ML20024F244
| ML20024F244 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 08/29/1983 |
| From: | Rothschild M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8309090119 | |
| Download: ML20024F244 (19) | |
Text
,
8/29/83 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of TEXAS UTILITIES GENERATING
)
C0t1PANY, et al.
)
Docket Nos. 50-445
)
50-446 (Comanche Peak Steam Electric -
)
Station, Units 1 and 2)
)
NRC STAFF OBJECTIONS TO FR0 POSED INITIAL DECISION I.
INTRODUCTI0f:
On July 29, 1983, the Atomic Safety and Licensing Board ("the Board")
issued a " Proposed Initial Decision (Concerning Aspects of Construction Quality Control, Emergency Planning and Board Questions)" (hereafter "ProposedDecision"). The Proposed Decision is the first decision relat-ing to the merits of the contested issues in the Comanche Peak operating licensing proceeding.
It concerns (1) certain allegations raised by l
Intervenor's witnesses relating to Contention 5 (construction quality l
assurance / quality control), (2) Contention 22 (emer ancy planning), and (3) four " Board Questions." As the Board noted, hearings on those matters were completed on September 17, 19821/andproposedfindingsof l
fact were received from the parties on February 25, 1983.
(Proposed l
Decision,at1).
l
-1/
The decision does not cover the "Walsh/Doyle" allegations, or other "particular allegations" which were the subject of hearings held l
after September 17, 1982.
(Id.,at5).
$o0'$ocK05000445 DESIG RTED 04IGIK4L \\ \\{
0119 B30809 l
G l
Al]>]8i PDR cer 1tsca 37
With respect to quality assurance / quality control, the Board stated it did no't attempt to evaluate the overall efficacy of the quality assurance program in the proposed decision but rather, whether any of the alleged deficiencies raised by the Intervenor's witnesses are suffi-ciently serious and uncorrectable that the plant, due to those deficien-cies, cannot operate with the requisite degree of safety.
(Proposed Decision,at5.) While the Board declared Intervenor CASE to be in default on each allegation on which it has not filed findings of fact, (Id., at 2) the Board nevertheless stated that it had " examined each important allegation that is in default in order to determine whether to raise any of these defaulted issues by ourselves (sua sponte)."
(Id.)
Although the Board did not raise any issues sua sponte in this initial decision, it identified, with respect to Contention 5, certain "open items" for which additional evidence is needed before the Board can determine whether or not to declare a sua sponte issue.
(Id.)
Concerning emergency planning (Contention 22), the Board declared Intervenor CASE to have abandoned the contention, noting that CASE had neither filed proposed findings of fact nor pursued that contention vigorously (ProposedDecision,at51-52). Nevertheless, the Board determined, with respect to emergency planning in general, that it "is not satisfied that the plans as presently constituted are adequate."
(Id.,at52). The Board did not, however, raise any sua sponte issues with respect to emergency planning in accordance with 10 C.F.R. 5 2.760a (i.e., determine that any serious safety, environmental or common defense and security matters exist).
(Id.) Rather, the Board
+
,c-w w
}
intends to " continue to observe the development of the emergency plans and may raise issues sua sponte later if commitments are not met or deficiencies are not rectified."
(_Id. )
The Board noted that it adopted the unusual procedure of issuing a
" proposed decision" because two of the three members of the present Board (Judges Bloch and Jordan) became Board members after completion of hear-ings on the matters'it addresses in the decision.
(ProposedDecision,at 2). The effect of designating the decision as " proposed" is to permit F
thc. Board to invite comments, in the form of objections to its " tentative conclusions" before the Board becomes comitted to them.
Qd. )
The Staff has set forth below its. objections to that portion of the Proposed Decision relating to emergency preparedness. The Board correctly
[
ruled that CASE has abando'ned Contention 22 and accordingly, the Staff
~
~
submits that the Board should. dismiss Contention 22 as an issue in con-
~
.troversy in this proceeding.E LThe Board has erred as a matter of law in
' leavino the~ record on emergency planning open'in the absence of any issue in coatrove-sy,or declared sua sponte issues. Absent any such issues,
[
ths Board has no further responsibilities with respect to emergency pre-l 1
paredness. Accordingly, the Board should close the record on Contention 22
'/ /
- 2/
The' Staff notes there11s a distinction between CASE's abandonment of
~
J.
all aspects of Contention 22 (see Proposed Decision at 50-51) and its abandonment of some aspects oflontention 5.
Contention 5 is a broad conterition calling.-into question the Applicants' entire quality
- Id., at 4). Thus, while CASE's failure to file assurance program (ii certain of its suballegations constitutes aban-proposed findings o Id., at 13), the underlying donment of 'those portions of its case (iifogram remains a matter of l
issue of Applicants' quality assurance controversy in the proceeding.
It is appropriate for the Board to consider _ all the evidence of record in determining its findings on this matter in' controversy.
+
l
/
.--s
. ~. _ _ _...
s I
s s
w
~ s h
\\
<s and any otfer aspects of Amergency preparedness without awaiting the receipt of additi~on$l information'regarding development of the emergency plans.
s
, - %[ y m II. BACKGROUND' Con.tention 22 raises six specific issues relating to the adequacy
~
cf the Applicant's Emergency Plan, the State of Texas Emergency Manage-t Plan' (" State Plan"), and the Hood and Somervell Counties' Emergency m
Operations Plans (" County Plans") and asserts that, as a result of these asserted deficiencies, Applicar ts have failed to comply with 10 C.F.R.
Part50,AppendixE.1/
3/
Specifically, Contention 22 states:
Applicants have failed to comply with 10 C.F.R. Part 50, Appendix E, regarding emergency planning, for the following reasons:
a.
The FSAR does not identify state or regional authorities responsible for emergency planning or who have special quali-y fications for dealing with emergencies.
4 b.
I;o agreements have been reached with local and state offi-cials ard agencies for the early warning and evacuation of the N'
public, including the identificatio1 of the principal officials by titles and agencies.
,c Tkbre is no description 'of the arrangements for services
~
c.'
of physicians and other medical personnel qualified to handle radiation.emergercies and arrangements for the transportation
~
of injured or contaminated individuals beyond the site s
boundary.
d.
There are no adequate plans for testing by periodic drills of emergency plans and provisions for participation in the drills by persons whose assistance may be needed, other than employees of the Applicant.
There is no provision for medical facilities in the e.
immediate vicinity of the site, which includes Glen Rose, f.
There is no provision for emergency' planning for Glen
' Rose or the Dallas /Ft. Worth metroplex.
w
i Contention 22 was the subject of the hearing session commencing September-13,1982. At that session both the Applicants and the Staff presented testimony on Contention 22.
(Tr.5428-5764). The Applicants and the Staff also filed proposed findings of fact and conclusions of lawregardingContention22.1/ Subsequently, at the May and June hearing sessions, the Applicants and the Staff presented additional testimony responding to questions posed by the Board regarding particular aspects of emergency preparedness associated with Comanche Peak.5_/ As the Board noted in its Proposed Decision, during the May hearing session FEMA's Interim Findings were received into evidence.
(Proposed Decision at 51, citing " Memorandum from Lee M. Thomas to William Dircks (September 29, 1982), ff. Tr. 7414).
In that memorandum, FEMA concluded that "[B]ased on this initial review of the relevant State and County Plans there is reasonable asserance at this time that the off-site protection of the public's health and safety is adequate...." At that hearing session, the Staff introduced into evidence (Tr. 7484) Supplement No. 3 to its Safety Evaluation Report containing an " Emergency Preparedness Evaluation Report."
In response to the Board's request at the September hearing (as later confirmed by Order)6_/ the Staff has previously presented its views
~~4/
See " Applicants' Proposed Findings of Fact In the Form of a Partial Initial Decision," February 25, 1983, at 142-164; "NRC Staff's Provisional Proposed Findings of Fact," February 24, 1983, at 172-196. As noted by the Board in its Proposed Decision (at 50),
and as discussed infra, the proposed findings filed by CASE (" CASE's Provisional Findings of Fact") February 24, 1983, did not cover emergency planning.
5/
Tr. 7216-7485; Tr. 7632-7680; Tr. 7681-7683.
6_/
" Memorandum and Order," September 22, 1982.
to the Board regarding the adequacy of the record compiled with respect to Contention 22, the governing regulations, and the determinations to be madebytheBoardregardingContention22.U The Staff there took the position that the record on Contention 22 is sufficient to allow the Board to make necessary findings regarding Contention 22.
_Id., at 27.
III. DISCUSSION A.
The Scope of the Matters Upon Which the Licensing Board Is To Make Findings is Limited to the Issues in Controversy and Matters Which Have Been Raised By the Board Sua Sponte 1.
The Board Should Dismiss Contention 22 and Leave The Matters Raised Therein For Resolution By The Staff In its Proposed Decision, the Board did not make any findings regarding the specific issues raised in Contention 22. Rather, as previously stated, the Board declared Intervenor CASE to have abandoned the contention, in view of its failure to pursue the contention vigor-ously or to address this contention in its proposed findings of fact.
(ProposedDecision,at50-51). The Board did not, however, dismiss that contention. Treating this contention as having been abandoned by CASE is consistent with applicable precedent.
In particular, the Appeal Board has held that even in the absence of a direction to file proposed findings of fact, when a party does in fact file such findings, a Board is entitled to take that filing as setting forth all of the issues t'iat were in contest. Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC
, (March 4,
-7/
See "NRC Staff Response to Memorandum and Order of September 22, 1982," October 11,1982("StaffResponse")at21-27.
1983) (Slip op., at 48-49). cf. Detroit Edison Co. (Enrico Fermi Atomic PowerPlant, Unit 2),ALAB-709,17NRC (January 4, 1983).
In San Onofre, as in Fermi, the Licensing Board had set a schedule, mutually agreed upon the the parties, for filing proposed findings, but issued no direction to do so. As the Appeal Board noted in San Onofre:
[U]nlike the Fermi intervenors, however, intervenors in this proceeding did file proposed findings of fact. We think in this circumstance the Board was entitled to take that filing as setting forth all of the issues that were in contest. There is no good reason why a party should pick and choose among issues at contest, proposing findings as to some but not others.
San Onofre, supra, at 48-49.
The Appeal Board concluded in San Onofre that the Licensing Board was correct in ruling that the issue on which the Intervenors failed to file proposed findings of fact was uncontested and thus was appropriately left to the Staff for resolution.
Id., at 49.
Inasmuch as the Board here did not include any findings on Contention 22 in its Proposed Decision, it appears that the Board no longer considers Contention 22 to be an issue in controversy in this proceeding.
If this is in fact the case, the Board should dismiss that contention from this proceeding and leave the issues raised therein to the Staff for resolu-tion.
Id., at 48-49.
2.
Emergency Preparedness Is Not Properly Before The Board In The Absence of An Issue in Controversy Between The Parties or Issues Raised Sua Sponte By The Board Assuming that the Board's declaration of abandonment of Contention 22 by CASE is tantamount to a dismissal of the contention, there is no longer an issue in controversy between the parties with respect to emer-
gency planning. Moreover, the Board has not raised any issues sua sponte regarding emergency preparedness pursuant to 10 C.F.R. Q 2.760a. The Board itself makes this clear when it states "...the Board does not believe that it should raise any issues sua sponte at this time."
(Proposed Decision, at 52.)
Despite the absence of any issue in controversy or sua sponte issues relating to emergency planning, the Board has nevertheless made a general finding with respect to emergency preparedness associated with Comanche Peak. Specifically, the Board, noting that it is too early to determine whether the comitments in the emergency plans will be fulfilled or deficiencies rectified (Proposed Decision, at 52), has determined that it is "not satisfied that the plans as presently constituted are adequate."
(Id.,at52) According to the Board, "the evolutionary process is not yet complete (there must for example, be a drill or exercise)..." (Jd.)
Therefore, the Board intends to " continue to observe development of the emergency plans and may raise issues sua sponte later if comitments are not met or the deficiencies are not rectified."
(Jd.) The Board also stated that "our June 27, 1983 Order elaborates further about the extent of our concern about this issue." (Jd.)
In its June 27, 1983 Order,8,/ the Board denied a motion filed by the State of Texas for the admission to the proceeding of a late-filed con-tention on emergency planning. The Board denied the motion for failure
-8/
" Memorandum and Order (Late-Filed Contention on Emergency Planning),"
June 27,1983 (" Order").
9_
to meet the late-filing criteria of the procedural rules (10 C.F.R. 6 2.714(a)(1)).
(Order, at 1.) Denying this motion did not, however, end the interest of the Board in the issues raised by the State of Texas.
(Id.,at3.) According to the Board, the review of the Federal Emergency Planning Agency (" FEMA") tends to be "conclusory."
(ld.) As an example of the Board's concern about the nature of the FEMA review, the Board cited its examination of FEMA witness Mr. Benton at the May hearing regarding assessment of which people participating in the plan require training, an issue not raised in Contention 22.
Id., citing Tr. 7435-7441. The Board did not there decide "whether it would be appropriate to keep the record open solely for the purpose of being able to consider the significance of the final FEMA report." (Id., at 6.)
However, the effect of the Board's Proposed Decision is to leave the record on emergency preparedness open, pending completion of the emergency exercise and receipt of FEMA's final findings and determinations. The Board then apparently intends to determine whether to raise any issues sua sponte regarding emergency preparedness in general.
Such an approach is inconsistent with the scope of the Board's responsibilities as specified in 10 C.F.R. 2.760a. As the Staff pointed out in its Response, supra, (at 10-11) the scope of matters upon which Licensing Boards are to make findings in contested operating license proceedings is specified in 10 C.F.R. 2.760a:
In any initial decision in a contested proceeding on an application for an operating license for a production or utilization facility, the presiding officer shall make find-ings of fact and conclusions of law on the matters put into controversy by the parties to the proceeding and on natters which have been determined to be the issues in the proceeding by the Commission or the presiding officer. Matters not put
into controversy by the parties will be examined and decided by the presiding officer only where he or she determines that a serious safety, environmental, or common defense and security matter exists...."
The Staff also noted in its Response, supra, that although the NRC Staff must assure that the Comanche Peak offsite and onsite emergency plans meet all sixteen standards set forth in 10 C.F.R. 9 50.47(b),
(Response, supra, at 22), the Board's responsibilities are considerably more narrow.
(Id.) Pursuant to 10 C.F.R. 5 2.760a, the Board was to determine whether those aspects of emergency planning raised by Conten-tion 22 satisfy the applicable regulations.
(Id.) The Board appears to consider Contention 22 as no longer being an issue in controversy in this proceeding. Moreover, the Board has not raised any issues sua sponte with respect to emergency preparedness. Accordingly, there are simply no issues for the Board to determine with respect to emergency preparedness.
In making a finding that emergency planning in general is inadequate and in keeping the record open to monitor the development of the emergency preparedness, the Board is impermissibly expanding the scope of its responsibilities beyond the limits of 10 C.F.R. 6 2.760a.
B.
Under Commission Regulatory Requirements, Offsite Plans Need Not Be Complete Nor Finally Evaluated By FEMA Prior to the Conclusion of The Adjudicatory Process Even assuming that there was an issue in controversy or a sua sponte issue on emergency planning, the Board is incorrect in its view that it is simply "too early to determine whether all those commitments
[on emergency preparedness] will be fulfilled." Proposed Decision, at 52.
The Board's position is that it must continue to monitor the development
of the Comanche Peak emergency plans because 1) there is only an interim FEMA finding on the adequacy of the offsite Comanche Peak emergency plans based upon a review of the " paper plans" (Proposed Decision, at 51);
- 2) deficiencies exist in the emergency plans (Id_.), and 3) the
" evolutionary process is not yet complete (there must, for example be a drill or exercise)" (Id., at 52). The Board's position flies in the i
face of Connission regulatory requirements and the case law concerning i
l The Appeal Board recently summarized those requirements in Detroit l
EdisonCompany(EnricoFermiAtomicPowerPlant, Unit 2),ALAB-730, NRC (June 2,1983)(Slipop.).
In that decison, the Appeal Board rejected a challenge to the Fenni Licensing Board's initial decision on the grounds, inter alia, that the Licensing Board erred in finding a county emergency plan complete in the absence of a final plan.
In considering this challenge, the Appeal Board set forth an abbreviated I
discussion of its outline of the regulatory scheme for emergency planning contained in Cincinnati Gas & Electric Co. (Wm. H. Zimmer Nuclear Power l
Station, Unit No. 1) ALAB-727, 17 NRC (May2,1983)(Slipop.):
l Under Connission regulations, no operating license for a nuclear power reactor can issue unless the NRC finds that there is reasonable assurance that adequate protective measures both on and off the facility site can and will be taken in the event of a radiological emergency.
10 CFR 50.47(a)(1). With regard to the adequacy of offsite emer-gency measures, the NRC must " base its finding on a review of the Federal Emergency Management Agency (FEMA) findings and I
determinationsastowhetherthereisreasonableasgrance that they can be implemented." 10CFR50.47(a)(2).-
-3/
Section 50.47(a)(2) reads in full as follows:
(2) The NRC will base its finding on a review of the Federal Emergency Management Agency (FEMA) findings and determinations as to whether State and
local emergency plans are adequate and whether
~
there is reasonable assurance that they can be implemented, and on the NRC assessment as to whether
~
the applicant's onsite emergency plans are adequate and whether there is reasonable assurance that they can be implemented. A FEMA finding will primarily be based on a review of the plans. Any other infor-mation already available to FEMA may be considered in assessing whether there is reasonable assurance that the plans can be implemented.
In any NRC licensing proceeding, a FEMA finding will constitute a rebuttable presumption on questions of adequacy and implementation capability. Emergency pre ness exercises (required by paragraph (b)(14) pared-of this section and Appendix E, Section F of this part) are part of the operational inspection process and are not required for any initial licensing decision.
Central to the development of offsite emergency response plans is the concept of emergency planning zones (EPZ). The regulatory scheme contemplates the establishment, for planning purposes, of two such zones:
a plume exposure pathway (plume) EPZ, a more or less circular area extending approximately ten miles from the plant, and an ingestion exposure pathway (ingestion) EPZ, a similarly shaped area with a fifty mile radius. The plume EPZ is con-cerned principally with the avoidance in the event of a nuclear facility accident of possible (1) whole body external exposure to gamma radiation from the plume and from deposited radioactive plume.
The duration of those exposures EPZ is established primarily for the purpose of avoiding exposures traceabletocontaminatedwaterorfoods(suchas milk or fresh vegetables), a potential exposure source that could zwy 4 duration from hours to I
months.
Fermi, ALAB-730, at 8-9.
l The Board has ruled that it will await the correction of any l
deficiencies in the emergency preparedness plans associated with Comanche Peak, and completion of both FEMA's evaluation and the emergency prepared-t l
ness exercise, in order to assure itself that there are in fact no grounds for raising any issues sua sponte with respect to emergency preparedness.
1 i
l
13 -
This ruling goes beyond the regulatory scheme contemplated by the Commission.
The Commission expects licensing decisions on emergency preparedness to be made on the basis of the best available current information and not deferred to await FEMA's last word on the matter. San Onofre, ALAB-717, supra, slip op. at 66; Fermi, supra; Zimmer, supra. As the Appeal Board explained in Fermi:
...that general principle does not mandate either a final local government emergency plan or a final evaluation of offsite preparedness by FEMA, the agency that has the principal respon-sibility to conduct such an evaluation. The regulatory scheme set forth by the Commission, we ruled, contemplates that " hear-ings may properly be held [and a decision on a full power operating license reached] at such time as the plans are suffi-ciently developed to support a conclusion that the state of emergency preparedness provides reasonable assurance that ade-quate protective measures can and will be taken...in the event of a radiologcal emergency." Zimmer, supra, 17 NRC at (slipopinionat26). While we could not draw a bright line respecting how much plan development would be enough for that purpose, it is plain from the Commission's regulatory require-ments that offsite plans need not be complete, nor finally evaluated by FEMA prior to conclusion of the adjudicatory
& n.57 (slip (slip process. San Onofre, su ra, 17 NRC at opinion at 65-66 & n.5
- . immer, su ra,17 NRC at opinion at 25). See 47 Fed. JRe.
(July 13,IVEZJ, petition for review pending sub nom. Union of Concerned Scientists v. NRC, No. 82-2053 (D.C. Cir. filed September 10, 1982); 45 Fed. Re. 82713 (Dec. 16, 1980). See also 10 CFR 6 50.47(c) TIT.
mphasisadded).
Fermi, supra, at 12-13.
It is thus clear that licensing decisions on emergency planning issues need not await the rendition of the final FEMA finding.
10 CFR 5 50.47; San Onofre, ALAB-717, supra, at 66. The Appeal Board has cautioned that there are however, procedural as well as substantive limits to deferring emergency planning issues until after the close of the evidentiary hearing. Fermi, ALAB-730, supra, at 14; San Onofre, i
e
+
,,,.---_--.-,1
__-,..-_m.
,9y,,.
,__9.w-,,
s.,___,.,,,_m,-
,--y.ws-
.grw sw-
-we e----gy w-g
.-w-vay-vw---w-
ALAB-717, supra, at 66 fn.57, 70, fn.61. Specifically, the Appeal Board has explalned that:
Procedurally, the limits are established by Section 189 of the Atomic Energy Act, as amended, 42 U.S.C. 6 2239, which entitles interested persons to an adjudicatory hearing on the issuance of a construction permit or operating license.
This means that an intervenor must have the opportunity to litigate the substantive question whether there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.
Fermi, supra, ALAB-730, at 14-15, quoting San Onofre, ALAB-717, at 66 fn.57.
This concern is not applicable here as CASE had the opportunity to litigate Contention 22, which it forsook in view of its failure to vigorously pursue or to file proposed findings of fact on that contenton.
The Licensing Board's view of the evidentiary record is also inconsistent with the FEMA /NRC Memorandum of Understanding / and a recent E
amendment to the Commission's emergency planning regulations. As the Appeal Board noted in San Onofre, supra:
The Memorandum recognizes the distinct possibility that a final FEMA finding may not always be available in a timeframe [ sic]
compatible with the schedule of Commission licensing proceed-l ings.
It therefore provides that FEMA will offer its preli-minary views on the state of offsite emergency preparedness l
" based upon plans currently available to FEMA." 45 Fed.
i JRe. at 82714 (emphasis added). The Memorandum states further l
that to support its findings and determinations, " FEMA will make expert witnesses available before...NRC hearing boards and administrative law judges."
Ibid. The clear import of the Memorandum is that FEMA will provide Commission licensing proceedings, through FEMA witnesses, the benefit of its most current evaluation of State and local emergency planning.
(Emphasisinoriginal).
San Onofre, at 64-65.
9/
45 Fed. Reg. 82713 (December 16,1980).
As the Appeal Board further noted:
A recent amendment to the Comission's emergency planning regulations further supports this understanding. As revised, 10 G R l 50.47(a)(2) provides that emergency preparedness exercises are not required for a nuclear power plant oper-ating license decision. Rather, the exercises "are part of the preoperational inspection and thus [are] required prior to operation above 5% of rated power, but not for a Licensing Board, Appeal Board, or Comission licensing decision." 47 Fed. Req. 30232 (July 13, 1982). See also id at 30233.
In contrast, FEMA will not issue its final TTnding on the adequacy of offsite preparedness until after State and local emergency (planning exercises have been held.
(Emphasis Footnotes omitted).
added).
San Onofre, at 65-66.I0/
As the Staff explained in its Response, supra, the existence of deficiencies in emergency plans does not necessarily preclude issuance of an operating license, if inter alia, " adequate interim compensating actions have or will be taken promptly."
Id., at 23, citing 10 C.F.R. 950.47(c)(1)(emphasisadded). The Staff also observed that the state-ment of consideration accompanying amendments to 10 C.F.R. l 50.47 clearly sets forth the Comission's view that emergency preparedness findings are " predictive":
"The findings on emergency planning required prior to issuance of a license would, insofar as satisfactory implementation of preparedness are concerned, [are] predictive in nature."
_Id., quoting 46 Fed. Reg. 61134-35 (December 15,1981).III
-10/ A petition for review of the amended rule cited in San Onofre has been filed. Union of Concerned Scientists v. NRC, No. 82-2053 (D.C. Cir. No. 82-2053) (filed September 10,1982). San Onofre, at 65 fn.55.
-11/ The proposed amendment was modified and then adopted by the Comis-sion, 47 Fed. Reg. 30232 (July 23, 1982). See also Louisiana Power
& Light Company (Waterford Steam Electric Station, Unit 3), ALAB-732, NRC (June 29,1983)(Slip.op.at46),wheretheAppeal Board discussed the effect of this amendment.
L
Thus, a Licensing Board may conclude that emergency planning actions
~
are sufficient to satisfy the applicable regulations, if the available evidence demonstrates reasonable assurance that the applicable requirement will be satisfactorily implemented at the time the facility is authorized to operate. Response, supra, at 23 (footnote omitted).-
The Board here has not pointed to any evidence suggesting, with respect to any deficiencies in the emergency plans, that adequate interim compensating actions have not or will not be taken promptly. Rather, the Board has cited the mere existence of such deficiencies in support of its position that it must continue to observe the development of the emergency plans.
Such an approach to adjudication of emergency preparedness issues completely ignores the concept of predictive findings in emergency preparedness as established by the Commission in 10 CFR S 50.47. Here the Board has had the benefit of testimony by FEMA's expert witnesses with respect to the current evaluation of state and local emergency planning.
In addition, the FEMA Interim Findings have been introduced into evidence. The Staff has provided testimony by its expert witness and has introduced the supp,lement to its safety evaluation containing its evaluation of emergency preparedness associated with Comanche Peak. Moreover, the Applicants and the Staff have responded to the ques-tions posed by the Board regarding particular aspects of emergency prepared-ness for Comanche Peak. Nevertheless, the Board does not see fit to either resolve the issues raised on the record or in the event that it believes serious safety, environmental or common defense and security issues exist, declare issues sua sponte in accordance with 10 C.F.R. % 2.760a. To
\\
simply defer final resolution of any outstanding issues with respect to emergency planning on the basis that the " evolutionary process is not yet complete" (Proposed Decision, at 52) ignores the regulatory framework established by the Commission. Awaiting completion of the " evolutionary process" (i.e., FEMA's final finding and completion of the emergency j
preparedness exercise) runs contrary to the Comission's judgment, as j
reflected in 10 CFR 5 50.47 that emergency planning issues need not await the rendition of a final FEMA's last word on emergency planning.
IV. CONCLUSION Based on the foregoing, the Board's ruling that CASE has abandoned Contention 22 is correct and accordingly, the Staff urges that the Licensing Board dismiss Contention 22 as an issue in controversy in this proceeding. There is thus no necessity for the Board to make any findings on that contention and the Board may leave the matters raised therein for resolution by the Staff. The Staff also submits that the Board erred as a matter of law in leaving the record on emergency planning open in the absence of any issues in controversy or declared sua sponte issues.
There are no matters relating to emergency planning properly before the Board. Thus, the Board has no further responsibilities with respect to emergency planning.
Respectfully submitted,
/Hv bEclu%d K
Marjorie U. Rothschild Counsel for NRC Staff Dated at Bethesda, Maryland this 29th day of August, 1983
UNITED STATES OF AMERICA flVCLEAR REGULATORY C0iEISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
TEXAS UTILITIES GENERATING
)
Docket Nos. 50-445 COMPANY, et al.
50-446 (Comanche Peak Steam Electric
)
Station, Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF OBJECTIONS TO PROPOSED INITIAL DECISION" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or deposit in the Nuclear Regulatory Commission's internal mail system (*), or by hand delivery (**),
or by express mail or overnight delivery (***), this 29th day of August,1983:
Peter B. Bloch, Esq., Chairman **
Mrs. Juanita Ellis
' Administrative Judge President, CASE Atomic Safety and Licensing Board 1426 South Polk Street U.S. Nuclear Regulatory Commission Dallas, TX 75224 Washington, DC 20555 David J. Preister, Esq.
Dr. Kenneth A. McCollom***
Assistant Attorney General Administrative Judge Environmental Protection Dean, Division of Engineering, Division Architecture and Technology P. O. Box 12548, Capital Oklahoma State University Austin, TX 78711 Stillwater, OK 74078 Nicholas S. Reynolds, Esq.
Dr. Walter H. Jordan ***
Debevoise & Liberman Administrative Judge 1200 17th Street,.N.W.
881 W. Outer Drive Washington, DC 20036 Oak Ridge, TN 34830-Docketing Service Section*
Atomic Safety and Licensing Board Office of the Secretary Panel
- U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555
0~
2-Atomic Safety and Licensing Appeal Mr. Robert G. Taylor Board Panel
- Resident Inspector / Comanche Peak U.S. Nuclear Regulatory Commission Steam Electric Station Washington, DC 20555 c/o U.S. Nuclear Regulatory Commission P. O. Box 38 Lanny Alan Sinkin Glen Rose, TX 76043 838 East Magnolia Avenue San Antonio, TX 78212 John T. Collins Thomas F. Westerman Mr. R. J. Gary U.S. Nuclear. Regulatory Commission Executive Vice President 611 Ryan Plaza Drive, Suite 1000 and General Manager Arlington, TX 76011 Texas Utilities Generating Company 2001 Bryan Tower Dallas, TX 75201 Q v.ilo%LU Marjorie U. Rothschild Counsel for NRC Staff b
%