGTON & SUTCLIFFE, SAN DIEGO GAS & ELECTRIC CO., SOUTHERN CALIFORNIA EDISON CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20010C913 | List: |
| References | |
| ISSUANCES-OL, NUDOCS 8108210214 | |
| Download: ML20010C918 (42) | |
Text
i .
1 DAVID R. PIGOTT '
EDWARD B. ROGIN 2 SAMUEL B. CASEY ALAN C. WALTNER !
3 Of ORRICK, HERRINGTON & SUTCLIFFE A Professional Corporation
)
4 600 Montgomery Street San Francisco, CA 94111 <JJLUZ( g ,
5 Telephone: (415) 392-1122 & p~ ~, /\
6 CHARLES R. KOCHER D
V-JAMES A. BEOLETTO 7 SOUTHERN CALIFORNIA EDISON COMPANY ggI h
P. O. Box 800 AUd e
- f. j O. .QsJggg
- g t
8 2244 Walnut Grove Avenue /
Rocemead, CA 91770 ,
9 Telephone: (213) 572-1900 ih 10 Attorneys for Applicants, Southern California Edison Company j 11 and San Diego Gas & Electric Company 12
- 13 UNITED STATES OF AMERICA i 74 NUCLEAR REGULATORY COMMISSION i 15 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 16 1
17 18 4 In the Matter of )
19 )
SOUTiiERN CALIFORNIA ) Docket Nos. 50-361 OL EDI.0N 4 COMPANY, ET AL., ) 50-362 OL 20
)
21 (San Onofre Nuclear )
Generating Station, )
i 22 Units 2 and 3) )
)
23 24 MEMORANDUM IN OPPOSITION TO ISSUE RAISED 25 SUA SPONTE BY ORDER OF AUGUST 7, 1981 26 8108210214 810817 PDR ADOCK 05000361 PDR O
I.
1 2 INTRODUCTION 3 By its " order (Modifying an Issue Concerning Earthquake and Emergency Planning)" dated August 7, 1981 the i 4, 5 . Board determined that the follcwiy.g issue should be raised, 6 sua sponte, in this proceeding:
7 Assume a major earthquake in the SONGS area.
This assumed earthquake etuses extensive 8 structural damage to the facility, to communications, to highwtys designated as 9 evacuation routes, and is accompanied by radiological releases requiring evacuation in 10 the plume exposure pathway of the EPZ. In
! these circumstances what steps could be taken i
11 by the applicants and responding l
jurisdictions to carry out evacuation in a 12 timely manner and/or protect those in the EPZ pending evacuation? What federal resources, 13 including military resources, could be brcught in to assist in this situation, and i
j 14 how would federal assistance be accomplished?
15 Applicants respectfully submit that the Board has improperly 16' exceeded NRC regulations and its rua sponte powers under 10 i'
17 C.F.R. 12.760a. The issue is totally lacking in factual i
j 18 basis and exceeds all relevant NRC regulations.
l
! 19 As posed, the issue necessarily requires e
20 consideration of emergency planning procedures at San Onofre 21 under either or both of the following conditions:
4 22 ') An earthquake in excess of the Safe Shutdown 23 Earthquake ("SSE") which is assumed to cause a 24 major radiological release and evacuation in 25 the plume expo.Ture pathway in the Emergency 26 Planning Zone ("EPZ"); and/or i
i
1 (2) An earthqake in excess of the SSE which is 2 assumed to occur coincident with a 3 non-earthquake related radiological release 4 requiring evacuation in the plume exposure 5 pathway of the EP2.
6 Applicants consider both assumed scenarios to 7 exceed NRC regulations. Site suitability regulations call 8 for establishing a SSE which is defined as the maximum 9 earthquake for that site (10 C.F.R. $100, App. A). That 10 earthquake was initially defined at the Construction Permit 11 stage of this proceeding and, to a limited extent, is being 17 re-examined at the Operatir.g License stage. As will be 13 discussed more fully, there is no factual basis or regulatory 14 reason for discussion of postulated earthquakes in excess of 15 the SSE. For this reason, the proposed issue exceeds NRC 16 regulations.
17 Similarly, assumption that an earthquake in excess i
18 of the SSE will occur coincident with a radiological release 19 has no factual basis or basis in the regulations and is beyond this Board's authority to consider.
20 21 Applicants also note that the impact of the Board's If a Board may 22 Order is not limited to the instant docket.
23 exceed regulatory requirements with respect to earthquakes at
- 24 San Onofre, what should be the standard of inquiry with 25 respect to earthquakes at other facilities? If it is 26 necessary to evaluate emergency planning as in practice by an 3
4 i
f l
I earthquake in excess of the SSE at San Onofre, on what basis 1
2 are similar considerations ignored at other plcnts? The 3 natural disaster need not ba limited to earthquakes. In 4 areas where the relevant potential natural disaster may be a j i
5 hurricane, tornado or flood, is it now necessary to evaluate 6 the emergency preparedness at such sites coincident with a 7 natural 'isaster exceeding design levels for such events?
8 Where, as here, the Board seeks to postulate 9 incredible events without factual basis, juut to see what 1
10 will happen, it is acting in excess of existing regulations i
and abuses its sua sponte powers. The issue proposed by the 11 c 12 Board shnu.d be withdrawn.
13 I II.
14
SUMMARY
OF COMMISSION AND BOARD CONSIDERATION 15 OF MAJOF EARTHQUAFES AND MULTIPLE DISASTERS 16 The following history of Commission and Board 17 actions demonstrates that " major earthquakes" 1/ (in excess 18 of the SSE) and multiple disasters need not be considered in
[
19 establishing eme';gency plans.
20 As originally promulgated in 1970, ',0 C.F.R.
21 Part 50, Appendix E required Applicants to provide 22 " sufficient information to assure the compatibility of 23 ///
24 1/ The term " major earthquake" as used herein refers to an 25 earthquake which exceeds the " Safe Shutdown Earthquake" assigned for SONGS 2 and 3. See 10 C.F.R., Part 100, 26 Appendix A.III.(c).
I 4
\ ._. -.
l 1 proposed emergency plans with facility design features, site 2 layout, and site location with respect to such considerations ,
3 as access routes, surrounding population distributions, and 4 land use." Former 10 C.F.R., Part 50, Appendix E.11. At the 5 same time, the Commission developed a document entitled 6 " Guide to the Preparation of Emergency Plans for Product 2cn 7 and Utilization Facilities" to help applicants " establish 8 adequate plans required pursuant to 5 50.34 and this appendix 9 for coping with emergencies." Former 10 C.F.R., Part 50, 10 Appendix E, note 1. Nothing in this guide suggested that 11 Applicants needed to engage in multiple disaster planning or 12 planning for a major earthquake.
13 In March, 1977, the Commission published for use and public comment revised guidance to provide "more complete 1
14 15 guidance in developing the emergency plans required in the 16 final safety analysis report." Regulatory Guide 1.101 17 (Rev. 1), " Emergency Planning For Nuclear Power Plaats, 18 March, 1977", at p. 1. The guide described "a metnod 19 acceptable to the NRC Staff for complying with the 20 Commission's regulations with regard to the content of 21 emergency plans for nuclear power plants, primarily in the 22 FSAR Stage." Id. This guidance did suggest that a nuclear 23 power plant operator should place plant personnel on alert 24 and possibly notify offsite emergency support organizations 25 An the event of " severe natural phenomena in the plant 26 environment such as a flood, earthquake, tsunami, hurricane 5
1 1 or tornado." Id. p. 4. However, nothing in this regulatory 2 guide stated or implied that applicants needed to engage in l
3 multiple disaster planning. The guidance did suggest 4 consideration of " inclement weather". However, the 5 Applicants believe it Audicrous that the term " inclement 6 weather" be construed to include a major earthquake, an event 7 with a much lower probability.
8 At the same time, the Commission published 9 adcitional guidance "to provide a common reference and 10 guidance source for state and local governments in the 11 preparation of radiological emergency response plans in 12 support of fixed nuclear facilities", as well as for " federal 13 agency personnel engaged in the review of such State and 14 local government plans." NUREG-75/111, Guide and Checklist 15 for Development and Evaluation of State and Local Government 16 Radiological Emergency Response Plans in Support of Fixed Nuclear Facilities, March, 1977, at p. 2. Nothing in this 17 18 guidance suggested that State or local governments needed to 19 engage in multiple disaster planning.
20 In August, 1978, the NRC Staff concurred in the 21 State and local radiological emergency response plans for the 22 area surrounding SONGS. By letter dated October 26, 1976, 23 the NRC Staff had already notified the Applicants that the 24 onsite emergency plan for SONGS, Unit 1, complied with applicable NRC regulations and guidance. None of these 25 26 ///
6
(
l 1 plans, which were concurred in and otherwise approved by the 2 NRC Staff, contained multiple disaster planning.
3 on August 16, 1978, the Commission proposed for 4 public comment an amendment to Appendix E, in response to an 5 Appeal Board decision prohibiting licensing consideration of 6 evacuation plans for protection of persons outside the low 7 population zone.
43 Fed. Reg. 37473 et seg; see New England In its 8 Power Company, et al., ALAB-390, 5 ERC 733 (1977).
9 pref atory remar} 3 to the proposed amendment, the Commission 10 specified the " physical characteristics in the vicinity of 11 the site" which are relevant to "the evaluation of protective 12 act.ons which may be taken in the event of an accidental 43 Fed. Reg. 37474. The 13 release of radioactive materials."
14 characteristics specified by the Commission were the " numbers 15 and proximity to the site boundary of resident and transient 16 persons and the relative speed which warnings can be 17 communicated to them, the availability and character of evacuation routes and means of transportation, the 18 19 availability of locations of structures suitable for 20 sheltering people, and the presence of institutions (such as I
21 hospitals, nursing homes, and schools) which may regaire Id.
22 special emergency planning arrangements".
23 Significantly, no consideration of the potential impact of 24 catastrophic natural phenomena on these characteristics was 25 stated or implied, much less required as a matter of policy, 26 by the Commission.
t 1
7 l
l
1 In December, 1978, the Commission published for 2 comment additional guidance entitled NUREG-0396, " Planning 3 Basis for the Development of State e.nd Local Government 4 Radiological Emerg_ency Response Plans in Support of Light 5 Water Nu_ clear Power Plants." The purpose of the guidance was i
6 to " provide a basis for Federal, State and local government 7 er.ergency preparedness organizations to determine the 8 appropriate degree of emergency response planning efforts in 9 the environs of nuclear power plants." Id., at p. 1. On i 10 October 29, 1979, the Commission adopted this additional 11 guidance as NRC policy. 44 Fed. Reg. 61123. Effective November 3, 1980, the emergency planning zones recommended i
12 ,
by this guidance became an NRC regulation. 10 C.F.R. 13 14 55 50.33(g), 50.47(c)(2), Part 50, Appendix E, n.2; 45 Fed.
i 15 Reg. 55402 (August 19, 1980). This guidance purported "not 16 to change the requirements for emergency planning," but did i
17 purport to set a " bound on the emergency planning problem."
18 Id., at 14. Accordingly, it was stated therein that local 19 conditions such as demography, topography and land use 20 characteristics, access routes, jurisdictional boundaries, 21 and arrangements with the nuclear facility operator for 22 notification and response assistance should be considered.
23 However, nowhere is it stated or implied in this guidance 24 that multiple disaster planning was required or recommended.
25 On July 17, 1979, the Commission published an 26 " Advance Notice of Proposed Rulemat.ing on the Adequacy and 8
l
J 1 Acceptance of Emergency Planning Around Nuclear Facilities."
2 44 Fed. Reg. 41483. In the Notice, the Commission requested 3 written public comment on a number of issues, including 4 objectives for effective plans, acceptance criteria for 5 State / local emergency plans, NRC concurrence in State and 6 local plans as a requirement for issuance of an operating 7 license or continued operation of a nuclear facility, and 8 coordination between the licensee plan and State and local 9 plans. However, the issue of whether multiple disaster 10 planning should be required of nuclear power plant operators 11 or offsite assittance agencies was not expressly or implicitly raised by the Commission in this Notice, nor to 12 13 Applicants' knowledge were any comments received suggesting 14 such consideration.
15 on September 14, 1979, the Commission published for 16 interim use and comment guidance on the four classes of 17 Emergen:y Action Levels to be established in lieu of 18 .
emergency action levels established in prior NRC guidance.
19 NUREG-0610, " Draft Emergency Action Level Guidelines for Nuclear Power Plants, September 1979." In November, 1980,
- 20 21 the Commission published final guidance on this subject as 22 Appendix 1 to NUREG-0654/ FEMA-REP-1, Criteria for Preparation 23 and Evaluation of Radiological Emergency Response Plans and 24 Preparedness in Support of Nuclear Power Plants (Rev. 1),
25 hereafter 'NUREG-0654". This guidance, among other things, l 26 requires notice of declaration of progressively serious 9
_l
i 1
l 1 emergency classifications be given to state or local l 2 authorities depending on the severity of natural phenomenen 3 being projected or being experienced beyond usual levels.
4 Significantly, nothing in the guidance states or implies an 5 obligation to engage in multiple disaster planning beyond the 6 requirement of notifying effsite assistance authorities that 7 ' natural phenomena are projected or are being experienced at 8 the site beyond usual levels.
9 On September 19, 1979, the Commission proposed for 10 comment a rule requiring all nuclear power plant licensees, 11 as a licensing condition, to submit emergency plans for NRC 12 review and approval and maintain the emergency plans up to 13 date. Nothing in this proposed rule stated or implied that 14 multiple disaster planning was being proposed as a licensing 15 condition. 44 Fed. Reg. 54308.
16 On' December 7, 1979, President Carter, accepting a 17 recommendation in the Kemeny Commission Report on the 18 accident at Three Mile Island, directed the Federal Emergency 19 Management Agency, (" FEMA"), rather than the NRC, "to heac up 20 all offsite emergency activities, and complete a thorough 21 review of emergency plans in all states with operating 22 reactors by, June, [1980)." Atomic Energy Clearir.g House, 23 vol. 25, No. 50, at p. 70. The President's directive in no 24 way stated or implied that FEMA should direct or review l 25 multiple disaster planning for nuclear power plants. 1 26 ///
10
1 FEMA in furtherance of the President's directive 2 subsequently took the following actions: (1) entered into a i
3 Memorandum of Understanding between FEMA and the NRC, 45 Fed.
i 4 Reg. 5847 (January 14, 1980), as revised effective i 5 October 22, 1980, 45 Fed. Reg. 82713 (December 16, 1980);
! 6 (2) published for interim use and comment a proposed rule to l 7 establish policy and procedures for review and approval by 8 FEMA of state and local emergency plans and preparedness for i
4 9 coping with the offsite effects of radiological emergencies i 10 which may occur at nuclear power facilities, 45 Fed. Reg.
! 11 42341 (June 24, 1980); (3) published its " Report to the 1
12 President, State Radiolo;1 cal Emergency Planning and i 13 Preparedness in Support of Commercial Nuclear Power Plants, 14 June, 1980"; (4) published for interim use and public comment 15 the " National Radiological Emergency Preparedness / Response 16 Plan for Commercial Nuclear Power Plant Accidents", 45 Fed.
17 Reg. 84910 (December 23, 1980); and (5) issued informal 18 guidance on joint exercise procedures and critiques, 19 January 27, 1981. Each of the foregoing documents indicate 20 that FEMA review, findings and determinations will be based 21 exclusively upon NUREG-0654. None of these documents state 22 or imply that FEMA intends or is required to review or make l
23 findings and determinations on the status of multiple l
24 disaster planning for nuclear power plants.
25 on December 19, 1979, the Commission published for 26 comment its proposed rule to amend its regulations to provide 11
. . . - -. _ _ _ __\
1 an interim upgrade of NRC emergency planning regulations.
. 2 During January, 1980, the Commission conducted four regional 3 workshops with State and local officials, utility 4 representatives, and the public to discuss the fessibility of 5 various portions of the proposed amendments, their impact, 6 and the procedurer proposed for complying with their 7 provisions. The NRC used the information from these 8 workshops, along with nun.crous comment letters received on 9 the general topic of emergency planning to develop the final 10 rule. The public input recei",d during the period July 17, 11 1979 through publication of the final rule is contained in 12 NUREG-0628 (Jenuary, 1980), NUREG/CP-0011 (April, 1980), and 4
13 NUREG-0684 (September, 1980).
14 The Commission was briefed by the NRC Staff on a
15 policy issues pertaining to the proposed final rule on 16 March 26 and June 18, 1980, and was briefed on the 17 consistency of the proposed final rule with the NRC 18 Authorization Act for fiscal 1980, Public L. No.96-295, on a
July 23, 1980. Additionally, on June 25, 1900 the 19 20 Commission was briefed by three panels of public commentators 21 on the proposed rule, representing industry, State and local 22 government, and public interest groups, respectively.
23 Finally on July 3, 1980, the Commission was briefed by the 24 NRC Staff in response to these panels, including several Transcripts of 25 podifications to the proposed final rules.
26 each of the foregoing briefings were made by the Commission.
12
1 The final rule was published August 19, 1980, effective November 3, 1980. 45 Fed. Reg. 55402.
2 )
3 The Applicants, through counsel or industry '
4 representatives, have commented on the proposed rule, 5 attended the workshops, attended the foregoing briefings, 6 reviewed the transcripts of those briefings, and reviewed the 7 proposed rule and the final rule, along with the prefatory comments to the rule. as proposed and as adopted. Nowhere in 8
9 any of these proceedings or documents is a reference made by 10 the Commission or the NRC Staff expressly or implicitly 11 directing or recommending multiple disaster planning for 12 nuclear power plante Moreover, no rationale is provided in 13 these proceedings or documents as to why such planning is 14 needed or desirable.
15 In January, 1980, the Commission and FEMA, jointly 16 published for interim use and public comment, NUREG-0654/
17 FEMA-REP-1 " Criteria for Preparation and Evaluation of 18 Radiological Emergency Response Plans and Preparedness in 19 Support of Nuclear Power Plants" (hereafter " Draft 20 NUREG-0654"). The current NRC emergency planning regulations 21 contain the planning standards initially set forth in Draft 22 NUREG-0654. Compare 10 C.F.R. 5 50.47(b) with NUREG-0054, 23 Part II. These regulations also note the specific criteria 24 for meeting these planning standards contained in NUREG-0654, 25 but do not incorporate these criteria by reference into the 26 regulation. See 10 C.F.R. I 50.47(b) n. 1; Part 50, Appendix l
13 ,
1 E, n.1. A final version of NUREG-0654 was published in 2 November, 1980.
l 3 The stated purposed of NUREG-0654, as revised, is 4- to provide "a common reference and guidance source" for the 5 development and review of Federal, State, local and licensee
~
6 radiological emergency response plans and preparedness in 7 support of nuclear power plants. NUREG-0654 (Rev. 1), at i
8 p. 1. NUREG-0654, as proposed and as revised, contains no 9 standard or criteria directing multiple disaster planning.
g 10 This is not surprising since it is stated therein that the i
- 11 guidance contained therein "has been drawn in large part" 12 from the prior guidance documents described above which, as f' 13 previously explained, did not require multiple disaster i 14 planning. NUREG-0654 (Rev. 1), at p. 4.
J
- 15 The only guidance contained in NUREG-0654, as 1
16 proposed or revised, pertaining to the impact of natural 2
i 17 phenonemen is that offsite assistance agencies may be 18 notified that such phenomena are projected or are being 19 experienced in the plant vicinity above usual levels 20 (NUREG-0654 (Rev. 1), Appendix 1, pp. 1-5, 1-10, 1-13, 1-19);
21 that the public notification system "should be able to l 22 function notwithstanding environmental conditions, such as
! 23 floods and power outages" (NUREG-0654 (Rev. 1), Appendix 3, 1
l 24 p. 3-6); and that evacuation time estimates within the plume
! 25 exposure pathway emergency planning zone should take into 26 consideration adverse weather conditions which "could include
~
14
flooding, snow, ice, fog, or rain." NUREG-0654 (Rev. 1), l 1
2 Appendix 4, p. 4-6. This guidance, taken together, suggests 3 that multiple disaster planning involving the concurrence of 4 a radiological emergency and a major earthquake is not 5 required. At most, only the effects of inclement weather on 6 evacuation planning are mentioned.
7 On June 16, 1980, Congress enacted the NRC 8 Authorization Bill for 1980, P.L.96-295. Section 9 109(b)(1)(A) of the bill directs NRC, "by rule;, te 10 promulgate standards for affsite radiological emergency 11 plans. 94 Stat. 784. As explained in the Joint Explanatory 12 Statement of the Committee or Conference, the law does not 13 "specify minicum requirements for the new rules promulgated 14 under this provision but rather leaves the specific 15 requirements to NRC discretion." U.S. Cong. & Admin. News, 16 96th Cong. 2d Sess. (Vol. 6A, Advance Sheets), p. 4097.
17 Conversely, nothing in the law, or the legislative history of 18 that law, states or implies that multiple disaster planning 19 was required or even considered desirable by Congress.
20 Moreover, as described above, the Commission has not "by 21 rule" required multiple disaster planning for a radiological like 22 emergency complicated by catastrophic natural phenomena, 23 a ma]er earthquake.
24 On September 29, 1980, approximately a month and a 25 half af ter the NRC's current emergency planning regulations 26 had been promulgated, FEMA issued a formal news release 15
1 announcing that it would " lead a team of federal agencies as 2 they work in cooperation with state government and local 3 agencies to accelerate efforts toward improving the state of 4 readiness to cope with potential major earthquakes in FEMA News Release, No. 80-49, at p. 1; emphasis 5 California."
6 added. The announcement was apparently prompted by the 7 dramatic impression the destructive impacts of the volcanic 8 eruption of Mt. St. Helens had made on President Carter. The 9 announcement was also motivated by President Carter's meeting 10 with Governor Brown on July 4, 1980, and President Carter's 11 letter to Governor Brown, dated September 19, 1980, revealing 12 the President's decision to direct an assessment of the 13 consequences and state of preparedness for a major earthquake
. 14 in California. Id. The pertinent correspondence between t
15 President Carter and Governor Brown is attached to the FEMA 16 Press Release, along with a FEMA "Backgrounder" on the 17 on-going program by FEMA to review the potential consequences 18 and the state of preparedness for a catastrophic earthquake 19 in California.
20 Significantly, nowhere in the President's directive 21 to FEMA, the correspondence between the President and the 22 Governor, or FEMA's press release and "Backgrounder" is there 23 any indication that FEMA's efforts in this regard were to be 24 linked with FEMA's independent responsibility to review state ;
25 and local radiological emergency plans. See Memorandum of 26 ///
16
1 Understanding between FEMA and NRC, 45 Fed. Reg. 82713 2 (December 16, 1980).
3 On November 3, 1980, the NRC Staff issued a 4 memorandum to FEMA, noting that " volcanic eruptions and 5 catastropic earthquakes have emerged as two issues of high 6 public interest." The NRC Staff referenced the FEMA News ,
l 7 Release of September 29, 1980, and requested FEMA to include 8 in its evaluation of offsite emergency planc, "a qualitative 9 evaluation of complicating factors which might be caused by I 1
The 10 earthquakes for California nr. lear power reactor sites."
11 memorandum further informed FEMA that the NRC Staff was 12 " requesting the affected licensees to revise their emergency 13 plans to explicitly address the possible problems associated i
14 with an earthquake."
By letter dated November 7, 1980, the NRC Staff l
15 16 informed Applicants that the SONGS 2 and 3 Emergency Plan met 17 "the present requirements of 10 C.F.R., Part 50, Appendix E, 18 and the regulatory positions of Regulatory Guide 1.101 and 19 NUREG-0610" (now NUREG-0654, Appendix 1). The NRC Staff 20 further informed Applicants that " additional information and 21 commitments" were required before the NRC Staff could 22 conclude "the planning standards set forth in the revised 10 13 C.F.R. 50.47" were met. Accordingly, the NRC Staff requested 24 the Applicants to revise the SONGS 2 and 3 emergency plan to 25 address the "432-series questions" enclosed in the letter.
26 ///
17
1 Analysis cf these questions, which are contained in i
2 the en.ergency plans served on the parties hereto on ;
3 Febrursr; 3, 1981, reveals no request by the NRC to revise the 4 SONGS 2 and 3 emergency plan to in any way address possible 5 radiological emergency planning problems complicated by the 6 concurrent occurrence of a major earthquake. More
! 7 si gni fic ar.tly, the NRC Staff by this letter approved the i
8 SONGS 2 and 3 Emergency Plan as complying with revised 10 4
9 C.F.R., Part 50, Appendix E, and NUREG-0654, Appendix 1, even 10 though this plan does not contain any multiple disaster l
11 planning beyond notifying offsite assistance agencies of the
- ?2 occurrence of natural phenomenon in the plant area above 4
13 usual levels.
1 14 By letter dated December 17, 1980, the NRC Staff 15 did request Applicants to " evaluate the potential 16 complicating f actors" which migYc be caused either by an f
i 17 earthquake onsite which disrupts " normal power and auxillary 1 18 services", or by an " earthquake offsite which disrupts 19 communications networks and transportation routes" following i
- 20 the " initiation of accidents." The impact of an earthquake l 21 upon onsite radiological emergency preparedness was requested 12 to be considered prior to the issuance of a full power license for Units 2 and 3. A copy of the NRC Staff.'s memo to 20 FEMA, dated November 3, 1980, was enclosed in the letter, but I
24 25 no time frame was specified for completion of FEMA's review 26 of the adequacy of State and local capabilities with respect l
18
Y to rssponse during earthquakes. It appears that a copy of 2 this letter was served on counsel for Intervenors FOE. e3 al.
3 and GUARD, but not on this Boaro.
4 In January, 1981, FEMA issued its preliminary i
5 report entitled "An Assessment of the Consequences and 6 Preparations for Catastrophic California Earthquake:
7 Findings and Actions Taken". There is no mention in this 8 report of the need for multiple disaster planning.
9 On February 6, 1981, the NRC Staff issued 10 NUREG-0712, " Safety Evaluation Report Related to the 11 Operation of San Onofre Nuclear Generating Station, Units 2 12 and 3 (hereafter the "SER"). Section 13.3.1 of the SER notes 13 the NRC Staff has " requested all licensees and applicants of 14 nuclear plants in California to provide analyses of the effects of an earthquake on their emergency plans."
15 Section 16 13.3.4 of the SER further notes that " FEMA has been requested 17 as part of their review of Federal, State, and local 18 emergency plans to review the planning efforts for the areas 19 around the site to assure that protective actions to be 20 recommended by the applicants after earthquakes could be 21 implemented and are adequate." There is no mention in the 22 SER of the need for multiple disaster planning. Nothing in 23 SER states or implies that the NRC Staff considers multiple 24 disaster planning a regulatory requirement, or a necessary 25 prerequisite to issuance of operating licenses for SONGS 2 26 and 3. Accordingly, Applicants have interpreted the SER to .
4 19
f 1 only request coerational procedures to safely shutdown and 2 start up SONG 5 2 and 3 in the event of an earthquake not exceecing in severity the SSE, ma required by 10 C.F.R., Part 3
50, Appendix A.I.2, and Part 100, Appendix A.
4 Specifically, 10 C.F.R., Part 100, Appendix A, 5
6 requires that nuclear power plants be shut down follow!.ng ar.
7 earthquake of severity greater than the operatina basis 8 earthquake and not returned to operation until it has been 9 demonstrated to the NRC Staff's satisfaction that no
?
10 functional damage has occurred to those features necessary 11 for continued operation without undue risk to the health and i
12 safety of the public. The December 17, 1980 NRC Staff letter 13 requires the identification of what evaluation of energency 14 response capability must be performed, and the degree and 15 depth of those evaluations, following an earthquake prior to return to continuous plant operation. The December 17, 1980 16 17 letter also requires the identification of required 18 determinations of emergency response capability following 19 earthquakes of severity less than the operating basis 20 earthquake.
21 By Memorandum and Order, date.g' April 17, 1981, the 22 Board agreed that the post-seismic emergency planning issues vere beyond the scope of interveners' contentions. The Board 23 24 further found that planning for a major radiological 25 emergency complicated by an earthquake which disrupts key 26 elements of the emergency response "can be safely disregarded 20
4 . .
1 for any regulatory purpose." (Memorandum and order, 2 April 17, 1981, p. 5.) However, without reaching a 3 conclusion on the issue or articulating a factual basis for 4 the concern, the Board requested the views of the parties 5 regarding its legal authority, on its own motion, to require 6 the Applicants to demonstrate planning for a radiological 7 emerge..:y caused by an earthquake at the site which exceeds 8 the SSE and causes " extensive damage to offsite 9 tr cnsportation, communication and the like. " (Id. at 10 pp. 5-6.)
11 0 April 29, 1981, during the third prehear2ng 12 conference, the NRC Staff confirmed on the recc rd that both 13 the NRC Staff and the Federal Emergency Management Agency 14 were considering the impact of earthquakes in their review of l 15 onsits and offsite emergency planning for SONGS 2 and 3.
(TR. 444). At tue same time, Chairman Kelley agreed that i
16 17 planning for an on-going radiological emergency complicated 18 by an earthquake, so-called " coincident event" planning, was 19 not required (TR. 450), but requested briefs on emergency 20 planning for an earthquake which exceeds the SSE (" simply 21 because [the question had) arisen and we've gotten responses 22 from some, but not all, of the parties." (TR. 451) 23 On or about May 13, 1981 Applicants received a 24 letter from the NRC Staf f which clarified that an earthquake 25 exceeding the SSE need not be considered for emergeniy 20 ///
21
1 l
The letter in pertinent part stated ;
1 planning purposes. )
2 (emphasis added):
3 "lylou are requested to evaluate the effects earthquakes would have on your 4 emergency response capability and include these considerations in your emergency plan.
5 For purposes of this evaluation, as a planning basis you may assume that the plant 6 site experiences earthquake effects no more sever: than the Safe Shutdown Earthquake. "
7 A copy of this letter was made available to the parties 8
herein 9
On or about June 3, 1981, FEMA reported to NRC that 10 the involved offsite assistance agencies were prepared and 11 capable of responding to the " potential seismic problem."
12 The memorandum to Brian Grimes, NRC, from John E. Dickey, 13 FEMA, in pertinent part stated:
14 "Whil e current plans reflect no direct 15 assessment cf earthquake issues, all planning considered the ramifications of such events and it 16 is considered that a general capability ex5sts to is respond through basic emergency planning to what 17 considered to be the most likely and frequent levels of seismic activity. A catastrophic 18 earthquake notwithstanding (which would likely nullify the significance of a nuclear emergency),
19 the offsite jurisdictions reflect a level of preparedness through existent basic planning 17 20 minimally respond to the potential seismic problem."
21 The memorandum containing this report has been served on the 22 pa-ties herein.
23 on June 12, 1981, the NRC Staff filed its further 24 response to FOE et al.'s third set of interrogatories (tne 25 "NRC Response"). The NRC Response explains the planning 26 rationale for not requiring consideration of earthquake 22
I effects more severe than the SSE for emergency planning 2 purposes, as follows:
3
- Emergency plans need not be explicitly written to respond to accidents created by 4 failure of plant systems dwsigned for the SSE as failures,of such essential safety systems 5 have been made adequately low in likelihood by explicit design against earthquakes at and i 6 below tha SSE level. In addition, the characteristics of an accident which could i
7 theoretically be created by an earthquake larger than the SSE would be in the spectrum 8 of accidents considered in determining the sizes of the emergency planning zones and the 9 other planning elements which form the Commission's regulations in the area of 10 emergency planning. Consequently, in planning for a moderate earthquake and 11 meeting the planning standards set forth in the Commission's regulations, an emergency 12 response base capability would be in place which could be expanded during an actual 13 emergency. Emergency planning for less than worst-case events gives confidence that the 14 occurrence of any of a spectrum of events, l
including very low likelihood events, would 15 give decisionmakers a planning base from i which specific actions could be chosen from j
l 16 amon; available alternatives."
17 The NRC Response further explains the conservatism j 18 of this rationale by pointing out that:
19
" Seismic Category I structures, systems, and components at San Onofre 2 and 3 are designed 20 to remain functional during and after the SSE, as required by 10 C.F.R. 100, Appendix A.iii.(c). Further, these structures, 11 systems, and components have sufficient "
l i 22 margin that they are capable of withstanding earthquakes that exceed the SSE."
23 l 24 Finally the NRC Response contains the response of 25 FEMA approving the adequacy of a planning basis which assumes 26 an earthquake not exceeding the SSE:
23
1 1 With respect to earthquake considerations for the San Onofre Nuclear Generating Station, 2 Units 2 and 3 (SONGS 2 & 3), FEMA has considered earthquake effects in making its 3 Interim Findings and Determination Reitting to the Status of State and Local Emergency 4 Preparedness for the San Onofre Nuclear Generating Station (Units 2 and 3) dated 5 June 3, 1981. For purposes of the evaluation, earthquake effects no more severe 6 than the Safe Shutdown Earthquake (SSE) were assumed to occur independently of a reactor 7 accident. This planning basis is deemed adequate given the substantial conservatism 8 applied by the Nuclear Regulatory Commission (NRC) in establishing the SSE, and the 9 resulting low likelihood of its occurrence.
Even should such a low likelihood event
'l 10 occur, a planning base would be available and could be expended to meet actual conditions, 11 given a state of emergency preparedness in conformance with the emergency preparedness 12 planning standards of 10 C.F.R. sub-section 50.47."
i 13 J
l 14 The foregoing facts demonstrate that Applicants and 15 the involved jurisdictions have in place emergency plans that
! 16 take into account the possible offsite effects of an 17 earthquake en offsite emergency response capability.
)
i 18 Additionally, these facts demonstrate that specific 19 consideration of an earthquake which exceeds the SSE in f
l 20 severity is not necessary to assure a proper level of i 21 earthquake emergency planning. Significantly, nothing in the 22 record presently before the Board provides a factual basis to 23 conclude that a serious safety yuestion is presented by 24 failure to go beyond the planning basis established in NRC
) 25 regulations and to specifically consider an earthquake which 26 exceeds the SSE for emergency planning purposes.
24
1 III.
ARGUMENT 2 A. IF THE BOARD ASSUMES A RADIOLOGICAL RELEASE CAUSED BY AN EARTHQUAKE IN EXCESS OF THE SSE, 3 j_T,IS CLEARLY EXCEEDING ITS AUTHORITY.
4 The SSE is the largest earthquake that need be considered in evaluating reactor safety. In evaluating the l 5
6 acceptability of a site for a nuclear power reactor, the 7 Commission takes into account the physical characteristics of ;
8 the site, including seismology, meteorology, geology and 9 hydrelogy. 10 C.F.R. Part 100. The evaluation of seismic 10 and geologic factors must conclude with " reasonable assurance 11 that a nuclear power plant can be constructed and operated at 12 the proposed site without any undue risk to the health and 13 safety of the public." 10 C.F.R. 5100.10(c)(1). Such 14 conclusion is no less stringent than ". . . that the state of 15 onsite and offsite emergency preparedness provides reasonable 16 assurance that adequate protective measures can and will be 17 taken in the event of a radiological emergency." 10 C.F.R. 18 5 50.47(a)(1).
19 The SSE determined under Part 100 is the I 20 appropriate basis for evaluation of reactor safety as a 21 result of earthquakes. Part 50, Appendix A, Criterion 2 22 specifies the design basis for protection against natural 23 phenomenon as follows:
24 Structures, systems, and components important to safety shall be designed to withstand the 25 effects of natural phenomenon such as earthquakes, tornados, hurricanes, floods, 26 tsunami, and seiches without loss of 25
I capability to perform their safety functions.
The design bases for these struccures, systems and components shall reflect: (1) Appropriate 2 )
ceasideration of the most severe of the 3
natural phenomenon that have been historically reported for the site and surrounding area, 4
with sufficient margin for the limited ,
accuracy, quantity and period of time in which 5 the historical data have been accumulated ..
6 The earthquake described is the SSE.
7 The seismic evaluation under Part 100 centers 8
around determination of the SSE, which is:
9 that earthquake which is based upon an 10 evaluation of the maximum earthquake potential considering the regional and local geology and 11 seismology and specific characteristics of local subsurface materials. It is that 12 earthquake which produces the maximum vibratory ground motion for which certain t-13 structures, systens, and components are designed to remain functional. These structures, avstems, and components are those 14 necessary to assure:
l 15 (1) The integrity .A the reactor coolant 16 pressure boundary, 17 (2) Tha capability to shut down the
' reacto. and maintain it in a safe shutdown 18 condition, or 19 (3) The capabjlity to prevent or mitigate the consequences of accidents which 20 could result in potential off-site exposures comparable to the guideline exposures of this 21 part."
P,srt 100, Appendix A, III(c). (Emphasis added.)
22 10 C.F.F
! 23 If the Board is assuming that a radiological it 24 release is caused by an earthquake in excess of the SSE, 25 is acting in excess of commission regulations and in excess 26 of its aut' ^rity. The regulations clearly prcvide that the 26
1 SSE is to be used as the design basis for reactor safety 2 considerations.
3 l B. THE BOARD'S PROPOSED CONTENTICN WOULD 1 4 REQUIRE APPLICANTS TO PLAN FOR A MULTIPLE DISASTER. DESPITE A TOTAL -
5 ABSENCE OF AUTHORITY FOR SUCH A REQUIREMENT.
6 As discussed above, evaluation of the consequences 7
of an earthquake on reactor safety in excess of the SSE is 8
beyrnd the authority of the Board. A radiological relesse 9
resulting from an accident caused by an earthquake stronger 10 than the SSE accordingly cannot be considered.
11 Yet the Board has postulated a radiological release 12 occurring at the same time as an earthquake in excess of tre 13 SSE. Since the Board is barred from assuming that the 14 release is caused by the earthquake, it is forced to assume 15
)
that the earthquake and the release would be coincident 16 events, an assumption that is itself unfounded under 17 applicable law.
18 Planning for such a multiple disaster is not 19 required by the Commission's regulations. Nonetheless, the 20 Board's contention would require analysis of a " major 21 earthquake" cor: current with a radiological emergency related 22 Such an analysis is not to the operat2on of SONGS 2 and 3.
23 10 C.F.R.
required under applicable Commission regulations.
24 55 5".33(g), 50.47, 50.54(q)(r)(s)(t) and (u), and Part 50, 25 Appendix E. Accordingly, the contention proposed by the 27 l
}
1 Board well exceeds the sc~pe of the regulations and is beyond 2 its authority.
3 A chronicle of the development of the applicable 4 NRC regulations and guidance reveals that multiple disaster 5 emergency planning has never been proposed or considered by 6 the Nuclear Regulatory Commission, and is not now being 7 required or requested by the NRC Staff. At all relevant 8 times, the Commission has required each applicant for an 9 operating license to include in its Final Safety Analysis 10 Report plans for coping with emergencies. 10 C.F.R. 11 5 50.34(b)(6)(v). The items to be included in these plans are specified in 10 C.F.R., Part 50, Appendix E. At no time 12 13 has the Commission ever required development of information i
16 necessary to respond to a multiple disaster.
15 C. COMMISSION REGULATIONS DIRECTLY LIMIT THE PLANNING BASIS FOR THE EMERGENCY PLAN TO THE 16 SSE.
17 As outlined above, the SSE is defined to be the 18 basis for evaluation of " structures, systems, and components" 19 which are necessary to assure the capability to " mitigate the 20 consequences of accidents." 10 C.F.R. Part 100, Appendix A, 21 III(c). The emergency plan is one such system for which the 22 SSE provides a planning basis. The Board's order would 23 narrowly construe this limitation to exclude the emergency 24 plan from the definition of a " system" necessary to assure 25 mitigation of the consequences of accidents. such an 26 assumption lacks foundation in ths regulations and is without 28
1 logie. To begin with, the regulations do not limit 2 application of the SSE to physical plant s" stems. The 3 limitation of the safety system planning basis to the SSE at 4 ti. minimum provides evidence of Commission intent that the SSE 5 is the ultimate earthquake to be posv.ulated for all safety 6 purposes.
7 An interpretation of the definition of the SSE that 8 applies the SSE as the planning basis for the emergency plan 9 is consistent with the emergency planning regulations. The 10 standard for selection of the SSE is at least as stringent as 11 that specilied ir. the emergency planning regulations for 12 evaluation of the emergency plan. The plan most provide
, 13 " reasonable assurance that adequate protective measures will 14 be taken" at San Onofre "in the event of a radiological 15 emergency." 10 C.F.R. 550.47(a)(1). (Emphasis added.) This 16 same level of assurance must be provided by selection ei .he 17 SSE, since the SSE must " provide reasonable assurance that a 18 nuclear power plant een be ... operated ... without undue 19 rish to the health and safety of the public." 10 C.F.R. 20 $100.10(c)(1). (Emphasis added.)
21 By requiring consideratien of an earthquake in 22 excess of the SSE, the Board is postulating an incredible 23 event that need not be evaluated. The Board itself has 24 admitted that such an earthquake is " extremely unlikely",
25 Board Orcer of July 29, 1981, and, in fact, has no basis for 26 its occurence. Consideration of an such incredible event is 29
I not necessary to provide reasonable assurance that the 2 emergency plan will be effective. The postulated earthquake 3 that provides reasonable assurance for reactor safety 4 purposes, the SSE, also provides reasonable assurance in the 5 emergency planning context.
6 D. THE COMMISSION'S EMERGENCY PLANNING 7 REGULATIONS PROVIDE A DETAILED AND COMPREHENSIVE DESCRIPTION OF WHAT MUST BE 8 CONSIDERED IN THE EMERGENCY PLAN.
9 The emergency planning regulations, 10 C.F.R. 10 550.47, contain an exhaustive list of those elements that must be considered in evaluating emergency plans. The 11 12 regulations were promulgated by the Commission after 1
13 extensive public comment and deliberation. No mention 14 whatsoever is made in the regulations of an carthquake in 15 excess of the SSE. If the Commission had intended that such 16 an unlikely event be considered, with corresponding costs and delays, it would have so specified in the regulations. The 17 18 Commission instead carefully selected the language used to 19 measure the adaquacy of an emergency plan, requiring 20 " reasonable assurance" -- precisely the standard also 21 delin.ated by the Commission for selecting the SSE.
22 The Board's proposed contention represents a bold 23 expansion of the emergency planning requirements so recently ret forth in detail by the Ccmmission. Such an expansion 24 25 should only be undertaken by the Commission itaelf.
26 ///
30'
l 1
The history of the emergency planning regulations 2 demonstrates the degree to which the Commission has determined to oversee this area through regulation. On 3
4 December 19, 1979, the Commission proposed new regulations 5 relating to emergency planning. The proposed regulations 6 were intended to provide an " interim upgrade" of the existing 7 emergency planning requirements. The "mid-course correction" 8 represented by the emergency planning regulations clarifies 9 and expands areas that were perceived by the Commission to be deficient as a result of past experiences. Notably, however, 10 11 nothing in the proposed regulations mentioned consideration 12 of the effect of earthquake on the emergency plan.
13 The final emergency planning regulations were based 14 upon extensive public comments, some of which suggested that 15 the, Commission include consideration of earthquake in the 16 development of the emergency plans. See e.g., " Petition to 17 intervene" by Edgecumb Citizens Committee Concerned About Nuclear Power, Docket PR-50, No. 12. One comment 18 19 specifically raised the issue of coh..ident events.
20
" Based on our review of this report, it is urged that the NRC:
21 A. Require the use of a spectrum of 22 accidents (not the source term from a single accident sequence) and concurrence external 23 emergency conditions (e.g., c a rthqu ake ,
hurricane, floods) as the basis for 24 emergency response planning."
25 (Comments by San Luis obispo Area Task Force on Nuclear Power Issues, August 27, 1979). The final 26 31
1 regulations do not incorporate the suggested approach and it 2 must be presumed this suggestion was rejected. Notably, the 3 final regulations are totally lacking in any specific 4 requirements relating to earthquake preparedness.
5 The preamble to the final regulations states that:
6 "In order to discharge effectively its statutory responsibilities, the Commission 7 must know that proper means and procedures will be in place to assess the course of an 8 accident and its potential severity, that NRC and other appropriate authorities and the 9 public will be notified promptly, and that adequate protective actions in response to 10 actual or anticipated conditions can and will be taken."
11 (Emphasis added.) The 17 4S Fed. Reg. 55403 (August 19, 1980).
13 intent of the Commission is clear, that only anticipated 14 conditions need be considered in formulating the emergency 15 plan. Unanticipated conditions or incredible events, including those created by an earthquake '- excess of the 16 17 - SSE, need not be evaluated.
18 The approach tsken in the Commission's emergency 19 planning regulations is to establish specific criteria for 20 those emergency plans, which are assumed to provide a 21 response base to support activities to respond to emergencies 22 in excess of the emergency planning basis. For example, an 23 emergency planning zone ("EPZ") is established around each 24 plant, with a radius of approximately 10 miles for airborne Although it 25 exposure, and 50 miles for ingestion exposure.
26 is recognized that a response may be required beyond the 32
I distances specified for the EPZs, the emergency plan need not 2 evalusta the need to respond beyond those distances, since 3 the plan itself provides a response base that would suppert l 4 activity outside the planning zone should this ever be 5 needed. 45 Fed. Reg. 55406.
6 The Commission made a deliberato determination not 7 to require consideration of extremely unlikely events in the 8 development of the emergency plan, and instead relied upon 9 the presence of the emerge 4.:y response system to provide a 10 framework for responding on an ad hoc basis to unanticipated 11 emergency events.
12 The on-site and off-site emergency response plans 13 are required to satisfy a list of very specific requirements 14 under the final emergency planning regulations. These 15 requirements include definition of responsibilities, an 16 action plan, procedures, public notification, emergency 17 facilities and equipment, etc. Significantly, no mention is 18 made whatsoever of extraordinary events, including major 19 esrthquake, in this comprehensive listing of emergency 20 planning requirements.
21 22 E. THE BOARD CAN ONLY RAISE AN ISSUE ON ITS OWN MOTION WHERE IT DETERMINES THAT A SERIOUS 23 SAFETY OUESTION EXISTS.
24 Commission regulations provide that:
25 Matters not put into controversy by the paJties will be examined and decided by the 26 presiding officer only where he or she 33
I determines that a serious safety, environmental, or common defense and security 2 matter exists.
3 10 C.F.R. 52.760a. No such matter is presented b'y this 4 case. As discussed above, determination of the SSE in 5 development of the emergency plan provides the " reasonable 6 assurence" required by the Commission. No evidence has been 7 presented to contradict this fact, and the NRC Staff confirms 8 the adequacy of the consideration of earthquake in the 9 emergency plan. The threshold showing required by Section 10 2.760a has not been made and the Board may not raise the 11 issue without such a showing.
12 The Commission has recently evidenced concern over 13 expansive use of such sua sponte authority by directing a 14 screening review of such orders by the Office of General 15 Counsel to determine if Commission oversight is necessary.
16 Memorandum from Bethesda Licensing operations, l f
17 " Commissioner's Meeting on Licensing Procedures on June 2, 1981," dated June 3, 1981.
18 Section 2.760a has been interpreted to mean that an 19 20 Atomic Safety and Licensing Board has the power to raise "sua 21 sponte" any " serious" safety issue. However, this power 22 should be used " sparingly" in operating license cases since l
23 the Board is "neither required nor expected to pass upon all 24 the items which the staff must consider and resolve before it 25 approves the license." Consolidated Edison Company _of New 26 York (Indian Point, Units 1, 2 & 3), ALAB-319, 3 NRC 188, 190 34
1 (1976); see also Consolidated Edison Co. of New York (Indian i Point, Unit 3), CLI-74-28, 8 AEC 7, 9 (1974). This rule is 2
3 conplemented by the general principal that a Licensing Board 4 is not required to do independent research or conduct de novo b reviews of applications, but may rely on uncontestec NRC 6 Staff.and Applicant evidence. Consumer Power Co. (Midland 7 Plant, Units 1 and 2), ALAB-123, 6 AEC 331, 334-35 (1973) 8 Boston Edison Co. (Pilgrim Nuclear Power Station), ALAB-83, 5 9 AEC 354, 357 N.16 (1972), affirmed Union of Concerned 10 Scientists v. AEC, 499 F.2d 1069 (D.C. Cir. 1974).
11 This does not mean " extraordinary circumstances" 12 are required to invoke the Board's sua sponte power.
l 13 However, it does mean that realistic health and safety 14 questions must be presented before the Board should exercise 15 its sua sponte power. 44 Fed. Reg. 67038, November 23, 1979, 10 (emphasis added).
17 Such realistic questions are not presented in this 18 casa. The uncontroverted evidence submitted to the Board by 19 Applicants, the NRC Staff and FEMA is that adequate 20 consideration of the on-site and off-site effects of 21 earthquakes has been given by Applicants and the involved 22 offsite jurisd: -ions such that no " serious" or "important" health and safety issue existe. The Board itself recognized 23 l
- 24 that the Intervenors have no standing to state contentions in 25 this regard. Memorandum and Order, April 17, 1981, p. 7; 26 TR. 446 ' April 29, 1981). Given the total absence of facts I
i 4
35
\
1 suggesting the existence of a serious or important health and 2 safety issue, there is no justification for the Board to 3 exercise its sua sponte power.
4 F. VERMONT YANKEE DOES NOT PERMIT THIS BOARD TO EXCEED APPLICABLE NRC REGULATIONS IN 5 ESTABLISHING A PLANNING BASIS FOR SONGS 2 & 3.
6 The Vermont Yankee case, relied upon by the Board, 7 involved an effort by the NRC Staff to impose a 5%
8 metal-water reaction criteria for purposes of designing a 9 system to control hydrogen concentrations within the 10 containment (the " Hydrogen Control System"). Vermont Yankee 11 Nuclear Power Cerporation (Vermont Yankee Nuclear Power 12 Station), CLI-74-40, 8 AEC 809 (1974). The NRC Staff was 13 opposed by Applicants based on the fact that a 1% metal-water 14 reaction criteria had been previously imposed by regulation 15 as the design basis for the emergency _ core cooling system 16 (the "ECCS System"). However, there were no NRC regulations 17 establishing metal-water reaction criteria for the design 18 basis of the Hydrogen Control System. (8 AEC, at p. 810.)
19 The Commission determined that regulations governing ECCS 20 System design did not preempt NRC Staff guidance on design of 21 the Hydrogen Control System, since the desigr. parameters of 22 the Hydrogen Control System had not been establiohed by 23 regulation. Reliance upon Vermont Yapkee is misplaced in a 24 case such as this where the design or planning basis for ,
j j
25 development of emergency plans is definitively and ;
l l 26 ///
I 36 ,
, 1 l
1 comprehensively established in NRC regulations as described 2 above. 10 C.F.R. Parts 50 and 100.
3 Vermont Yankee was motivated py a concern with 4 " defense in depth" and the Commission did state that 5 successively increasing conservatism could be imposed on measures designed to mitigate accidents. It is also true 6
7 that emergency planning provides an additional layer of ruch 8 defense. However, the Board errs in taking the next critical 9 step -- assuming that the defense in depth concept provides a 10 certe blanche for imposition of requirements in excess of 11 clearly defined regulatory limits.
12 Defense in depth is furthered by emergency 13 planning, particularly where the plans must assume the 14 occurrence of "worrt case core melt sequences" tempered by 15 " probability cor"iderations" in establishing that level of 16 planning necessary to provide a response capability adequate See 45 Fed. Reg.
17 to protect the public health and safety.
18 55406 (August 19, 1980); 44 Fed. Reg. 61123 (October 23, 19 1979) NUREG-0396/ EPA 520-1-78-016, " Planning Basis for the 20 Development of State and Local Government Radiological 2% Emergency Response Plans in Suppnrt of Light Water Nuclear 22 Power Plants, December, 1978," pp. 4-6, 15 and Appendix I; 23 NUREG-0654/ FEMA-REP-1 (REV. 1), " Criteria for Preparation and 24 Evaluation of Radiological Emergency Response Plans and 25 Preparedness in Support of Nur, lear Power Plants, November 26 1980," pp. 5-13. It is with this planning basis that the 37
1 Commi sion has placed a limit on this Board. By going beyond 2 this limit, the Board is exceeding its regulatory authority.
3 This Board should also note that the Commission in 4 Vermont Yankqe determined that the issue raised was of 5 sufficiently widespread importance that a rulemaking should l 6 be initiated to address the question. Although the l 7 Cemmission affirmed the Board's imposition of a 5%
8 as sumpti c.n, it stayed application of that asrumption pending 9 a rulemaking effort. This action was clearly in support of 10 the principle that significant expansions of law or policy 11 are reserved to the Commission.
12 An unlimited ability of the Board to adopt new 13 issues and broaden the scope of licensing proceedings would 14 open a regulatory Pandora's box. There must be some limit to 15 regulation and it is unclear where the Board would draw the 16 line. For example, should " major" earthquakes not be 17 cc.nsidered at all plants? Should an extraordinary hurricane 18 now be considered at San onofre? The administrative process 19 is bounded by regulation to avoid such endless litigation.
20 Applicants submit that the Board lacks the 21 necessary legal authority to impose any emergency planning 22 basis other than the emergency planning basis specified in 10 23 C.F.R. 550.33(g), n.1 and 10 C.F.R., Part 100, 24 Appendix A.III.(c). Imposition of a planning basis not 25 specified or inconsistent with these regulations virlates the 26 Commission's regulation barring a challenge in the licensing 38
T 1 proceeding to the sufficiency of Commission regulations, or 2 the basis upon which Commission regulations rest. 10 C.F.R. 3 62.75B(a); Pennsylvania Power and Light Co. (Susquehanna 4 Nuclear Power Plant), ALAB-613, 12 NRC, 324, n.11 (1980); l l
5 Potomac Electric Power Co. (Douglas Point Nuclear Generator 6 Station, Units 1 and 2), ALAB-218, 8 AEC 79, 85-89 (1974);
, 7 see Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), CLI-80-31, 12 NRC 264, 270, n.7 (198C). Even 8
9 if the Board is of the view that such a challenge should be 10 considered, it may only allow such a challenge upon "a prima 11 facie showing" of its factual legitimacy and express 12 direction to do so from the Commission. 10 C.F.R. 13 552.758(b), (c) and (d). No such showing or Commission 14 authorization is currently before the Board.
15 Based on the Commission's decision in Vermont 16 Yankee, as well as applicable NRC regulations, Applicants 17 submit the Board is constrained to exercise its power to 18 investigate matters not otherwise put in controversy only 19 where a serious safety question, not otherwiwe governed by 20 NRC regulations, has been shown by some evidence to exist.
21 There is no need to exercise such power in this case. Unlike 22 the situation in Vermont Yankee, such post-seismic emergency 23 planning is neither required nor authorized by the governing 24 NRC regulations. Nor has there been a threshold showing by 25 the federal agencies involved that implementation of the 26 emergency planning basis established in the governing NRC 39
I regulations leaves a " serious" safety question regiccding the 2 ability to respond to a seismic emergency, including an 3 earthquake exceeding the SSE in severity, at SONGS 2 and 3.
4 G. ANY INTERPRETATION OF NFC REGULATIONS 5 REQUIRING MULTIPLE DISASTER PLANNING, OR PLANNING FOR AN EARTHQUAKE IN EXCESS OF THE 6 SSE, VIOLATES THE ADMINISTRATIVE PROCEDURE ACT.
7 At no time has multiple disaster planning or 8 planning for an earthquake in excess of the SSE been required 9 by NRC regulations. The Board erroneously takes the position 10 that even though such a requirement is not found in the 11 Commission's regulations, it still may imply a requirement of 12 multiple disaster planning or planning for a major earthquake.
1 13 Section 553 of the Administrative Procedure Act 14 ("APA"), 5 U.S.C. $ 553, requires agencies in promulgating 15 rules to allow interested and affected parties to submit 16 comments to proposed regulations which have been p eviously 17 published in the Federal Register. The notice and comment 18 provisions of the APA are applicable to the NRC. See Vermont 19 Yankee Nuclear Power Corp. v. Natural Resources Defense 20 council, 435 U.S. 519 (1978). See also 10 C.F.R. 5 2.800 et 21 seg. " Elementary fairness" requires notice and comment 22 procedure be followed before an agency interpretation, which 23 substantially changes the scope of an affected party's 24 obligatione under current regulations, may be enforced against the regulated party. See e.g Broker Dealers Trade 25 26 Association v, SEC, 441 F.2d 132 (D.C. Cir. 1971) cert.
40
I denied, 404 U.S. 828 (1971); United States ex rel Parco v.
2 Morris, 426 F. Supp. 976 (E.D. Pa. 1977); 2 K. Davis 3 Administrative Law Treatise, 30, 81 (2nd ed. 1979). This is 4 especially true in this case where Congress has specifically 5 mandated that of fsite emergency planning requirements be 6 imposed "by rule". 1980 NRC Authorizations Bill, P.2.
7 96-295, 94 Stat. 784, June 30, 1980, i 109(b)(1)(A).
8 Applicants submit that the Board's request to 9 evaluate the impact of a " major" earthquake on radiological 10 emergency response capability has a substantial impact on 11 Applicants. Accordingly, to the extent that this Board is 12 permittad to create a new emergtney planning regulation i 13 golely by way of its proposed .c.ac.ention, rather than by 14 following the required notice and comment rulemaking 15 procedures, section 109(b)(1)(A) of the 1980 Authorizations 16 Bill and section 553 of the APA would be violated.
IV.
17 18 CONCLUSION 19 There is neither legal authority nor factual basis 20 to support an exercise by the Atomic Safety and Licensing 21 Board of its sua sponte power under 10 C.F.R. 52.760a, which
! 22 would require specific consideration of earthquake for 23 consequences, including an earthquake exceeding the SSE, 24 ///
25 ///
26 ///
41
I emergency planning purposes. Accordingly, the Board's 2 contention should not be raised sua sponte in this case.
3 Dated: ' August 17, 1981 4
Respectfully submitted, 5 DAVID R. PIGOTT EDWARD B. ROGIN 6 SAMUEL B. CASEY ALAN C. WALTNER of ORRICK, HERRINGTON & SUTCLIFFE 7
A Professional Corporation 8
CHARLES R. KOCHER 9 JAMES A. BEOLETTO SOUTHERN CALIFORNIA EDISON 10 COMPANY 11 12 By Edward B. Rogin 13 Attorneys for Applicants One of Counsel for Applicants 14 Southern California Edison 15 Company and San Diego Gas &
Electric Company 16 17 18 19 20 21 22 23 24 25 26 4
42
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