ML20028G764

Forwards Responses to 900724 Questions Re Emergency Planning on Ongoing Plant OL Proceeding.Due to Commitments Made to Us Senate,Commissioners Curtiss & Remick Did Not Participate in Preparations of Answers

ML20028G764
Person / Time
Site:	Seabrook
Issue date:	08/17/1990
From:	Carr K NRC COMMISSION (OCM)
To:	Kostmayer P HOUSE OF REP., INTERIOR & INSULAR AFFAIRS
Shared Package
ML20028G765	List: ML20028G764 ML20028G766 ML20028G767
References
CON-#390-10750 OL, NUDOCS 9009040070
Download: ML20028G764 (31)

Text

.,

h g(,

i; e.

g 8

1. o UNITED STATES ET NUCLEAR REGULATORY COMMISSION

^

n W ASHINGT ON, D. C. 20$66 j

{

August 17, 1990 CHAIRMAN The Honorable Peter H. Kostmayer, Chairman Subcommittee on General Oversight and Investigations Committee on Interior and Insular Affairs United States House of Representatives Washington, D. C. 20515

Dear Mr. Chairman:

Your letter of July 24, 1990, enclosed for our response 22 questions with respect to emergency planning related by subject matter and sometimes by specific reference to the ongoing Seabrook cperating license proceeding.

As your letter notes, the Commission declined to answer certain questions about the resolution of contested emergency planning issues for Seabrook at the Subcommittee's March 14 hearing, and shortly thereafter provided you the General Counsel's legal analysis which con-cluded that the Commissioners were justified in declining to The answers to these 22 questions are consistent with answer.

the legal principles set out in the General Counsel's memo-randum.

As you may be aware, contested emergency p' anning questions for Seabrook are still pending before the Commission.

Our responses to all of the questions you posed are attached.

The question posed by Congressman Markey)at the hearing is addressed by our response-to question (1.

Commissioners Curtiss and Retrick did not participcte in the preparation of these answers.

As conditions of their appoint-ments, both Commissioners made commitments to the U.S. Senate which limit their participating in matters involving the Essentially, all of Congressman Markey's Seabrook plant.

questions are directed to, or arise out of, emergency planning Both issues in the Seabrook operating license proceedings.

Commissioners believe that their commitments to the Senate prohibit them from answering Congressnan Markey's questions et this time.

Sincerely.

000:3 n

x

.(f Kenneth M. Carr

Enclosures:

As stated f(

l Rep. Barbara Vucanovich k

cc:

900904007o 900e17

\\

PDR ADOCK 05000443 F

PNU

.. _. Ij

e OVESTION 1.

Under current criteria can the NRC license a plant for which the minimum estimated evacuation time is eight hours? 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />?

24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />? 2 weeks? Please explain.

ANSWER.

1 Minimum evacuation times are not prescribed, as the Commission stated in its i

1986ShorehamdecisionCLI-86-13,24NRC22,30(1986). Our decision states:_

This root question cannot be answered without some discussion of what is meant by " adequate protective measures." Our emergency planning regulations are an important part of the regulatory framework for protecting the public health and safety.

But they differ in character from most of our siting and engineering design requirements which are directed at achieving or maintainir.g a minimum level of public safety protection.

See e.g., 10 C.F.R. 5100,11. Our emergency planning requirements do not require that an adequate plan achieve a preset minimum dose saving or a minimum evacuation time for the plume exposure pathway emergency planning zone in the event of a serious accident.

Rather, they attempt to achieve reasonable and feasible dose reduction under the circurstances; what may be reasonable or feasible for one site may not be for another.

This was reemphasized by the Commission in the Seabrook proceeding. See CLI-90-02,31NRC197,215-217(1990); see also San Onofre, CLI-83-10, 17 NRC, 528, 533 (1983); see also answer to Question 14.

Under Comission criteria, the NRC has approved emergency plans with evacuationtimeestimates(ETEs)inexcessof8 hours (e.g.,HaddamNeck)and ETEsinexcessof12 hours (e.g., Zion). Evacuation times on the order of 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> might occur in adverse weather conditions.

NRC has not had applications with ETEs of 2 weeks.

QUESTION ?_.

Does the NRC use criteria for determining " reasonable and feasible dose reduction under the circumstances?" Please l

detail'these criteria if they exist.

1:

ANSWER.

The Commission's regulations provide standards or criteria in 10 CFR 6 50.47(b).

1 10 CFR 550.47(c)(1) provides that a failure of emergency plans to meet the standards in 10 C.F.R. 50.47(b) can cause the Commission to decline to issue a 1

license. The Statement of. Considerations on adoption of the regulations further provided that these were the standards upon which emergency plans were to be judged.

See45FR55402,55403(1980). The Commission reiterated this l

in the Shoreham proceeding (CL1-86-13, 24 NRC at 29), in adopting amendments to the emergency planning regulations (52 FR 42076, 42080, 42084 (1987)) and again in S'eabrook, where it stated:

i

.... Emergency plans are to be evaluated on their own merits,

-I again::t the 16 planning standards of 10 CFR 50.47(b), with pre-sumptive validity accorded to FEMA's expert judgments on offsite planning; that the evaluation does not entail consideration of the dose consequences that might t,e calculated under various hypo-thetical circumstances; and that a plan judged adequate against those planning standards is considered generally comparable to any other plan that has been fcund adequate.

l The objective, plainly, is the achievement of reasonable and i

feasible dose reductions in the event of an accident.

But the means which the Commission has determined to use is an evaluation of emergency plans against the 16 planning standards developed by NRC and FEMA.

CL1-90-2, 31 NRC at 217; see also 10 C.F.R. 550.54(q) and (s) stating that licensees are to meet the standards in 10 C.F.R. 650.57(b) and Appendix E I

to 10 CFR Part 50, i

l

r o

=.

QUEST 10N____3.

Could the NRC license a plant for which the emergency plan l

offered no dose savings during a conceivable postulated accident?

i ANSWER.

It is hard to imagine a credible situation wherein no dose savings would be r

achieved by an approved emergency plan. The objectives of the Commission's emergency planning regulations are set out in the " Criteria for Preparation and i

Evaluation of Radiological Emergency Response Plans and Preparedness in Support

[

of Nuclear Power Plants", NUREG-0654/ FEMA-REP-1, which states at pp. 6-7, that:

l The overall objective of emergency response plans is to provide dose savings (and in some cases immediate life i

saving) for a spectrum of accidents tnat could produce offsite doses in excess of Protective Action Guides (PAGs).

i No single specific accident sequence should be isolated as the one for which to plan because each accident could have different consecuences, both in nature and degree.

Further, the range of possible selection for a planning basis is very large, startirs with a zero point of requiring no planning at all becam e significant offsite radiological accident consequen',es are unlikely to occur, to planning for the worst possib1'. accident, regardless of its extremely low likelihood.

The Nr4/ EPA Task Force did not attempt to define a single ace', dent sequence or even a limited number of sequences.

Rather, it identified the bounds of the parameters for which plani.ing is i

recommended, based upon knowledge of the potential consequences, timing, and release characteristics of a spectrum of accidents.

l Although the selected planning basis is independent of specific l

accident sequences, a number of accident descriptions were considered in the development of the guidance, including the core l

melt accident release categories of the Peactor Safety Study.

The 16 planning standards in 10 CFR 650.47 (b) are a verbatim restatement of i

l' the planning standards in that NRC/ FEMA document.

L l

l

c QUESTION'3a (Continued) '

-Thus, as th'e Commission stated in Seabrook, CLI-90-02, 31 NRC at 215:

Consideration of specific accident sequences and their 1

potential dose consequences has been rendered unnecessary by the promulgation of generic guidance that incor> orates and synthesizes data on a range of accidents and t1eir consequences. Thus the seeming anomaly of excluding proffered evidence.on dose consequences, where the objective of the inquiry is to reduce dose consequences, is in fact no anomaly at all.

For it is by applying the i

generic guidance of the regulation's sixteen standards to the review of individual energency plans--not by attempting to predict the effects of particular hypothetical accidents j

occurring under particular hypothetical conditions of weather, time of year, and time of day--that the NRC satisfies I

itself that the goal of achieving dose reductions is met..

i The Commission interpreted and explained its emergency i

planning requirements in the 1983 San Onofre decision, where it said:

1 Since a range of accidents with widely differing consequences can be postulated, the regulation does not depend on the assumption that a particular

. type of accident may or will occur.

In fact, no specific accident sequences should be specified because each accident could have different consequences both in nature and degree. Although the emergency planning basis is independent of specific accident sequences, a number of accident descriptions were considered in development o# the Commission's regulations, including the core melt

-I accident release categories of the Reactor Safety Study (WASH-1400).

See also Shoreham, CLI-86-13, 24 NRC at 30-32 (1986); Statement of Consideration on Amendment of Emergency Planning Regulations, 52 FR 42078, 42084-85(1987).

[

L y

QUESTION 4.

Could the NRC license a plant under which members of the public could receive, during a conceivable postulated accident, a radiation dose of 1 REM? 25 REM 7 100 REM? 500 REM? Please explain.

ANSWER.

il See answers to preceding questions. As we have indicated, plant licensing is.

not dependent upon planning for a particular " conceivable postulated accident,"

but on: planning for a spectrum of accidents. Thus, one could conceivably postulate an accident from which a particular dose could be received by some 1

members of the public. However, it is essential to recognize that nuclear plant systems (containment as an example), which are designed to mitigate off-site releases, also play a major role in minimizing the risk of exposures-l I

to the public. Emergency planning serves to achieve even further dose l

reductions to the public.

l

'1 i

l' I

l l

l

c I

OUEST10N 5.

Should emergency plans seek to avoid life threatening radiation doses? Please explain, Is this a requirement of current emergency plans? Please a.

detail any requirements if they exist.

b.

If the answer is yes, what criteria does the NRC use to determine the effectiveness of emergency plans in this regard?

ANSWER.

As stated in NUREG-0654/ FEMA-REP-1, Rev. 1, the overall objective of emergency i

response' plans is-to provide dose savings (and in sore cases immediate life saving) for a spectrum of accidents that could produce offsite doses in excess ofProtectiveActionGuides(PACS). Protective Action Guides are contained in the " Manual of Protective Actions For Nuclear Incidents", EPA t20/1-75-001-A, January 1990, published by the U.S.- Environmental Protection Agency. -

r The criteria that NRC uses to determine the effectiveness of emergency plans are the 16 planr.ing' standards in 10 CFR 50.47(b). NUREG-0654/ FEMA-REP-1, Rev. 1 provides Evaluation Critoria for each planning standard.

i l

l l

l l

l N

t i

QUESTION 6.

Should emergency _ plans seek to avoid significant risk of fatal cancers?- Please explain.

a.

Is this a requirement of current emergency plans? Please detail any requirements if they exist.

i l:.

b.

If the answer is yes, what criteria does the NRC use to determine the effectiveness of emergency plans in this regard?

ANSWER.

~

l 1

l See response to Question 5.

l l

l l-l-

l l

x

i

..c _ _

QUESTION 7.

Should emergency plans seek to avoid significant risk of non-

~ fatal cancers? Please explain.

a.

Is this a requirement of current emergency plans? Please detail any requirements if they exist, b.

If the answer is yes, what criteria does the NRC use to determine the effectiveness of emergency plans in this-regard?

ANSWER.

See response to Question 5.

L l

p c

QUESTION 8.

Is it " reasonable and feasible", pursuant to the Atomic Energy Act, to shelter the populations near Nuclear Power Plants, such as the beach population at Seabrook, to achieve significant dose reductions?

I a.

Do such issues require resolution before full-power of i

nuclear power plants? Why or why not? Please explain.

ANSWER.

I

\\

The Commission does not predetermine that sheltering is " reasonable and feasible" or a. required protective action.

Rather, the Comission determines which protective actions (the principal options are traditionally evacuation and sheltering) need to be available in the plan for a specific site. These options iray vary for different segments of the population.

In regard to the situation in the vicinity of the Seabrook plant, the Appeal Board stated; l

f

-To the degree that intervenors' chrilenge is based upon the l

premise that the development of a Tange of protective actions" l

is governed by the status of section 50.47 as an " adequate L

protection" standard and thereby requires that " adequate" sheltering must be provided as a risk reduction measure, we addressed and rejected it in ALAB-922. Nor did we read section 50.47(b)(10), as intervenors do, to impose such a l

requirement itself.- It is apparent that under section 50.47 L

planners should consider whether to employ sheltering as L

part of the " range of protective actions" for a particular emergency plan, see NUREG-0654 Criterion II.J.10 m (bases for choice recomended protective actions must be included

.a

(Continued) QUEST!0ft8 0

in emergency plan, including expected protection afforded in shelter for direct and inhalation exposure).

Nonetheless, the situations in which sheltering is adopted as the recommended protective action ultimately will depend, as here, upon the site specific circumstances.

ALAB-924, 30 NRC 331, 367, n. 164 The Commission indica",ed that it cid rn.

disagree with the conclusion, CL1-90-03, 31 NRC at 244-48.

4 In regard to whether all emergency planning issues must be resolved prior to full-power licensing of nuclear plants, the Commission stated:

Under $50.47(c), _ failure to meet offsite emergency planning standards "

an operatin_may result in the Commission declining to issueg license (empha 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

-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-pcwer license can still be authorized.

In effect, 650.47(c) creates two classes of litigable emergency planning issues--those "significant" issues that must be addressed fully and resolved favorably by the Licensing Board before full-power licensing, and those-that are not significant and that car t,c resolved by the Licensing Board after license issuance.

We therefore reject the fundarrental ~ premise of Intervenors' argument that the issues remanded in ALAB-924 must be considered material factors to license issuance and therefore must be resolved 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 finding of compliance with 10 C.F.R. 650.47(b) emergency planning standards and therefore support license issuance.

But all issues that are relevant to L

compliance with 650.47(b) emergency planning standards are not l

necessarily material to license issuance because, under 550.47(c),

compliance issues may not be significant and therefore need not be resolved prior to license issuance.

CL1-90-03, 31 NRC at 230-231 [ Footnote omitted].

1

~ 00EST10N 80 (Continued)- This determination was in accord with prior Commission rulings. See Long IslandLightingCo.(ShorehamNuclearPowerStatior<, Unit 1),CLI-87-12,26NRC 383,398-99(1987);Id.,CLI-86-13,24NRC29-30(1986); see also Public Service Co. of New Hampshire (Seabrook Station, Unit 1 and-2), CLI-77-8, 5NRC503,521(1977); Consumers Power Co. (Midland Plant, Units 1 and 2),

ALAB-458, 7 NRC 155, 159-60, 169-70 (1978).

In regard to the situation regarding sheltering at Seabrook, the Commission stated:

However, we also find reasonable the Licensing Board's decision that this remanded issue does not raise a significant substantive issue regarding errergency planning adequacy. The record shows clearly that evacuation rather than sheltering is the )rincipal protective action for the beach population, and that t1e average shelter factor is so small that the public protection afforded from sheltering is very small, rEMA 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 that the energency plan for the Massachusetts beaches, which the Licensing Board found to be adequate, does not even include shelter',a as an option.

Given these considerations, we believe e ' +he absence of implementing detail for the sheltering option is not significant.

CLI-90-03, 31 NRC at 248.

c QUESTION 9.

The National Academy of Sciences BEIR-V Report, issued in December 1989, indicates that the risks of low levels of radiation exposure are from three to fourteen times higher than the academy believed as recently as 1980 -- when current

=

emergency planning guidelines (such as NUREG-0654) were promulgated. Does the Commission believe that its emergency planning requirements should be re-evaluated in light of BEIR-V7 Why or why not? Please explain.

ANSWER.

Emergency planning is intended to provide dose savings for a spectrum of accidents, including severe accidents beyond the design basis. See answer to question 3.

Protective actions would likely be initiated prior to any radioactive steases based upon an assessment of reactor conditions in accordance with the dose levels in the Environmental Protection Agency's (EPA)

ProtectiveActionGuide(PAG). These dose levels (1 to 5 rem to the whole body or 5 to 25 rem to the thyroid gland) are well below the values that would result in early health effects and pose a low risk of inducing cancer.

At the time that these dose levels were selected by EPA, it was recognized that they provided a high degree of protection even if members of the public were exposed to such values. Use of the information in BEIR-V does not signif1-cantly change the level of safety afforded by the dose levels in the PAG or the

__________t

q:

l

..e l

WESTION 9.

(Continued)

- !l-i t

procedures contained in our EP guidance. Consequently, the Comission believes that its emergency planning requirements are prudent and continue to be con-

{

L

'1 servatively based, and does not expect to make any modifications as a result of f

the issuance of the BElk-V report.

1 i'

~

t r>

1 h

i l

?

l.

t l

I f

G L

D I

.e,..

-,. - -,.. -, -. ~ _.

....~r

o t

QUESTION 10.

The NRC/ FEMA guidance for emergency plans requires that there be available a public alert and notification system which is capable of notifying the public within ten miles of a plant within fifteen minutes after off site authorities are notified. Given this requirement for prompt notification, on what basis does the Conmission conclude that the times to evacuate are irrelevant in assessing the adequacy of emergency i

1 plans?

ANSWER.

i Providing as much time as practicable for the taking of protn.tive action is in l

the interest of public health and safety. Thus, the Comission requires that emergency plans have the capability for notification cf the public within 15 minutes after offsite authorities have been notified.

Emergency plans must be developed that will have the flexibility to ensure response to a wide spectrum of potential accidents. This wide spectrum of potential accidents also reflects on the appropriate use of the offsite r.otification capability. The use of this notification capability will range from immediate (within 15 minutes) notice to the public to listen to predesignated radio and television stations, to the more likely events where there is substantial time available for decision making. See answer to question 3.

As noted in the response above, the emergency planning regulations do not specify a minimum evacuation time.

CLI-86-13, 24 NRC at 30; CLI-90-02, 31 NRC at 13.

I t

I i

QUESTION 11.

Has the Commission issued a full power operating license to an applicant who did not have an NRC-approved emergency plan at 4

the time the license was issued? In the Seabrook issue, did the Appeal Board conclude that the New Hampshire plan could not be approved without a sheltering plan component? Please

explain, n.

Has the Commission reversed that conclusion of the Appeal Board?

r ANSWER.

As indicated in a response to Representative Kostmayer on January 17, 1990, the Comission has not issued a full power operating license to an applicant who did not have an NRC-approved emergency plan meeting the current emergency planning regulations since November 3, 1980, the date NRC's emergency planning regulation became effective.

Some of these approvals were conditioned on the correction of deficiencies as provided by 10 CFR i 50.47 (c)(1).

In the Seabrook case, the Appeal Board's decision in ALAB-924, 30 NRC 331 (1989),didnotconcludethattheNewHampshireplancouldnotbeapproved without a sheltering plan component. The Appeal Board explained that the New Hampshire plan upheld by the Licensing Board incorporated certain limited shelteringoptionsin"afewnarrowlydefinedcircumstances"(30NRCat362) and found with respect to details for implementation "that such measures are required so long as sheltering for the beach population is a protective action option under the NHRERP." 30 NRC at 368.

1

I 9

e QUESTION 110 (Continued) -

a.

The Commission has not reversed the conclusion of the Appeal Board, 1

nor has the Cornission yet acted on any petition for review of ALAB-924. The time in which the Commission may review ALAB-924 has been extended so that it will conclude on the sen.e date as the termination of Commission review of any Appeal Board disposition of issues raised on review of the Licensing Board's decision on the Seabrook Plan for Massachusetts Conmunities and the 1988 graded j

FEMA exercise. See LBP-89-32, 30 imC 375 (1989).

i i

1 l

l

k c v; o

1 fl' p

i:

' QUESTION 12.

Please~ list all the instances in which an operating license has.

=

L r

been issued to an applicant who did not have an NRC-approved emergency plan.

i 1

ANSWER.

I

~

j f

See response to Question 11.

d

\\

L 1

e-i l

1 r

4 e

i l:-

h L

l I

- I

v f

6 OVESTION 13.

Has the NRC determined that the lack of a sheltering plan for the beach population at Seabrook is not " safety significant," and therefore allowed the plant to proceed while the sheltering plan was being developed? If so, what was the rationale for this finding? Why isn't the lack of a sheltering i

plan a reason for withholding the license?

i ANSWER.

In CL1-90-3 (31 NRC 219 (1990)), the Commission, on the basis of its effective-ness review, agreed with the Appeal Beard "that so long as sheltering remains a potential, albeit unlikely, emergency response option for the beach population, theNHRERP[NewHampshireRadiologicalEmergencyResponsePlan]shouldcontain directions as to how this choice is to be practicably carried out."

Id at 24B.

However,theCommission"alsof[ou]ndreasonabletheLicensingBoard'sdecision that this remanded issue does not raise a significant substantive issue regarding emergency planning adequacy." The Comission noted that "the record shows clearly that evacuation rather than sheltering is the principal protec-tive action for the beach population, and that the average shelter factor is so small that the public protection afforded from sheltering is very small, characterized by FEMA as " trivial" (Id. citations omitted). The Comission also noted, in the context of finding that the absence of sheltering detail for the very limited sheltering option was not significant, that "the emergency plan for the flassachusetts beaches, which the Licensing Board found to be adequate, does not even include sheltering as an option."

(Id.)

i

e

_l OVESTION 13.

(Continued) The Commission said that "given the existence of the Stone & Webster Survey (of the available beach shelter), [it did] not believe incorporation of imple-menting detail into the NHRERP to be especially difficult or time consuming" (Id. footnote omitted).

For these reasons, the Commission found that for i

Seabrook the lack of details for implementation of the limited t.teltering option did not warrant withholding the license.

1 l

d 9

o

a QUESTION 14 Can a properly sited plant be denied an operating license because the emergency plans are inadequate with regard to site specific factors such as population size and proximity?

Evacuation times? Effective shelterirg? please explain for each.

ANSWER.

Population size and proximity will have a bearing on the calculation of evacua-tion time estimates (ETEs) and the availability of various protective actions.

See10CFR550.47(b)(14),

in applying for a construction permit, impediments to evacuation and the ability to take effective protective actions must be considered in determining whether to allow construction at a particular site.

See10CFRPart50,AppendixE,ll.G;Seealso10CFRi52.17(b)(1). Also at the construction permit stage, the Commission considers alternative siting. A site with a very large ETE may well result in other sites being found to be superior.

Once a site is approved, an applicant can be denied an optrating license if the plans for the site do not meet the emergency planning standards of 10 CFR i 50.47.

l

QUESTION 15:

Is there outstanding a viable decision from the Appeals Board that concludes that the "B" planning standards for Seabrook have not been met? Please explain.

ANSWER.

Two decisions of the Appeal Board, ALAB-924 issued November 7, 1989 and j

ALAB-932, have decided issues raised from the Licensing Board's decision in LBP-88-32,28NRC667(1908), whose findings and conclusions supported a finding of compliance with the planning standards and favored the full-power licensing of Seabrook.

Id at 672. ALAB-924 affirmed the Licensing Board's decision on all rulings save four specified limited matters:

1. whether letters of agreement are needed from school personnel; ii, the sufficiency of the special needs survt>y; 111. the effect of preparation time for advanced life support patients on evacuation time estimates; and iv. provision of implementation details for sheltering. On those matters the Appeal Board remanded for further action consistent with ALAB-924; ALAB-932 affirmed all remaining rulings of the Licensing Board save one matter related to evacuation 1

time estimates on which it romanded for further calculations based on inclusion l

of previously uncounted vehicles that were " hidden" from aerial observation.

(ALAB-932,slipop,at88-89).

In LBP-90-12, issued May 3, 1990, the Licensing Board detailed its partial resolution of remanded issues and sought guidance from the Appeal Board.

In LBP-90-20, issued June 27, 1990, the Board reported on the resolution of remaining remanded matters.

No determination has yet 1

l issued from the Appeal Board with respect to its view of the adequacy of the Licensing Board action on remand.

1 i

l l

e j

OVEST!0H 16:

Does the Licensing Board finding that the remanded issues on the New Hampshire Emergency Plan were not significant cite 10 C.F.R.50;47(C)(1)?

Why or why not?

l ANSWER.

in LBP-B9-32, the Licensing Board said it would issue a subserquent memorandum

" explaining why ALAE-924 does not preclude the issuance of an operating license.

[1]tsexplanationsw[ould) include,forexampirtheobservationthat the remanded issues do nut involve significant safety sr regulatory matters when considered in the context of the record of the NHRERP proceeding..." 30 NRC at 651 n. 87. That memorandum of explanation, which is denominated LBP-89-33,doesnotcite10C.F.R.50.47(c)(1)indiscussingsignificance.

The possible explanation for the absence of such a citation is not a matter appropriate for our speculation. The Commission reviews Licensing Deard decisions on the basis of the adjudicatory record and, consistent with applicable principles of administrative law, does not query Licensin; Boards informally about the reasons for their decisions.

1

e q

QUESTION 17:

Were the parties to the proceeding given an opportunity to be heard on the issue of whether or not the deficiencies found by the Appeal Board were significant? Please explain.

MSWER.

As the Connission set forth in CLI-90-3 (at 232 n.13), on November 15. 1989, Intervenors filed a request for a hearing to the extent a full-power license authori:ation might be based on 10 C.F.R. 50.47(c)(1).

Recognizing that it was basing the license authorization on this provision of the Comission's rules, the Connission addressed the hearing request as follows:

There is no doubt that Intervenors have been heard before the Commission on whether the matters reversed and renanded by ALAB-924 are significant and therefore must delay license issuance.

These views have been 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 Beard's conclusions.

Further, neither we nor the Licensing Board have relied on facts outside the evidentiary record in reaching conclusions about significance; no new evidence was adduced or considered. And Intervencrs' hearirg request fails to suggest how the existing record may be inadequate and fails to indicate whether, or if so, in what particulars they will offer additional evidence. Given this, we see ro need for additional evidentiary hearings on 50.47(c) significance issues.

Any unfairness that may have resulted from the Board not having invited comment before making its findings on significance has been removed by the written pleadings, which were filed subsequent to the Board's findings, and our careful consideration of these pleadings.

Accordingly, if construed as requesting an opportunity to be heard, Intervenors' November 15, 1989 motion is now moot; con-strued as a request for additional evidentiary hearings, the request is denied.

30 NRC at 232 n. 13.

r QUESTION 18:

What is the basis of the Commission's determination that the deficiencies are not significant for Seabrook?

ANSWER.

The Comission's determinations on significance were made on consideration of the record of the Seabrook proceeding, particularly including LBP-89-33; the Seabrook evidentiary record relevant to the significance issues; and the pleadings of the parties. See response to Question 17 and CLI-90-3.

L L

QUESTION 19:

In 1981 the NRC promised in a brief to the D.C. Court of Appeals that no operating license would be issued for Seabrook if energency planning was "ir'easible". What standards have been used to determire that the Seabrook Emergency Plan is feasible?

AtlSWER.

The capability to carry out the actions and procedures called for in the Seabrook Emergency Plan (i.e., its " feasibility") has been tested through emergency planning exercises. The results of these exercises were litigated at length in the evidentiary hearing process.

There is no specific feasibility standard in the Commissicn's regulations, f

l

- i l

l l

t-s.

QUESTION 20.

Please list all the instances that the Comission has decided that compliance with the 16 "B" stantards was sufficient to establish adequacy.

ANSWER.

1 As indicated in the answer to Question 11, all full power operating licenses issued by the Commission since November 3, 1980, the effective date of NRC's emergency planning regulations, have had NRC-approved emergency plans. As stated in the answer to Question 2, the Conrnission's regulations require that emergency plans are to be evaluated against the 16 planning standards of 10CFR50.47(b).

l

O OUEST10N 21:

10 C.F.R. 50.47(A) (1) requires that no operating license for a nuclear power reactor will be issued unless a finding is made by the NRC that there is reasonable assurance that adequate protective measures can and will be taken" and this section does not indicate that compliance with the "B" standards establishes

" adequacy". On what basis, therefore, did the Commission determine that mere compliance with the planning standards establish adequacy?

ANSWER.

The Commission's regulations and the adjudicatory decisions interpreting those regulations have "made clear that judgments on the adequacy of emergency planning are to be based on conformity with the sixteen planning standards set l

forthin10CFR50.47(b)"[footnoteomitted]. CL1-90-2, 31 NRC 197, 213 (1990).

The Commission has elaborated on this matter in its decision in CLI-90-2, which l

we attach for the convenience of the subcommittee.

i l

L l

t t

1

JLht;t0 UWhC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION qpgl C0ffilSSIONERS:

,;rsicE OF sitRETAAY 00CKCimG s SEdviCI.

BRANCH Kenneth 11. Carr, Chairman Thomas 11. Roberts Kenneth C. Rogers James R. Curtiss Forrest J. Remick MM

E

)

In the Matter of j

+

Docket Nos. EO-443 OL FUBLIC SERVICE COMPANY OF

)

50 444-OL NEW HAMPSHIRE, ET AL.

)

l Offsite Emergency Planning (Seabrook Station, Units 1 ano 2)

)

MEMORANDUM AND ORDER CL1 02 Introduction in ALAB-922, 30 NRC 247, issuec on October 11, 1989, the Appeal Board certified a cuestion to the Commission for resolution, pursuant to 10 CFR 6 2.785(d), under which the Appeal Board may " certify to the Commission P

for its determination major or novel questions of policy, law or precedure." The cuestion certified was the following:

"Whether the itassAG's [ Mass 6chusetts Attorney General's] testimony, which seeks to address the ense reductions / dose consequences that will arise under the NHRERP [New Hampshire Raciological Emergency Response Plan), is admissible as relevant to a determination of whether, in accoroance with the Commission's Shoreham guidance, the NHRERP will achieve ' reasonable 6nd feasible' dose reduction under the circumstances so as to provide ' reasonable assurance that fjh y1% J

~

adequate protective measures can end will be taken'in.accordancewith10C.F.R.i50.47(a)."

30 t;RC at 259.

L For the reasons which follow, we have determinea that the-testimony proffered by the flassachusetts Attorney General was admissible fielther for the purpose mentioned by the Appeal Board nor for any other.

To explain the basis of our decision requires us to set furth in some detail the context in which the admissibility of the profferto testimony was considered by the two Boards.

11.

Froceedings before the Licensing Board The Massachusetts Attorney General, in a tontention first offered in~

1983 ar.c resubmitted in 19E6, charged that the New Hampshire plan did not, as required by 10 CFR ! 50.47(a), provioe reasonable assurance that' adequete 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 greunds, first, that the I:RC's emergency planning regulations were not intended to guarantee absolute protection or a given 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 l

seeking to litigate the cose consequences of any specific accident or as asserting that erergency planning must achieve a particular level of dose protection to the public, but would have allowed its admission to the 2

e extent it constituted a challenge to the adequacy of the sheltering provided for the beach population.

The Licensing Board rejected the proposed contention on April 29, 1986.

The Cornission's rules, it said, did not require a zero risk standard, but rather the cevelopment of emergency plans with the flexibility to ensure response to a wide spectrum of accidents.

The Massachusetts Attcrney General, said the Licensing Ecara, was seeking to have each of the responses within the range of protective responses provide absolute assurance, wbtreas the intent of the rules was to assure i

that any une or a corbination of responsts would previde the requisite reasonable assurance. The Licensing Boarc agreed with the staff that particular postuieted accidents were ineppropriate for litigation, and that the regulations did not require that any particular level of radiological dose reductions be achieved.

The Massachusetts Attorney General sought review by the Appeal Board, but the Appeal Board, in ALAB-838, 23 ilRC 585 (1986), held the appeal to be interlocutory, since fiassachusetts could continue to participate in the procecoing as an interested state.

As an interested state, therefore, the liassAG tried again in Septernber 1987, off ering testirnony as to the technical basis f or the.NRC's emergency planning rules; radiation doses to the public which would result from an accident at Seabrook; the potential for an atmospheric telease; and the probable health consequences of the foregoing.

The MassAG argueo that this testimony was germane, since it illuminated the actual level of protection afforded the public, a necessary part of a " reasonable assurance" finding.

The regulations, said l

3

e-the flassAG, calleo for a range of protective measures, but bere, the plan cid not provide for sheltering. The MassAG urged that while the Board was net required to make specific dose savings finoings, or to calculate the number of people who woule be injured in an accident,1t was nevertheless required to accept evicence on those issues in order to determine the 6cequacy of the protective measures provided by the emergency plan.

Applicants objected to the offer of proof, arguing that it was an effort to reintroduce the contention rejected earlier, and that the evidence wcs irreleveret, since it purported to show cose savings and consequences in absolute terms, whereas the regulation only required a thcwing thet the emergency plan "it designed to echieve reasonable and feasible dose savings given the circumstances of the site ir, qv.tstion."

The staff agreed with the applicant, in a bench ruling on fiovember 17, 1987, the Licens1ng Boarc determined that the proposea testimony was outside the scope of the Corrrission's emergency planning requirements, as outlined in three Commission pronouncements on emergency planning. TR E594 First, the j

Licensing Boaro said, the 1983 San Onofre decision (Southern California Ecison, San Onofre Nuclear Generating Station Units 2 and 3 CL1-63-10, 17NPC528,533), had emphasized that with regard to emergency planning, The errphasis is en prudent risk reduction measures.

The regulation aces not require dedication of resources to handle every.poss1ble 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.

a i

o

,e Second, the Licensing Board looked to the Commission's 1986 decision in Lena Island Lighting (Shoreham Nuclear Power Station, Unit 1),

CLI-86-13, 24 NRC 22, where the (cunission said:

The root question becornes whether the LILCO plan can provide for "adequ3te protective measures...

'in the event of a radiological emergency."

[Footnoteomitted.]...

This root question connot be enswered without some discussion of what is meant by " adequate protective measures." Our emergency planning regulations are an important part of the regulatory framework fur protecting the public health and safety.

But they differ in character from trost of our siting and engineering cesign requirements which are directed at achieving or maintaining a minimum level of public 561ety protection.

See, e.g.,

10 C.F.R. I 100.11.

Cur emergency planning rcouirenents co not require that an adequate plan achieve o preset minimum radiation dose savino er a mininum evacuation titre for the plune exposure pathway energency plar.ning zone in the event of a serious accident.

Rather, they atterpt to achieve reasonable and feasible dose reduction under the circumstances.

Finally, the Licensing Board cited the then newly issueo final rule in the 1087 rulemaking on emergency pl6nning, where the Conniission said:

The final rule makes clear that every Emergency Plan has to be evaluated for adequacy on its own merits, withcut reference tu the specific dose reductions which might be accomplished under the plan, or to the capabilities of any other plan.

52 Federal Register a2078, 42084 (November 3, 1987).

The' Licensing Board concluced that the proffered testimony, despite sincere efforts to argue otherwise, involved " specific assumptions of doses, dose consequences, health effects, and the entire array that the Commission stated is not part of consideration." TR 5608, 5

O e

B.

Proceedings before the Appeal Board The issue cf the exclusion of the proffered testimony came before the Appeal Beard on its review of the Licensing Board's December 31, 1968 Partial Initial Decision on the liew Hamphsire emergency plan.

In ALAB-522, issued on October 11, 1989, the Appe61 Boaro 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 reouirer;ent of " reasonable assurar.ce,"

fit into the two-tiered reguittery scherr. et the Atomic Energy Act.

The Appeal Board expl6ined that the Comission's safety regulations are either standaros necessary to provide first-tier " adequate protection" (at authori:ec by Section 182(a) of the Atomic Energy Act) or are second-tier

" extra-adequate protection" (measurts over and above what is needed for adequate 1rotection) as authcrized by Sections 161(b) and (i) of the Atomic Energy Act.

The distinction between the two was recognized, said the Appen Board, in UCS v. f4RC (UCS !), 824 F.20 108 (D.C. Cir. 1967).

The intervenors, said the Appeal Board, claimed that 10 CFP, 9 50.47 was a first-tier " adequate protection" standaro, and that the Commission could r,ot determine whether " adequate protection" wds provided without evaluating the degree to which the emergency plan still left the public at risk. This argument, said the Appeal Board, was "promptly dispelleo" by an examination of the 1980 rulemaking that promulgated 10 CFP, i 50.47.

In that rulemaking, the Commission cited as its authority Sections 161(b),

(i), and (c) of the Atomic Energy Act.

In the Appeal Board's words, "it is hard to imagine a nore compelling indication that... emergency planning requirements are intended to be second tier, AEA section 161 l

6 l

I i

o j

sefety provisions rather than a first-tier, ' adequate protection' recuirement under AEA Section 182." 30 tiRC et 256-57.

Thus the Appeal Board had "no difficulty" rejecting the intervenors' argument that the 1

proffered testimony was admissible to show that even with the New Hampshire emergency plan in place, operation of the plant presented such risks as to fail the " adequate protection" test.

30 tiRC at 257-58.

The Appeal Board found "more compelling" the argur:ent that the evidence should be admitted to show (in accordance with Shoreham's guidance that emergency plans should seek to achieve " reasonable ano feasible dose reductions") whether the dose reductions achievable by tSe New Hampshire pl6n were " reasonable." Clearly, s6id the Appeal Luard, the reductions would be " feasible," s1nce the plan had been prepared by state of ficials; but a "more compelling case" was presented by the argument that those dose reductions would not be " reasonable," if, as contenced by the Massachusetts Attorney General, they would result in little realistic dose reduction and lead to coses with serious health consequences.

To this, the Appeal Board noted, applicants and staff answered that all information on dose consequences and dose reductions was beside the point, since the Cummission had made clear in Shoreham that no preset dose reductions or evacuation times were called for, and the 1987 rule had declared that plans were to be evaluated for adequacy "without reference to the specific dose reductions which might be accomplished under the plan."

30 NRC at 258, citing 52 Fed. Reg. 42,078, 42,084 (1987).

The Appeal Board thus found itself pulled between what it considered to be two contraoletory lines of analysis:

Shoreham's emphasis on

" reasonable" dose reductions and the "perhaps superseding" guidance of the l

l 7

l rd

O 1987 rule, in which the cetermination 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 subjective judgment of whether the protection afforced 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 Cctnission the question of whether the !!assAG's i

testimony was admissible 65 relevant to a determination of whether the New Hampshire plan would achieve " reasonable and feasible dosr. reduction under the circumstances" so as to provide " reasonable assurarre that acequate protective measures can arc will be taken." 30 NRC at 259.

)

Cn October 20, 1989, the liassachusetts Attorney General asked the Appeal Board to reconsider its dt: cision that emergency 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 cf 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 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

F explanation of the citation to Sections 161(b). (1), and (o):

to assure that criminal sanctions set forth in 42 U.S.C. Section 2273 would apply.

A similar petition was filed by the Seacoast Anti-Pollution Leaguc.

Cn October 23, the Appeal Boaro summarily denied the petitioris f or reconsideration, on the grounds that the issues raised in them were so linked to those involved in the question certified to the Ccneission f or cecision that they should be resolved by the Commission rather than the Appeal Leera.

111.

Filings of tha Parties In response to a briefing schedule issut:0 by the Conmission on October 13 (modifiec by an extensich of time granted to the liRC staff),

the parties filed their briefs between October 27 and November 13, 1989.

The positions of the parties may be summarizec as follows.

1.

Intervenors Intervenors assert that the Appeal Board errea when it held, based on the citation to Sectior.161 of the Atemic Energy Act in the 1980 emergency planning rulemaking, that emergercy planning was a second tier,

" extra-adequate" safety measure. The transcript of tb 380 Commission meeting that preceded adoption of the rule makes clear that the key phrase

" adequate protective measures" in the regulation was specificelly intenced to track the phrase " adequate protection" in Section 182 of the AEA.

The choice of words was designec to assure that "best efforts" would not be enough, and that emergency planning

u. ires would also have to be effective in protecting the public, in recognition that the discussion 9

c.

O-e was crucial to a correct ur.cerstanding of the Commission's intent, the 4

Commissioners directed that the transcript Le included in the rulersLing recoro.

4 According to the intervenors, the Appeal Board, in relying on the citation to Sections 161(b), (1), and (o) -- an issue which the Appeel-Board itself raisco, none of the parties having cone so -- ignorea the 1980 Authorization Act in which Congress directed the NRC to develop emergency planning regulations.

Although the Commission's final rule in 1980 included a stateretnt that the rule was ccnsistent with the Authorizatior. Act, that Act did not appear in the list of authorities.

Thus the list is incor.plete on its f ace.

Furthermore, the Commission bas named Section 161 as the sole basis of such safety-based rules as the fire protection rule, cited by the Commission in an appellate brief as an example of a first-tier " adequate protection" backfit.

In reality, the citations to Sections 161(b), (i), ano (o) simply designate regulations to which crininal penalties under 42 ll.S.C. 2273 are Intended to apply.

Ary c'cubt is eliminated when it is recogn12ed 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 Commission's 1986 Shoreham decision was misplaced.

Although some of the quoted language might suggest that energency planning was not designed to achieve or maintain a regulatory minimum of protection, the 1980 rulemaking was unambiguous on that point, and it is contro111r.g.

Indeed, in 1983 the Commission, in response to a Congressional questim1, made clear that it saw emergency planning as a matter of adequate protection, l

l 10 l

a o

not - es in the days before the TMl accident -- a " secondary but additional measure to be exercised in the uniikely tvent that en accident would happen."

Likewise, say the intervenors, the Appeal Board should have given no weight to the Commission's statements in the 1987 rulemaking that suggesteo emergency planning was of second-rank importance.

First, the context in which the 1980 Commission spoke of emergency planning as needed to " bolster" other safety r..easures was one which (as oescribed above) contrested the pre-ilil and post-ihl approaches. Moreover, even the Commission in 1987 conceded that it was nct possible to resolve the issue of the intended significence of emergency plar.ning through " microscopic" analysis of the 1980 lerguage.

As for the 120 day clock, that provision did not reveal a difference between emergency planning and other safety regulations, but rather a resemblance, in that other types of regulations also do not require automatic thutdown.

Moreover, the 1980 regulation reflected a compromise, with new and existing plants handled differently.

For new plants such as Seabrook, an adequate emergency plan was essential to operation.

In fact, the reasun 1or the 120-day clock was not a casual view of emergency planning, but rather o recognition that the NF.C did not have the power to compel the cooperat1on of state and local governments.

In the intervenors' view, the phrase " adequate protective measures" in Section 50.47(a)(1) has a plain meaning that must be acknowledged.

The Appeal Board never acdressed the intervenors' argument that whatever the Commission thought about emergency planning in 1987, it still considered emergency planning to be part of the first-tier adequate protection framework.

The Commission would never have countenanced the huge sums 11

O O

that utilities have spent en emergency planning since 1980 if those requirements were not viewee as necessary for adequate protection. The Appeal Board did not deal with tM 1980 Authorization Act, in which Congress mace clear that energency planning was designed to prevent "public eneagerment," 9 2, first tier.

In statements to the Congress, Conanissioners trade clear that they shared Congress' view that energency planning regulations were in place to assure "acequate protection."

Once it is recognized, tay the intervenors, that emergency planning 15 a first tier safety stardard, then there are three differert approaches under which the Massachusetts Atterney General's proffered testimony is acmissible:

(1) to contribute to a case-by-case evalu6 tion of whether the risk posed by operation of Seabrook it acceptable; (2) for a determination of whether a " range of protective measures," as required by the planning standards et Section 50.47(b), have been provided; and (3) to judge whether the plan achieves " reasonable end feasible dose recuctions under the circumstances," to quote the Ccn. mission's 1986 Shoreham decision.

The phrase "under the circumstances" should be understood to refer simply to the case-by-case nature of the inquiry, not to suggest that a "best efforts" showing is all that is needed.

The Conanission's November 1987 final emergency planning rule rejected a "best ef forts" approach.

Finally, intervenors argue, there is no "exclusionary rule" in NRC proceedings that would bar testimony on dose consequer ces.

The evidence on dose reductions and dose consequences that the Massachusetts Attorney Ceneral has sought to it;troduce is plainly relevant to the adequacy of the emergency plan.

The only way that such obviously relevant evidence could be excluded is the existence of some policy barring its admission.

Such i

12

m i

an intent night _ account for the statement in the Commission's November 1987 rule that."every emergency plans is to be evaluated for 6decuacy on its own n.erits, withcut reference to the specific. dose reductions which might be accomplishec unoer the plan."

It would be irrational, how -er, for the Commission, without ever having articulateo a raticnal basis for-coing so, to say in one breath that it will evaluate a plan's ecequacy and in the next that it will not look at evidence plainly relevant to the plan's adequacy.

T'.e NRC has expertise in evaluating dose consequences, which it routinely estimates in a variety of contexts.

For these reasons, intervenors urge, the Commission should reverse the Appeal Board's "secord tier" finding and direct the Appeal Daard to proceed with its review of LBP-88-SZ accordingly.

Alternatively, it shculd go further and indicate that the proffered testimony was relevant and material and should have been comitted.

2.

Applicants The precise question posed by the Appeal Doarc, say the applicants, was whether the reference in Shoreham to the objective of achieving

" reasonable and feasible dose reduction" meant that evidence on dose savings and dose censequences should be admitted.

In the context in which the Commission used that phrase, "reat.onable" referred to dose savings achievable without disproportionate cost. This position is consistent with San Onofrp, CLI-83-10,17 NRC 528, which said that the emergency planning rules emphasized " prudent" risk reduction measures, not extraoroinary measures such as construction of new hospitals. The 1987 13 z.

]

=

L amendments to the Commission's emergency planning rules lay to rest any suggestion that the profferred testimony could be aamissible. 'The proposed rule emphas12ed 'that the emergency planning rules were flexible, not aimed at achieving preestablished minimum dose savings.

The final rule made the sanie point, declering that findings as to precise dose reductions "are never a requirement in the evaluation of emergency plans,"

and that emergency plans were to be evaluatec individually, "without

. reference to the specific.cose reductions which might be accomplished under the plan...."

The foregcing demonstrates that the evidence proffered by the intervenors was irrelevant, since all that must be shown to satisfy the NRC's rge,uirements is that the emergency plan is " designed to 6chieve reasonable and feasible cose savings given the circumstances of the site ir 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 Boarc was correct, applicants argue, in findine that the NRC's emergency planning rules, having been promulgated under Section 161 of the Atomic Energy Act, constitute "second tier" protect 1cr, under the two-tier formula described in UCS 1.

Citations of authority are required by the Administrative Procedure Act, and are not merely some af terthought to which the egency may or may not give consideration.

The 1980 Commission transcript cn which intervenors-rely is at best inconclusive.

It does not remove the ambiguity as to the meaning of " adequate protective measures" in the regula;;on, but it does make clear that the emergency planning rulas were not intended as e " site blocking" regulation.

Moreover, the 1987 emergency planning rules commented on the 14 l-

.=

"incorsistency" in the Commi'-49n's 1980 pronouncenents on emergency planning.

According to applic6nts, the intervenors may be correct in saying that a reference to Section 161 aces not nects::rily designate a rule as "second tier," but in the case of the emerge. icy planning rules, it is clear that the Commission intendeo second tier sta'us. The fire protection rule, cited by intervenors as an " obvious example" of a first tier safety regulation which was 1stued under Section 161, 'actually demonstrates the opposite.

In the list of authorities for Part 50 found at-52 Federal Register 41294, Section 161(b) is citea as authority for Section 50.48, f or purposes of 42 U.S.C. Section 2273 (establishing criminal senctions for violations).

Sections 161 ano 182 are both cited as authority for Part 50. Thus the reference in the rulemaking to Section 161(b) was intended to identify 5 50.48 as a regulation to which criminal sanctions would apply.

With regard to i 50.47, hcwever, the list of authorities for Part 50 does not mention 5 50.47 specifically.

However, the rulemaking listed Sections 161(b),161(i), and 161(o).

This fact, coupied with the absence of a statement that criminai sanctions would apply to the regulation, demonstrates that the Commission coulc only have intendeo i 50.47 to be a-second tier regulation.

In-the applicants' view, reference to statements made to the Congress by individual Ccemissioners deserve little or no weight in determining whether the regulation is first or second tier. More to the point is the distinction which the Commission drew in Shoreham, CL1-86-13, between emergency planning regulations and siting and engineering design requirements "which are directed at achieving or maintaining a minimum 15

level of p0 bite.saf ety protection," such as 10 CFR i 100.ll,.which establishes'the exclusion area eno low population zone in terms of ooses to individuals. -This language clearly shows emergency planning regulations to be second tier.

Finally, say the applicants, the discussion in the Comission's 1987

)

proposed rulemaking makes clear that any ambiguity was to be resolved in l

favor cf calling emergency planning rules second tier. The final rule made the further point that the 120-day clock in the-1980 rule showed the second tier status of emergency planning rcouirements.

3.

NRC Staff i

According to the NRC staff, the Cormission'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 proferrec testimony.

The regulation cells for-determinations by FEMA on the adequacy Enc implementability of offsite plans, in acr roance with planning standards of Section 50.47(b).

1 The regulation does not provide for a dose reouction/ dose consequences

.]

i analysis, but rather for a review of the plans against the standards to i

see if they are adequate and implementable. The Statement of Considerations of the 1980 rule did not indicate that there was to be any-'

(

examination of radiological doses and consequences. The Commission there recognized that FEMA was best suited to assess offsite emergency prepareoness.

The NRC final rule restatod, and cited, the guidance of NUREG-0654/ FEMA-REP-1, which states that the planning basis for the standards was a spectrum of accidents, independent of specific accident 16 u

4 m

sequences. Thus the Comrnission intenced that individual licensing cases look at conformance with the standarcs, not at particular accident sequences or their consequences.

The NRC staft asserts that in San Onofre, CL1-83-10, 17 NRC 528 (1983), the Commission refuted the cencept that dose reduction calcul6tions are needed or relevant.

In Shoreham, the Corsnission focused on "reasor.able and f easible dose recuctions under the circumstances," not on achieving "a preset ninimum radiation dose saving or a minimum evacuation time."

This was a plain incication that there was to be no consideretion of absolute dose recuction or consequences at particular sites. While Shoreham could be reac in the manner outlined by the Appeal j

board to allow dose savings and consequences to be litigated as part of ceternining whether dose reductions achieved by a plan are " reasonable,"

the decision, when read in context, emphasizes-that plans are to be jucged against "standaros" rather than on the basis of dose and risk l

L calcuietions.

That point was reiterated several times in the 1987 final rule on emergency planning. That same rule made clear that plans were to be juoged without reference to the specific dose recuctions that might be l

acccmplished under a particular plan.

It is immaterial, says the NRC staf f, whether emergency planning is a first tier or second tier regulation, for in either case, the proffered testimony was irrelevant.

Intervenors' emphasis on emergency planning as a first tier, adequate protection standard seems to be based on the misconception that if the regulaticn is first tier, dose calculations are reouired to determine the adequacy of emergency plans.

In fact, whether the regulation was adopted under Section 161 of the AEA (as these were) or 17

- 1, e.

l' Section 182, the' Commission's regul6tions do not call for dose calculaticns, but rather for conformity with standards set out in the regulations.

In this reg 6rd they are like many of the Commission's most basic safety _ regulations, such as emergency core cooling standards and quality assurance requirements.

if the interverors wishea to challenge 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 attempting to engraft onto the rule requirements ever ano above those established by the Commission.

l To answer the certified question directly, the NRC staff maintains, l

the phrase "reascrable.and feasible cose reductions under the circumstances" in Shoreham envisioned testimony not on dose projections l

and dose consequences, but on reason 6ble and feasible methods of dose reduction f or a particular site under the circumstances existing there.

The-Licensing Bosrd received such testinony and concluded, as had FEMA, that the hew Hampshire emergency plan provided "for e range of protective acticrs."

1 i

1 18 m

c i-I IV. Discussion 1.

"First Tier" vs. "Second Tier" In approaching the issues presented by the certified questien, it may be useful to begin by accressing, as a threshold matter, the Appeal Board's' finding that emergency planning is a second-tier, " extra-adequate" protection requirement. We do so ier the sake of clarifying this area of the Commission's regulations, not because it is recessary to our decision.

We agree witn the llRC Staff thbt for the purpose of deciding whether the Massachusetts Attorrey General's profferen testimony shoulo have been admitted, it is immaterial whether the emergency planning regulations are L

censidered first tier or second tier.

l L

The -issue of wnat the Concission intenced when it put the emergency planning rule in place was. discussed extensively in the prcposed and final 1987. emergency planning rules and their Statements of Considerations. In the March 1987 prcposed rule (52 Fed. Reg. 6980), the Commission commented i

on the inconsistency between some of the language of the 1980 rulemaking l

l and the regulatory scheme that it actually put in place. Urtting after the promulgation of the backfit rule, the Comission in its flarch 1987 notice also squarely pnsed the ouestion whether emergency planning should l

be considered first tier or second tier protection:

On the one hand, the Commission stated that the new requirements, es well as proper siting and engineered safety features, were needed to protect public health and safety. Taken in isolation, these statements can be read as evidencing a Commission decision that emergency planning and preparedness as provided in those revised rules p

were to be treated as matters essential to safe

[

operation of nuclear facilities and therefore to be imposed rigorously without regard to equity or l

Cost.

l 19

i e

i 4-4 On-the other herd, the Commission rejected an option in the rulemaking that could have led to automatic plant shutdown if adequate plans were not filed because of commenters' concerns about

" unnecessarily harsh economic 6nd social consequences to State and local governments, utilities, and the public." Operating plants were given very substantial grace periods....These provisions are not consistent with the concept that emergency planning and prepareoness are as important to safety as such engineered safeguards as reactor containments or emergency core cooling systems.... Rather, these provisions reflect a different concept -- that adequate emer:Ancy planning ano preparedness are needeo and important, but that they represent an additional level of public prctection that comes into play cnly af ter all of the other safety requirements for plant design, quality construction, and careful, oisciplined operation have been considered, and that therefore some regulatory flexibility is warranted and the costs associated with alternative approaches may be taken into account.

The Commission's notice esked for ccmment on which of the two -

approaches shoulo be followed:

e relatively inflexible one, that will require adequate planning ano preparedness with little or no concern for fairness or cost; or a more flexible one that focuses on what kind of accident mitigation (dese reduction to the public in the event of an accident) can be' reasonably and feasibly accomplished, considering all of the circumstances.

If sound safety regulation requires the former, then no rule change is warranted.

if the lattei, then a change _would be in order....

In other words, the Comission's March 1987 proposed rule recognized -

explicitly that to move from an " adequate protection" standard to a "second tier" or backfit standard, a rule change would be needed.

The Ccmmission's tiovember 1987 final rule, 52 Fed. Reg. 42078, disavowed any intent to move from the former to the latter approach.

The Comnission began its answer to the question, "Is emergency planning as 20

E e

i t

important to safety as proper plarit design and operationi", by declaring:-

First of all..this issue coes not have to be addressed in the context of the final rule announced in this notice, since the present rule involves no redrawing by NRC of the balance between emergency planning and other provisions for the protection of health and safety.

The Commission then went on to discuss the words used in the 1980 I

l rule, noting that in places, emergency planning was describea as

" essential" and "needed," whereas elsewhere emergency planning was described as " bolstering" the protection offered by engineered design features.

The issue, seio the Comission, coulc not be resolved-definitively by " microscopic analysis" of the language of the 1980 notice, flore relevant, said the Ccmmission, was the regulatory structure put in

' place, in particular the "120-day clock":

In 10 CFR 50.54(s)(2)(11),'the Commission provided that if it " finds that the state of emergency preparedness does not provide reasonable assurance that adequate protective teosures can and will be taken in the event of a radiological emergency...

and if the deficiencies... are not corrected within four months of that finding, the Conaission will determine whether the reactor shall be shut down until such deficiencies are remedied or whether other enforcement actiun is appropriate.

In other words, a plant ordinarily may operate for i

at least four months with deficiencies in emergency planning before the NRC is required even to decide whether remedial action-should be taken.... At the time that the Commission created the so-called "120-day clock" for deficiencies in emergency planning, it was t

l settled Commission law (and remains so today) that the NRC must issue an order directing a licensee L

to show cause why its license should not be l

modified, revoked, or suspended whenever it concludes that " substantial health or safety issues ha[ve] been raised about the activities authorized by the license.... In the context of that standard, the 120-day clock provision for emergency planning deficiencies amounts to a Commission finding that, at least for the first 120 days, even a major deficiency in emergency 21

i i

pionning does not automatically raise'b

" substantial health or-safety issue" with regard to plant ope.ation.

Sy contrast, a major safety deficiency relating to emergency conditions -- for example, the availability of the eraergency core i

i cooling system -- would warrant imediate i

shutdown, 1

in sum, despite language irdicating that erergency planning was " essential," the Commission in 1950 created a regulatory structure in which emergency 1

planning was treated somewhat differently, in terms of the corrective actions to be taken when deficienciesareidentifieo[frnmtheengineered i

safety features (" hardware" that would be relied on in on emergency.

The foregoing discussionLfrom the 1987.' final rule helps to clarify l

the real nature of the issue in dispute. The relev6nt consideration is I

not whether emergency pianning as a ceneral matter is a part of " adequate i

protection" or of " extra-adequate protection." The Commission's rulemakings of 1980 and 1987 establish that it is the f ormer.

(We do not share the Appeal-Board's view of the significance of the citation to i

Section 161 in the 1980 rulemaking.) To frame the issue in terms of a l

l; simple choice between " adequate" and " extra-adequate" protection is to

.)

lose sight of; the reality that when the Commission enurrerates the many individual safety issues which must be resolved in order to find " adequate protection," it is rot thereby declaring that.all those component issues are _of equal safety significance, or that the sono standards for

. demonstrating compliance are applicable to all.

For illustration..'one need only consider the gamut of issues presented in 10 CFR 50.34(b), dealing with the Final S6fety Analysis Report. These incluae:

a description of the r:6ctor coolant system, instrumentation and control systems, electrical systems, containment system, and other engineered safety features (50.34(b)(2)(i)); the 22 u

y i

applicant's organizationel structure and personnel qualifications requirements (50.34(b)(6)(1)); plans for conduct of. normal operations, including maintenance, surveillance, and periodic testing of structures, systems, and components (50.34(b)(6)(iv)); plans for coping with emergencies (50.34(b)(6)(v)); a description of the operator requalification program (50.34(b)(8)); a description of protection provided against pressurized thermal shock events, including projectec values of the reference termperature for reactor vessel beltline materials (50.34(b)(9)); plens for physical security at the f acility (50.34(c)); and safegueros contingency plans for dealing with threats, thefts, and sabotage-(50.34(c)). Plainly, each of these component determirations has safety. significance, and since none can be dispensea with, all can be called " essential"; but no one would claim that each is of identical-r weight in contributing to public protection.

Nor would anyone' assert that E

the same type of analysis is appropriate for each. Necessarily, the kind l.

of highly technical inquiry eppropriate te determining the adequacy of the plant's hardware wiii not resemble either the " human factors" analysis applied to the utility's operator recualification program, or. the l:

l~

predictive judgments required for a decision on safeguards contingency L

plans.

L The real issue, therefore, is net a judgment in the-abstract about l

-the place of emergency planning in the hierarchy of safety standards, or l

an exercise in semantics about the meaning of the word " essential."

(So that there may be no misunderstanding, let us make clear that adequate emergency planning is " essential," just as adequate lifeboats are l

essential for a liner carrying passengers at sea.

But it is only connon 23

4; sense to acknowledge that emergency plans, like lifeboats, are a bb:kstop, a second or third line of defense that comes into play only in the extremely' rare circumstance that engineered design features and human capacity to take corrective action have both failed to avert a serious mishap.) -for our purposes today, the real issue is a much more straightforward question: what is the nature of the inquiry that the Commission, in recognition of the fact that emergency planning involves predicting the ability to respond to the unpredictable, has put in place

l l

- for ' determining whether " adequacy," i.e., compliance with the Comission's emergency planning regulations, has been established?

2.

How Adequacy-is Determined f

The Commission's emergency planning requirements are not obscure, in the text of the regulations, in rulemakings on the subject of emergency L

planning, and in adjudicatory decisions interpreting those regulations, l

q the Commission has made clear that judgments cn the adequacy of emergency.

]

planning are to be based on conformity with the 16 planning standards set j

forth in 10 CFR Q 50.47(b).I For offsite planning, the regulations l

l 1 10 CFR 6 50.47(b) provides:

l The onsite and, except as provided in paragraph (d) of this section, off-site emergency response plans for nuclear power reactors must i

meet the following standards:

(1) Primary responsibilities for emergency response by the i

i nuclear f acility licensee and by State and local organizations within the Emergency Planning Zones have been assigned, the emergency responsibilities of the various supporting organizations have been specifically established, and each principal response organization i

(FootnoteContinued) 1 24 I

1

provide that the Federal Emergency Management Agency (FEMA)~ shall make "findirgs and determinations as to whether State and local emergency plans are adequate and whether there is reasonable assurance thot-they can be-(Footncte' Continued) has staff to respond and to augment its initial response on a continuous basis.

(2) On-shif t facility licensee responsibilities for emergency i

respcnse are unambigucJsly cicfined, adequate staf fing to provice initial facility accident response in key functional areas is maintained at all tiraes, timely augmentation of response capabilities is availeble and the interf aces araong various cr. site respense activities ano offsite support and response activities are specified.

(3) Arrangements for requesting and effectively using assistance resources have been tracie, arrangements to accommocate Stete and local staft at the i1censee's near-site Emergency Operations facility have been made, and other organizations capable of augmenting the plannec response have been identified.

(4) A standard emergency classification and action level scheme, the bases of which include facility system and effluent parameters, is in-use by the nuclear facility licensee, and State and i

local response plans call for reliance on information provided by f acility licensees for determinations of minitrum initial offsite response measures.

-(5) Procedures have been established for notification, by the licensee, of State and local response organizations and for rotification of emergency personnel by all-organizations; the content of initial and followup messages te response organizations and the public has been established; and means to provine early notification

-und_ clear instruction to the populace within the plume exposure pathway Emergency Planning Zone have been established.

(6)

Provisions exist for prompt communications among-principal response organizations to emergency personnel and to the public.

(7)

Information is made available to the public on a periodic basis on how they will be notifiec ana what their initial actions stationandremainingincoors).,listeningtoalocal~ broadcast should be in an emergency (e.o, the principal points of contact with the news media for dissemination of information during an emergency (incluoing the physical location or locations) are establishec in advance, and procedures for coordinated dissemination of information to the public are established.

(8) Adequate emergency facilities and equipment to support the emergency response are provided and maintained.

~

(9) Adequate methods, systems, and equipment for tssessing and monitoring actual or potential offsite consecuences of a radiological emergency condition are in use.

(Footnote Continued) 25 l

JE

e ir,1plemented. " 10 CFR 5 50.47(a)(2).

This FEMA finding "will primarily be based on a review of the plans." id.

The same regulation also provides that "[i]n any NRC licensing proceeding, a FEMA finding will constitute' a rebuttable presumption on questions of adequacy end implementation capability."

10 CFR 6 50.47(c), which states that the Corrission may declinetoissueanoperatinglicenseincaseof"[f]ailuretomeetthe applicable standards set forth in paragraph (b) of this section,"

reinforces the point that adequacy is to be judged by conformity with the 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 adequacy.

(Footnote Continued)

(10) A range of protective actions have been developed for the plune exposure pathway EPZ for emergency workers and the public.

Guidelines for the choice of protective actions during 6n emergency, consistent with Federal guidance, are developed ano in place, and protective actions for the ingestion exposure pathway EPZ appropriate to the lccale have been developed, (11) Neans for controlling radiological exposures', in on emergency, are established for emergency workers.

The means for controlling radiological exposures shall ir.cluce exposure guidelines consistent with EPA Emergency Worker and Lifesaving Activity Protective Action Guides.

(12) Arrangements are ncJe for medical services for contaminated injured individuals.

(13) General plans for recovery and reentry are developed..

i (14) Periodic exercises are (will be) conducted to evaluate major portions of emergency response capabilities, periodic crills are (will be) conducted to develop and maintain key skills, and deficiencies identified as a result of exercises or drills are (wlll be) corrected.

(15) Radiological emergency response training is provided to l

those who may be called on to assist in an emergency.

(16) Responsibilities for plan oevelopment and review and for distribution of emergency plans are established, and planners are properly trained.

l 26 l

4

8 g

4 As the NRC staff po'inted out in its' brief, the 1580 rulemaking was in

- part a restatement of the guidance developed jointly by NRC and FENA in NOREG-0654/ FEMA-REP-1, " Criteria for Preparation end Evaluation of Radiological Emergency Response Plans and Preparedness in Support of' Nuclear Power Plants." That oocument, frequently quoted and relied upon in the 1980 rulemaking, states in part:

The overall objective of emergency response plans

~

is to provice dose savings (ano in soroe cases immediate life saving) for a spectrum of accidents that could produce offsite coses in excess of Protective Action Guides (PAGs). No single specific accident sequence shoulo be isolated as the one for which to plan because eech accident could have d1tterent consequences, both in nature and degree.

Further, the range of possible selection for a planning basis is very large, starting with a.zero point of requiring no planning at all-because'significant offsite radiological accident consequences are unlikely to cccur, to planning for the worst possible accident, regardless of its extremely low likelihood.

The NRC/ EPA Task Force aid not attempt to define a single accident sequence or-even a limitec number of sequences.

Rather, it identifieo the bounds of the parameters for which planning is recommended, based upon knowlecge of the potential consequences, timing, and release characteristics of a spectrum of accidents.

Although the: selected planning basis is independent of specific accident sequences, a number of accident descriptions were considered in the development of the guidance, including the core melt accident release categories of the Reactor Safety Study.

At 6-7.(footnotes caitted).

In other words, consideration of specific accident sequences and their potential dose consequences has been rendered unnecessary by the promulgation of. generic guidance that incorporates end synthesizes data on a range of accidents and their consequences. Thus the seeming anomaly of excluding proffered evidence on dose consequences, where the objective of the inquiry is'to reduce dose consequences, is in fact no anomaly at all.

1 l

27 l

e s

For it is by applying the generic guidan<.e of the regulation's 16 standards to the. review cf inoividual emergency plans -- not.by attempting to predict the effects of particular hypothetical accidents occurring 1

[

under particular hypothetical conditions of weather, time of year, 6nd tirne of day -- that the NRC satisfies itself that the goal of achieving cose reductions is met.

L The Commission interpreted and explained its emergency planning requirements in the 1983 San Gnofre decision, where it said:

Since a range ci accidents with widely differing consequences can be pcstulateo, the regulation does not depena on the assumption that a particular type of dccident may or Will occur.

In fact, no specific accident sequences should be specified because each accident could have different consequences both in nature ano degree. Althcugh the emergency planning basis is independent of specific eccident sequences, a number of accident descriptions L

were considered in development of the l

Commission's regulations, including the core melt accident release categories of the l

Reactor Safety Stucy (WASH-1400). (Footnote l

omitted.)

1 Southern California Edison Co., (San Onofre Nuclear Generating Station, Units 2and3),CLI-83-10,17HRC528,535(1983).

I The Ccmnission further explained:

i It was never the intent of the regulation to require directly or indirectly that state and local-governmer,ts adopt extraordinary measures, such as construction of additional hospitals or recruitment of substantial acditional medical personnel, 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 l

possible accident that can be imagined.

The concept of the regulation is that there should be j

core planning with sufficient planning flexibility 1

28

.l r

to develop a reasonable ad hoc response to those 4

very serious low probabiTity7ccidents which could affect the general public.

1E' In the 1986 Shoreham decision, CLI-86-13, 24 NRC 22, the Consnission i

discussed the emergency planning regulations in language which appears to have left the Appeal Board with some uncertainty as to the nature of the inquiry called for.

Among other things, the Commission said:

Our emergency plenning requirements do not require that an acequate plan achieve a preset minium radittion dose saving or a minimum evacuation time for the plume exposure pathway emergency planning zone in the event of a serious accident. Rather, they attempt to achieve reasonable and feasible dose reduction under the circumstances; what may be reasonable or feasible for one site may not be for another.

24 NRC 22, 30.

Referring to the fact thet State and local governments were not participating in emergency planning for Shoreham..the Commission 1

continued:

But what should we regard as reasonable and

-feasible for Shoreham, where the governments refuse to cooperate?... We cou ld conceivably define what is reasonable and feasible dose reduction for Shoreham solely in terms of what LILC0 itself can reasonably and feasibly achieve, but we are not prepared to de so.

Rather, we might look f avorably on the LILCO.plen if there was reasonable assurance that it was capable of.

achieving dose reductions in the event of an accident that'are generally comparable to what might be accomplished with government cooperation.

... In sum, we conclude that LILCO's plan should be measured against a standard that would require protective measures that are generally comparable to what might be accomplished with govern ~ ntal cooperation.

29 L

24 tlPC 22, 30, 32.

Recognizing that the language,iust quotec lent itself to' the in+erpretation that-findings on dose reductions are a part of the errergency plarmirg inquiry, the Commission soon provideo a clarification.

in the final emergency planning rule, E2 Federal F.egister 42078 (November j

3, 1987), the Commission stated:

The Cctrission currently believes that the planning standaros of 10 CFR 50.47(b), which are used to evaluate a state or local plan, also provide an appropriate framework to evaluate a utility plan.

Therefore... a utility plan...

will t'e evaluated fer acequacy against the same l

star.dards used to evaluate. c state or lecel plan.

NIapproachreflectecinthisruleamplifiesand clarifies the guidance prcvided in the Corraission's decision in Long Islard Lighting Co.,

(Shoreham Fuclear Power Station, Unit 1),

CLI-86-13, 24 NRC 22 (1986)

... Thet decision...

incluccd larguage which coulc be interpreted as envisioning that the NP.C must estimate the raciolcgical dose reductions which a utility plan would achieve, compare them with the raciological dose recuctions which would be athleved if there were a state or local plan with full state ana local participation in erergency planning, and permit licensing only if the dose reductions are "gererally comparable.". Such an interpretation i

would be contrary to NPC practice, Lncer which I

i emergency plans are evaluated for adeauacy without l

ITference to nurerical ccie reductions which might

^

be accoYplished, anc without cer"pering. them to L

otFe7 emergency plans, real or hypothetical.. The final rule makes clear that every emergency plan is to be evaluated for adequacy on its own merits, withnut reference to the specific dose,lan or to reductions which might be accomplishea uncer the p the capabilities of any other plan.

It further E

makes clear that a finding of adequacy for any plan is to be considered generally comparable to e i

findin of adequacy for any other plan. (Emphasis added.

52 Federal Pegister 42078, 42084-85.

30 1

< m. t

-i Thus to the' extent that Shoreham suggested th6t evidence might be taken on oose consequences, the guidance in the 1987 final rule superseded it completely.

The final rule should have left littie room for doubt as to the Commission's intent, which may be summarized as follows:

Emergency plans are to be evaluated on their own merits, against the 16 plannWi standards of_10 CFR 50.47(b), with presumptive validity accorded to FEMA's expert judgments on ofisite planning; that the evaluation does not entail 1

consideration of the dose consequences that might be celculated under various hypothetical circumstances; ar.c that d plan judged adequate against those planning standards is censidered generally comparable to any other, plan that has been found adequate.

Ccnsistent with that guicance, we find thdt the Licensing Board acted correctly in excluding the proffered testimony. The Appeal Board, in suggesting that the testimony might be admissible for the purpose of determining whether " reasonable and feasible" dose. reductions are accomplished by a plan, ray have confused the objective of the emergency planning inquiry with the neans used to accompi.ish the objective.

The objective, plainly, is the achievement of reasonable and feasible cose reductions in the event of an accident.

But the reans which the Commissicn has determined to usi: is an evaluation of emergency _ plans 1

against the 16 planning standards developed by NRC and rEMA.

That determination, cade by rule, is not for individual adjudicatory boards to alter. Parties dissatisfied with that approach may petition to change the rule, or they may attempt, by requesting a waiver of the rule, to show why it should not be applied to a particular case. The parties before us have chosen neither of those courses of act1on.

Accordingly, we 21 u

n

va.

1 find that there was no purpose for which the proffered testimony was e

acmissible.

In concluding, we wish to make_ clear that this opinion does not decide whether emergency planning at Seabrook is adequate, nor whether i

that facility should receive a license to operate-at full power.

Rather, it provides, in accoroance with our procedures for directed certification, guidance as to.how, under the Commission's rules, determinations on the-i1 1

adequacy.nf emergency planning are to be made.

I it is so ORDERED, 2

For the Commi ion y

s 8

L i

/

b(Me l'

k o#

SAltVEL J. C ILK '

g l

%,,4 Secretary of the ommission

-I l

Dated atjjockville, Maryland, L

this

/V day of Jb,d

, 1990, i

i l

I l

L L

L 2 Commissioners Curtiss and Remick abstained from consideration of

'this matter.

32

--,s_

E

~.

l' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i

1 In the Matter of I

I PUBLIC SERVICE COMPANY OF NEW I

Docket No.(s) 50-443/444-OL HAMPSHIRE, ET AL.

1 (Seabrook Station, Units 1 anc 2) 1 1

4 CERTIFICATE OF SERVICE-L I hereby certif y that coctes o' the f oregoing COMM Mk0 (CLl-90-02) 3/1 have been served upon the following persons by U.S. mail, first classi except as otherwise noted and in accorcance with the requirements of 10 CFR Sec. 2.712.

1 Administrative Judge Administrative Judge G. Paul Bollwerk. !!!

thomas S. Moore, Chairman L

Atomic Safety and Licensing popeal Atomic Safety and Licensing Appeal l

Board Board U.S. Nuclear Reculatory Comenssion

- U.S. Nuclear Rvjulatory Consission Washington, DC 20555 Washington..DC 20555 Administrative Judge Howard A. Wilber Administrative Law Judge Atomic Safety and Licensing Appea!

Ivan W.

Smith. Chairman Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commissten U.S. Nuclear Regulatory Commission J

L Washington, DC 20555 Washington, DC 20555 i

l' Administrative' Judge Administrative Judge L

Richard F. Cole Kenneth A. McCollom Atomic Safety and-Licensing Boarc Atomic Safety and' Licensing Board U.S. Nuclear Regulatory Consission U.S. Nuclear Regulatory Consission.

Washington, DC 20555 Washington, DC 20555 Administrative Judge Robert R. Pierce, Escuire James H. Carpenter i

Atomic; Safety and Licensing Board-Alternate Technical.Menter

- U.S. Nuclear Regulatory Commission Atomic Safety and Licensing. Board

- Washington, DC ~20555 U.S. Nuclear Regulatory Consission Washington, DC 20555 Edwin J. Reis, Esc.

Mit:1 A. Young Office of the General Counsel Attornev U.S. Nuclear Regulatory Cometssten Office of the General Counsel Washington, DC 20555 U.S. Nuclear Ric latory Commission Washington, DC 20555 t'

Docket No.(slG0-443/444-OL COMM M60 (CLI-90-02) - 3/1 I

• Diane Curran, Esq.

• Thomas 6. Dignani Jr., Esa.

Harmon. Curran b Tousley Ropes 6 Gray 2001 S Street, N.W., Suite 430 One International Place

_ ashington, DC 20009 Boston,-MA 02110

[

W

[

• Robert A. Backus, Esc.

• Paul McEachern, Esq.

p Backus, Meyer & Solomon Shatnes b McEachern-116 Lowell Street 25 Maclewood Avenue, P.O. Box 360 i

Manchester, NH 03106 Portsmouth. NH 03801 o

Gary W. Holmes. Esc.

• Judith H.

Mizner Holmes b Ells-Counsel for Newburyport 47 Winnacunnet Road 79 State Street Hampton, NH 03842 Newburyport, MA 01950 Suzanne P. Egan Jane Doherty City Solicitor Seacoast Anti-Pollution League Lagoults. Hill-Wilton and Rotondt 5 Market Street 79 State Street Portsmouth, NH 03801 Newburyport, MA. 01950 i

L i

George Iverson, Director

• Ashed N. Antrian, Esc.

N. H. Of fice of Emergency Manaaseent 145 South' Main Street, P.O. Box 30 State House 0<

ice Park South Bradford. MA 01830 107 Pleasant Street Concord,, NH 03301 1

• George W. Watson, Esc.

Jack Dolan Federal Emergency. Management Agency Federal Energency Management Agency 500 C-Street, S.W.

442 J.W. McCormack (POCH)

Washington,.DC 20472 Boston, MA 02109 George D. Bisbee, Esq.

Paul A. Fritzsche, Esq.

Assistant Attorney General Office of the Public Advocate Office of the Attorney General State House Station 112 25 Capitol Street Augusta ME 04333 Concord. NH 03301 l

t

4=

i-

, Docket No.(s)S0-443/444-OL COMM M60 (CLI-90-02) - 3/1 Suzanne Bretseth

• John Traficente Esq.

Board of Selectmen Chief Nuclear Safety Unit Town of Hampton Falls Office of the Attorney General Orinkwater Road One Ashburton Place, 19th Floor Hampton Falls NH 03B44 Boston, MA 02108 Peter J. Brann Esc.

Allen Lasport Assistant Attorney General Civil Defense Director Office of the Attorney General Town of Brentwood State House Station s6 20 Franklin Street Augusta, ME 04333 Exeter.'NH 03033 William Armstreno Anne Goodman, Chatrean Civil Defense Director Board of Selectmen Town of Exeter 13-15 Newmarket Road 10 Front Street Durnas, NH 03024 Exeter. NH 03833

• R. Scott Hill-Whilton,Escuire Michael Santosuesso. Chatraan Lagoutts, Hill-Wnilton & McGuire l

Board of Selectmen 79 State Street South Hampton, NH 03827' Newburyport.

MA 01950 Stanley.W. Knowles. Chairman Norman C. Katner Board of Selectmen Superintendent of Schools l.

P.O. Box 710 School Administrative Unit No. 21 North Hampton, NH 03862 Aluent Drive Hamptoni.NH 03842 y

L Sandra F. Mitchell l

Civil Defense Director

'Beverly Hollingworth Town of Kensington 209 Winnacunnet Road Box lo, RRt.

Hampton, NH 03042 East Kingston, NH 03B27 l

The Honorable The Honorable Gordon J. Huechrey Nicholas Marvoules ATTN: Janet Colt AT1Ns Michael Greenstein United States Senate 70 Washington Street I

Washington, DC 20510 Sales MA 01970

A Docket No.(s)50-443/444-OL COMM M60 (CL1-90-02) - 3/1 n

Dated at Rockville, Md. this t' day of March 1990-h Office of the Secretary of the Cemetssion

• Copies sent.by Federal Express-in addition to mailed copies.

r i

i F

(

E i

)

l 1

('

(

I.-

l i=

i i

i e

L QUESTION 22:

Can compliance with the planning standards, themselv'ss, be achieved independent of_the particular risks at spet.ific sites?

If so, why does the Commission permit litigation of emergency planning contentions in its licensing proceedings?!

1 ANSWER.

Compliance with the planning standards can be achieved only in the context of a plant-specific plan in the site-specific circumstances of the nuclear facility i

1 at issue. But the plan is to be measured "by applying the generic guidance of L

the regulation's sixteen standards to the review of individual emergency plans--not by attempting. to predict the effects of-particu'lar hypotheth, '

conditions of weather, time of year and time of day..."

31 NRC at 215.

Through litigation of emergency planning contentions, parties to NRC licensing proceedings participate in this process.

I i

t l-l 1

l

-