ML20012E303
| ML20012E303 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 02/28/1990 |
| From: | Erin Kennedy, Kerry J, Mavroules N SENATE |
| To: | Carr K NRC COMMISSION (OCM) |
| Shared Package | |
| ML20012E302 | List: |
| References | |
| NUDOCS 9004030191 | |
| Download: ML20012E303 (1) | |
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JOHN KERfW I
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February 28, 1990 i
1 The Honorable Kenneth M. Carr Chairman U.S. Nuclear Regulatory Commission Washington, DC 20555
Dear Mr. Chairman:
We are writing to respectfully request that the Commission delay its proceeding on the full power licensing of the Seabrook nuclear power station until all outstanding issues are resolved, including the issues being reviewed by the Nuclear Regulatory Commission Inspector General.
We have i
attached a copy of the letter we recently received from the Inspector General.
The emergency planninry requirements and their s
implementation with respect to the " reasonable assurance" standard are central to our concerns about the safety issues surrounding the licensing of Seabrook.
It is critical that the public be assured that the.NRC procedurma and pv=-tice:_
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EstlWct7n~ adequate understanding of the fundamental st,andard by which IE 'is tD7d~ge emergency plans.
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i The health, safety and welfare of the citizens living near the Seabrook Nuclear Power Plant are our biggest concern in this matter.
We hope that you will delay the Commission's r
deliberations until the Inspector General completes his review.
Sincerely,
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Nich las Muroules) g a
Jo n F. Kerry O 4.M /
@/. J 1 Edward M. Kennedy Edward J. M4hkey Iy 3/1...To OCA to Prepare Response for Signature of Chairman Date due Comm: March 15..Cpys to: RF, Chairman, Cmrs, EDO, OGC... 90-0203 9004030191 FDR COMMSNR@C90 % 3 ','
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NUCLEAR MEGULATORY COMMl8810N
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Tebruary 26, 1990 i
0FPICE OF THE
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INSPECTOR GENERAL The Honorable John F. Kerry i
United States Senate Dear Senator Kerry The November 15, 1989, letter to senator.Glenn signed by you am +
17 other Members of Congress has been referred to this office ki Senator Glenn.
That letter included as attachmente a November 15, 1989, letter to Nuclear Regulatory Commission (NRC) Chairma,
Carr frca the same is Members of Congress, and a November 3, 1989, letter te chair =an Carr from four Members of Congress.
C review of these letters identified the following two major concerns:
1.
The governing emergency planning standard requiring p
" reasonable assurance of adequate protective measurosa is not understcod or effectively implemented within the NRC.
2.
In its deliberations regarding issuing a license for the
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Seabrook Nuclear Power Plant, the NRC has attempted to circumvent the administrative appeal mechanisms in the licensing proceedings.
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' senator Glenn's letter to me requested that my office carefully '
evaluate the =atter, conduct a thorough inquiry and report directly to you, since we received Senator Glenn's letter we l
have been assessing how we can be responsive to your request p
while recognizing the legal constraints on our ability to fully. '
review the issues in your letters.
Thip letter explains both i
i what we.will be able to review and what.we will not be able to review in response to your expressed concerne.
On February 22, 1990, a member of my staff discussed the general content of.this letter with sally Ericsson, from Senator Kerry's staff, in response to Ms. Ericsson's inquiry regarding the status of our response to senator Glenn's letter.
Regarding the first issue identified in your letters to Senator Glenn and Chair:an Carr, we will examine the emergency planning requirements as set forth in NRC's regulations and the implementing guidance to determine whether they provide ade guidance to the NRC staff in =aking "reasor.able assurance" quata,l determinations.
Upon completion of our review we will provide' our report directly to you and the other 17 signatories of the 1
l November 15, 1989, letter to Senator Glenn.
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i Regarding the second issue of NRC's compliance with administrative appeal =echanisms in the sembreek case, we do not nk
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believe we can undertake such a review because it involves a quasi-judicial, adjudicatcry proceeding which is currently ongoing.
This case is being conducted pursuant to the Administrative Precedure Act, 5 USC 551 at agg, as-a formal on-the-record proceeding subject to administrative appeal and judicial review in the Federal courts, sence, there already exists a statutory process for evaluation and review of sambroo adjudicatory rulings.
Indeed, both the Appeal Board and.
ceuaissionwsazzantly have.guaaedana.pending.besare.
J shortly after the date of senator Glenn8e letter, the Lie Board decision at issue was challenged in the United States Con: i of Appeals for the District of columbia circuit.
ce==anvenith (
Masspchusatta v h Nuclear Retrulatory Cgaminainn No.
37-1743-(filed December 5, 1989).
There well may be additional litigation of Seabrook issues in the future.
The guidance of the court of appeals in 7111mbury Ga. v Faderal Trsde cenissien, 354 F.2d 952 (5th Cir. 1966) suggests caution :
in investigating quasi-judicial proceedings in response to congressional requests.
investigation The court explained that when an
... focusses directly and substantially upon the mental decisional processes of a commission in a came which in eendine before it, Congress is no longer intervening in the Agency's legislative function, but rather, in its judicial function.
At this latter point, we become concerned with the right of private litigants to a fair trial and, egually important, with their right to the appearance of impartiality, which cannot be maintained unless those who f
exercise the judicial function are free from powerful external influences. &,at 964 (citations omitted, emphasis in the original.)
The instant request appears to be within the ambit of the pillsbury holding.
Moreover, I understand from legal counsel that constraints on examining the mental. processes of NRC's adjudicatory officials, including the commissioners and the adeinistrative judges, endure.sven after the completion of the proceeding.
See United Stataa v. Mercan, 313 U.S. 409 (1941).
Acccrdingly, the Office of the Inspector General inquiry to be carried out in response to senator Glenn'a letter must be restricted to a review of NRc's implementation of the energency planning requirements.
responsive to your request.I regret that our review cannot be fully Sincerely, 1
h.& Q %ULL David c. Williams Inspector General i
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UNITED STATES OF AMERICA gEjED NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
'90 tiAR -1 All 32 Kenneth M. Carr, Chairman Thomas M. Roberts
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Kenneth C. Rogers i
James R. Curtiss BRANCH Forrest J. Remick In the Matter of PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al.
Docket Nos. 50-443-OL
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50-444-OL (Seabrook Station, Units 1 and 2)
MEMORANDUM AND ORDER CLI 03 I.
Introduction In the decision that follows, we decide to allow the Atomic Safety l
and Licensing Board's authorization of a full power license for the Seabrook Nuclear Power Station Unit I to become effective under our regulations during the pendency of further appeals and other administrative proceedings.
I The complicated procedural context in which this decision takes I
place requires some explanation, for we act today both in an adjudicatory and a non-adjudicatory capacity. As is well known, Seabrook is an adjudicatory proceeding, in which contested issues are resolved in court-type proceedings through a hierarchy of administrative tribunals:
the Atomic Safety and Licensing Board, the Atomic Safety and Licensing Appeal Board, and ultimately the Commission.
Those proceedings have been extensive, having commenced in the 1970's with applications to build i
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Seabrook, and are continuing into the 1990's. The Seabrook operating i
license has been in litigation since 1981.
The evidentiary hearings on emergency planning issues alone, which began in 1986, totalled over a hundred days ano fill transcript pages numbered in the tens of thousands.
Where, as in these proceedings, issues are contested, the Comission acts in a quasi-judicial role and is therefore barred from communicating with the NRC staff (or any other party) relevant to the merits of the proceedingr except upon the record of the proceecing, with reasonable prior notice to all parties.
Operating license hearings do not address all issues germane to a facility's readiness to nperate, however, only those raised by a party to
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the proceeotng.
(The rules also establish standards for the admission of.
contentions.) To the extent that matters pertinent to the licensing decision are not part of the adjudication, the responsibility f
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resolution lies with the NRC's technical staff. When the NRC staff acts in this capacity, as a regulatory oecisionmaker, it is subject to the supervisory authority of the Comission, and the restrictions that atteno adjudicatory decisionmaking do not apply..
The NRC's rules provide one extra step in the oversight of licensing oecisions, the "imediate effectiveness review." To explain, when an Atomic Safety and Licensing Board authorizes the issuance of a license, I
that decision, like that of a trial court, need not await the completion of all appeals to become effective.
(As with courts, the Comission's odjudicatory procedures allow a party to file a motion for a stay of.an adverse decision.) Where the Commission's procedures differ from those of courts is that regardless of whether a stay request is filec, the L
Comission also conducts an "imediate effectiveness" review under 10 l
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's C.F.R. I 2.764, to cetermine whether the Licensing Board's decision should be allowed to take effect.
The "immediate effectiveness" review is largely informal, relying on the existing adjudicatory record and i
parties' written comments, and it is without prejudice to later l
adjudicatory resolution of issues still in controversy. As a rule, the effectiveness review examines the reasonableness of the Licensing Board's decision without reaching any formal and final decision that no further review and revision of the decision could ever be required.
Today's decision therefore includes both adjudicatory and non-edjudicatory elements, divided into three sections following this one.
In Section II we accress, in an adjudicatory context, motions to revoke or vacate the Licensing Board's authorization of an operat1ng.
license, and we deny those motions.
In Section III, we conduct the "immediate effectiveness review" of contested issues described above. We also discuss, in a non-adjudicatory context,' certain uncontested issues.
We decide in favor of license issuance.
Finally, in Section IV, we rule on stay motions, again in an adjudicatory context, and find that the moving parties have not cemonstrated their entitlement to a stay.
Today we also respond by separate opinion to an emergency planning question certified to us on October 11, 1989 by the Appeal Board in ALAB-922, 30 NRC 247 (1989); that response, which is in an adjudicatory context, forms an important part of conclusions regarding emergency planning for Seabrook.
In sum, our action today is to allow the Licensing Board's decisions to take effect,' and thus to permit the licensing of the Seabrook plant --
with, however, the recognition that administrative appeal processes (in l
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f which later review of the Licensing Board's decision will take place)
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will continue.
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!!. Motions to Revoke or Vacate the Licensing Boaro's Decision A. Background 1.
Procedural Setting All contested issues in the adjudicatory proceeding on the r
application for a full power license for Seabrook have now been finally resolved by the Comission, except for issues regarding emergency planning.I The offsite emergency planning portion of the proceecing was bifurcateo in orcer to commence hearings en the emergency plan for the i
New Hampshire portion of the plume exposure pathway emergency planning zone (EPZ), which hao earlier been developed by the state of New l
Hampshire and submitted for Federal Emergency Management Agency (FEMA) review, without waiting for submittal and review of the plan for the Massachusetts portion of the EPZ - the Seabrook Plan for Massachusetts Comrrunities (SPMC). A later bearing was held on the SPMC, which was developed and submitted by the utility in the absence of a willingness of f
h IThe active parties to the emergency planning phase of the are the Applicants, of which Public Service Company of New proceeding (PSNH) is the lead owner, the NRC staff (Staff), and Hampshire intervenors: the Attorney General of New Hampshire, the Attorney General l
of the Comonwealth of Massachusetts (MassAG), the Seacoast l
Anti-Pollution League (SAPL), the New England Coalition on Nuclear Pollution (NECNP), the fiassachusetts towns of Amesbury, Newbury, o
Salisbury, ano the City of Newburyport (CON) and the New Hampshire towns of Hampton (TOH), Hampton Falls, South Hampton, Rye and Kensington.
Hereinafter, the term "Intervenors" will be used for convenience to refer to group positions including MassAG, SAPL, NECHP and others opposing the license, even though they do not specifically include all intervening parties.
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i itassachusetts' state'and local governments to provice such a plan.2 The i
hearing on the SPMC was also combined with a hearing on contentions submitted as a result of the full participation exercise conducted in June, 1988.
On December 30, 1988, the Licensing Board issued a partial initial decision f1ncing that the New Hampshire Radiological Emergency Response -
Plan (NHRERP) satisfied NRC regulations and provided reasonable assurance that adecuate protective measures can anc will be taken in the event of a ractiological emergency (NHRERP decision).3 LBF-88-32, 28 NRC 667 (1988).
Appeals were taken from that decision and were briefed and argued before the Appeal Board while the proceedings on the SFt1C and on the June 1988 exercise were onooing.
In mid-October 1989, in the course of reviewing the NHRERP decision, the Appeal Boarc certified a cuestion to the Commission reflecting uncertainty on the part of the Appeal Boaro on the standard to be applied in judging emergency planning matters. ALAB-922, 30 NRC at 259.
(As previously noted, the Commission responds to that question today in a separate opinion.) The Appeal Board followed the certification with a decision on November 7, 1989 disposing of certain appeals from the 2
E In addition, one discrete issue was tried by the so-called "onsite" Board which had considered the adequacy of Applicants' onsite emergency planning as a part of the low-power decision. That issue dealt with the adequacy of the Vehicular Alert Notification System that Applicants provided in light of its inability to rely on local siren systems. The issue was decided in favor of license issuance. LBP 89-17, 29 NRC 519 L
(1989). The Appeal Bcard is presently considering Intervenors' appeal of this issue.
3The Board retained jurisdiction over an issue relating to evacuation time estimates for later resolution.
It resolved this issue in LBP-89-32.
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j Licensing Board's NHRERP order.
ALAB-924,30HRC---(1989). ALAB-924 affirmed the NHRERP decision on all but four of the issues taken up, and on those it reversed and reinandee'.
Two days thereafter the Licensing Board issued a 571-page opinion detailing its findings and rulings on the SPMC and exercise litigation (SPMC cecision)..iBP 89-32, 30 hRC---
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(1989).
In sum, the Board found the requisite reasonable assurance was J
provided by the SPNC and also resolved the exercise contentions in favor of license issuance.
In the concluding pages of that order the Board stated:
13.8 Upon the 'ssuance of LBP-88-32 and the issuance of this Partial Initial Decision, this Board would have decided all issues remaining in controversy in the Seabrook operating license proceeding, hcwever on November 7, 1989, the Appeal Board remanded to this Ecaro certain issues decided in LBP-88-32 with respect to
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the NHRERP [ citing ALAB-924).
13.9 The Board has carefully read ALAB-924, evaluated the remanded issues, and studied the Appeal Board's directions to this Board.
We conclude that those issues and directions do not preclude the s
immeo1atg71ssuance of an operating license for the Seabrook Station p
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The Board will issue a memorandum following the issuance of this Partial Initial Decision explaining why ALAB-924 does not precluoe L
the issuance of an operating license. Our explanations will include for exemple, the observation that the remanded issues do not involve significant safety or regulatory matters when constoered in the context of the record of the NHRERP proceeding; our ultimate conclusions that the NHRERP provides reasonable assurance that adeouate protective measures can anc will be taken are not changed; the record of the NHRERP proceeding need not be reopened to resolve some inconsistencies and voids found by the Appeal Board, and that any needed implementing actions can be readily and promptly taken.
We shall also explain why the pendency of several motions to submit new contentions does not preclude the issuance of the operating license.
i LBP-89-32 at 569.
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Without delay, Intervenors MassAG, SAPL and NECNP moved the Appeal l
Board to vacate those portions of the SPMC decision which authorized the l-
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4 license.# On November 14 the Appeal Board said that " consideration of intervenors' motion can and should await the Licensing Board's promised explanation of the reasons why licensing authorization is appropiate, which undoubtedly will include some explanation of the relevance of 10 C.F.R. 5 50.47(c)(1)." Appeal Board Order (unpublished), November 14, 1989 at 2..
The Appeal Board established a schedule consistent with that view.
By orcer of November 16, 1989 the Comission announced that
"[ajlthough the Appeal Board..[had]... set forth a schecule for future filings on intervenors' motion, that motion will be decided by the Comission. " Comission Order cf November 16, 1989 at 2.5 Ir the same order the Comission said that the Comission itself would consider all applications for a stay of effectiveness of LPB-89-32. & (We address later in this section Intervenors' challenges to this procedure.) On November 20, 1989 the Licensing Board issued a supplemental decision cont'ining detailed findings in support of its earlier conclusion that a
the four remanded issues dio not prevent authorization of a full power license.
LBP-89-33, 30 NRC _ (1989).
On December 1,1989, Intervenors filed their 82-page supplemental motion and memorandum in support of their motion to revoke or vacate the license authorization.
4The motion was filed with the Appeal Board on November 9, 1989; appeals of the Licensing Board's findings with respect to the SPMC and exercise have been taken.
0By motion dated November 17, 1989, Intervenors sought reconsideration of the Comission's November 16 order. The motion is hereby denied except insofar as the Comission has previously granted portions of it.
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Positions of the parties i
Seeking revocation or vacation of LBP-89-32's authorization of license issuance, Intervenors essentially argue that the Appeal Board's reversal and remand in ALAD-924 divested the Licensing Board of power to authorize a license and that Intervenors have rights to a hearing on the i
remanded matters before a li:ense can issue.
In addition, they argue that the Licensing Board acted illegally in not 4W6iting the resolution of other pending matters before authorizing a license.
Those matters include motions seeking to litigate contentions on the September 27, 1989 onsite exercise (onsite exercise contention) and on the adequacy of the emergency notificatier system (EBS contention); the Commission's pencing response on the question certifico in ALAB-922 (certifiec question), and the Intervenors' request for hearings on any decisions under i 50.47(c).
Intervenors also assert that the Licensing Board erred in not conforming its SPMC decision to ALAB-924 in two particulars---need for agreements with teachers and need for individual evacuation time estimates for special facilities-- where Intervenors say they made identical claims of ceficiencies in both the hearing on the NHRERP and the hearing on the 1
SPMC and had been successful before the Appeal Board regarding the NHRERP. They also allege that the assumption of jurisdiction by the Commission over Intervenors' motion to vacate was legal error.
The Applicants argne that the Appeal Board's remand did not pez s,e preclude license issuance. They also argue that even were the Appeal Board. correct in ordering the remand on each of the four matters, a 1,
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4 license can still properly issue pursuant i 50.47(c)(1).
Finally, they argue that the Appeal Board erred in requiring the remands.0 The Staff also counters Intervenors' arguments by stating that the Intervenors mischaracteri:e the remand and the requirements placed on the Licensing Board by the Appeal Board. The Staff maintains that in cases where the Appeal Board hos found that further hearings are required, its mandate has been explicit and that the Licensing Board here reasonably and correctly " inferred that the remand order included ' traditional broad discretion' in resolving the issues, including a determination of whether the remanded, issues were errenable to post-licensing resolution." Staff Response to Motion tu Vacate, oated December 12, 1989 at 10, citing LBP-89-33 at 3-6.
They also argue that the state of the record is sufficient to support the Licensing Board's finding of " reasonable assurance" 6nd that i 50.47(c) specifically recognizes that a license may be granted even in the face of some deficiencies so long as they are not significant.
Staff further argues that the " fundamental flaw" standard 7
that is applied to contentions on emergency planning exercises is applicable to 6ny decision on emergency planning, "for 'only fundamental flaws are material licensing issues.'" NRC Staff Response to Motion to Vacate, at 18, citing Lono Island Lighting Co.
(Shoreham Nuclear Power Plant, Unit 1), CLI-86-11, 23 NRC 577, 581 (1986).
6Applicants have petitioned the Comission for review of ALAB-924, as have Intervenors. The Commission has not yet decided whether to accept review.
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B Commission Decision 1.
Comission's Authority to Make this Decision 1
At the outset it is worth emphasizing that the Comission has actea l
l-prcperly and in accord with long-standing practice in electing to consider the instant motion as well as Seabrook stay motions itself, as i
opposed to delegating such decisional authority to the Appeal Boarc. The L
Appeal Boaro acts only on authority celegated by the Comission; the Comission is responsible for its adjudicatory boards; and by regulation I
and a long line of case-precedent, the Comissicn has explicitly retairied supervisory power to step in at any stage of a proceecing to decide any matter itself.
The Ccmaission's " authority to intervene and provide guidance in e penoing proceeding is not limited by the terms of 10 C.F.R.
I' i 2.768(a) [ regulation stating the ordinary practice for review)." 5 NRC at 516. The Comission has inherent supervisory authority over adjudicatory proceedings, and "there is every reason why the Comission should be empowered to step into a proceeding..."O The motivation for the Comission to reserve matturs to itself can derive from practicality and the need to avoid confusion whera matters before the Appeal Board may be so intertwined with matters before the Comission that they should be decided together. Such a circumstance occurred in the low-power license stage of this very proceeding.
See CLI-88-9, 28 NRC 567, 601 (1988) (directing that any stay motions should 7
See 10 C.F.R. 5 2.764 (e)(3)(1) and (f)(2)(1);
, Public Service CompanDf flew Hampshire, CLI-77-8, 5 flRC 503, 516 (1 OUnited States Energy Research and Development Administration (Clinch River Ereeoer Reector Plant), CLI-76-13, 4 NRC 67, 75-76 (1970),
quoted in CLI-77-8, 5 NRC at 516.
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A like motivation governed the Comission's action here.
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- 2. The Appropriateness of Relief In the Nature of Mandamus j
Intervenors characterize the "immediate mandatory relief" they seek 1
as " essentially a writ of mandamus."9 Supplemental Motion at 4.
As intervenors note, our rules ao not expressly provice for such a mandate.
Nonetheless, we would be willing to grant relief of this sort in appropriate circumstances.
Eerrowing from judicial case-law on mandamus, it is clear that such " drastic" reliet is warranted only in unusual circumstances.
'n Re: Thornburch. 869 F.20 1503.-1508 (D.C. Cir. 1989).
Moreover, relief in the nature of mandamus is available only where there is a failure to obey a clear direction to perform a nondiscretionary duty
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and where no other relief is available.
Garem v. Heckler, 746 F.2d 844, 852 (D.C. Cir. 1984). The issue before us then is whether, as a result of the decision in ALAB-924 and the pendency of the various other cited matters, the Licensing Board had a clear, nondiscretionary duty to withhold Gny full power license authorization.
For the reasons which follow we find that it did not and deny the relief requested.
a.
First of all, nothing in ALAB-924 by its terms precludes a full power authorization pending completion of the remand proceedings. The four matters were reversed and remanded to the Licensing Board for further actions consistent with the opinion, ALAB-924 at 70, but no 1
9The Comission orants Intervenors' " Motion for Leave to File a
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Supplemental Brief in Support of their November 13 and December 1,1989 Motions for Mandatory Relief", dated January 16, 1990. The Comission has considered the brief in reaching this decision.
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g specific directions were given with regard to the effect of the opinion on a possible future license authorization.
Secono, e review of NRC rules and prior NRC decisions coes not suggest the existence of any clear, nondiscretionary duty on the part of the Licensing Board to delay full power authorization pencing completien of remand proceedings er resolution of all pending matters, in fact, a review of prior precedents indicates past examples of where, as here, l
permits or licenses were euthorized while remand proceedings and motions
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were still pending.10 Prior practice suggests that whete there is a remand or pending motion the matter of license or permit issuance must be considerec cn a case by case basis.
Third, and most importantly for this case, the authority of the Eoero to authorize issuance of a full power license notwithstanding pendency of remands und motions relating to emergency planning issues can i
t be tracec to a specific provision of the NRC's emergency planning l
regulations.
Under i 50.47(c) failure to meet offsite emergency planning standares "may result in the Commissien declining to issue an operating licer.se" (emphasis added), but ooes not require this result because an applicant may still show, inter alia, that the deficiencies "are not significant for the plant in question." Accordingly, if a finding can be made that an emergency planning deficiency determined to exist on appeal 10Public Service Company of New Hampshire CLI-77-8, 5 NRC 503, 521 (1977); consumers Power co., (Midlano Plant, Units 1 and 2), ALAB-458, 7 NRC 155, 159-60, 169-70 (1978); Long Island Lightino Co. (Shoreham Nuclear Power Station, LBP-85-53, 20 NRC 1531 (1984, See also Oystershell Alliance v. NRC, 800 F.2d 1201 (D.C. Cir.1986)(per curiam)
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upholaing 1ssuance of a full power license notwithstanding pendancy of motions to reopen.
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is not significant, or that an emergency planning issue left unresolved as a result of a pending remand or motion is not significant, then a full power license can still be authorized.
In effect, i 50.47(c) creates two classes of litigable emergency planning issues - those "significant" I
i issues which must be addresseo fully and resolved favorably by the Licensing Board before full power licensing, and those which are not significant and which can be resolved by the Licensing Board af ter license issuance.
We therefore re,iect the funoamental premise of Intervenors' argument that the issues remanced in ALAB-924 must be considered material factors to license issuance and therefore must be resolveo completely on their merits before license issuance.
We agree that the remanded issues are relevant to the licensing proceeding as a whole, since a positive resolution of them will support a finoing of compliance with 10 C.F.R. i 50.47(b) emergency planning standards and therefore support license issuance. But all issues which are relevant to compliance with 10 C.F.R.
$ 50.47(b) emergency planning standards are not necessarily material to license issuance because, under 10 C.F.R. i 50.47(c), compliance issues may not be significant and therefore need not be resolved prior to license issuance.II IISafety issues, including emergency planning issues, can also be categorized in terms of the Licensing Board's duty to complete the proceedings itself as opposed to referring the matter to the staff for informal resolution. A Licensing Board may refer minor matters which in no way pertain to the basic findings necessary for issuance of a license to the Staff for post hearing resolution. Consolidated Edison Co. of N.Y., Inc. (Indian Point Station. Unit 2), CLI--74-23, 7 AEC 947, 951-52 (1974); Public Service Company of Indiana, Inc. (Marble Hill Nuclear (FootnoteContinued) 13
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b.
With particular regard for the pendency of the motions to reopen on the onsite exercise and on the EBS contention, we read the 1
Licensing Board's cecision in LBP-89-33 as contemplating a full power license authorization so that the Comission could comence its own l
review of full power licensing under i 2.764, m LBP-89-33 at 38, but P
also recognizing that its rulings on these motions could require that the tull power license authorization be vacated. The Board's cecision need i
not be read, as Intervenors would have it, as holding necessarily that i
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there would be r.o ruling on the pending motions until af ter license issuance.
In any event, Intervenors' complaints about the possibility of license issuance during the pendency of these motions is now moot since botn motions have now been dectaed by the Licensing Board.
Since we respond to the certified question today, Intervenors' concern about license issuance while this matter is pending is moot as well.12 In sum, we hold that there was no non-discretionary legal duty on the part of the Board to withhold full pcwer authorization because of the decision in ALAB-924, ano that issues raised by Intervenors pertaining to (Footnote Continued)
Generating Station. Units 1 and 2), ALAB-461, 7 NRC 313, 318 (1978);
Lono Island Lightinc Co. (5horeham fluclear Power Station, Unit 1),
ALAB-788,20NRC11C2,1159(1984).
And, with respect to emergency planning, the Licensing Board may accept predictive finoings and post hearing verification of the formulation and implementation of emergency plans. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479, 494-95 (1986). Completion of the minor details of emergency plans are a proper subject for post hearing resolution by the NRC staff.
Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1), LBF-84-26, 20 NRC 53, 61-62 (1984).
12intervenors' concerns about the need to conform the Board's SPMC decision to ALAB-924 and request for hearing on 5 50.47(c) issues are addressed later in this opinion in sections IIIA.I. and IIIA.3.
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r the pendency of the two motions to reopen and the certifice cuestion are now moot in any event.
In this opinion we are treating the decision in LBP-89-33 as, in l
l effect, a supplemental initici decision, and inclueing it as part of our i
effectiveness review under i 2.764.
In this context we wili andress, in some detail, the reasonableness of that decision, including the application of 10 C.F.R. i 50.47(c) to each of the four remandec 1ssues.13 4
III. Imediate Effectiveness Review A. Effectiveness Review of LBP-89-33 (Supplemental Memerandum) 1.
LETTER.S OF AGREEMENT Among other things, emergency response plans must ensure that arrangements have been made for " requesting and effectively using l
assistance resources." 10 C.F.R. I 50.47(b)(3).
leealso10C.F.R.
e l
130n November 15, 1989 Intervenors fileo a request for a hearing to L
the extent a full power license authorization might be baseo on 10 C.F.R.
1 50.47(c)(1).
Since we are clearly basing the license authorization on this provision of the Comission's rules, the hearing request must be addressed by us.
There is no doubt that Intervenors have been heard before the Connission on whether the matters reversed and remanded by ALAB-924 are significant and therefore must celay license issuance. These views have been I
expressed forcefully and at great length in the various written papers filed with us. We find that the written papers before us are adequate for us to address the reasonableness of the Board's conclusions.
Further, neither we, nor the Licensing Board, have reliec on facts outside the evidentiary record in reaching conclusions about significance; no new evidence was adduced or considered. And intervenors' hearing request fails to suggest how the existing record may l-be inadequate and fails to indicate whether, or if so, in what particulars they will offer additional evidence. Given this, we see no (Footnote Continued) l l
15
)
s.
l l
i50.47(b)(1).
Associated reguletory guidance provides:
i Each organi:ation shall ioentify nuclear and other f acilities, i
organizations or inoiviouals which can be relleo upon in an emergency to provide assistance. Such assistance shall be J
identified and suppcrted by appropriate letters of agreement.
l fl0 PEG-0654/ FEMA-Re P-1 (Rev.1), " Criteria for Preparation ano Evaluation i
of Raciological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants" (Nov.1980) at II.C.4 In Section 2 of LBP-88-32 the Licensing Boaro considered various challenges to Letters of Agreement (LOAs) obtained by the Applicants pursuant to this regulatory guidance.
i l4 As a prelininary matter, the Board restated 1ts earlier ruling that 7
Applicants do not need to sign LOAs with, inter alia, schools and school personnel because they are " recipients" of evacuation services and LOAs are required only for " providers" of such services.
LBP-88-32 at 673.
In Section 7 of LBP-88-32 the Licensing Board considered the general 1ssue of human behavior in emergencies including contentions asserting that teachers would abandon their normal roles in the f ace of. a radiological emergency.
In the course of discussing teacher roles during an emergency, the Board made the following observations:
l 7.9.
In general terms, the teachers would have very simple responsibilities in the event of an emergency requiring early dismissal and evacuation. They would be responsible for accounting I.
L (FootnoteContinued) need for additional evidentiary hearings on 5 50.47(c) significance issues. Any unfairness which may have resulted from the Board not having 1
l invited comment before making its findings on significance has been l
removed by the written pleadings, which were filed subsequent to the l'
Board's findings, and our careful consideration of these pleacings.
Accordingly, if construed as requesting an opportunity to be heard, Intervenors llovember 15, 1989 motion is now moot; construe'd as a request l
for additional evioentiary hearings, the request is denied.
14Memorandum and Order, May 21,1986(unpublished).
16 w
-~s
y L
L h
.o for the children unoer their direct care, taking them to a central place in the school (cafeteria, for example) for accountability, enc i
going with them on school buses to their evacuation destination.
~;
- .g., Tr. 4014 t
7.10. Accoroing to Applicants, teachers are not being called upon to co anything under the plan that they would not normally do in any emergency, or for that matter, on any regular day; they are viewed by the planners as recipients of services rather than as emergency workers or providers of services.
Tr. 3356-57; see FEMA Dir., f f. Tr. 4501, at 48.
However, we believe that, to the extent that teachers would be expected to accompany pupils in an evacuation rather than leaving in their own transportation, the teachers should I
be regardec as servtte providers.
28 NRC at 729-30. The Board did not, however, refer back to its earlier discussion of LOAs nor indicate that LOAs might be neeoed from teachers.
The Appeel Cuard approved the Licensing Board's distinction between provicers one recipients as being a sensible basis.for determining the need for LOAs. ALAB-92a at 8.
The 01stinction, in the view of the Appeal Boarc, " recognizes that LOAs need not be sought from everyone involved in the emergency response process; rather, they.can be limited to those who contribute assistance services." & However, the Appeal Board believed, as argued by Intervenors, that the Licensing Board's i
finding, in the Human Behavior section of its decision, that teachers are
" service providers" to the extent they would be expected to accompany pupils in an evacuation was inconsistent with its earlier ruling that teachers were " recipients" rather than " providers" of services.
ld_., a t d
l 9.
The Appeal Board examined the Licensing Board's reasoning in terming teachers " serv 1ce providers" and found thet the Licensing Board had L
l looked to what teachers are normally expected to do; 1.e., to the extent that teachers are being asked to do something not within the scope of 1
17 l
r i
p i
)
I their normal duties, they cease to be " recipients" and become
" providers". & The Appeal Board then addresseo the NRC Staff's argument that teachers, in being asked to accompar.y children on buses, i
were not being asked "to do anything otner than what they rormally do --
t' continue to supervise ano assist the children who have been entrusted to their care, which, the evidence showed, is c duty teachers have i
historically performed in both normal ena emergency situations...." NRC Staff trief at 7.
While the Appeal Board indicated that the Staff's cc clusion may be correct, it rejected the evidence supporting that conclusion (which showed that school personnel do not generally abandon their role as student custodians in times of emergency) as not "addressling]theissueofwhetherschoolpersonnelactinginthatrole i
are oroinarily expected to accompany their students in an evacuation
.... 15 ALAB-924 at 10. Thus the Appeal Boarc remanded this matter for further explanation "with the direction that it. resolve the existing inconsistency in its interpretations of the role of school personnel in t
an evacuation and cetermine whether any LOAs should be obtained from school personnel." lo. at 11.
r In its supplementary memorandum, the Licensing Board explained the l
context of the apparent inconsistency: in the LOA section of its decision the term " service provider" "has a special regulatory meaning... flowing fror. NUREG-0654, II.C.4" (LBP-89-33 at 10) but in the Human Behavior section of its decision it used the term in the context of aetermining 15While the evidence proferred by the Staff may not be " definitive" (see ALAB-924 at 10) as to this issue, it is not immeciately clear to us why it is not sufficiently probative as to resolve this issue.
18
j s
t whether teachers would abancon a particular role -- the role of a custodian in evacuating with the chilcren.10
_S_ee id. at 9-10.
"No party j
e argued, as a human factors consideration, that the likelihood of teachers evacuating with students would be enhanced by LOAs.
It was without any thought of the LOA requirements that the Board deemed teachers evacuating with students to be providers of services."
Id. at 10.
I The Board aid not view this matter as a significant safety issue because it remained convinceo "that sufficient numbers of school teachers will accompany school buses in those cases where they are neeced" based on its "conficence in the inherent oeo1 cation ano sense of respcnsibility of school personnel." Ld.at9. Thus the remanded issue cio not cause the Board to change its " ultimate conclusion that school' children can and will be safely evacuated." & at 11.
Commission Conclusion We believe that the Board's decision that this remanded issue coes not raise a significant substantive issue regarding emergency planning 16The Licensing Board noted that, contrary to the Appeal Board's l-understanding (see ALAB-924 at 10, n.24), the Board did not intend to l
limit its findings with respect to role abandonment to the roles of teachers in acccunting for their stuoents and seeing them to the bus.
See LBP-89-33 at 8-9.
Rather, those findings do not "stop at the school Eus steps.
If needed, school personnel will stay with their charges until they are safe." Id. at 9.
The Board appears to be saying that the L
distinction it drew between teachers in the role of accounting for students and seeing them to the buses and in the role of riding the buses was meant as a distinction between what all teachers are expected to do and what only some teachers are expected to do (the rest being free to depart in their own vehicles).
The distinction was not meant as a conclusion that the latter teachers were transformed into " service l
providers" within the regulatory meaning of NUREG-0654, II.C.4 19
= - - - - --
g j
t 4
acequacy is a reasonable one.17 First, it may well be that the Licensing
'{
Eoard has now provideo the explanation sought by the Appeal Board.
Second, it does not appear that there'is any reason why the evacuation of school children will be celayed or will not occur even if no teachers or other school personnel agree to accompany the children on evacuation buses. The Licensing Boaro r.oted that Richard Strome, then New Hampshire's Director of Emergency Management, while hoping that teachers would participate, stated that their part1cipation is not " key.to the process" and observed that school children usually get on school buses without ass 1 stance and that teachers co not regularly travel on the buses. & LBP-89-33 at 8.
Finally, while the Appeal Luarc was unwilling to accept historical testimony showing that teachers do not abandon school children in emergencies in support of what teachers "normally" are expected to ao in an evacuation, we think this testhony
)
at least supports the view that even if riding the bus in an emergency is not a normal duty, sufficient school personnel will in fact do this if not doing it would endanger the ch11dren.18 Eecause it may well be that the Licensing Board has now proviced the
]
clarification sought by the Appeal Board, and because the matter does not j
17 remanded issues as well)gnificanca of this issue (and the three other I
We address the si both in Ine context of our " consideration of the gravity of the substantive issue," 10 C.F.R. I 2.764(f)(2)(1), and in the context of 10 C.F.R. I 50.47(c).
18See 28 NRC at 740-41, 20
l; 1
j i
1 eppear to be significant in any event, we see no need at this point to I
" conform" anything in the Licensing Board's SPMC cecision to ALAB-924 l
l 2.
SPECIAL NEEDS SURVEY l
Emergency planning includes ensuring th6t adequate transportation resources and related support services are available to evacuate the transit-dependent population in the EPZ.
See 10 C.F.R. I 50.47(b)(8);
e O
NUREG-0654, !!.J.10.d. This population includes those with "special needs" for transportation services: honebound physically impaired persons and individuals likely to be without transportation.
In April 1986, the Licens1ng Board acmitted for hearing two contentions sponsored by SAPL which challenged the adequacy of the*means usea in the NHRERP for identifying the special needs population.I9 Subsequently the Licensing Board granted Applicants' motion for partial summary disposition with respect to these contentions insofar as they asserted that adequate procedures for identifying persons with special needs do not exist. See ttemorandum and Order of November 4,1986 (unpublishea) at 17.
l l
195ee Memorandum and Oroer of April 29,1986(unpublished). At the time SA C submitted its contentions the NHRERP based the number of individuals without their own automobile transportation on an estimate rather than on a survey by which such individuals would identify themselves. No physically impaired persons had been identified, but the NHRERP assumed one special needs vehicle would be needed for tisch town.
See SApL's Second Supplemental Petition for Leave to Intervene (February E 1986); Applicants' Response to Off-Site EP Contentions (March 5, i
1986).
21
l',
1 0, qlp 1
o.
~<
n.
Applicants had moved for summary disposition on the basis of the q
employment of a new method for determining the special neecs population:
a Special Needs Survey ccnducted by Applicants during the last two weeks '
)
of March 1986.20 In an affidavit attached to their motion, Richard H.
?
Strome, Director of the New Hampshire Civil Defense Agency (NHCCA),
i described the new method and expressed his opinion that reasonable
[
assurance exists that special needs individuals can and will be l
identified through utilization of the survey.21 See Strome Afficavit at 4
i in response to Applicants' motion, SAPL had argued that the survey e
was inadeouate for the purpcse of identifying the special needs' t
population, attaching in support of this claim the Affidavit of Frecerick H. Ancerson,. Presicent of lotas and Information, Inc. and Director of.
i International Services at International Data Corporation.22 SAPL t
"'DSee Applicants' Motion for Partial Summary Disposition of South I
HamptonT6ntention No. 8, NECNP Contention NHLP-4 and SAPL Contentions 18 ano 25 (May 20, 1986).
EI Mr. Strome stated, inter alia, that the survey questionnaire was mailed to EPZ residents based on utility customer lists and was i
distributed by several social service and local municipal agencies; that the questionnaire reouested information on persons within households who 1
might not be able to comprehend English; that Civil Defense efficials would verify responses; that the survey would be conducted annually; and that public information announcements had been and would be made periodically by the NHCDA "to inform the public of the distribution of the survey, to encourage responses by persons who may require special assistance, and to provide a means for persons to request survey forms if they may not have received them." Strome Affidavit at 3.
22See SAPL's Response to Applicants' Motion for Summary Disposition of SAPLTontentions 5, 7,14 and 17 and Motion for Partial Summary Disposition of SAPL Contentions 18 and 25 (June 9,1986).
Mr. Anderson stated, inter alia, that the Strome Affidavit and survey instrument gave (Footnote Continued) 22
m,'
e.
I'
(
conterced on the tesis of the An6erson Afficavit that it had retted genuit.e issues of raterial f act as to the adequacy of the survey; in p,
particular, that the survey needes to be supplemented using &cditional
,'I identification techniques, thet greater motivation to respond neteed to s
be providea, that the survey should be conducted more f requently than i
annually, that an outreach program to social service egencies needed to i
be inclucec, and that the cesign of the Questionnaire neeotd to be improved to eliminate areiputty. M SAPL's Respenst 61 17 16.
Cn appeal, SAPL challenged the Licensing Boarc's grant of sumery disposition.
The Itreal Board, i;pon reviewing the filings before the
'ower board, cetermined that issues of material f act concerning the 6CeQuacy of the' survey, which It identified as " issues relating to the trethodology utilitec to identify the special needs population, survey cesign, accuracy verification, response motivation, and update procedures," were indeed present. ALAS-914 at 16. Moreover, the Appeal Boarc rejected the only rationale given by the Licensing Boere fer its cecisiont i.e., that the " additional requirements" sought by SAPL *would fall into the category of ' extraordinary measuru not required by the l
requietions of this Comission." Memorandum and Order, November 4,1966 f
t-(
i l-(FootnoteContinued) l no indicatient (1) that special needs individuals who do not receive
[
utility bills, such as those living in apartments or motels, woula have been identifiedt (2) that special needs individuals not resident in the i.
EPZ in March would have been identifiec; (3) that potential responeents were given sufficient motivation to respond (4) that the accuracy of I
information received had been verifiecs (5) that various design deficiencies had not confused respondentst (6) that those who read only French, Spanish, or other languages or wh'o do not read at all would have responceo (7) that transients in the arec would have been reachedt and
[
(8) tnt the single mailing of the questionnaire would have located even a mtjority of the special neecs population.
1-23 l
t at 16 17.23 Thus the Appeal teerc ccncluced that the Licensing Boarc.had errec in granting Applicants' sumary cisposition moticn ene, accordingly, *remanc[ed) the matter of the suf ficiency of the 1966 Special heeds Survey for further censieeration by the Licensing Boarc."
ALAB 924 at 19.
Further, the Appeal fo6ro noted that it would te
- premature for us f
i to rencer any juegnent regarcing intervenor SAPL's challenges to the
{
t Licens1ng Board's findings concerning availability of adequate numbers of j
vehicles and drivers' until the Licensing Boaro had again consioereo this matter upon remano.24 at 19 20.
The Appeal Boarc also noted:
We also are unable in this instance to rely upon the Licensing Board's determination that there is an excess of available i
evacustich vehit,les er.d drivers, M.less error.... On the present see LBF.68 32, 28 NRC at (95, as i
the foundatien for a fincing of h i
23As the Appeal Loard notes, ALAE.924 at 16, the Licensing Board cid r.et accress the e,uestion of whether genuine issues of material fact were I
present.
Instead, the Licensing foero accepted Applicants' argument that j
the improvements in the survey desired by SAPL ccostituted 'extraoroinery measures" within the meaning of the Comission's decision in Southern i
California Edison Co. (San Onofre huolear Generating Station, Units 2 and 3), CLI.c310,17 h4 528, 536 (1963), rev'd in part on other orcunos, j
GyARD v. NRC, 753 F.2d 1144 (D.C.Cir. IMT.' ~
~
24Before the Licensing Boarc SAPL raised various challenges to 4
Applicants' testimoay that the NHRERP provided reasonable assurance as to the availability of sufficient buses and drivers to effectuate a complete i
evacuation of the New Hampshire EPZ. 1g 28 NRC at 692 694.
In particular, SAPL claimec that at the heari'.; Applicants hoc revised oownwards the numbers of buses / drivers that were available. Sen 16. at 694 The Board noted that the State had demonstrated that ' ifs 71111ng to revise its dependence on certain drivers if the State is made aware of
(
their unavailability' and expected 'that deficiencies in the driver pool j
will be provided for through utilization of other resources identified or to be identifiec by the State." Id. at 693 694.
Thus the Boarc did not believe that any uncertainty creaFd by changes in the pool of buses and i
crivers assigned to assist in an emergency response underminec its
(
conficence that the NHRERP contained reasonable assurance of sufficient transportation resources. SAPL appealed the Board's resolution of the 153ue of bus or driver availability.
SAPL Brief at 37 39.
[
24
4 I
1 record... we have no basis f or settirp a limit on the uncertainty about the site of the 'stecial neecs' populatten that accrues from the Licensing Boarc's trroneous sumn.ory disposition ruling.
ALAB.924 at 19
- n. 47.25
{
in its Supplementary Memorandum the Licens1t.g Board reviewed the l
remand decision, the original 1ilings with respect to the sumery j
i disposition motion, and infortaation subseopently placed in the record anc i
concluded: (1) that the renanded issues co not present significant safety or regulatory considerations requirint pre license adjudication; (2) that f
its finoing that adecut.te transportation anc support services would te At the text of LEP-88 32 cited by the Appeal 006ro, the Licensing Boaro cchsiders an Intervenor argument that one particular segment of the j
special neecs population, transients without their own transportation, were not aceQuately Trovided with transpcrtation for evacuation.
See 28 i
NRC at 694 Intervenors claimeo that the adequacy of transportation provisions for transit-dependent transients could r.ot be mage without having an exact estimate of that population and that there was no $Uch exact estirate because the Special Needs Survey did not identify individuals who may be dropped oft by bus or who hitchhiked to the beach, i
unless they were essociated with a hotel responoing to the survey.
Id.
I The Licensing Board noted Applicants' testimony (1) that, baseo uponTe work of KLD Associates (the preparer of the ETE for Seabrook), few c
transients woulc require transportation assistance, and (2) that l
Applicants *hac acoed nine buses to the beach area to address the uncertaintias in the number of indivicuals in this population and that they had specifically routed buses along the beach area." & at 695.
The Licensing Board concluced:
Applicants' allocation of transportation resources in excess of that identified as being needed under its Special Needs Survey also supports a finding that there is reasonable assurance that a small population of transit-depenoent transients can be adequately evacuated.... Based on the number of buses and drivers Applicants i
identify as being available for evacuation purposes, we also find reasonable assurance that any increase in the estimate of the l
population of transport-dependent transients can be addressed i
without major revisions to the plan.
Id. The Licensing Boarc's findings are based on record evidence that the l
Eiiiiber of buses available for evacuation of the special needs population is approximately SOE greater than the number of buses required by)the survey.
See Applicants' Direct Testimony No. 2 (October 21, 1987, ff.
Tr. 4228. :+ 10.
i 25
L available to evacuatt the transf ort cependent populaticn was not underminect anc (3) that the survey ceficiencies, tven if ultitrately found to be meritorious. are either of no moment or are amenable to relatively simple anc timely correction. LBP 89 33 at 17.
The Licensing Boero's conclusions were premised on the view that "the focus of $AFL's identified concerns regarding the acequacy of the 1986 Special Survey is to fine tune and broaden rather than replace the methocology employed by the thCDA to toentify special needs populations."
& at 21 22. Thus tre roard found that SAFL's concerns regaroing ambiguities ir the design of the questionnaire, the need for motivational lanpunge, the trtcuercy of the survey (once a month rather than annually), the reed to continuc'usly survey the transient population and the need for testing of the siren system tc tssist the het. ring impaired 26 in determining their need for special notification simply went beyond the requirements of the Cornission's emergency planning regulations and associated regulatory guidance. & at 18-20. The Eoard also noted tnat SAPL had not "advancte any specific factu d bases tencing to estchlish that significant nuinbers of special netos incividuals or their transportation needs wert, in fact, understated cr unreported." & at 18.
The Board did view one issue -- the adequacy of the dissemination methodology employed in conducting the survey -- as having 'a reasonable possibility of requiring a pre-license hearing and adjudication." & at.
- 20. however, the Board rejected this conclusion because the NHRERP 26See LBP-89 36 (November 28. 1989) which corrects the Board's misimpression, as expressed in LBP-89-33, that this issue was moot.
26
l
[.
i 1'o contains two features in recognitien of the fact that any survey will j
II c1ss a certain number of pecple: excess transportation resources ano 4 i
J niechanism for special r.eeds inoividuals who have not been pre-identified to make their neecs known to emergency response workers. j,d.at21. The i
Eoard did not believe that the number of unietntitiec special neecs l
indivicuals could be "so large as to render the existing excess transportation resources uncer the NHRERP inadequate." j d.,
f Commission Cenclusion i
in reviewing this issue, the Corsn15sion finds reasonable the l
Licensing Ecarc's view that SAFL's concerns with the adequacy of the 1986 l
Special Needs Survey are prirarily in the nature of " fine-tuning" an acceptable methodology of ascertaining special neecs individuals than a l
contention that the Applicarts or the State must begin this task anew due to methodological deficiencies.
While the Appeal Board is correct that survey improvements do net amount to "extraorcinary measures" within the i
IIThe Boaro found that the fact that the survey had been undertaken in March, before the arrival of the sumer population cid not present a i
significant safety or regulatory issue requiring pre license adjudication because:
i First, any failure to identify sununer special needs individuals is of consequence only in the summer, some eight months hence.
i Second, given the NHRERP's allocation of transportation resources equal to 150 percent of the 1966 identified transit-dependent needs
... and written comitments indicating the overall availability of approximately 170 more buses than the estimated need (LBP-88 32, 28 NRC at 692), the nun 6er of summer transit-dependent individuals would have to be significant before our finding that acequate transportation resources will be available can be seriously questioned.
I j
& at 19 20.
I 27
c.
l 6
meaning of the (cmissien's inn Onofre, supra, decision, it is also true i
that for the most part the improvernents desired by SAPL appear not te te recuired under the Comission's regulations and guidance. Particularly
{
I in view of the fact that SAPL, in resisting Applicants' summary l
disposition motion, did net present any evidence tending to show that,a_ny, particular special reeds indivicuals were missed (as opposed to espert l
opinion suggesting that some m have been missed), we believe that the Literising Board was reasnrable in concluding that this remanded issue did l
ut raise a significant substantive issue regaroing emergency planning I
adecuacy.'8 i
However, one espect of this issue ceserves further corsnent. No i
i survey can guarantee the 1cer.tification of every trcr. sit-depencent incividual.
In recognition of this, the Licensing Board noted that a 1
common are acceptable approach is to have available both excess
[
transportation resources ano a mechanism for special needs individuals i
who have not been pre-1dentified to make their needs known to emergency I
response workers.
The Licensing Board observed that the emergency plan included both of these treasures.
LBP-89 53 at 21.
On the basis of cur effectiveness review, we agree with the Licensing, Board that while some special needs individuals might not be pre-identified, that number should not be so large as to render the existing excess transportation resources inadequate.
With particular regard for hitchhikers among the peak summer i
'0 Wh11e the non moving party, in resisting a summary judgment motion, need not present all the evidence it would introduce at a hearing, it is obliged to support its opposition to summary judgment with evioence that is "significantly probative". Ancerson v. Liberty Lobby, Inc., 477 U.S. 242, 249-250 (1986).
28
beach peru 14 tion, and beachgoers who are cropped off at the beach by family members or others, we rely on the testimony by Applicants' witness which is to the effect that the number of such people is not significant.II 53 Tr. 4252-53 (Oct. 21, 1967).
On the basis of this review, we therefore disagree with the Appeal Board that tio limit can be set on the uncertainty about the $1:e of the special reeds population.
We believe that the uncertainty is not likely so large as to require more transportation resources than the plan already provides.
3.
ADVANCED LIFE SUPPORT PATIENTS The (cmmission's regulations require the preparation of "an etialysis of the time requirco to evacuate ano for taking other protective actions for various sectors and distances within the plume exposure pathway (emergencyplanningzone)fortransientandpermanentpopulations." 10 C.F.R. Part 50, Appendix E, i 1Y: see also 10 C.F.R. I 50.47(b)(10),
NUREG-0654, Appendix 4 As the Licensing Boarc explained:
The primary purpose for having evacuation time estimates is to assist responsible governmental officials in making informed cecisions regarding what protective actions are appropriate in a given radiological emergency in order to maximize dose savings.
To make these decisions the government officials must have available to them evacuation time estimates that are realistic appraisals of the minimum period in which, in light of existing local conditiers, evacuatien could reasonably be accomplished.
The nearer to [the]
plant the area that might have to be evacuated, the greater the importance cf accurate time estimates. Cincinnati Gas & Electric Co. (William H. Zimmer Nuclear Power Station, Unit U, ALAB-727,17 KE 760, 770, 771 (1983).
'We also note that the survey is to be updated annually, and the next upante should be done in the summertime. Thus, the problem highlighted by Intervenors' contention that the prior survey was cone in March and therefore missed those who would be present only in the summertime can be easily ano expeditiously cured.
29 I
l 1
o 28 ERC at 777.
The Comission has emphastred that an adequate emergency plan is not required to at;hieve a preset minimum dose savings or a minimum evacuation l
time for the EPZ in the event of a serious accident.
Lonc !sland Lichtino Co. (Shoreham Nuclear Power Station, Unit 1),
CL1-06-13, 24 NRC 22, 30 (1986).
In LBP 88 32, the Licensing Board approved (subject to censitions
)
t not relevar.t here) the evacuation time estimates (ETEs) prepared for the j
Seabrook emergency planning zone (EP2). 28 NRC at 803.
In approving these ETEs, the Boaro rejected the testimony of Intervenor witness i
)
Maureen Barrows th t the NHRERP had inccrrectly estimated the tire neeceo l
to move a wheel chair nursing home resioent from room to evacuation 30 vehicle on the following basis:
Intervenors' 6ssumptions concerning evacuation times for each l
nursing home patient fail to adequately reflect the evacuation time l
assumptions of the NHRERP.
The plan assumer that patients are at j
the loading point when transportation arrives (NHRERP, Vol. 6, at 11-[21)), not in their beds awaiting pickup as intervenors argue.
28 NRC at 699. Although the Licensing Eoard addressed Ms. Barrows' testimony, it apparently ignored the testimony of Intervenor witness Joan i
Pilot who voiceo a similar concern with respect to advanced life support (ALS) patients. She testified that it would take from 26-60 minutes to move an ALS patient from hospital bec to a stretcher in the same room and f
that, except for paperwork, it is not possible to begin preparation of an f
i 30Ms. Barrows testified that a time trial for moving a wheel chair nurs1ng home resident from her bed to the place where the evacuation bus would be waiting showed a total time of 5 minutes,17 seconds as opposed to the estimated time of 15 seconds per resident specified in the NHRERP at Vol. 6, p. 11-21.
See Direct Testimony of Comissioner Maureen I
Barrows, ff. Tr. 4405, at 2-3.
i 30
o j
AL$ Catient for evacuation until the ambulance arrives. See Rebuttal Testimony of Joan Pilot, fol. Tr. 7670, at 12; Tr. 7674 76.
The Appeal Ecaro found that appropriate planning implementation had teen uncertaken with respect to specification of the number and type of transport vehicles assigned to evacuate particular special medical facilities. ALAB 924 at 23. However, the Appeal Board agreed with Intervenors' concern, based on the testimony of Ms. Pilot, see supra, that the preparation time for the evacuation of ALS patients had not been taken into account in tre ETEs applicable to this group.
Id. at 24-27.
The Appeal Boero noted that the Licensing Board's reason for rejecting the Barrows' testinony with respect to nursing home wheel chair residents
- that the NHRERP assumes them to be at the loading point, not in their beds, when evacuation vehicles arrive -- is " inconsistent with the direction given in the individual emergency plans for New Hampshire EPZ towns that patients / residents of special f acilities will be assembled n (not befere) the evacuation vehicles arrive." Id. at 26 (emphasis in original). The Appeal Boero was concerned about a possible underestimate of ETEs for ALS patients stemming from a failure to consider the necessary preparation time due to the proximity of several special facilities to the Seabrook plant, as well as the fact that sheltering in 1:rge buildings such as these institutions may offer greater protection. than that assigned to residential properties, thus making sheltering a more 31
~
0
,\\
O.
)
I f
acceptable alternative to evacuation if the evacuatien times increase appreciably....
l Id. at 25 (footnotes omitted).
Thus the Board remanded this issue for resolution by the Licensing Board.N in its supplemental memorandum, the Licensing Board explained that I
the " loading time" in the ETE for the ambulatory and wheel chair nursing I
home residents is not the same as the ETE for non-ambulatory persons such as ALS patients.
LBP 89-33 at 25, 28. Only the ETE for the former is l
basec on the notion that the evacuees will be waiting at the loading i
point for the transit vehicles tu arrive.
For ALS patients the loading time in the h'HRERP is 40.2 minutes which, in the Board's view, "does not i
i ceviate in any significant way from an average of the time Ms. Pilot stated it takes to prepare ALS patients for transportation (28 + 60 minutes /2 = 44 minutes)."
Id. at 25.
ThustheBoardfoundthat"[t]n
{
~
l l
l 31Both the Appeal Boaro and the Licensing Board appear to have l
assumed that ALS patients reside at nursing homes.
However, Applicants' witness Michael C. Sinclair testified during cross-examination that Applicants had worked with hospital and. nursing home personnel in i
developing their emergency plans as well as the transportation i
requirements needed to implement those plans and that none of the nursing homes in the EPZ have ALS patients who require ambulance transport.
See Tr. 4294-95. Thus the record indicates that all ALS patients reside at Exeter and Portsmouth Hospitals which are located, respectively, seven and eleven miles away from the reactor.
NHRERP, Vol. I at Table 2.6-3.
32The Appeal BoWrd also noted:
\\
"[c]orrection of the preparation time omission... also will ensure that special facility plannin NUREG-0654 that evacuation time '[e)g confoms to the guidance of stimates for special facilities shall be made with consideration 'or the means of mobili:stion of equipment and manpower to aid in evacuation' and that '[e}ech special facility shall be treated on an individual basis.
l NUREG-0654, App. 4 at 4-9 to 4-10.
ALAB-924 at 27. n. 71.
l 32 i
4 increase of four minutes in the ETE would not effect the choice of a protective action recomendation for the ALS patient population es a whole."
Id.33 The Licensing Board also found that the adecuacy of the ETE for the ALS population for protective action decisionmaking was further demonstrated by what it perceived to be "an extra margin of time within which ALS patients can be readied for evacuation." & at 27. This
" extra margin of time" is provided by the fact that emergency coordinators contact special f acilities at the Alert Classification Level l
33The Board's explanation does not appear to be based on a close reading of the NHRERP.
Evacuation time estimates for transit operations are found at Volume 6, Section 11 of the NHRERP.
Section 11 contains ETEs for two different categories of the population at special facilities such as nursing homes and hospitals: the ambulatory and the non-ambulatory. With respect to ambulatory individuals the NHRERP states:
Studies have shown that passengers can board a bus at headways Jf 2 4 seconds.... Thus, if we couble these headways to account for elderly or disabled passengers, and allow additional time to walk to the bus, then we estimate that a bus can be felly loaded in about 10 minutes (15 second mean headway for 40 passengers).
NHRERP, Vol. 6 at 11-21. With respect to non-ambulatory persons the NHRERP gives an estimate of "0.67 hours7.75463e-4 days <br />0.0186 hours <br />1.107804e-4 weeks <br />2.54935e-5 months <br />" as the time for loading passengers but nowhere explains how this estimate is derived or what activities are encompassed within it. NHRERP, Vol. 6 at 11-26. Tnus the Licensing Boero's assumption that this " loading passenger" time includes the " preparation time" of concern to Ms. Pilot is not clearly supported.
Moreover, the Licensing Board also may be in error in grouping the wheel chair residents that were the subject of the Barrows testimony, see LBP-89-33 at 28, with the " ambulatory" group. The NHRERP explicitly places individuals confined to wheel chairs with the non-ambulatory group.
NHRERP, Vol. 6 at 11-22.
Further, as noted by the Appeal ~ Board, see ALAB-924 at 26. n. 69, the directions given in individual emergency Ens for nursing homes and hospitals do contain language indicating that patients / residents will be assembled as, and not before, evacuation vehicles arrive. Thus, while there dWs not appear to be any reason why ambulatory indivicuals could not be pre-assembled. these plans, as presently written, are inconsistent with the NHRERP's provisions for ambulatory individuals.
33
n-i
)
i l
to verify their t'rensportation needs, a contact which " effectively j
provices the staffs of the special facilities with novence notice that an evacuation is being considered."
Id.
We note, however, that the Board does not cite any medical testimony in support of the notion that prepetstion of an AL$ patient would be medically appropriate at the Alert Level.35 j
i For the above reasons, the Board'does not find any " safety j
significant problem outstanding with regard to the transit preparation time for ALS patients."
Id. at 28.
Moreover, in the view of the Board, l
"any cenfusion over the distinction between preparing special-needs f
t persons in anticipation of arriving transportation, and assembling them l
can be readily resolved."
Id. at 29.
i Consnission Conclusion On the basis of our effectiveness review, we agree that the issue identified by the Appeal Board -- whether the ETEs for non-ambulatory, individuals found in the NHRERP take into account the amount of time it i
i 34At the Alert Level emergency response workers contact special facilities to confinn their needs and notify ambulance operators of potential need in the event that an evacuation is ordered.
5 !n fact this " extra margin of time" rationale ignores, without explanation, Ms. Pilot's testimony that ALS patients cannot be prepared until the ambulances arrive. The Board further confuses this issue by later suggesting that the NHRERP car. be improved "by reouiring an smendment to the plan (or town plans) to provide for instructions to the staff of special facilities to prepare ALS patients for transportation at the order to evacuate" (emphasis added). LBP-89-33 at 29.
It is unclear what the " extra margin of time" is if preparation does not begin until the order to evacuate has issued.
More fundamentally, the Comission is concerneo that preparation of ALS patients for evacuation not begin until it is medically safe to do so.
34
-)
3
.c.
would take to prepare ALS patients for evacuation -- remains unresolved, it is simply not clear that the 40 minute " loading passenger" time found 36 in the NHRERP includes this preparation time as the Licensing Board asserts. Nor do we necessarily agree, in the absence of any confirmatory medical testimony, that there is any so called " extra margin of time".
l
)
Nevertheless, we still view as reasonable the Board's bottom line conclusion that this remanded issue does not raise a significant substantive issue regarding emergency plan adecuacy. The record l
{
indicates that ALS patients are found at only two locations: Exeter and j
Portsmouth Hospitals. Thus it should not be difficult to resolve whether i
i the 40 minute period rray indeeo include adecuate time for preparing an ALS patient for transport, taking the patient to the loading point and i
loading the patient into the ambulance.
If these tasks take longer than l
40 minutes, then there will be some " shortfall" in the evacuation time
(
estimate for these patients.
We have no reason to believe, however, that this " shortfall" would be significant enough to cause a decisionmaker to j
recommend sheltering rather than evacuation for either of these f
l facilities.37 l
l i
305.ee,NHRERP Vol. 6 at 11-26, 37While Intervenors argue that these facilities may not have sufficient staff to prepare ALS patients simultaneously, thus further lengthening necessary preparation time, see Intervenors' Supplemental Motion at 49
- n. 34, the NRC Staff pointUut that "at no time during the lengthy litigation of this issue have Intervanors conteEied that medical facility staffing would be inadequate".
NRC Staff Response to Intervenors' Motion to Yacate at 31 (emphasis in original).
(
We note, as Applicants point out, that even should a significantly I
l enlarged ETE make sheltering a preferable protective action response to (Footnote Continued) l 35
7 i
j I
L j
i l
i Again, on a related ETE issue, the Intervenors have argued the need l-to conforu the Board's SPMC cecision to what Intervenors interpret as a t
holding in ALAB-924 that tne Commission's emergency planning rules l
recuire that emergency plans include ETE's for each special f acility.
We do not elevate the Appeal Board's observation about regulatory outdance in NUREG.C654 regarding the calculation of ETEs in a footnote in its i
opinion to a holding that NRC regulations require that emergency plans l
include incividualized ETEs for special facilities even where only ETE's f
for the general population are to be used in making protective action i
decisions. We find reasonable the Licensing Board's extensive discussion of this issue in the SPMC decision at pp. 85-90.
i 4
IMPLEMENTING DETAILS FOR SHELTERING THE BEACH POPULATION
(
Intervenors argued before the Licensing Board that the NHRERP did l
not contain adequate provisions for sheltering persons at beach areas near the Seabrook Station. The Board explained that the Commission's i
emergency planning regulations do not require that sheltering be designated as a protective action at each site but rather that a range of l
protective actions be developed and incorporated into the emergency i
1 l
(FootnoteContinued) evacuation in a given circumstance, this is precisely the action the ALS patients would be taking pending their evacuation.
See Applicants' Response at 29.
Thus the real issue is whether a greatly increased ETE l
l for ALS patients might make it preferable for this group to remain sheltered even if evacuation of the general population is called for.
In the extraordinarily unlikely event that such a decision needs to be made i
prior to the Licensing Board's resolution of this issue, we believe that the exceedingly small size of this group would make en "ad hoc" ETE estimate feasible and appropriate.
l 36
e plan.38 See 28 NRC at 770.
Similarly, pertinent regulatory guidance
" requires an evaluation of the expected local protection afforced by sheltering, but does not set standards for that protection or require it" (emphasis in original). & See hUREG-0654, !!.J.10.m.
Thus the issue before the Board was whether the State of New Hampshire had given adequate consideration to sheltering as a possible protective action.
See 28 NRC at 771.
Although the preferred protective action for the seasonal beach population is almost always early beach closure or evacuation, the State of New Hampshire is prepared to consider sheltering as a possible recomenced action in a very limited number of circumstances:
A.
When sheltering can be predicted to be the most effective option for achieving maximum dose reduction; B.
When there are physical impediments to evacuation such as fog, snow, hazardous road and bridge conditions, ar.d highway construction; and C.
When transients without transportation need sheltering pending evacuation.
28 NRC at 758-59.39 j
3010 C.F.R. I 50.47(b)(10) provides:
(b) The onsite and... offsite emergency response plans for i
nuclear power plant reactors must meet the following standards:
l (10) A range of protective actions have been developed for the plume exposure pathway EPZ for emergency workers and the public.
Guidelines for the choice of protective actions during an emergency, consistent with Federal guidance, are developed and in place, and l
protective actions for the ingestion exposure pathway EPZ l-appropriate to the locale have been developed.
39 1mplementing detail for use of the sheltering option in the third circumstance -- the need for shelter by the approximately 2% of the beach I
(Footnote Continued)
I 37 L..
l In examining the $ tate's consideratien of sheltering in these '
circumstances, the Board found that the likelihood that sheltering would afford the maximum dose reduction was very low because a detemination to shelter for_ this reason would require the coincidental occurrence of the following circumstances: (1) no earlier action such as precautionary beach closing has been takent (2) 6 peak or close-to-peak beach population exists thereby causing evacuation times to be significantly longer than the duration of the predicted release; and (3) the release is predicted to be one of short duration, without particulates, and projected to arrive at the beach in a short time.
28 NRC at 759, 775.
Further, the Boero credited the testimony of Joseph K. Keller, the FEMA representative, who indicated that the uncertainties involved in predicting the start and dur'ation of a release as well as the meteorological conditions which would bring a releasa to the beach area in a certain amount of time are considerable and that, in any event, the (FootnoteContinued) population without transportation when an evacuation is ordered -- is not at issue, See ALAB-924 at 59.
The plan which we are discussing today, and on which we are allowing the finding of adequacy to become immediately effective, is the plan as described by the Licensing Board in
- its NHRERP decision, 28 NRC at 769-772, and as reviewed by the Appeal Board in ALAB-924. Amendments of this plan since the close of the record before the Licensing Board have not been considered.
If changes to the plan are intended, or if the parties believe that the Licensing Board, Appeal Board, or Commission misconstrued the intent of the plan, then appropriate motions should be filed.
In light of the foregoing, the Commission denies Intervenors Motion to Supplement Application for a Stay of LBP-89-32, dated February 14, 1990.
38
L..
oose reouction to te expected from shelters available to the teach population is minimal.40 See 28 NRC at 765-768.
Since the NHRERP contemplates reconnending sheltering in the limited circumstances noted above, the Board considered the shelter available in the area and concluded that enough sheltering exists for the peak or near peak beach population.
See 28 NRC at 770-772, 775.
The Board besee its finding upon a shelter survey prepared by Stone & Webster for Applicants and provided by them to the State for use as a resource Mr. Keller testified that while he could construct scer. trios where after the fact it would appear that sheltering would have been a more appropriate response than evacuation, in a real event " y)ou have very little confidence that you can predict with any reliability what the next step is going to be. So the prudent thing to do is... to move the people in a 360-degree arc, a radius, within two or two and a half, three miles." Tr. 14242.
The following interchange then ensued:
Q.
Well, let me ask you this, if you can't move the people prior to the start of the release because there isn't enough warning, might you then be better because you don't know where the plume is going to travel to put them in shelters, and wait and then evacuate them in order to avoid this ground shine component to the greatest extent possible?
A.
If the State of New Hampshire had come in with a reconnendation or en assertion... that the shelters... had a shelter f actor of.5 or.4, all right. My own personal opinion is, you might have looked at it a little harder.
The State came in [and) said, the average shelter f actor in
. this -- of the buildings out here, is about.9 -- 410 percent reduction. That's not enough -- I mean, when you have i
uncertainties in source terms and you have uncertainties in weather l
conditions, you have uncertainties in the nuclide mix that's likely 4
to be there, this 10 percent reduction is so -- is down in the dirt in the error band, it's trivial.
Tr. 14243.
l 39
l
.s document as well as site visits to the beach ar'en by the Board. I 28 NRC at 772.
The Board did not, however, recuire that implementing provisions i
for the sheltering option be included in the NHRERP. The Board explained:
After reviewin the testimony on the reasons wh sheltering is i
a very low probabil ty option, particularly Mr. Kell r's explanation of the many conditions that must line up before sheltering can be f
preoicted to save do,es, the Board is concerned that forcing implementation into the NHRERP would be a mistake. The greatest risk is that the decisionmaker might implement the sheltering option i
using preset implementing detail without understanding that the potential. benefits are not very great and can readily be outweighed by the uncertainties, i
28 NRC at 769.
The Board was content to leave any differences on this point to FEMA and the State of New hampshire to resolve.42 The Board cercluded that "the absence of implementing cetail for shelterino in the NHRERP is not so material as to foreciese a finding by the Peard that the NHRERP provices reasonable assurance that adequate protective measures t
will be taken in the event of a radiological emergency at Seabrook."
Id.
t In ALAB 924, the Appeal Board affinned the Licensing Board's conclusion that the NHRERP appropriately limited sheltering as a I
4IThe Board ed that the shelter survey indicates that some three times as much potential shelter space as is necessary is available end j
that even if Intervenors' objections to some of this shelter as unsuitable are fully credited only about 20% of the existing shelter potential would be eliminated.
28 NRC at 771-772.
The Board rejected
?
Intervenors' contentions that the owners of beach establishments would close their coors to the transient beach population, finding instead that this population would be regarded as " fellow victims".
Sgt 28 NRC at 772.
The State found that the survey " identified a lar9e number of
)
shelters that may serve as a pool from which public she' ter choices will be made" but declined to incorporate the study into the NHRERP or rely on the study as a planning basis.
See Applicants' Direct Testimony No. 6 at 22 and Appendix 1 at 9.
42The Board was unable to determine what FEMA's view was as to the necessity of additional planning for the sheltering option. See 28 NRC
.at 769.
i 1
40
O protective action option to very limited circumstances. ALAB 924 at 57-58. However, the Appeal Board believed, contrary to the Licensing Board, that implementing measures needed to be added to the NHRERP given that sheltering the beach population remained a possible option, g ALAB-924 at E8 69. The Appeal Board held that its finding in the 43 shoreham proceeding that the prot > ability of implementation of an option was irrelevant in det'ermining whether emergency planning obligations had been satisfied meant that the low probability that sheltering would ever be reconnended did not excuse the lack of implementing detail.
The Appeal Board rejected as well the Licensing Board's perception that the addition of implenenting detail might cause a decisionmaker to lose sight of the considerable limitations of sheltering even in circumstances where it might be viewee as an option.
Rather, in the view of the Appeal Board, the lack of implementing detail essentially lef t decisionmakers to
" speculate [esto)whatwillbethepracticalimpactofadecision(to shelter)"and,infact, enhanced"theriskthatshelteringwillnotbe utilized in the appropriate, albeit limited, instances contemplated by the plan." ALAB 924 at 64.
The Appeal Board acknowledged that not all implementing details needed to be in place for a plan to be approved but found that here "the l
absence of any concerted attempt to incorporate implementing details for protective action options arrived at as a result of the planning process is a deficiency that must be remedied." ALAB-924 at 68, n.194. The Appeal Board rejected the NRC Staff's contention that the existence of i
383,39F'T9(1987).
41 L
i
I i,
j I
F I
l the Stone and Webster Sury'ey, inter alia, made planning here "less ad hoc
- than the planning at issue in ALAB-632." Rather, said the Appeal Eoard "[t]he planning efforts concerning sheltering already undertaken remain ad hoc until planning officials take appropriate implementing i
actions [which)[ijnthiscase...wouldincludedesignatinginthe f
NHRERP which shelters en the survey list are suitable and available for l
L use...."
ALAB-924 at 68. Thus the Appeal Board remanded this matter "fer i
appropriate corrective actien" by the Licensing Board.
Id.
f Upon remand, the Licensing Board considered again its earlier i
detertninetion that the lack of implementing detail in the NHRERP was not so material en issue as to preclude a reasonable assurance finding under i
10 C.F.R. i 50.47(a)(1).
The Board recognizea that further development l
of the record would likely be necessary to resolve this issue.
LBP 89-33 at 31. However, the Board did not believe that the Appet.1 Board's remano i
meant that a reasonable assurance finding was now precluded because "the very low probability of selecting the sheltering option for the beach.
f population and the fact that the beech population does not reach large
{
numbers until July, provides adeouate safety pending the resolution of
[
the remanded sheltering issue."
Id. at 33.
The Board further observed l
that"[i]mplementingmeasuresmaynotbedifficulttoeffect," noting that " sheltering available for the outdoors transient beach population is t
concentrated in a relatively compact and well defined area."
Id. at 32.
i The Staff pointed out to the Appeal Board that, "... for the sheltering option under the NHRERP, the means of public notification exist; the mechanisms for a protective action deterininetion are in place; and the size of the beach population and the quantity, quality, and i
location of the shelter are known." ALAB-924 at 62-63.
42 v
1 Comission Conclusion
{
On the basis of our effectiveness review, we agree with the Appeal Boero that so long as sheltering remains a potential, albeit unlikely, emargency response option fer the beach population, the NHRERP should
)
contain directions as to how this choice is to be practicably carried out.
Such directions should include identification of the location of
' sufficient available shelter together with the means to notify the beach population as to whete this shelter is located. Given the existence of the Stone & Webster Survey, we do not believe incorporation of implementing cetail into the NHRERP to be especially oifficult or time-consuming.45 f
However, we also find reasonable the Licensing Board's decision that
(
this remanded issue does not raise a significant substantive issue regarding emergency planning adequacy. The record shows clearly that evacuation rather than sheltering is the principal protective action for the beach population, and that the average shelter factor is so small that the public protection afforded from sheltering is very small.
FEMA i
characterized the dose reduction from sheltering as " trivial" and "down in the dirt in the error band", supra p.39, n.40. We note in this regard I
, that the emergency plan for the Massachusetts beaches, which the 40ln this connection, we note that the Licensing Board has interpreted the remanded issue to mean that specific sheltering (as compared to maps showing sheltering areas) be identified for the general beach population.
See LBP-89-33 at 31-32.
We understand the Appeal Board's direction to designate in the NHRERP "which shelters on the survey list are suitable and available for use," ALAB-924 at 68, as meaning that there should be a sufficient quantity of available shelter l
space rather than that there must necessarily be agreements with l
particular establishment owners to provide space to beachgoers.
l l
t 43 L
l-j Licens'ing soard founo to be adecutte, does not even include sheltering as an cption. Given these consicerations, we believe that the abse.ce of implementing detail for the sheltering option is not significant.
B.
Remaining Unreviewed Contested Matters 1.
Licensing Coord Decision LBP 89-32 Deciding Contentions on the Emergency Plan for Massachusetts and the Full Participation Exercise The final significant segment of Seabrook operating license litigation entertaineo issues on the adequacy of the Seabrook Plan for Massachusetts Communities (SPMC) and the full participation exercise of that plan along with the exercise for the NHRERP and Applicant's plan for onsite response capability as well as the State of Maine's ingestion pathway plan.
See 10 C.F.R Part 50. Appendix E t IV(1). The Licensing Board orcer in LBP-89 32. resolved the issues that were admitted for 46 litigation ano decided that the SPMC is adequate and implementable.
The Board ruled that the June,1988 exercise was adequate in scope and revealed no fundamental flaw in any of the plans exercised. The Board specifically found that the SPMC meets the Comission's emergency planning regulations.
See 10 C.F.R. I 50.47(a) and Appendix E to 10 C.F.R. Part 50. Thus the Board found, subject to certain commitments, conditions and the like for which the Director of NRR is charged with 460ne hundred twenty-three contentions were admitted for litigation.
As later consolidated, there were 63 contentions admitted with respect to the SPMC and 21 with respect to the plan exercise. LBP 89-32 at 3.
i 44
{
i verifying conformance, that there is reasonable assurance that toequate protective measures can and will be taken in the event of a radiological emergency at the Seabrook station.
In the same opinion the Board also resolved the one remaining ETE related (Evacuation Time Estimate) issue over which it retaineo jurisdiction from the New Hampshire phase of the proceedings.
Slip op, at 36.
In a separate opinion. LBP 89-17, 29 NRC 519 (1989), another Seabrook Licensing Board had earlier cecided in Jure 1989, that Applicants' Vehicular Alert Notification System ('/ANS) provided adeounte means to alert people who are within the Massachusetts portion of the emergency planning zone of an emergency situation.
LBP-89 32 is on appeal before the Appeal Board on issues related to 48 both the SPMC and the 1988 exercise The Appeal Board is considering Intervenors' Appeal of LBP-89-17 (VANS decision) along with LBP-89-32 because the VANS decision was simply one step on the way to LBP-89-32's conclusive finding of acequacy of emergency planning for the Massachusetts portion of the EPZ.
As the only unreviewed partial initial decisions resolving acmitted contentions relevant to the issuance of a i
47FEMA had reviewed the SPMC and judged the exercise and on both testified in the proceeding that they met the NRC regulations and standa rds.
In other words, both the SPMC and the exercise provided reasonable assurance that adequate protection would be provided in the event of a radiological emergency. FEMA's conclusions are presumed to be correct unless rebutted.10 C.F.R. i 50.47.
0This is apart from objection taken to the Licensing Board's treatment in that order of the impact of the Appeal Board s remand in ALAB-924 on the authorization of issuance of a license.
45
i
.l full power license, these decisions are a central focus of our immediate effectiveness review. O In considering the conclusions of LBP-89-32, the Comission has paid particular attention to issues raised by Intervenors in their immediate effectiveness review coments.50 The Comission has neither been shown nor found sua sponte that it need withhold effectiveness of operation of l
Seabrook pending aaministrative review. Our review has, however, turned up several matters on which we believe we can provide some helpful conenent or for which, as a matter cf policy, we require some further l
comitrent or action by the Applicants or $taff.
In some instances the l
Comission coes so not because it is clearly essential to safety, but j
because additional enhancements to the aceounte emergency preparations that have already been made appear desirable on the basis of our f
effectiveness review. We discuss these matters below.
(1) Evacuation Time Estimate (ETE) Issues In LBP-89-32, the Board made the finding that the number of ETEs.
generated, and the regions and scenarios for which they were generated, r
i UAs noted elsewhere, LBP-88-32 has been substantially reviewed by the Appeal Board.
Petitions for review of the Appeal Board's decision, ALAB-924, are pending. LBP-89-33, the Licensing Board's explanation of i
its authorization of a license following ALAB-924, was considered in the i
preceding section as a supplemental partial initial decision.
50,,,ggis immeciate effectiveness comments on the Licensing Board g
decision on the SPMC and exercise alone included 34 separately esterisked discussions of error spread over 33 pages.
The total lack of references to the record which might aid our understanding of their belief that the Licensing Board erred in the referenced portions of the decision was not helpful. Nonetheless because of the importance of this matter we have had our adjudicatory staff do as much of the tracking of sources as
[
possible. The parties are on notice that they may not further rely on the Comission to do their work for them and cannot be heard to complain l
of any incompleteness in the Comission's response.
46
t are sufficient anc correctly l'imited in number so as to be usable by a cecisionmaker fairly quickly and not to be overly cumbersome. LBP 89-32 j
i at 47. However, Intervenors complain that the Board permitted a regional j
approach to proeucing ETEs and assert that separate ETEs should be f
created for Massachusetts decisionmakers.
LBP-89-32 also states that the i
i l'assachusetts Attorney General argued for segregated ETEs for the i
Massachusetts anc New Hampshire portions of the EPZ.,Ld,.at44 f
Our regulation at 10 C.F.R. I 50.47(b)(10) reovires, in part, that
[
" guidelines for the choice of protective actions during an emergency, censistent with Federal guicance, are developed ano in place." Criterion f
!!.J 10.1 of NUREG 0(!4 indicates that en organization's plans to implement protective measures for the plume exposure pathway EPZ shall l
include "... time estimates for evacuation of various sectors and distances f
based on a dynamic analysis (time-motion study under varinus conditions) f for that EPZ." Criterion !!.J.10.1 also references Appendix 4 ef NUREG 0654 as the location for more detailed guidance on performing such an.ETE study.
Appendix 4, in turn, includes the following criteria for I
cetermining sub-areas within the EPZ for which ETEs are required. The sub-areas must encompass the entire plume exposure pathway EPZ, as ETEs
)
are required for the situation of the simultaneous evacuation of the entire EPZ.
The sub-areas to be conshfered are also to be radial distances of about 2, 5, and 10 miles from the nuclear plant, with the areas within these circles to be divided into four, 90 degree sectors, The boundaries of these sub areas should be based on demography, topography, land characteristics, access routes, and local jurisdictions, and should not divide densely populated areas to the extent practical.
l 47
l j
i The guid6nce in Appenoix 4 of NUREG 0654 neither requires nor j
suggests that the sub aress' bouncaries must take into account the borders of contiguous States.
Therefore, the Board's conclusion that j
there is no regulatory requirement for segregated ETEs for Massachusetts
)
i and New Hampshire appears to be correct.
Moreover, as a practical j
matter, we agree in this effectiveness review with the Board's position in LBP 89 32, that the regional approach of the ETEs is acceptable, given the reality that traffic flow cannot be segregated temporally according to political boundaries and because there is no suggestion that evacuees from New Hampshire portions of the EPZ would be prohibitee from entering the Conynonwealth.
i Furthermore, the guidance of NUREG 0654 states that, when making i
ETEs for outer sectors, it is to be assumed that the inner, adjacent i
[
sectors are being evacuated simultaneously.
In LBP-89-32, the Board concluded that the Applicants' regicnal approach in presenting ETEs was acceptable given that the New Hampshire coastal areas are closer to the t
Seabrook Station than are the Massachusetts communities and will be l
t generating sizeable traffic flows before or as soon as an order to i
evacuate is issued in Massachusetts.
Indeed, one might conclude from the j
NUREG 0654 guidance and the aforementioned conclusion by the Board, that the Massachusetts ETEs would be unacceptable under the regulatory guidance, if they did not take into account pemitted traffic flow from t
New Hampshire portions of the EPZ that were nearer to the Seabrook Station.
In LBP-89-32, the Board indicates that the NRC Staff witness concluded that the Applicants' ETE study satisfied the guidance of Appendix 4 of NUREG 0654 and all applicable regulatory requirements with 48
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l, one exception, which was categorized as essentially an editorial task.
This exception was that the ETE study should be published.
LBP 89 32 states that the Applicants comitted to publish the ETE study.
The Board required that the published study be submitted to the NRC staff for i
verification within 60 days of the cate of service of LBP 89-32.
l LBP 89-32 at 115-16.
The Board's instruction to publish the study and to submit it to the Staff, so that verification of the publication comitment can tile place, was appropriate, as there is no regulatory I
requirement to incorporate the entire study in en emergency plan.
The Comissien finds the Boaro's cecision on this issue reasonable since the guicance contemplates that for ETE purposes the IPZ would be
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divideo in a series cf concentric radials, with the areas within the circles into quadrants, taking into account various geographic and demographic features. As a practical matter, where more than one state
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is involved, cecisionmaking is coordinated and may be expected to be so i
berc particularly since the utility plan for the SPMC contemplates a cooperative effort.
Nonetheless, should the Commonwealth of Massachusetts decide to participate in pianning and wish separate ETEs in order to prepare a state-sponsored emergency plan or for its own use in arriving at protective action decisions, the Comission sees no reason why ETE's cannot be promptly ceveloped and considered for that use.
l (ii) Notification of Special Facilities in an Emergency The Comission believes that the Board reasonably decided Intervenors' concerns with regard to comunication with schools or special needs persons. The Comission notes only that the Applicants, among other things, comitted to supplying tone alert radios to 49
l Massachusetts EFZ schools as another means to assure tirely notificatien of the school population in the event of an emergency. No time for fulfillment of the comitment is provided.51 The Comission believes that this aceitional prctection for school children should be j
accomplished promptly and without unnecessary delay.
However, we do not r
l believe that the matter is significant such that it must be accomplished prior to issuance of the full power license.
I (iii) The Sheltering Option for the Beach Population in Massachusetts j
Our separate opinien today ceciding the certified question is relevant to Intervenors' arguments with regard to en alleged inacequacy l
in the range of options for the beach population.
That opinion confires that the acequacy of any emergency plan is not to be judged with specific i
reference to some minimum level of dose bevings. A plan is to be judged under the Comission planning standards, which resulted from a comprehensive public rulemaking which included consideration of the ways
[
to assure effective emergency responses to radiological incidents.
Th'e Boarc's finding that the SPMC contains a range of possible protective 52 options for people in the Massachusetts' portion of the EPZ, even though l
not every option is necessarily available everywhere appears reasonable.
l (iv) Congregate Care Facilities LBP-89-32 describes the SPMC's provisions for Congregate Care l
Centers for school children and for mobility-impaired persons who do not L
require hospital care.
The Holy Cross College in Worcester will serve as l
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J e Host School Center for all the Massachusetts EPZ's public, private.
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k, daycare, and nursery school children.
The primary Host Ambulatory i
Special Needs Center would be located at the Shriners' Auditorium in e
p Wilmington, while a backup Congregate Care Center for' excess members of the ambulatory special needs population would be located at a large j
facility known as the Westborough facility.53 f
Section 10 CFR i 50.47(b)(8) requires that " adequate emergency facilities and equipment to support the emergency response are provided and maint++r N."
10 CFR 50.47(b)(10) states, in part, "that a range of i
protective octions have been developed for the plume exposure pathway EPZ
[
for emergency workers and the public." Criterion II.H 4 of Supplement I t
to NUREG 0654 states as guidance for meeting the regulatory criteria that "esch offsite response organization shall provide for timely staffing of the facilities and centers described in the offsite plan." Criterion
'I.J.10.d of Supplement 1 states that "the offsite organization's plans i
to implement protective measures for the plume exposure pathway shall include the means of protecting those persons whose mobility may be impaired due to such factors as institutional or other confinement.
These means shall include notification, support, and assistance in implementing protective measures where appropriate."
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53 It is alternatively spelled "Westboro" in LBP-89-32, passim, and in other documents.
51
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Adequacy of the Westborough Facility The Board found that the Shriners' Auditorium can accomodate i
roughly half of.the Massachusetts special needs population who are not school children.54 The Westborough facility is to be available es a backup to accommodate the over 1000 special needs persons who cannot fit t
i into the Shriners' Auditorium in the event that the protective action chosen requires that the entire special needs population be accommodatea.
The Board noted that FEMA evaluated the Westborough facility for the i
general population who would evacuate the EPZ, but not as a facility suitable for the needs of mobility-impaired evacuees.
Id.
at n.52.
LBP-09-32 indicates that, with the exception of the Westborough l
facility as a Congregate Care Center for mobility-impaired persons, FEMA found all of the Congregate Care Centers in the SPMC to be adequate.
Since the Westborough facility is described in LBP-89-32 as a backup Congregate Care Center for excess numbers of mobility-impaired evacuees, the Comission believes that evaluation of its adequacy for this purpo,se would be beneficial. Accordingly, the Director of the Office of Nuclear
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Reactor Regulation, in consultation with FEMA as aptropriate, should l
L evaluate the Westborough facility's adequacy as a Cringregate Care Center for mobility-impaired persons.
However, we do not believe that the
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matter is significant such that it must be accomplished prior to issuance i
of a full power license.
l 54LBP-89-32 at 338.
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(b) School officials' roles during Evacuation ano early stages of Congregate Care j
LBP-89-32 finds that the Host School Center at Holy Cross College would accommodate the Massachusetts EPZ's school children if they are 1
evacuated from their schools.
The Board further states its understanding S5 that the SPMC incorporates an " evacuation in place" concept whereby it is assumed that teachers, day care workers, and nursery school personnel will continue in their " service provider roles" while accompanying thtir charges through an evacuation process and into the early stages of l
congregate care.
Furthermore, facility administrators and supervisors are assumed by the SPMC to continue to exercise their pre-emergency authority, including calling for additional staff and assigning persons under their pre-emergency authority in a manner that best serves the needs of their group of evacuees.
In LBP-89-32, the Boaro rejected the MassAG's argument, similar to that advanced with respect to the NHRERP, that there is no " reasonable assurance" that Conrnonwealth school j
officials will continue in their pre-emergency roles in the event of an actual radiological emergency. As we indicated earlier in this opinion, we consider it reasonable to conclude that school children can be evacuated without teachers on the buses.
Relatedly, in LBP-89-32 the Board states that the Applicants will make SPMC orientation training available, during some unspecified time period, to Massachusetts School officials regarding the roles that the SPMC expects them to fulfill in a radiological emergency.
The Director of the Office of Nuclear Reactor Regulation should ensure that the 55j_d,.at314.
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s s
Applicants offer this orientation training to all appropriate Massachusetts EPZ school officials and that the training be made available so that it could be completed by the end of the 1989-1990 school session.
3.
The Motions to Reopen In three separate opinions, one issued before and two after LBP 89-32 and B9-33, the Licensing Board rejected three categories of contentions:
LBP 89-20 (ruling on low power testing contention), October 12,1989; LBP 89-38 (ruling on motions regarding onsite exercise)
December 11, 1989, and LBP-90-1 (Ruling on Intervenors' Motions to Admit a Late Filed Contention and Reopen the Record Based Upon the Withdrawal of the Massachusetts E.B.S. Network and WCGY) January 8, 1990.
We discuss them briefly in turn.
The low-power testino contentions The Licensing Board declined to reopen the hearing to admit the low power contentions in which Intervenors wished to explore anew operator qualifications based on operator misjudgment during low-power testing.
Key to its decision was the determination that low-power testing is not material to the grant of a full power license and therefore is not automatically subject to litigation as Intervenors maintain. The Licensing Board is clearly correct in that full power licenses may issue without a previous issuance of a low power license which would be otherwise needed to permit such testing.
Indeed, were each phase of pre-full power-operational readiness testing to open the door to relitigating the licensing issues it is doubtful that any plant would i
54
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j ase11 itself of the benefits of an early low-power testing. license.
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Ferhaps more importantly, the record shows that Intervenors' contentions 1
L are based on staff reports and that this is a matter to uhich staff has paid considerable 6ttention.56 The Board specifically noted that it had before it an " ample factual record" (LBP-89-28 at 41) from the affidavits l
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provided by the parties to make a determination on whether the issues were safety significant and explained why they were not. The Commission believes that the Board's conclusions are reasonable.
The September 18. 1989 Onsite Exercise Contentions An exercise of Applicants' onsite plan was held on September 18, 1989.57 Intervenors thereaf ter contended that the scope of the onsite exercise was insufficient to fully test the onsite plan.
The Board rejected the contentions based in part on Intervenors failure ~ to meet reopening standarcs but also, and more importantly, because of a failure to pleno how the alleged insufficient scope resulted in a situation where l
a fundamental flew in the emergency plan could avoid detection.
Significantly, the Board also found that the regulations which Intervenors claimed set the standard for the scope of the exercise were applicable to the full participation exercise but not to the exercise solely of the Applicants' onsite plan.
LBP-89-38 at 41. We do not here sununarize the Board's 41-page opinion, but express our view that the l
56A civil penalty has been assessed against the Applicants.
57The exercise followed the Consnission's denial of the Applicants' request for an exemption from conducting a test of the onsite plan within a year of issuance of a full power license.
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8 Board's treatment of this matter appears reasonable. Applicants' cnsite plan had been tested on several occasions before this one and no fundamental flaw was'shown. Given the prior review and exercises of the onsite plan, it strikes us as unlikely that a fundamental flew would have arisen, although-it is possible that there might be a lapse in reaciness.-
i To avoid such readiness lapses is the principal goal in requiring an i
annual exercise.
We also note that the scope of the exercise does not appear to be inconsistent with the scope of onsite exercises at other r
plants.
The EBS Contentions i
In its decision. LBP 90-1, the Licensing Board rejected contentions related to broadcast notification included in Intervenors' motions served-58 on November 3 or 9 and November 22. The motions were filed late in the process - et the most a few days before the SPMC decision - and raise the issue whether a motion of this sort can be so late that its consideration is simply precluded.
We do not address this issue here; we will consider, separate from the Seabrook prpceeding, the desirability of additional guidance regarding such late filed motions.
In any event, our effectiveness review here suggests that in the circumstances the Board's application of the reopening standards to these motions was reasonable.
t
! owe need not here address the confusion that apparently resulted from MassAG's withdrawal and resubmittal of his motion to admit the EBS contention.
56
f C.
Uncontested Issues, Verification of Conditions and Plant 3
Reactness i
1.
Uncontestec Issues and Verification of Conditions 2
As with any full power license, a full power license for Seabrook will necessarily contain numerous technical conditions which reflect the p"
Staff's prelicensing technical review of issues relevant to full power operation, t
As a result of the litigation of contested issues numerous 7
conditions were placec cn license issuance.
The Directcr of Nuclear
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t Reactor Regult. tion shall ensure that the license includes all of the necessary conditions and that those that are prelicensing conditions have been met. The requirements of this effectiveness order shall not be f
conditions in the license, as they represent requirements subject to change in the adjucicatory process. Nonetheless, interim compliance is necessary as stated and shall be confirm'ed by the Staff.
- 2. Plant Readiness On January 18, 1990 the Commission met in public session to receive l
briefings from the Applicants and the Str.ff on the readiness of the Seabrook plant to receive a full power license. Both reported that the plant was ready except for certain specified exceptions, and the i
Connission also requested some additional information. The Commission has on January 23, February 9, February 26, February 28, and March 1,1990 received notice from the Staff that those exceptions have been or are being resolved on the anticipated schedule, and that the plant is ready to begin ascension to full power operation.
In particular, the Staff completed detailed reviews of late-filed allegations including approximately 255 separate 57 t
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allegations prepared by the Ouality Technology Corporation for the Employees. Legal Project as well as 13 allegations of a private citizen who taped Seabrook control room radio transmissions between January 1989 and the end of January, 1990.
Based on these reviews, the NRC Staff concluded that none of the allegations represents concerns that are material to the issuance of a full-power license. Moreover,- the review determined that the majority of the concerns were restatements of allegations previously submitted and resolved.
In light of the foregoing considerations, the Commission's effectiveness review fully supports allowing the Licensing Board's authorization of issuance of a full power license to become effective, i
i IV. The Stay Motions The Comission's effectiveness review under i 2.764 is designed to enable the Comission itself to examine preliminar11y the matters decided by the Licensing Board in order to detemine whether the decision can, become effective and thus authorize issuance of a full power license.
While parties were invited by our rules to file effectiveness comments, the principal avenue for relief for parties seeking to preclude license i
issuance pending appeals is to seek a stay under i 2.788. Stays are a part of the formal adjudicatory proceeding, and the criteria for i
consideration of a stay under i 2.788 of the Comission's regulations are the same as those which the courts apply in granting or denying a stay 58
pending, appeal.09 See e.o., Viroinia Petroleum Jobbers Association v.
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Federal Power Consnission, 259 F.2d 921, 925 (D.C.Cir.1958).
Intervenors MassAG, SAPL, NECNP and the Town of Hampton filed their stay request on December 1, 1989.60 The Applicants and the NRC staff thereafter, on December 8 and 17 respectively, filed their responses in opposition to the grant of the stay.
A. The Irreparable Injury Factor Of the four stay factors, it is well established that the most crucial (factor) is whether irreparable injury will be incurred by the movent absent a stay." Alabama Power Company (Joseph M. Farley Nuclear Plant Units 1 and 2), CLI-81-27,14 NRC 795, 797 -(1981).
For that reason we turn first to Intervenors' claims of harm to them. The claims appeer to boil down to three categories of harm: 1) en alleged due process harm, focusing on a claim'that they are harmed by being forced to seek a stay of license issuance even after a victory before the Appeal Board; (2) an alleged cost and resource harm (3) an alleged harm from increased risks during operations by allegedly untrained operators.
595ection 2.788 establishes the following factors to be considered in reviewing a request for a stay:
(1) whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) whether the party will be irreparably injured unless a stay is rented;
- 3) whether the granting of a stay would hann other parties; and
- 4) where the public interest lies.
60New England Coalition on Nuclear Pollution filed a separate stay i
reauest on the same* day. The Consnission has considered it as well, along with stay requests included with a party's insnediate effectiveness Conynents, l
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Administrative Due Process I
F Intervenors claim that there has not been administrative regularity j
l in the conouct of this proceeding.
Intervenors particularly do not like L
end vigorossly object to the Comission's procedures pemitting licensing boards to evaluate whether a remand need block authorization of a i
license, requiring all contentions after the original stage to be subject 7
t to certain " timeliness" requirements, and allowing the Comission to step into a proceeding at any stage to offer guidanc'e to the parties.
The procecures to which Intervenors object are neither unprecedented nor aberrations; they have been in force for years and have been appliec to numerous nuclear power plant licensir:g proceedings before this one.61 i
Their application to this proceeoing is not a deprivation of due process.
q 2.
Financial and Resource Harm P
Intervenors claim that they will be harmed from the irretrievable commitment of resources associated with operation pending appeal and the
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alleged inability of the Applicants to meet the expenses of decomissioning in the event that they operate at full power and the license is later vacated upon final order of the Commission (or a court) r after review.
L There is no support for Intervenors' claim that the comitment of resources will cause a bias in favor of continuing the license in l
l L
l 61See discussion supra at sections II.B.1 and 2 and citations there L
provided.
60 1
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I' subsequent Comission decisionmaking.62 To the contrary, as the Intervenors themselves have recognized, the Comission has stated
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p repeatedly and categorically that it will not consider the comitment of resources to a completed plant or other economic factors in its l
decisionmaking on compliance with emergency planning safety regulations.
l See e.g., SAPL v. NRC, 690 F.2d 1025 (D.C. Cir. 1985).
Intervenors' further assertion that Applicants' financial condition will leave them unable to meet deconrnissioning expenses in the event a,
license is ultimately vacated totally lacks substance.
They claim that the Applicants would have no more than $43 million available at the end of the first year f rom the state funding source for decomissioning t,nd could have nothing from NP.C funding.
Intervenors are mistaken. The Applicants' surety bond for $72,126,456.00, required by the Comission
. for issuance of a low-power license, is effective until "the earlier of (i) a final non-appealable regulatory or judicial determination that the Seabrook Project has been granted a license...other than as contemplated by the issuance of the license for low power testing...or (ii) a final non-appealable regulatory or judicial determination that no further Pre-Operational Decomissioning is required." Surety Bond between Applicants and The Aetna Casualty and Surety Company as Surety, dated March 20,1989. Thus this bond is available during the pendency of appeals which could lead to vacation of the license. And, lest there be l
L 621ntervenors citation to NEPA cases for the proposition that the comitment of resources will prevent meaningful review is unavailing.
. The decisionmaking process under NEPA includes consideration of comitmen'ts of resources and economic factors, while the decisionmaking process for compliance with NRC emergency planning regulations does not.
61
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l any doubts on this score, we merely require that the bond, or a similar r
L one, be available pending appeals. Adding the available state. funds to l
t the~$72.1 million ave 11able from the surety, it is evident that Applicants here would have available over $115 million in the event that l
premature decomissioning were required. This large sum is close to j
what, under the Ccmission's decomissioning rules, would be required for -
i decomissioning of a plant which had been in operation for a long period of time. We find that fund sufficient to offset any claim of irreparable injury from lack of deccmissioning funds.03 In fact Applicants here have done far more to meet decomissioning expenses than our rules literally reovire.
i 3.
Increased Risk of Nuclear Accident by Alleged Lack of L
Competence of Seabrook Operators It is well settled that speculation about occurrence of a nuclear 7
accident does not constitute the kind of irreparable injury that would warrant a stay of full power operations.
E.o., Cleveland Electric Illuminatino Co. et. al. (Perry Nuclear Power Plant, Units 1 and 2),
L ALAB-820, 22 NRC 743, 748 n.20 (1985) c'iting New York v. NRC, 550 F.2d 745, 750-757 (2d Cir.1977) and Viroinia Sunshine Alliance v. Hendrie, 477 F.Supp.68,70(D.D.C.1979).
In an apparent effort to distinguish this settled principle, Intervenors argue that a June 22, 1989 event 4
53Intervenors use a figure of $242 million developed by the Applicants' in another context,as the " total deconsnissioning cost assumption." Intervenors' Stay fiction at 9.
The Commission does not recognize that sum. We assume that it includes decomissioning costs other than those necessary to avoid radiological ham which are not cognizable here.
62
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I ouring low-power testing, when Seabrook plant personnel erred in not tripping the reactor at the point first called for by the low power
. testing procedure, indicates inadequate training, operating proceoures-1 and performance, and that this in turn increases the risk of an accident.
We find this argument unpersuasive.
The error during low-power testing was significant, and led to enforcement and corrective actions.
But the~
t Board, after an exhaustive examination of the incident, based on affidavits from the parties and the extensive NRC Staff investigations of the event, found that reactor plant safety was never in question, that with this one exception plant staff performed well, that there was no evidence of willful noncompliance with NRC requirements or withholding of information from NRC, and that the event reflected only an isolated instance of a failure to adhere strictly to applicable procedures and did not represent a pervasive breakdown or fundamental flaw in Applicants' testing or training programs.
LBP-89-28 at pp 20-22, 28-43. We find the Board's careful discussion and evaluation of the safety significance of this event entirely reasonable and, based upon this and on Staff's and Applicants' own follow-on corrective actions, fail to see how the event evidences any increased risk of accident at Seabrook.
In fact we think that Intervenors' own affiants demonstrated that the Comission is holding the public safety in high regard.64 64The affiants noted that the NRC staff planned to evaluate the proficiency of all Seabrook shift crews under simulated accident conditions in mid-December 1989. Joint affidavit of Gregory C. Minor and Steven C. Sholly at 6.
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o B.
The Remaining Factors Given the lack of any showing of irreparable harm to Intervenors, a strong showing would need to be made on the remaining stay factors in order for any stay to be granted.
Our discussion of the litigated issues in our imediate effectiveness section is fully applicable here. That discussion indicates that Intervenors have certainly not made a strong showing that they are likely to prevail on the merits of further appeals.
We offer no comment at this point on how a stay could harm Applicants' interests or affect the reliability of electrical power in the New England area - matters which, if considered, could not bolster Intervenors' case in any event.
However, we do believe strongly that a stay at this point would be contrary to the public interest which underlies the mandate to us in 5 U.S.C. i 558 to complete license application proceedings within a reasonable time with due regard for the i
rights of the parties.
1 Conclusion For the reasons explained above, the Director of NRR may issue the license authorized by the Licensing Board in LBP-89-32 on a schedule consistent with the following provisions for a housekeeping stay. Given i
the controversy which has surrounded the Seabrook plant since these l
proceedings commenced, we fully expect that judicial review of this decision will be sought. As a courtesy to the parties, to permit the filing of judicial stay motions, the effective date of this decision will 64
i.;
be March 8, 1990.
If motions for a stay are filed by plant opponents
- with the'U.S. Court of Appeals within this period, then the decision's effective cate will be one week 6f ter the relevant motions are filed.
It is so ORDERED.
66 For the Co ssion
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~ v SAMUEL JNILK g,,g ecretary of-tt e Connission Dated at Rockville, flaryland this 1st day of liarch,1990 i
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66Commiss10ners Curtiss and Remick abstained from consideration of this matter, i
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g UNITED STAttl 0F AMERICA NUCLEAR RESULATORY COMM!!810N i
In the Matter of PUBLIC SERVICE COMPANY OF NEW t
Docket No.(si 50-443/444-OL l
t (Seaerook Station, Units I and 2) t t
i k
CERTIFICATE OF SERVICE i
i hereby certify that copies of the foregoing COMM M60 (CL1-90-031 DTD 3/1 have been served upon the f ollowing persons by U.S. mail, first class, excent' as otherwise notes and in accoreance with the requirements of 10 CFR Sec. 2.712.
Adannistrative Judge Administrative Judge G. Paul Bollwerk, 111 Thomas S. Moore, Chstrean Atomic Saf etY and LtCensing ADDeal AtostC Safety and Licensing Appeal Boarc Boaro U.S. Nuclear Regulatory Comenssion U.S. Nuclear Regulatory Coastselon Washington. DC 20555 Washington, DC 20555 Adannistrative Judge Howard A. Wilber Administrative Law Judge Atcott Safety and Licensing Appeal Ivan W. Smith, Chatrean Board i
U.S. Nuclear Regulatory Cosatssion Atostc Safety and Licensing Board U.S. Nuclear Regulatory Cometssten Washington, DC 20555 t
Washington, DC 20555 l
Administrative Judge Richard F. Cole Administrative Judge Kenneth A. McColloa
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Atomic Safety and Licensing Scare Atoste Safety and Licenstng Board L
U.S. Nuclear Regulatery Consission U.S. Nuclear Regulatory Coastssion Washington, DC 20555 Washington, DC 20555 Administrative Judge Robert R. Pierce, Esquire James H. Carpenter l
Atomic Safety and Licensing Board Alternate Technical Moaber U.S. Nuclear Regulatory Cosaission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Cosaission Washington, DC 20555 l
Edwin J. Reis, Esq.
Mitzt A. Young Office of the General Counsel Attorney U.S. Nuclear Regulatory Cosatssion Office of the General Counsel Washington, DC 20555 l-U.S. Nuclear Regulatory Commission Washington, DC 20555 l
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t Docket No.(s)50-aa3/444-OL
L COMM M60 (CL!-90-03) DTD 3/1 i
Suzanne Bretseth
' John Traficonte, Sec.
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Bears of Selectmen Town of Haasten Falls Chief, Nuclear Safety Unit Drinkwater Road.
Office of the Attorney General One Ashburton Place, 19th Floor 7
Heeston falls, NH 03844 Boston, MA 02100
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i Peter J. Brann, Esc.
Allen Lampert Assistant. Attorney General Civil Def ense Director J
Office of the Attorney General Town of Brentwood State House Station, 06 20 Frank!!n Street Augusta, ME 04333 Exeter, NH 03933 Willian Armstreno Anne Socoman, Chatraan.
Civil Defense Director Boarc of Selectmen Town of Exeter 13-15 Neweertet Road 10 Front Street Durhas, NH 03024 Exeter. NH 03B33
- R. Scott Hill-Whilton, Esquire Michael Santosuosso, Chairman Lagoulis, Hill-Whilton & McGuire Board of Selectmen 79 State Street South Hampton. NH 03827 Newbutyport,, MA 01950 l'
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Stanley W. Knowles, Chatrean Norman C. Katner Board of Selectmen Superintencent of Schools P.O. Box 710 School Administrative Unit No. 21 North Hampton, NH 03862 Atuani Drive Haapton, NH 03942 1
Sandra F. Mitchell Civil Def ense Director Deverly Hollingworth Town of Kensington 209 Winnacunnet Rosa Rom 10, RR1 Hampton, NH 03942 East Kingston, NH 03827 The Honorable The Honorable Bordon J. Huachrey Nicholas Marvoules i
ATTN Janet Coit ATTN Michael Greenstein United States Senate 70 Washington Street Washington, DC 20510 Sales, MA 01970 l
7-h$ck'tNo.(s)80-443/444OL A
- ~
- *COMM' M60 (CL1-90-03) DTD 3/1 l
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- 'oOlane Curran, Ese.
l La^Harmon' Curran & Toutley
. Thomas 6. Dignan, Jr., Esc.
1 2001 S Street, N.W., Suite 430 Ropes b Gray.
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. ashington, DC 20009 One International Place is Cottissic W
Boston, MA 02110
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- Robert A.'Backus Esq.
Backus, Meyer b Solonen
. Paul McEachern, Esc.
116 Lowell Street thaines 6 McEacnern I
Manchester,.NH 03104 25 Maplewood Avenue P.O. Box 360 Portsmouth, NH 03801 Gary W. Holmes, Esa.
Holces.& Ells Judith H. Mitner
' 47 Utnnacunnet Rose Counsel for Newburyport H4:ston, NH 03042 79 State Street Newburyport, MA 01g50
,. Susanne P. Egan
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{: Lagoulis, Hill-Wilton and Rotonet Seacoast Anti-Pollution League City Belletter Jane Doherty i
- 79 State Street 5 Market Street Portsmouth, NH 03801 Ne buryport, MA. 01950 L
George Iverson, Director 4shed N. Astrian, Esq.
145 South Main Street. P.O. Box 38 N. H. Office of Emergency Management Bradfore, MA 01830 State House Office Park South i
107 Pleasant Street Concord,, NH 03301
,leorge W. Watson, Esq.
Jack Dolan f
ederal Energency Manegement Agency Federal Energency Management Agency
.300 C Street, 8.W.
L 'ashington, DC 20472 442 J.W. McCoranck (POCH)
Boston, MA 02109
' eorge. D. Bisbee, Esq.
seistant Attorney General Paul A. Fritzsche, Esq.
ffice of the Attorney General Office of the Public Advocate 5-Capitol Street State House Station 112 Jncord, NH 03301 Augusta, ME 04333 110s.scnt by Federal Express in addition m3iled copies.
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c-1:JLhtlED UbNhC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 90 MAR -1 N1 :5 J COMMISSIONERS:
Y)rsicE OF SEC DCKEllNG % $[OVICl.
Kenneth M. Carr, Chairman BRANCH Thomas II. Roberts Kenneth C. Rogers James R. Curtiss M W ~
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Forrest J. Remick 8
In the Matter of Dor.ket Hos. 50-443-OL PUBLIC SERVICE COMPANY OF 50-444-OL NEW HAMPSHIRE, ~ET AL.
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Offsite Emergency (Seabrook Station, L' nits 1 ano 2)
Planning i
MEMORANDllM AND ORDER CLI 02 1.
Introduction In ALAB-922, 30 NRC 247, issued on October 11, 1989, the Appeal Board certified a cuestion to the Commission for resolution, pursuant to 10 CFR 5 2.785(d), under which the Appeal Board may " cert 1fy to the Commission 7
for its determination major or novel questions of policy, law or procedure." The question certified was the following:
"Whether the tiassAG's [ Massachusetts Attorney General's] testimony, which seeks to address the dnse reductions / dose consequences that will arise Under the NHRERP [New Hampshire Raotological Emergency Response Plan], is admissible as relevant to a determination of whether, in accoroante with the Commission's Shoreham guidance, the NHRERP will achieve ' reasonable and feasible' dose reduction under the circumstances so as to provide ' reasonable assurance that C& ^n :v lTl h
i l
i adequate protective measures can and will be l
taken'inaccordancewith10C.F.R.I50.47(a)."
i 30 NRC at 259, For the reasons which follow, we have determined that the testimony l
proffered by the Massachusetts Attorney General was admissible neither for
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the purpose mentioned by the Appeal Board nor for any other. To explain j
the basis of our decision requires us to set forth in some detail the l
context in which the admissibility of the proffered testimony was considered by the two Boards.
!!. Proceedings before the Licensing Board The Massachusetts Attorney General, in a contention first offered in 1983 and resubmitted in 1986, charged that the New Hampshire plan did not, I
as required by 10 CFR 6 50.47(a), provice " reasonable assurance that adequate protective measures can and will be taken" in an emergency, because on a summer weekend, with the nearby beaches densely populated by transients, evacuation would fail to protect persons on the beach under many plausible meterological conditions, and inadequate provisions had been made for sheltering these persons. The applicants objected to this contention on the grounds, first, thst the NRC's emergency planning regulations were not intended to guarantee absolute protection or a given i
level of protection, and second, that to litigate the contention would in effect be to relitigate the decision to site the plant at Seabrook. The staff opposed the contention to the extent it could be interpreted as seeking to litigate the dose consequer.:es of any specific accident or as asserting that emergency planning must achieve a particular level of dose protection to the public, but would have allowed its admission to '..te 2
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h the MassAG, called for a range of protective measures but here 'the plan did not provide for sheltering. The MassAG urged that while the Board was not required to make specific dose savings findings, or to calculate the number of people who would be injured in an accident, it was nevertheless l
t required to accept evidence on those issues in order to determine the adequacy of the protective measures provided by the emergency plan.
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Applicants objected to the offer of proof, arguing that it was an effort to reintroduce the contention rejected earlier, and that the 1
evidence was irrelevant, since it purported to show dose savings and f
consequences in absolute terms, whereas the regulation only required a showing that the emergency plan "is designed to achieve reasonable and feasible dose savings given the circumstances of the site in question.'.'
The staff agreed with the applicant, i
in a bench ruling on November 17, 1987, the Licensing Board determined that the proposed testimony was outside the scope of the l
Commission's emergency planning requirements, as outlined in three
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l Commission pronouncements on emergency planning.
TR 5594.
First, the Licensing Board said, the 1983 San Onofre decision (Southern Califernia Edison, San Onofre Nuclear Generating Station, Units 2 and 3. CLI-83-10, 17NP.C528,533), had emphasized that with regard to emergency planning, The errphasis is on prudent risk reduction measures. The regulation does not require dedication of resources to handle every possible accident that can be imagined.
The concept of the regulation is that there should be core planning, with sufficient planning flexibility to develop a reasonable ad hoc response to those very serious low-probabiTity accidents which could affect the general public.
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B.
Proceedings before the Appeal Board The issue of the exclusion of the proffered testimony came before the Appeal Board on its review of the Licensing Board's December 31, 1988-Partial Initial Decision on the New Hamphsire emergency plan.
In ALAB-S22, issued on October 11, 1989, the Appeal Board provided a different analysis of the issue from that of the Licensing Board, it declared that the focal point of the dispute was where the emergency planning regulations, with their requirement of " reasonable assurance,"
fit into the two-tiered regulatory scheme of the Atomic Energy Act. The Appeal Board explained that the Comission's safety regulations are either standards necessary to provide first-tier " adequate protection" (as authori:ed by Section 182(a) of the Atomic Energy Act) or are second-tier
" extra-adequateprotection"(measuresoverandabovewhatisneededfor adequate protection) as authorized by Sections 161(b) and (i) of the Atomic Energy Act. The distinction between the two was recognized, said the Appeal Board, in UCS v. NRC (UCS I), 824 F.2d 108 (D.C. Cir. 1987).
The intervenors, said the Appeal Board, claimed that 10 CFR 6 50.47 was a first tier " adequate protection" standard, and that the Commission could not determine whether " adequate protection" was provided without evaluating the degree to which the emergency plan still left the public at risk. This argument, said the Appeal Board, was "promptly dispelled" by an examination of the 1980 rulemaking that promulgated 10 CFR i 50.47.
In that rulemaking, the Commission cited as its authority Sections 161(b),
(1), and (o) of the Atomic Energy Act.
In the Appeal Board's words, "it is hard to imagine a more compelling indication that... emergency planning requirements are intended to be second-tier, AEA section 161 6
fc.
p.
1987 rule, in which the determination of ' specific dose reductions" was:
' ruled out. 'The latter approach, the Appeal Board said, suggested that "given the ' extra-adequate protection' status of emergency planning requirements," review of emergency plans should concentrate not on a r
subjective. Judgment of whether the protection afforded to the public is
" adequate," but rather on conformance with the requirements of the regulation and the pertinent NRC/ FEMA criteria. Accordingly, the Appeal Board certified to the Commission the question of whether the MassAG's testimony was admissible as relevant to a determination of whether the New Hampshire plan would achieve " reasonable and feasible dose reduction under the circumstances" so as to provide " reasonable assurance that adequate protective measures can and will be taken." 30 NRC at 259.
On October 20, 1989, the Massachusetts Attorney General asked the Appeal Board to reconsider its decision that erergency planning regulations represented a "second-tier" or " extra-adequate" level of protection under Section 161 of the Atomic Energy Act rather than "first-tier" protection under AEA Section 182. The petition urged that the transcript of the 1980 Commission meeting at which the language of the emergency planning rule was crafted was evidence that the Appeal Board erred on this central point. The Massachusetts Attorney General argued that the citation to Section 161 in the 1980 rulemaking was without i
significance, and it noted that the Comission's fire protection rule --
by the NRC's own account a first-tier " adequate protection" standard ---
had been issued under Section 161. The petition also noted that the two-tier theory had not been articulated until years af ter the 1980 rulemaking on emergency planning. Massachusetts offered a dif ferent 8
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r was crucial to a correct understanding of the Comission's intent, the Comissioners directed that the transcript be included in the rulemaking record.
According to the intervenors, the Appeal Board, in relying on the f
citation to Sections 161(b), (1), and (o) -- an issue which the Appeal l
Board itself raised, none of the parties having done so -- ignored the l
1980 Authorization Act in which Congress directed the NRC to develop emergency planning regulations. Although the Comission's final rule in 1980 included a statement that th'e rule was consistent with the i
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Authorization Act, that Act did not appear in the list of authorities.
j Thus the list is incomplete on its face.
Furthermore, the Comission has named Section 161 as the sole basis of such safety-based rules as the fire protection rule, cited by the Comission in an appellate brief as an example of a first-tier " adequate protection" backfit.
In real uy, the citations to Sections 161(b), (1), and (o) simply designate regulations to l
which criminal penalties under 42 U.S.C. 2273 are intended to apply. Any c'oubt is eliminated when it is recognized that in the 1980 version of 10 CFR, the General Design Criteria of 10 CFR Part 50, Appendix A, were not described as based on Section 182.
Intervenors claim that the Appeal Boarc's quotation from the Comission's 1986 Shoreham decision was misplaced.
Although some of the quoted language might suggest that emergency planning was not designed to achieve or maintain a regulatory minimum of protection, the 1980 t
rulemaking was unambiguous on that point, and it is controlling.
- Indeed, in 1983 the Commission, in response to a Congressional question, made clear that it saw emergency planning as a matter of adequate protection, 10 t
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I-f that utilities have spent on emergency planning since 1980 if those requirements were not viewed as necessary for adequate protection. The Appeal Board did not deal with the 1980 Authorization Act, in which l
Congress'made clear that emergency planning was designed to prevent "public endangerment," 1.e., first tier.
In statements to the Congress, Comissioners made clear that they shared Congress' view that emergency E
planning regulations were in place to assure " adequate protection."
f Once it is recognized, say the intervenors, that emergency planning u a first tier safety standard, then there are three different approaches under which the Massachusetts Attorney General's proffered testimony is admissible:
(1) to contribute to a case-by-case evaluntion of whether the risk posed by operation of Seabrook is acceptable; (2) for a determination of whether a " range of protective measures," as required by the' planning standards of Section 50.47(b), have been provided; and (3) to judge I
whether the plan achieves " reasonable and feasible dose reductions under the circumstances," to quote the Cornmission's 1986 Shoreham decision. The phrase "under the circumstances" should be understood to refer simply to L
the case-by-case nature of the inquiry, not to suggest that a "best i
efforts" showing is all that is needed. The Commission's November 1987 final emergency planning rule rejected a "best efforts" approach, i
Finally, intervenors argue, there is no "exclusionary rule" in !!RC proceedings that would bar testimony on dose consequences.
The evidence on dose reductions and dose consequences that the Massachusetts Attorney General has sought to introduce is plainly relevant to the adequacy of the L
The only way that such obviously relevant evidence could be excluded is the existence of some policy barring its admission. Such L
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c amendments to the Comission's emergency planning rules lay to rest any j
suggestion that the profferred testimony could be admissible. The i
proposed rule emphasized that the emergency planning rules were flexible, j
not aimed at achieving preestablished minimum dose savings.
The final
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rule made the same point, declaring that findings as to precise dose j
reductions "are never a requirement in the evaluation of emergency plans,"
1 and that emergency plans were to be evaluated individually, "without reference to the specific dose reductions which might be accomplished
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under the plan...."
The foregoing demonstrates that the evidence proffered by the intervenors was irrelevant, since all that must be shown 9
to satisfy the NRC's requirements is that the emergency plan is " designed to achieve reasonable and feasible dose savings given the circumstances of the site in question." Once that is shown, it is irrelevant "whether these dose savings will be high or low in absolute terms at a particular site in the circumstances of a given accident or class of accidents."
The Appeal Board was correct, applicants argue, in finding that the NRC's emergency planning rules, having been promulgated under Section 151 of the Atomic Energy Act, constitute "second tier" protection under the two-tier formula described in UCS I.
Citations of authority are required by the Administrative Procedure Act, and are not merely some afterthought to which the agency may or may not give consideration. The 1980 Commission transcript on which intervenors rely is at best inconclusive.
It does not remove the ambiguity as to the meaning of " adequate protective measures" in the regulation, but it does make clear that the emergency planning rules were not intended as a " site blocking" regulation.
Moreover, the 1987 emergency planning rules commented on the 14
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l-level of public saf ety protection," such as 10 CFR $ 100.11, which establishes the exclusion area and low population zone in terms of doses to individuals. This language clearly shows emergency planning regulations to be second tier.
-i Finally, say the applicants, the discussion in the Comission's 19P7 proposed rulemaking makes clear that any anbiguity was to be resolved in favor of calling emergency planning rules second tier. The final rule mace the further point thrt the.120-day clock in the 1980 rule showed the
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second tier status of emergency platining requirements.
3.
NRC Staff According to the NRC staff, the Comission's regulations -- the plain wording of Section 50.47(a)(1), the pertinent administrative history, and prior Commission interpretations -- all demonstrate that the Licensing i
Board was correct in excluding the proferred testimony. The regulation cells for determinations by FEMA on the adequacy and implementability of offsiteplans,inaccorcancewithplanningstandardsofSection50.47(b).
The regulation does not provide for a dose reduction / dose consequences analysis, but rather for a review of the plans against the standards to see if they are adequate and implementable. The Statement of I
Considerations of the 1980 rule did not indicate that there was to be any e
I examination of radiological doses and consequences. The Commission there l
l recognized that FElm was best suited to asse;s offsite emergency preparedness. The NRC final rule restated, and cited, the guidance of NUREG-0654/FEt%-REP-1, which states that the planning basis for the standards was a spectrum of accidents, independent of specific accident 16
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h i
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~ Section 182, the Commission's regulations do not call for dose j
calculations, but rather for conformity with standards set out in the regulations.
In this regard they are like many of the Commission's most basic safety regulations, such as emergency core cooling standards and quality assurance requirements.
If the intervenors wished to challenge-j the adequacy of the rule, they could have petitioned for a rule change, and they could have asked for a waiver of the rule in this case.
- Instead, they are.att6mpting to engraft onto the rule requirements over and above
.I those established by the Commission.
To answer the certified question directly, the NRC staff maintains, the phrase " reasonable and feasible dose reductions under the circumstances" in Shoreham envisioned testimony not on dose projections and dose consequences, but on reasonable and feasible methnds of dose reduction for a particular site under the circumstances existing there.
The Licensing Board received such testinony and concluded, as had FEMA, that the hew Hampshire emergency plan provided "for a range of protective actions."
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e' On the other hand, the Comission rejected an l
option in the ruleukieg that could have led to caton.atic plant shutdown if adequate plans were l
not filed tecause of commenters' concerns about i
- vnnecessarily harsh econca n and soc 641 l
consequences to State and local 9tderuments, t
utilities, and the public.' Operatire plants were i
given very substantial grace periods....These i
provisions are not consistent with the concept
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that emergency planning and preparesness are as l
important to safety as such engineered softguards l
as reactor containments or emergency core cooling l
systems.... Rather, these provisions reflect a dif forent concept - tlist a6 equate emergency l
planning anc preparedness are needed and 1mportant, but tiat they represent an additional i
level of public prctection that comes into play i
only after all of tne other safety requirements i
for plant design, cu611ty ennstruction, and 3
careful, disciplined operation have been considered, and that tterefort sorte repplatery l
flexibility is warranted and the costs associated witt 61ternative approactes may be 16Len into l
account.
l The Commission's notice asked for comment on which of the two t
approaches shoulo be followed:
7 a relatively inflexible ene, that will recuire i
6dequate planning and preparedness with little or T
reo concern for fairness or cost; or a more tiexible one that focuses on what Lind of accident nitigation (dose reduction to the public in the event of an accident) can be reasonably and feasibly accomplished, considtring all of the circumstances. If sound safety regiiTation requires the former, then no rule change is warranted.
If the latttr, then a change would be i
in order....
In other words, the Cornission's March 1987 proposed rule recognized explicitly that to rnove from en
- adequate protection" standard to a
- second tier
- or backfit stancard, a rule change would be needed, j
i The Commission's November 1967 final rule, 52 Fed. Reg. 42078 disavored any intent to move f rom the fortaer to the latter approach. The Cone,1ssion began its answer to the question, "Is energency planning as 20
i i
Planning does not automaticelly raise a
- Substantialhealthorsafetyissue*withregard to plant operation.
By contrast, a major sa' ety i
6eficiency relating to emergency conditions.. for example, the ave 11 ability of the emtrgency core i
cooling system -- would warrant inaediate i
sbutdown.
In sum, despite language indicating that om ency planning was
- essential," the Commission in l '60 created a regulatory structure in which emergency planningwastreatedsomewhatdifferently,in terms o' the corrective actions to be taken when l
deficienciesareidentified}thatwouldberelied l
from the engineered safetyfeatures(" hardware
- on in an emergency.
j The feregoing discussion fro:r the 1987 final rule helps to clarify the real nature of the issue in dispute. The relevant consideration is
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l not whether emergency planning as a general matter is a part of " adequate j
protection" or of
- extra adequate protection." The Commission's I
rulemakings of 1980 and 1967 establish that it is the former.
(Wedonot f
share the Appeal Board's view of the significance of the citation to Section 161 in the 1980 rulemaking.) To frare the issue in terms of a
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simple choice between " adequate' and
- extra-adequate" protection is to i
lose sight of the reality that when the Comission enumerates the many f
individual safety issues which must be resolved in order to find " adequate t
protection," it is rot thereby declaring that all those component issues t
are of equal safety significance, or that the same standards for t
l demonstrating compliance are applicable to all.
For illustration, one need only consider the gamut of issues presentedin10CFR50.34(b),dealingwiththeFinal56fetyAnalysis Report. These incluce:
a description of the rt6ctor coolant system, i
instrumentation and control systems, electrical systems, containment system, anc ether engineered safety features (!0.34(b)(2)(1)); the F
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I Sense to acknowledge that emergency plans, like lifeboats, are a backstop.
I a second or third line of defense that comes into play only in the j
n extremely rare circumstance that engineered design features and human j
i capacity to take corrective action have both failed to avert a serious mishop.) For our purposes today, the real issue is a much more straightforward cuestion: what is the nature of the inquiry that the l
Coreission, in recognition of the fact that emergency planning involves j
predicting the ability to respond to the unpredictable, has put in place for determining whether
- adequacy,* i.e., compliance with the Comission's f
emergency planning regulations, has been established?
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2.
How Adequacy is betermined l
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The Comission's emergency plerining requirements are not obscure.
In l
1 the text of the regulations, in rulemakings on the subject of emergency
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i planning, and in adjudicatory decisions interpreting those regulations, j
the Commission has mace clear that judgments on the adequacy of emergency l
t planning are to be based on conformity with the 16 planning standards set forth in 10 CFR i 50.47(b).I for off site planning, the regulations I 10CFRi50.47(b)provides:
The onsite and, except as provided in paragraph (d) of this section, i
off-site emergency response plans for nuclear power reactors must meet the following standards:
I (1) Primary responsibilities for emergency response by the nuclear facility licensee and by State and local organizations within v
the Emergency Planning Zones have been assigned, the emergency respor.sibilities of the various supporting organizations have been specifically established, and each principal response organization (FootnoteContinued)
P
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1mplemented.'
10CFRi50.47(a)(2). This FEM finding *will primarily be
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based on a review of the plans.* jf.
The same regulation also provices that *[i]n any NRC licensing proceeding, a ftM finding will constitute a
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rebuttable presumption on questions of adequacy 'and implementation l
capability.*
10CFRi50.47(c),whichstatesthattheCornissionmay declinetoissueanoperatinglicenseincaseof*[f]ailuretomeetthe l
applicable standards set forth in paragraph (b) of this section,'
reinforces the point thtt adequacy is to be judged by conformity with the f
planning standards.
Nothir.g in 'the regulation contains any suggestion that calculations of cose consecuences are intended to play a role in the evaluation of a plan's acequacy, i
i (footnoteContinued) i (10) A range of prottetive actions have been oevelopt-d for the plume exposure pathway EPZ for emergency workers and the public.
Guidelines for the choice of protective actions during an emergency, consistant with federal guidance, are developed and in place, and protective actions for tse ingestion exposure pathway EPZ appropriate to the 1ccele have been developed.
(11) Neans for contro111ng radiological exposures, in an emergency, are established for emergency workers. The means for l
contro111rg radiological exposures shall itcluce exposure guidelines consistent with EPA Emergency Worker and Lifesaving Activity protective Action Guides.
(12) Arrangements are made for medical services for contaminated injured individuals.
I (13) General plans for recovery and reentry are developec.
(14) Periodic extreises are (will be) conducted to evaluate major portions of emergency respoi;se capabilities, periodic crills are (will be) conducted to develop and maintain key skills, and deficienciesicentifiedasaresultofexercisesordrillsare(will i
be) corrected, (15) Radiological emergency response training is provided to those who ng.y be called on to assist in an emergency.
(16) Responsibilities for plan oeveloprent and review and for distribution of emergency plans are established, 6nd planners are 1
proptrly trained.
26
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tor it is by applying the generic guidance of the regulation's 16 j
l standards to the review of incividual emergency plans -- not by attempting to predict the effects of particular hypothetical accidents occurring under particular hypothetical conditions of weather, time of year, and
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tipe of day. that the NRC satisfies itself that the 904) of achieving oose reductions is. met.
The Connission interpreted and taplained its emergency planning i
requirenents in the 1983 54n Onofre decision, where it said:
l t
since a range of accid'ents with widely differing consequences can be pcstulated, j
the regulation does not dtpene on the i
assumption that a particular type of i
accident may or will occur.
In f act, no specific accident sequences should be specified because tech accident could have eifferent consequences both in nature and i
degree. Although the energency planning i
basis is independent of specific accident sequences, e nun:ber of accident descriptions l
were considered in development of the J
Connission's regulations, including the core nelt accident release categories of the Reactor Safety Stucy (WASH 1400). (footnote i
omitted.)
Southern Californie Edison Co., ($cn Onofre Nuclear Generating Station, i
Units 2 and 3), CLI-8310,17 NRC 528, 533 (1983).
l The Connission further explained:
i It was never the intent of the regulation to i
require directly or indirectly that state and local governments adopt extraordinary raessures, such as construction of additional hospitals or recruitment of substantial acditional nedical persennel, just to deal with nuclear plant accidents. The emphasis is on prudent risk reduction measures. The regulation does not require dedicetion of resources to handle every possible accident that can be imagined. The ccncept of the regulation is that there should be core planning with sufficient planning flexibility Il
O 24 NRC 22, 30, 32.
Recognizing that the language just quottc lent itself to the interpretation that findings on dose reductions are a part of the energency plahnirg inquiry, the Comission soon provided a clarification.
In the final emergency planning rule, $2 federal Register 42078 (November j
3,1907), the Comission stated:
(
The Counission currently believes that the planning standarcs of 10 CFR 50.47(b), which are also used to evaluate a state or local plan,lut,te a provide an appropriate frarework to eva l
utility plan. Therefore... a utility plan...
l will be evaluated for acequacy against the same j
star.dards used to evaluate a state or local plan, j
TU approach refitctec in this rule amplifies and cit rifies the guid6nce prcticed in the Commission's decision in Long Islard JLi.hting Co.,
($horeham Fuclear power Station, Unit 1),
CL1 BC 13 24 NRC 22 (1986).... Thet decision...
l ir.cludedlarguagewhichcouldbtinterpretedas envisioning that the NRC must estimate the i
radiolcgical dose reductions which a utility plan a
would achieve, compart them with the radiological
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dose reoucticos which would be achieved if there i
were a state or local plan with full state and r
local participation in emergency planning, and i
permit licensing only if the dose reductions are l
- gererally comparable." Such an interpretation would be ccrtrary to FPC practice, ur.cer which i
energency plans are evaluated for adeousey without l
Tiference to nur:erical c; cts reductions which niicht be acio'niplished, anc w~ithout comparing them to
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IItk_tr energency plans, real or hypothetical.
The final rule makes clear that every emergency plan i
is to be evaluated for edecuacy_on its own merits, l
without referer.ce to the speciYic dose recuctions Which n.Uht be accotoplishec uncer the plan or to the capat'ilities of any'other plan.
It further makes clear that a finding of adequacy for any plan is to be considered generally comparable to a finoing of adequacy for ar.y other plan. (Emphasis added.)
52 federal Fegister 42078, 42084-85.
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r-o find that there was no purpose for which the proffered testimony was nomissible.
In concluding, we wish to make clear that this opinion does not decide whether emergency planning at Seabrook is adequate, nor whether that f acility should receive a license to operate at full power.
- Rather, it provides, in accoro6nce with our procecures for directed certification, guidance as to how, under the Commission's rules, ceterminations on the adequacy of emergency planning are to be mace.
It is 50 ORDERED.
2 For the Comm1 ton
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e A
>.'c 0
5A!!UEL J. 0 ULA
- e,,4,0 Secretary of the Tommission Dated at fockville,)Marylan#,
this IP day of Jud
, 1990.
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l Commissioners Curtiss and Remick abstained from consideration of this matter.
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o UNITED STAffl CF AMERICA NUCLEAR Rt&ULA1 CRY COMMilllCN In the Matter c4 4
PulLIC stRVICE COMPANY cr htW I
Docket No.(si 50 443/444 OL I
MAMPSHIRE. if AL.
I (lestreek Statten. Units 1 anc 2)
I l
l fI CERf!FICAft OF BERVICE l
t I hereby certif y that testes of the f oregoing COMM P60 (CLl 40-026 - 3/1 l
have teen serves upon the ic!)canng persens by U.S. est), first class, estest se otherwise notes one in acecreante with the reeutrements of 10 CFR lot. 2.712.
I t
Afstnistrative Juege Adeintstrative Juste
- 8. Paul IcIlmert. !!!
Theses 6. Metre. Chatrean Attent Safety anc Licentino Appeal Ateelt Saf ety one Licensing Appeal leere Boere U.S. Nuclear Regulatery Ceratssten U $. Nuclear Regulatcry Ceettosten i
Washington DC 20t!!
Washingten OC 20!55 Assinistrative Juege Homere A. Wilber i
Asetnistrative Law Judge Atentt Safety one Licensing Appeal Ivan W. Istthe Chairsen Beare Atcett fafety and Licensing Board U.S. Nuclear Regulatcry Cctatssten U.S. Nuclear Regulatery C064tssten
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Washington. DC 20555 Washington, DC 20555 Againistrative Judge Againtstrative Juege Richard F. Cole Kenneth A. McColles Atette Safety ane Licensing feare Ateste Safety and Licensing Beare
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U.S. Nuclear Regulatcry CeeStssten U.S. Nuclear Regulatory Cossissten i
Washington. DC 20555 Washingten. DC 20555
[
i Adelnistrative Judge l
Robert R. Pterte, tenutre Jones H. Carpenter Ateelt lafety and Licensing Board Alternate Technical Meeter U.$. Nuclear Regulatory Ccesission Ateelt Infety ans Licensing Beare Washington DC 20555 U.S. Nuclear Regulatory Coastesten l
Washington, DC 20585 I
t Edwin J. Reis, tee.
Mitti A. Young I
Offits of the 6eneral Counsel Attorney U.S. Nuclear Regulatery Cetetssten Office of the general Counse!
I Washingten. DC 20555 U.S. Nuclear Regulatory Ccestesten Washington, DC 20555 i
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i Decket No.(slS0-443/444 OL CDRM r.60 (CL1 90-02) - 3/1
- Diare Curran. Ese.
- Theses 4. Dignan, Jr., toe.
Hereen, Curran & Tousley Repos 6 Irsy 2001 8 $treet, N.W., lut te 430 One Internattenal Plate Washington, DC 20009 Besten MA 02110
- Robert A. Backus, Esc.
- Paul Metachern, Est.
Backus, Meyer 6 leiteen thatnes 6 Metachern t
116 Lomell Street 25 Maple =cce Avenue P.O. les 360 i
Manchester, NH 03106 Portsmouth. NH 03001
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l Gary W.
Holaes, Esc.
- Judit h H. Minner Helses & Ells Counsel fer Weeturypert 47 Winnatunnet Road 79 State $treet Heepten, NH 03042 Newburyport MA 01950 j
i lusanne P. Egan Jane Doherty City lelicitor Beacoast Anti Pellution League t
I,agewils. Hill W!! ten and Retenen 5 Market Street 79 ltate Street Portsecuth, NH 03001 Ne=Durypert, MA 01950 leerge
!verson, Diretter
- Ashes N. Astrian, Est.
N. H. Office of toergency Managesent 145 Seuth Mann Street, P.O. Icx 38
$ tate House Office Park South trasfere. MA 01030 107 Pleasant Street Concordi. NH 03301 l
- George W. Watson, too.
Jack Delan Federal Energency Management Agency Federal toergency Managesent Agency 500 C 5treet. S.W.
442 J.W. McCorsack (PCCH)
Washington, DC 20472 letten. MA 02109 i
e teorge D. Bisbee, Esc.
Paul A. Fritische, Est.
Assistant Attorney General Office of the Public Adyctate Office of the Attorney general State House Station !!2 25 Capitol Street Augusta, ME 04333 Conters, NH 03301 i
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1 lutenne Bresseth
- John Trafitente, fee.
j lears tf telettaen Chief, Nuclear Safety Unit i
Town of Naseten Falls Office of the Attorney 6emeral i
Drinkmater Rees One Ashburton Platek 19th Floor Hanoten Falls. NH 03844 letten. MA 02100 Peter J. Irann, Est.
Allen Lassert assistant Attorney General Civil Defense Director OHtte ci the Attornov General Teen of trentuees State heute Itatten. 46 20 Franklin Street Augusta. Mt 04333 tieter. NH 03033 Willies ersstreng anne steesen. Cnaireen Civil te4ense Director lears of telettaen Teen ei taster 13 l$ Nemoarket Rees 10 Front $treet Durnas, NH 03924 tieter. NH 03033
- R. $tott Hill hhtiten.tsautre Michael Santesuesse. Chatrean Lageu!!s, Hill Whilton 4 Meluire lears ei telettten 79 State Street leuth haeoten. NH 03027 Nemouryport.. MA 01950 5 tar. lev W. Kneales. Chatraan Nereen C. Katner les*e tf telectsen lucerintensant of Itheels P.O. les 710 school Assinistrative Unit No. 21 North Haeoten. NH 03862 A!vant Drive Heepten, NH 03042 lanera F. Mitchell Civil Defense Diretter Beverly Hellingworth Tenn of Kensingten 209 Winnatunnet Road les 10. RRI Hanoten. NH 03942 Last Kingston NH 03027 The Hencrable The Neherable Screen J. Huaphrey Nicholas Marveules ATINI Janet Colt ATTW: Michael Greenstein Unitee States Senate 70 Washington 8treet Washington DC 20510 Bales MA 01970 1
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Docket No. (sil0 443/444 OL I
COMM P.60 (CL190 02) 3/1 i
Dates et Rockvills. Ms. thtt j
1 sov 0( Merch 1990
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s 0(ftte of the letretary Of the C66sitet9h i
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- Ccpies sent by Federal Express in addition to mailed copies.
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