ML20029A312

Litigation Rept 1991-02 Re Commonwealth of Ma Vs NRC

ML20029A312
Person / Time
Issue date:	02/12/1991
From:	Cordes J NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
References
SECY-91-035, SECY-91-35, NUDOCS 9102150177
Download: ML20029A312 (31)

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ADJUDICATORY ISSUE rebruary IFTWI SECY-91-035 (Informat. ion)

FOR:

The Commissioners TROMt John F.

Cordos, Jr.

Solicitor

SUBJECT:

1.ITICATION REPORT 1991-02 Commonwealth-of Massachusetts v. NRC, Nos. 89-1306, 90-1132 & 90-1218 (D.C. Cir., Jan. 25, 1991)

A panel of the District of Columbia circuit (facyJgy, Williams & Randolph, JJ) han unanimously uphold the Commission's decision giving "immediato offect" to a Licensing Board decision authorizing a full power licenso for the Seabrook Huclear Power Station.

With one exception the court of appeals rejected the various arguments mado by the commonwealth of Massachusetts and other challengers to Scabrook's license.

Initial;y the court agrood with our argument that it had jurisdiction over the Commission's "immediato of fectiveness" decision only (and decisions subsumed in it), and not the full rango (as yet non-firial) of Seabrook dLcisions rondered by the Commission'n adjudicatory bodios (Slip op, at 17-19).

the court then turned to the fundamental question in the caset whether petitioners were correct that the Commission's omergency planning regulations "requiro() the Commission to judge an omorgency plan h terms'of the actual dose of radiation rocoived by a particular EPZ population in a hypothetical accident scenario" (Slip op. at 20).

The court rejected petitioners' reading of the regulations, and def erred to the NRC's view that compliance with the 16 planning standards in 10 C.F.R.

50. 47 (b) satisfied the regulatory goal of "roanonablo 3assuraraco" of " adequate protectivo measuros" (Slip

, 9 op. at 20-35).

The court found nothing in the text

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a'dopting them, or in the NRC's enabling logislation h

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'that required the " actual doso" approach demanded

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by petitioners.

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• The court also upheld the Commission's decision, in its "immediate offoctiveness" determination, that Seabrook could begin operations despite the Appeal Board's remand cf cortain emergency planning issues to the Licensing Board (Slip op. at 35-38).

The court accepted the Commission's rationale that these issues wore "not significant for the plant in question" (10 C.P.R. 50.47(c)).

Finally, the court considered two issues that had como up in connection with the low power license, but in the court's view remained relevant to the full power license.

First, it uphold as "sonsible" the Licensing and Appeal Boards' rejection of petitioners' claim that their contention focusing on aquatic blockage of cooling systems should be construed to cover aquatic corrosion as well (Slip op. at 38-39).

Second, it romanded for " reasoned decisionmaking" the question whether it was permissibic to reject petitioners' late-filed contention on the June 1988 full participation exerciso of the cmorgency plan (Slip op.

at 39-45).

The court uphold as "roasonable" the Appeal Board's conclusion that petitioners had waited too long to prof fer their contention, and thereforo did not satisfy the " good cause" for lateness prong of the 5-factor " late-filed" test, but the court felt that the Appeal Board had failed to consider the " materiality" of the contention in addressing the other four factors.

The court was not entirely cicar whether it viewed

" materiality" as implicit in the existing 5-factor test or as a factor imposed by section 189a of the Atomic Energy Act, as construed in Union _ for concetD Scientists v. NRC, 735 T.2d 1437 (D.C. Cir. 1984),

cert. denied, 469 U.S. 1132 (1985) (agg Slip op. at 43).

The court did comment that the NRC's 5-factor test seemed "not well suited" and " odd" in the context of exerciso contentions (Slip op. at 41).

The court also rejected as too " terse" the Appeal Board's alternativo explanation that petitioners' contention did not moet the Commission's

" fundamental flaw" standard for exercise contentions (Slip. op, at 4 5).

Despite the romand for further explanation on the exercise contention, the court did not vacato Seabrook's license.

The court decided "against imposing an immensely disruptive interim status quo" where there scomed to be no " ongoing flaws" and w

I The commissioners 1 where "a clean record" in Seabrook's most recent full participation exerciso (in Cocomber 1990) "Will likely moot this issue" (Slip op, at 46-47).

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i Contacts Marjorio Nordlinger x21607 Roger Davis x21606 Neil Jonson x21634 l

O i n F.

Cordos, r.

.olicitor

Enclosure:

As stated DISTRIBUTION:

Commissioners OGC OIG LSS

'GPA REGIONAL OFFICES EDO ASI.BP ASLAP SECY 6

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A Notice:"Ih evinkm as subsect to formal reviske before gviditetkm in the Fnteral Rep.>r+n or USAgv D C. Repr.rts. U=ers are menested to runtify the Clerk of e.y 4rmel emn in or&r that correctums may be made twfore the twasswf volumes g.e to press.

Muitch 9tatra Gaurt af Appeals FUR Tite DISTRICT OF Col.UMBIA CIHCUTT Argued September 18,1990 Decided Januarv 25,1991 No. 89-1306 CoqueswEAs.Tu or MAssAcuusm et ct, rEnimsues v.

UNrtEu Sram Nociran ItEctuinny Covuission Asp UsrrEn STAm or AMEnICA, RESPUNDFNis l'tmut SEsivirE CourANY or NEw lirursutaE.

Towns on CrT4Es or Asnava8HAu. ct af., INTravEsous and consolidated cases No. 90-1132 & 90-1218 l'etitions for Review of an Order of the Nuclear Regulatory Commission fi IWrrt A. Itarkus (for Seacoast Anti-Pollution League) and John A. Traficmte. Assistant Attorney Genesa! for the Commonwealth of Massachusetts, with whom Paul I A **I *** tmsst t-ishi = the 18 da*'s efte utry 4 j.stemt. W rinvine sun ADMINISTH4'I1VE tW11rE It s e nt rH!N e=rt b.hs..th thfas*.e ass== sr*4=es t.. Me infis of r.nas cut e.T teene.

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McEachern (fer Town of liampton, New Ilampshiret OpinWn for the court filed by Circuit Judge Ikuta.

James M Sh rnnen. Attorney General for the Comm..n-thutn, Circuit Judge-This actiim consolidates three wealth of Massachusetts, and Stegicn A. Jonas. Ilesmt s Attorney General for the Commonweahh of Mawi.im petitions for review of the Nuclear Regulatory Commis-setts, and Diane Curran (for New England Coatoi m *o sion's licensing of Seahtook Nuclear Power Station. Peti-tioners Nuclear Po!!ution) were on the joint briefs. for petiti.m are the Commonwealth of Massachur-tts, the Seacoast Anti. Pollution League (*SAPL*). and the New ers.

England Coclition on Nuclear Pollution ( NECNP-). all John F. Cardes, Jr.. Solicitor, Nuclear Regulasury Com intrrvenors in the agency's licensing smiceedings. Public m;ssica ("NRC~), with whom William C Parler. Geo. ral krvice company of New flampslure ( PSNil ) has inter-Counsei. NRC, E. Leo Slaggie and John Chu. Sp.u..I vened here as leader of the consortium of utihties that Counsel, NRC, Roger Davis. E. Neil Jenwn. and Sinri ru

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S. Nordlinger. Attorneys, NRC, and Ri< hard H h art In No. 90-1132 Assistant Attorney General. Peter N. h nl<md and pe'itioners raise three issues concerning Jeffrev Kehnc. Attorvieys. Department of Justice. were -o the Commission's authorization of the plant's full pmwer license. They challenge the Coinmission's decision to j

the briefs, for respondents. Wilham H. firirrs. Jr and allow authorization of the full power license despite a Carole F.

Kagan, Attorntys, NHC, and Edu ard J i

prior agency ruling requiring further consideration of Sea-Shmaker. Martin W. Matzen. snd Janjuc* H Ge h".

Attorneys, Department of Justi e, alw entered opior bnmk's offsite emergency resp->nse plans. They also chal-lenge a ruling excluding from the licensing record ances for respondents.

evidence about the potential consequences of hypothetical Thomas G. Hignan, Jr.. with whom t, curve !s, I unfa radiological emergencies at Seabrook. Finally, they chal-

• md Je/frey P Trout were on the bn. r, for intenenor

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lenge the C.

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ommissmn s dem. l of a waiver of regulations a

lic Service Co. of New llampsh. ire.

exempting i,SNII. as a regulated utility, from the require-Paul McKochern was on the brief for intenenor Tao nient of demonstrating financial qualifications.

of flampton. Massachusetts, in No. 90-1131 In No 89-1306, petitioners raise two issues relating to

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Stephen & Ostrach was on the brief for umn u."*"

the plant s low power licensing. They claim the Commis-6 New England Legal Foundation in No. WI132-sinn misconstrued the scope of a contention they had filed concerning the possible fouling of Seabrook's cooling sys-Thomas J. Heiden entered an appearance for imen. n..r tem: and they claim the Commission improperly author-i Towns or Cities of Ashburnham, et al. in Nm e i to..

ired the low power license without conducting an adjudi-and 90-1132.

catory hearing on potential flaws in Seabroox s onsite Judith H. Mirner entered an appearance for interu i.-t emergency plan, allegedly revealed.in a June 1988 emer-Town of Newbury. Town of West Newbury, and ( in -t gency exercise. The third consolidated petition, No. 90- '

Newburyport in No. 90-1132.

1218. was hied as a precaution to preserve petitioners

• l opportunity for appellate review of the fu!! power issues; I

Harbara J. Saint Andre entered an appearance for inirr it simply duplicates No. 90-1132.

venor Town of Salisbury in No. 90 1131 j

We deny in their entirety the petitions 'n Nos. 90-1132

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liefore llerstyy* WILT. nots, and Hotell'88-C8*"r and 94-1218 for review of the full power license issues In

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5 mission's action concerning the cooling system conten-j 2.764id, (O. Such authorizations are subject to motions tion; we grent review, however, of the decision concerning for stay, and the Commission reserves the power to step the exercise contention, and we remand to the agency for in at any time. Il 5 2.764(O(2). Authorization of an oper-further explanation of its reasoning on this issue. In the ating license that permits more than five percent power interim. we will allow the operating licenses for Seabrmk operations does not become effective until the Commis-to n main effective.

sion itself has conducted an -immediate effectiveness" review of the Licensing Board's initial decision. Id L HACKGRoUND ness review, the authorization becomes effective wit}w>ut A.

Regulatory Overview prejudice to any pending administrative appeal of the Undcr section 182(a) of the Atomic Enerry Act of 1954 1,icensing Board's dacision or any further motions or for-("AEA"), as amended 42 U.S.C. 55 2011-2296 0988), the mal adiudication. Id. $ 2.764(g).

Nuclear Regulatory Commission ("NRC" or "Commis-An applicant for a nuclear plant operating license must sion") is authorized to approve the operation of nuclear provide detailed plans for coping with radiological emer-power plants that the agency finds "will provide adequate gencies on the plant site and for ensuring offs;te emer-protection to the health and safety of the public" 42 gency preparedness. Sec id $ 50.3t(b)(G)(v); id. Part 50, U.S.C. 5 2232(a). See also 10 C.F.R. S 50.57(a)(3) 09%

Appendix E.Ill..IV. The NRC requires the applicant to In accordance with the notice and hearing requirements submit emergency response plans prepared by state and of section 18') of the AEA, 42 U.S.C. 5 2239, the proce-local governments whose jurisdictions lie within desig-dural requirements of the Administrative Procedure Art.

nated emergency planning zones ("EPZs") surrounding 5 U.S.C. l5 551-559, and the procedures set forth in its the plant. Id. 5 50.33(g). The " plume exposure pathway" own regulations,10 C.F.R. Part 2, the NRC conducts for-EP7,is generally a circular zone with a radius of approxi-mal adjudicatory hearings on all contested issues, callnl mately ten miles; the " ingestion pathway" EPZ is a larger

" contentions," that are raised by interested parties in circle measuring approximately fifty miles in radius. The response to applications for a nuclear plant operming exact configurations of the EPZs depend on the particular l

license. Licensing hearings are conducted by a three-characteristics of each site. Id. 55 9133(g), 50.47(c)(2).

member Atomic Safety and Licensing Board ("Liten ing Offsite planning ;>rimarily facuses on protective measures Board") whose duties are to admit and detide contentions for people within the plume exposure pathway EPZ. Sec.

and, if the contentions are resolved in the applicanti eg, id. f 50 47(b)t5), 00) In th-ingestion pathway EPZ, frvor, to authorize the requested licenie. See 10 CF.It ss the focus is on protecting food sources from fal:out. See 2.750.772. Appeals from Licensing Board decisions are id j] 50.3'Hg), 50.47(c)(2).

heard by a panel of the Atomic Safety and LicenWn.

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Appeal Board (" Appeal Board"), id. s12.785. 2.787, aml

. imds reasonable assurance that adequate protective it the L,omm.ission may, in its discretion, undertake further measures c n and will be taken m. the event of a radiologi-review' id~ 5 2 786~

cal emergency ~ Id. 5 50.47(a)(1). The NRC's findings on A Licensing Hoard authorization of a low power te ting the adequacy of protective measures are based on a deter-license, which permits operation of a plant at up to tne mination by the Federal Emergency Maragement Agency percent of rated power, becomes immediately ellectne

(" FEMA") that the state and local response plans for the

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- on an hRC assessment of the adequacy and implementa.

Plan") is a plan that was developed by PSNif and the bility v the applicant's onsite emergency plans. Id.

other owner-utilities pursuant to 10 C.F.II. $ 50.47(c) after

% 50.47(a)(2). A FEMA finding constitutes a rebuttable Massachusetts and the Massachusetts communities presurdi. tion on the adequacy of an offsite plan. Id. Low power heensing requires the approval of an onsite emer.

within the EPZ declined to participate in emergency plan-ning.

l gency plan but does not require any asassment of offsite emergency preparedness. Id. $ 50.47(d).

During adjudicatory hearings on the adequacy of the l

Paragraph (b) of the emergency planning regulation Nil Plan, petitioner Massachusetts proffered evidence of i

sets forth sixteen specific standards that response plans potential radiation doses that would result from specific I

must meet. Id. f 50.47(b) ' Failure to meet these standards hypothetical accidents at Seabrook. The evidence was i

• may result in the Commissionl*s] declining to issue an intended to support petitioners

• contentions that the NII 4

operating license," but the applicant will have the oppor-Plan could not adequately protect the large numbers of tunity to demonstrate that the license should still issue persons who visit the ocean beaches near Seabrook on where, inter alia " deficiencies in the plans are not signifi-summer weekends. The evidence consisted of written tes-cant for the plant in question." Id. $ 50.47(c)(i). Further timony from four expert witnesses-Steven C. Sholly, Dr.

.la n Beyes, Dr. Gordon Thompson, and Dr. Jennifer l detailed guidance for emergency planning is contained in 10 C.F.R. Part 50, Appendix E.IV (" Content of Emer-Leaning icollectively, "Sholly/Beyea testimony"). Joint

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gency Plans") and in emergency preparedness guidelines Appendix ("JA") at 160. (Unless indicated otherwise, cita-developed and published jointly by FEMA and the N!W.

tions to the joint appendix refer to case No. 99-1132.)

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NHC & FEMA Criterb for Preparation and Evaluation Mr. Sholly's testimony was offered to explain that the F

of Radiological Emergency Response Plans and Prepared.

generic emergency preparedness guidelines on which sec-ness in Support of h uclear Power Plants. NUREG.

tion 50.47 rests were developed on the basis of dose-0654/ FEMA-REP-1 (rev. I Nov.1980) ("NUREG-t454"L distance assessments performed for a range of accident

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, Where state or local governments in the EPZs refuse to scenarios. JA at 171. Dr. Beyea would then predict the

! participate in emergency planning, the applicant level of protection the Nil Plan would actually provide to must

. substitute its own offsite resptmse plan, and such a the peak summertime beach population in terms of the j

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" utility plan" is also evaluated against the paragraph ibi potential radiation doses that could result frem various

' standards.10 C.F.R. 5 50.47(c)(1)(iii).

accident scenarios. Id. at 172. Dr. Thompson's testimony B.

Full Power Licensing Proceedings proposed to address the likelihood and characteristics of a catastrophic atmospheric release of radiation at Sea-The full power licensing issues before the court princi-brook. Id. at 174. Finally, Dr. Leaning was to describe the

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pally involve the Licensing Board's approval of Sea-health effects that such accidents would have on the

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brook's offsite emergency plans. The New llampshire Radiological Emergency Response Plan Revision 2 t Nil beach population. Id. The stated premise of these experts' testimony was that a site-specific examination of the Plan") is a state plan covering the New Ilampshire com-munities within the plume exposure pathway EPZ. The potential dose consequences of various accidents would Seabrook Plan for Massachusetts Communities (~ Utilities illuminate the effectiveness of the offsite einergency mea-sures planned. Id. at 18t t

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' paragraphs (a) and (b) of the emergency planning regulatmn leficensing Board refused to admit the Shnlly/Bevea

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9 vant to the review of emergency resp (mse plans under sec.

The Appeal Ikaard generally affirmed the iicensing ia tion 50.47. JA at 144-59. On interhicutory appeal, the Ibiard's findings and conclusions but reversed and Appeal 11oard certified to the Commission the question r manded four issues "for further action consistent witi, j

whether the evidence should be admitted in light ci a this opinion." Id. at 373. The remanded issues involved prior Commission opinion, Iong Island Lighting Co.

the possible need for letters of agreement with school per-e (Shoreham Nuclear Power Station, Unit 1), CLI-M-13,24 i

j N. LLC. 22,30 (19%) ("Shorcham"), in which the Commis-s<mnel invohed in evacuating schoolchildren; the accuracy i

of a survey intended to identify persons with special j

sion had stated that a goal of emergency planning is transportation needs; the accuracy of evacuation time

- reasonable and feasible dose reduction under the assumptions for advanced life support patients in hospi-

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circumstances." Sec I*ublic Screice Co. of New flampshire tals, nursing homes, and other special facilities; and the (Seabrook Station, Units 1 and 2), ALAH-922,30 NR.C.

247, 255-59 (1989).

need for further implementing details in the plan for l

emergencies in which sheltering would be the preferred

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In the meantime, on December 30,1988, the Licensing protective action for the beach population. Id. The Appeal

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Board issued a 141-page partial initial decision approving Board did not specify that its opinion precluded issuance j

I the NH Plan. Ibblic Screice Co. of New Ilamp3 hire of a full power license but did note that the lack ofimple-i (Seabrook Station, Units I and 2), LHP-88-32,28 N. LLC.

menting details for beach sheltering is a deficiency that 667 (1988).2 The Board made findings on twenty-six liti.

must be remdied." Id. at 372 n.194.

gated contentions relating to eight general aspects of the j

plan. Scc id. at 669-70. While the Ikeard found it nece" Two days a'ter ALAH-928, on November 9,1949, the sary to make four specific revisions to the plan and t" Licensing Boani issued a 281-page partial initial decision.

l retain jurisdiction over a subissue relating to one of those The decisi.m addressed sixty-two litigated cimtentions I

revisions, it concluded that, subject to later verification protfered by petitioners relating to the Utilities Plan and that the necessary revisions had been made, the plan met

,19g3 pgyg. graded, full participation exercise of Sea-t the requirements of 10 C.F.R. s 50.47(b) and Part 5"-

brook's emergency plans (such an exercise being a prereq-Appendix E, and reasonably assured that adespiate pr"~

uisite to full power licensing under 10 C.F.R. Part 50 tective measures were available for the New Hampshire Appendix E.IV.F.I). Sec LUP-89-32,30 N.R.C. 375. 38044

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portion of the EPZ. Sec 28 N.R.C. at 804 (1989). The Board cimcluded that the 1988 graded exer-i cise was adequate in scope and revealed no fundamental

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Petitioners appealed this decision while hearings con-tiaw in the Utihties Plan or the NH Plan; that the 1983

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tinued on other segments of offsite emergency planning exercise demonstrated that the NH Plan was adequate j

On November 7,1989, the Appeal Boasd handed down an and implementable; and that the Utilities Plan satisfied i

opinion reviewing four of the eight categories of iwoes the re piirements of section 50.47(b) and Appendix E, and i

resolved in LHP-88-32. ALAHo24. 30 N. LLC. 331 (198%

reas<mably assured that adequate protective measures would be available for the Massachusetts portion of the

1. Each of the NRC rulings related to Seabnnk bears the rartma EPL S.y 30 N.R.C. at 650. Having thus resolved all

-Pubhc Smire Gs. of New ifampshire (Seabrimk Stati.m. tini

i I and 2L folbwed by its respective decision number. with th" remaining licensing issues in the applicants' favor b>ther

' prefix -LBp* denoting the Licensing Ibard. -ALAH.* the Apt J than the four remanded by the Appea! Ikiard), the Ijcens-Ibard, and "CLI.* the tommtsson. For case and clanty. me y

simply refer to all of the Seabrook rulings by their decision num.

Id at 65L The Iksard took note of the four remanded bers.

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explaining why ALAB-924 did not preclude the immediate all. For it is by applying the generie guidance of the I

isse mce of an operating license. Id at 651 & n.87.

regulation's sir' m standards to the review of indi-t Vi Petitioners moved the Appeal Board to vacate authori, U8I emergency plans - not by attempting to pre-f zat. ion of the full power license, but the Appeal Boara dict the effects of particular hypothetical acc: dents i

refused to act before receiving the Licensing Board s suP-occurring under particular hypothetical conditions of f

piemental opinion. JA at 1048. Subsequently, the Com-weather, time of year, and time of day - that the NRC satisfies itself that the goal of achieving done mission decided sua sponte to assume jurisdiction over reductions is met.

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petitioners' motion to vacate; the Commission rensoned i

that because it was already scheduled to decide the imme.

Id at 215.

diate effectiveness of LBP-89-32 and the Sholly/Beyes On the same day it decided this evidentiary question, i

evidentiary questior., its resolution of the motion to the Commission issued a ruling denying petitioners

• vacate would serve the interests of efficiency. JA at 1051.

motion to vacate and allowing the immediate effectiveness i

Thereafter, in its supplemental decision sJ November 20 of the Licensing Board's decisions. CL1-90-3, 31 N.RC.

1989, the Licensing Board snalyzed the four remanded 219 (1990). On the motion to vacate, the Commission con-f 4

issues in light of its familiarity with the extensive factual c!uded that the Licensing Board had not violated any

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record and concluded that none of the deficiencies was

" clear, nondiscretionary duty' in suthorizing the license.

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sufficiently significant to preclude licensing and that any Id at 229-31. The Commist, ion reasoned that "nothing in l

further action concerning such issues could be conducted ALAB-924 by its terms precludes a full power i

through post-licensing hearings. LUP-89-33, 30 N.RC.

authorization'; that no NRC rule or decision " suggests...

i 656 (1989).

[a] duty on the part of the Licensing Ibard to delay full

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On March 1,1990, the Commission nanded down its power authorization pending completion of remand

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decision on the certified question concerning the Shol-pmceedings"; and that, "most important for this case,-

ly/Beyea testimony. CLI-90-2,31 N.RC.197 (1990). The the Licensing Board's authority to act despite a remand l

I Commission upheld the Licensing Board's ruling that the from the Appeal Board was properly supported by 10 I

testimony was inadmissible, holding that " judgments on C.F.R. 9 50.47(c)(1). 31 N.RC. at 230. While agreeing that i

the adequaev of emergency planning are to be based on the remanded issues were probative of compliance with

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conformity with the sixteen planning standards set forth section 50.47(b), and thus would be relevant to licensing.

1 in 10 C.F.R. 5 50.47(b)." Id at 213. Relving on its own the Commission noted that they were "not necesscrily j

guidelines and rulemaking statements supporting section maWM to license imance became, under 1 Mc),

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l 50.47 and on prior adjudicatory decisions, including its

[some] compliance issues may not be sigmficant and Shoreham opinion' the Commission reasoned that therefore need not be resolved prior to bcense issuance."

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/d at 230-31 (emphasis added).

consideration of specific accident sequences and their potential dose consequences has been rendered In.its immediate effectiveness review, t,ne Commission i

7 unnecessary by the promulgation of generic guidance found that the Licensing Ikard had acted reasonably in j

that incorporates and synthesizes data on a range of determining that the remanded issues were not significant accidents and their consequences. Thus the seeming and that this determination did not preclude the immedi-l anomaly of excluding proffered evidence on dose con.

ate issuance of a license. Sec id at 232-48 The Commis-sequences, where the objective of the inquiry is to sion further held that the Licensing Board's findings and l

reduce dose uns.gences, is in fact no anomalv at concimh.n< in I stP mm a A ~t-

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Pl:n and the FEMA-graded exercise, not yet reviewed by I

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the Appeal Ibrd, also met the immediate effectiveness bibits a utility from increasing customers' rates to recover l

criteria set forth in 10 C.F.It 5 2.764(f)(2). See id_ at 248-the costs of construction work in progress). See CLI '

54. As a result, the Commission allowed the full power 10,28 N.ILC. 573,592-98 (1988). In denying the later peti-

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license to take effect, "with, however, the recognition that tion, the Commission held that its low power decision did l

administrative appeal processes (in which later review of not support a waiver of the financial qualification exemp-the Licensing Ibrd's decision [s] will take place) will tion during full power operations because *[nlothing in continuel* Id. at 225.

the anti-CWIP law... prohsbits including Seabrook's

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operating costs in the rate base when the plant is ope

.t-j On March 15, 1990, the full power license issued. JA jng t sene t e pibhe, as it will he fully authorizr# 4 do i

r,t 752. This court denied a stay pending appeal, and Sea-if it receives its full power b, cense. 30 N.itC. at 241 (em-4 brook thereafter began its sscension to full power. Admin-phasis m ongmat). The Commission also held that the not be unkeut by a normal May m j

istrative appeals and further adjudication before the exempt nw Licensing Ibrd are ongoing.

Cost rec 9Very imposed by the New IIsmpshire ratesettmg The last NHC action petitioners ask us to review in process, id., and that even sf the rule were undercut by

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3 connection with the full power proceedings is the Com-exceptional circumstances, petitioners had failed to show

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mission's denial of their request for a waiver of the finan-that a significant safety problem would result, id. at 243-i cial qualification regulation. CLI-89-20, 30 N.RC. 231 44.

L (1989). The NRC exempts regulated electric utilities, like C.

Low Power L..icensing I,roceedings PSNil. from ita general rule requiring license applicants A low power licertse permits an applicant to initiate fuel to demonstrate financial qualification _

10 C.F.R

~ s5 50.33(f). 50.40(b). The rationale for the exempti<m is loading and low-level testing before ascension io full that a regulated utility usually can recover through its power operation. Ikrause certain requirements for' fuii r te base the costs of safely operating a nuclear facility.

power licensing, such as adequate offsite emergency phms, 49 Fed. Reg. 35,747, 35,748 (1984). Massachusetts and are not relevant to low power operation the NRC may.

SAPL argued that a waiver was justiSed persuant to 10 upon motion by the applicant, issue a low power r--ting C.F.R 5 2.758(b) because the rationale for the exemption license prior to the authorization of a full power i :euse, had been undercut by "special circumstances," namely, provided that all contested issues material to low p>wer the fact that PSN11 had filed for bankruptcy. JA at 397-operations have been resolved in the applicant's favor. S-c 537. The Licensing Board ruled that petitioners failed to 10 C.F.ft 5 50.57(c). The Licensing Board assigned the make a prima facie showing for a waiver, LHP-89-10,29 adjudication of Seahnmk's licensing issues to two panels; N.RC. 297 (1989), but the Appeal Hoard certified the one of them held hearings on the offsite emergency plan-issue to the Commission. ALAB-920, 30 N.ILC. 121 ning contentions discussed above, and the second adjudi-(1989).

cated all contentions relevant to low power licensing.

including all onsite safety and emergency planning issues.

Petitioners relied on a prior opinion rendered o,un.

So-LHP-87-10. 25 N.RC.177, IMI (1987). Petitioners ne Seabnek's low power proceedings in which the Commis; seek review of the NHC's action concerning two issues sion had found that the purpor.e of the exemption was raised in the low power proceedings.

. undermined by the combinstion of PSNil's bankruptcy and New Hampshire's ' anti-CWIP' statute (which nm-in June 1982, petitioner NECNP submitted a conten-

"~--" "'" '

-._ - -. - - - =

t i

i t

i 14 15 f

?

4 j,

tem could fail because of "the accurnulation of mollusks.

The Commission denied review, and the Appeal Board's other aquatic organisms, and debris." JA. No. 89 1306, at decision became final agency action.

i

1. As its basis for the contention. NECNP pointed to an E

NHC notice in the Fnkal Hegistu discussing the I> rob.

g 7

to the Jime 1988 fuli partiopstion exercise of Seabrook s e

""'**"## N"" D I"

c sa us. Is. Id t 2-3 see 47 J. I eg-1.

j 1982). The Licensing Board refused to admit the conten.

the onsite portion of the exercise issued a report on July i

6 1988, which omcluded that "[nlo violations were tion. Several years.ater however, the Appeal Nard reversed and remanded the contention. ALAB-875* ~96 identified" during the drill and that the " response actions N.ILC. 251* 261-63 (1987)'

• "e a%8te to pmvide protective measures for the health and safety of the public ~ JA. No. 891306 at 220.

During the course of subsequent proceedings. NECNP The report detailed various strengths ebserved in the i

j sought to compel discovery of Seabrook's ability to detect exercise and also discussed some " weaknesses.~ including l

and control "microbiologically induced corrosien~ in its certain actions of onsite plant personnel. Id. at 723-24. In cooling system. The Licensing Board denied NECNP's the opinion of the inspection team, five weaknesses indi.

motion to compel, ruling that NECNP's cooling system cated that the plant's Technical Support Center ("TSC~)

j contention was limited to the accumulation of marine and Emergency Operations Facility (" EOF") staffs dis-r organisms and debris and did not encompass the side.

played questionable engineering judgment or failed to rec-

[

effects of microbiological activity. JA. No. 89-1306. at 472 ognize or address technical concerns-

79. NECNP sought reconsideration, submitting an expert affidavit expressing the view that microbiologica!!y

- Neither the EOF [njor TSC staff questioned a f

release of greater than 7000 curies per second with mduced corrosion was within the scope of the 1982 ctm-only clad damage and no core uncovery; I

tentwn. Id at 90. The Licensing Board denied the motion to reconsider on the grotmd that expert opinions were not

- Efforts continued to restore the Emergency Feed-p i

relevant to the question. Id at 491-96. NECNP thereafter

"*P. aft" a large fireak WA @ss of j

"" ^'

informed the Board that it no longer wished to litigate the i

l i

issue of bhickage by " macro" organisms. id. at 158 59, and

- A questionable fix for the Containment Building the contention was subsequently dismissed as abandoned.

. Spray system;

(

M at N OI.

- A lack of effort to locate and isolate the release

(

The Appeal Board accepted an untimely appeal of the path; and i

Licensing Board's ruling on the scope of the cooling sys-

- No effort was noted to blowdown Steam Genera-tem contention. ALAB-894. 27 N.itC. 632 (1288), and tors to lessen the heat load in containment 1

later affirmed the ruling. ALAB-899. 28 N.ILC. 93 (19881-

[

Id at 994~

Based on the terms and the stated basis of the contention.

~

the Appeal Board concluded that the contention On September 16, 1988, petitioners filed a motion addressed blockage" of coolant thiw to safety-related sys.

requesting that the Board admit a new contention, or in tems. not " leakage" caused by corrosion. 28 N. LLC. at 96-the alternative reopen the record. based on their allega-l

99. The Appeal Board observed that instead of raising this tion that the June exercise had revealed fundamental defi-l aew issue within the terms of the old contention. NECNp ciencies in the onsite emergency plan. Id at 2 1. O n should have proffered a late-filed contention Id at m September 23. the NHC staff is*ued a folhow-up inspection t

l i

l i

i l

1 i

j 16 17 j

report based on further investigation, which concluded

15. Discisww

[

j that the actions of the plant personnel had been accept-A.

Jurisdiction i

able after all and that the matter of the weaknesses was 4

I

" considered closed." Id. at 274, 286-88.

At the outset, we must sort out the reviewaliity of de

{

{

various agency decisions implicated in these petitions.

t The Licensing Board denied petitioners

• motion on the This court has jurisdiction over all final orders of the f

j grounds that petitioners had failed to satisfy the require-NRC that are made reviewable by section 189 of the AEA.

i ments for a late-filed contention, set forth in 10 C.F.it 28 U.S.C. 5 2342. Section 189 provides for judicial review

$ 2.714(a)(1), and that the motion did not meet the oI*[ajny finat order entered in any proceeding.~ inter afia, f

criteria for reopening a chssed hearing record, id. f 2.734.

"for the granting. suspending, revoking or amending of

[

LHP-89-4, 29 N.R.C. 62, 68-86 (1989). The Appeal Boani any license.' 42 U.S.C. % 2239(a), (b). Generally, under t

affirmed first.on the ground that the Licensing Board did these statutes, an NRC order is final if it disposes of all l

s l

not abuse its discretion in determining that the motion issues as to all parties in the licensing proceedmg. that I

failed to meet the late-filed contention requirements; ami, is, if it consummates the agency's decismnmaking process I

second on the " independent basis' that even if the and results in granting denymg. suspending, revoking, or j

motion met tnose criteria, the pronosed exercise conten-amending a license. See NRDC. Inc. v. NRC,630 F.2d 810 i

tion must be rejected under Commission case law bacause 815 (D.C. Cir.1982L According to this strict rule of final-I

.ity, we plainly have jurisdiction to review the low power it did not involve a " fundamental flaw" in the emergency issues raised in No. 89 1306 because the Commission has

}

plan. ALAH-918, 29 N.R.C. 473, 480-86 (1989). The issued a final order, CLI-88-10, granting the low power

[

Appeal Board did not reach the issue of whether the testing license. The full power petitions, however. are i

}

motion satisfied the enteris for reopening a closed record.

another matter.

I l

Id. at 485. The Commisoon declined further review-thus the Appeal Board's rulr g became final agency action.

in our opinion, the Commission's immediate effective-1 ness ruling. CLI-90--3, represents a nnal agency order that f

After various delayu, the Commission ultimately is reviewable by this court. As shown by our decision in granted a low power testing license for Seahnsok in OystershcIl Auiance v. NRC, 800 F.2d - 1201 (D.C. Cir.

^

December 1988, with two conditions: The applicants had 1986L we will review an immediate effectiseness decision l

to provide reasonable assurance that sufficient funds even though, under the procedures set forth m 10 C.F.it i

would be available to cover the costs of decommissioning 5 2.764, the Commission's decision is not a f' mal adjudica-the plant should a full power license be dem. d, and peti ~

tion on the merits and is without prejudice to any pending i

e l

twners then-pending motion to htigate the onsite exercise administrative appeal or subsequent adjudication. Sec 800

{

l-contention had to be resolved. Sw Cl.1-88-10, 28 N.R.C.

F.2d at 1206 07. Such review is appropriate because it will not disrupt the orderly process of adjudication within the j.

573 (1988). With the fulfillment of these conditions, the agency and because significant legal consequences flow j-Commission lifted its stay of the license in May 1989.

frum the Commission's action. Sn Ibri of Boston Marine CLI-89-8. 29 N.R.C. 399 (1989). After this court refused Terminal Ass'n v. Rnicrichtiebolmyt Transatlantic. 400 petitioners' subsequent request for a stay, Seabrook began U.S. 62. 71 (1970). We also believe it appropriate in this low power operations.-

case to review that portion of CLI-90-3 in which the Com-l miscinn resce,I to v3c3ee the I icensine Hoanrs nutteri-i w

v

1 4

18 19 j

zstion of the full power ' license, 31 N.R.C. at 225-31, ate, or procedural rulings that relate to the final agency

]

because that ruling was a necessary predicate to immedi-action presently before the court. Accordingly, we will j

ate effectiveness.

consider the NRC's full power rulings only to the extent Of course, our examination of CLI-90-3 is exceedingly necessary to review the Commission's exercise of discre-tion in allow, g immediate effectiveness.

)

lin>itul In an immediate effectiveness review, the Com.

m j

mission determines whether it is in the public interest to in particular, the Commission's denial of a financial j

lift the administrative stay that automatically attaches to qualification waiver, CLI-89-20, is interlocutory in nature j

an initial authorization of a full power license. This deter-and is not independently reviewable. We so held in dis-mination is based on a weighing of equitable consider-missing an earlier petition for review of CLI-89-20, Order, ations: "the cravity of the substantive issue, the likelihood Afassachusetts v. NRC, No. 89-1648 (D.C. Cir. filed Dec.

a

]-

that it has been resolved incorrectly below, the degree to 26,1989) (per curiam), and we see nothing in the immedi-which correct resolution of the issue would be prejudiced ate effectiveness decision to alter that conclusion. There-l ry operation pending review, and other relevant public fore

• we again decline to review CLI-89-70.

interest factors.

10 C.F.R. $ 2.764(f)(2)(i). Thus, our 2

review of CLI-90-3 is akin to the review of a district Intervenor PSNil maintains that the Commission's evi-l court's grant Ma preliminary injunction, sec, c g.,

dentiary ruling on the Sholly/Heyea testimony in CLIMJ-l National Wddii/c Fed'n o. Burford,835 F.2d 305,319 (D.C.

2 is also not a final licensing order subject to our review.

j Cir. 1937), and is properly confined to determining Hrief for PSNH at 22-23; sw NRDC Inc. v. NRC,680 F.2d j

whether the Commission abused its discretion, see (&stcr-at 816 (ordinarily, agengs evidentiary ruling not a final shell Alliance, 800 F.2d at 1206.

order). In our opinion, however, the peculiar relationship between CLI-90 2 and the Commission's immediate effec-l We reject petitioners

• argument that immediate effec-j, tiveness renders the Licensing Roanrs decis. ions and all tiveness decision of the same date, CL1-90-3, makes the related " intermediate, procedural or preliminary non-final decision to exclude the testimony properly reviewable. In actions or rulings" of the NRC reviewable hv this court a!!owing immediate effectiveness, the Commission under 5 U.S.C. 5 704. Petitioners' Motion Seeking Clarifi.

observed that CLIM2 forms an important part of con-

~

i cation of Appellate Jurisdiction, filed Apr. 30,1990, t 10.

closions reg:trding emergency planning for Seabroolt" We already decided in a related petition that LHP-89-32 CLIM3,31 N.R.C. at 225. Indeed, the Licensing Board is not reviewable even after CLI-90-3. Order, afassachu.

believed that i,s initial ruling on the relevance of the setts v. NRC, No. 89-1743 (D.C. Cir. filed Mar. 7, lo9m Sholly/Beyea testimony 'would have the potential to (per curiam). Furthermore, while section 704 authorizes affect the basic structure of the case in a pervasive way,"

1 l

judicial review of preliminary or intermediate rulings on JA at 144, and in certifyin;: the question to the Commis-the review of the final agency action," 5 U.S.C. ! 704, it sion, the Appeal Board stated that "this issue is ca-dinal does not give us plenary jurisdiction over the entire Sea.

to the resolution of a number of matters in this i

brook licensing litigation. The only " final agency action-prnceeding." ALAH-922,30 N.R.C. at 249. In sum, there j

at issue here is an order allowing the plant to operate at ir littic doubt that if its decision on the relevance of the full power pending the Commission's further review of the testimony had pme in petitioners

• favor, the Commission i

licensing issues. This order is not a " final decision' by the would not have albewed the immediate effectiveness of the l

Commission pursuant to 10 C.F.R. I 2.770. Section 704 full power authonzation. This close link between the two

~

euthorizes us to review oniv those preliminarv. intermedi-decisions renders our review of CLIM2 appropriate.

1

~

m 20 4:

H.

Interpretation of Emergency Planning Regulation Argument of Robert A. Backus, counsel for petnioner SAPL. Sept. 18. 1990:

in the NRC's view, an emergency response plan pro-vides " reasonable assurance' of " adequate protective QUESTION:

Would you agree that edeguste shel-measures" under 10 C.F.R. 5 50 47(a)(1) if it adequateiv tering is simply not available oc the beaches for the beach population?

satisfies the sixteen paragraph (b) criteria in a way that is implementable; the plan need not achieve any minimum h1It BACKUS:

Essentially, we agree with that, Your radiation dose savings or minimum evacuation time m the Ilonor.

event of a specific accident. See Cf.I-90-2. 31 N.R.C. at 208, 216-17. This approach is thought most likely to pro-QUESTION:

Then is it your position that if there duce a flexible plan thet offers the best feasible means for cannot be protection. a license may minimizing harm to the public from unpredictable acci.

not issue?

dents. given the particular characteristics of the plant site MR. HACKUS:

That.s our position.

and the surrounding EPZ. Sw id. at 215-17. If any inter.

ested party believes that satisfaction of the sixteen stan-QUESTION:

That this is a characterista.nherent an adequate and in the choice of the site?

dards alone will not produce implementable plan in a particular case, the party may petition the NRC under 10 C.F.R. $ 2.758 for a waiver of MR HACKUS:

That's correct T.ourlionor.

I section 50.47 to allow the imposition of more stringent This basic irreconcilable conthct fuels petitioners' chal-planning requirements. See id. at 217. Petitioners chal-lenge to the full power licensing of Seabrook. For that L

lenge this interpretation of the emergency planning regu~

reason, we will address CLI-90 2 before turning to the immediate effectiveness ruling. As discussed below we lation and the Commission's consequent decision t"

exclude the Sholly/Beyes testimony.

decline to disturb the Commission's application of ration Petitioners' view of emergency planning fundamentally 50.47.

differs from the NRC's. It is their position that section Our standard of review on this question is necessarily 50.47(a)(1) requires the Commission to judge an emer-deferential. We will not overturn the Commission's inter-gency plan m terms of the actual dose of radiation pretation of it. own emergency planning rule "unless that received by a particular EPZ population in a hypothetical interpretati<m is plainly incons>istent with the language of accident scenario. The mference to be drawr, from their the regulationi 1. San Lms 06spo Aforhers for Ihr t'.

position is that a nuclear power plant may not be licensed NRC. 789 F.2d 26,30 (D.C. Cir.) (en lunc) ("Aforhcrs for for full power operation where the demogra;>hy and physi-p, ff-). cert. denied. 479 U.S. 923 (1986). If its rwhng cal constraints of the planning area are such that no feasi-of section 50.47 satisfies that standard. the Commissi<m's ble response plan can provide substantia: protection application or the regulation to exclude petitioners' expert i

under particular conditions. Sec Brief for Petitioners at testimony may be set aside only if it was arbitrary, capri-j

13. 43-46; Brief for SAPL at 2-8. Because of the absence cious. an abuse of discretion, or otherwise cimtrary to law.

of sufficier.1 protective sheltering near the beaches and Ihe Sw 5 U.S C. i 706(2HA) (1988). Moreover, the Commis-length of time potentially required for a complete evacua-sion's licensing decisions are generally entitled to the tion of the beach population during periods of peak use, highest judicial deference becauw of the unuso lly broad

. a...

... n... P-e,t te.d t,. v he neenev under t he they contend ihat Seabrook is such a nf ant h Oral L

_ _ _ ~ _ - _ - -

i i

22 23 i

i l

Atomic Energy Act. Carstens o. NRC. 742 F.2d 1546.1551 with the First Circuit. Accordingly, we see no reason u2 (D.C. Cir. BS4), cert. denied, 471 U.S.1136 (1985).

depart from the highly deferential standard of review <ct-l Petitioners argue that we should not defer to the Com.

• ~

missior *s interpretation of section 50.47 or the decision Our analysis must begin with the wording of section [

to exclude the Sholly/Beyea testimony on the ground that 50.47. Petitioners argue that the Commission's interpreta- !

j the NRC lacks expertise in the area of emergency plan.

tion violates the plain language of the regulatiem because C mng. They contend that Congress recognized this st,p.

protective measures cannot possibly be judged " adequate.-

posed lack of expertise when it required the NRC to as required by section 50.47(a)(1), without consideration develop and implement mandatory offsite planning stan.

of their actual effectiveness in protecting the puhhc. 'Nt dards in consultation with an agency more specialized in conclusion, however, is not compelled by a straightfor-emergency response. FEMA, see 1980 NRC Authorization ward reading of the rule.

Act, Pub. L No.96-295. I 109,94 Stat. 780,783 85 i19so).

The Comm.ission observed that -[nlot..amg m +be regu i thereby m. dicatmg dissatisfaction with the failure of the lation contains any suggestion that calculations of dose !

3 checklist. approach to offsite planning that the NRC ed prior to the Three Mile Island FTMl") accident consequences are intended to play a role in the evaluation {

m

}

of a plan's adequacy ~ CLI-90 2. 31 N.RC. at 214. We l cannot say that this judgment is flatly contradicted by the i Petitioners have confused the judicial deference that is language or structure of section 50.47. As we have previ- [

given when the NRC makes predictions, within its area ously noted in determining that a response plan need rmt i of special expertise at the frontiers of science" Baltimore consider a particular emergency event like an earthquake, f Gas & Elec. Co. o. NRDC, 462 U.S. 87,103 (1981) with section M47 make[s] no reference to specific conditions I the deference presumptively owed an agency's interpreta.

or accident sequences? Afothers for Peure II. 789 F.2d at l tion of its own regulations and with the ha;ghtened defer.

43. Paragraph (a) appears to state the general goal of the i i

ence for NRC licensing decisions that flows from its broad regulatory scheme for emergency planning. As we earlier !

statutory mandate. The latter two bases for judicial defer.

observed, paragraph (a) -dues not address any particular ;

ence fully apply here.

emergency...; rather, it seis forth a general standard l 1

In particular, the 1980 Authorization Act, an expired that envisions judgment and implies discretion? Id. at 31. F tiscal appropriations law, was not in effect when CLI,*"#"

rnee. FmmaW b & Ww i

2 was decided and therefore did not limit the licensing dis-

".Q3 cretion otherwise conferred on the Commission by Con-10 C.F.R g 50.47(h). N.one of these specific standards i

gress. Moreover, petitioners argument that the NRC requires the Commission to measure a plan against partic-4 lacks expertise m offsite emergency planning was j

expressly rejected in Afassachusetts v. hnited Stores. 856 F.2d 378 (1st Cir.1988). where the court held that -(t]he Other provisions in the regulation indicate that the core j

substantive area in which an agency is deemed to be of the Commission's inquiry is compliance w,th the I

expert is determined by statute: here, under the relevant generic standards of paragraph (b). Paragraph f aH2) pro-congressional enactments.... the NRC is specifically vides that FEMNs determination supporting tlw authorized and directed to determine wh+ther emergency

.m

. a

• reasonahie asrurance' finding "will primarily be based on ;

r.,

,,c..,.

..o.-

4 a _-

t 4

t i

l r

24 25 necessarily focus on the contents required by paragraph

'* *I"""

""'"#I

.(b) and Part 50. Appendir EIV. Paragraph (cH1) pro.

E8 *"I'*'Y U

• vides, inter alia that '1flaiture to meet the applicable in which Comtess directed the NRC to estahtish and standards set forth in paragraph (b) of this section n'av enforce starWads for c:fsite emergency plans. Sw Puh.

result in the Commission!'sj declining to issue an operat-L No. %295, i 116, 94 Stat _ at 733 84. They point to

~

ing license.' unless the applicant for the license can dem-language in the Authorization Act mdecatmc that a onstrate to the Coramisskm's satisiaction that deficiencies resp;nse plan was to pnW ] nasonaWe amrance in the plan are not significant fer the plant in question

'I*** P"

• Y*

that interim measures will compensate for the deficienI II IM IN that the NRL was required to cies, or that there are other compelling reastms to permit

~" "

• licensing. Id. J 50.47(c)(1).

and that the agency was directed to report to Congress on the emergency response capabilities available for in the event the applicant must develop its own piants with existing construction permits (which included response plan as a result of a refusal by state and local Seabrook) and to determine "the maximum zone in the governments to participate in emergency planning, the vicinity of each such facility for which evacuation ofimii-regulation provides that the

• utility plan will Iw evaluated viduals is feasible at various different times corresponding against the same plarming standards applicable to a state to the representative warning times for various different or local plan, as listed in paragraph (b) of this section,'

types of accidents." id. $ 109(c). Petitioners ctmtend that with certain allowances for the lack of governmental par-these provisions required the NRC to judge the effective-ticipation. Id. $ 50.47(c)(1)(iii). Under paragraph td) the ness of a particular plan's protective measures based on NRC's evaluation of onsite emergency planning for pur-the degree to which the public is actually protected by poses of lor power licensing reeptires a similar firaling of those measures ~ lirief for Petitioners at 27.

reasonable assurance of adequate protectise measures

• assessment of the We do not agree that the Authorization Act required which wdl be based on the NRL s applicant.s onstte emergency plans against the pcrtinent the NHL, to develop standards for evaluatiae each emer-standa. rds m. paragraph (b) of tm..s section and Appendix gency plan.m terms of an actual reduction in potential R" Id. $ 50.47(d).

radiatmn (xposure. The Act directed the agency to pro-mulgate planning startdards by rule and to require as a All of these provisions bolster the Commission's conclu-condition of bcensing that for each plant there exist either sion that adequacy is te be judged by conformity with the a plan that complies with the NRC's regulatory standards planning standards.' CLI-W2. 31 N.R.C. at 214. These for responding to a radiological emergency or. in the alter-sixteen standards were ' derived from assessments of a native, a plan that offers reasonable assurance that public spectrum of possihte radiological accidents, and the NRC health and safety will not be endangeral Pub. L No. %

has concluded that they provide an ap;m priate basis for 295. 5 tombHI). This congressional mandate left to the arriving at a plan that will be comprehensive and tvexible.

NRC's dscretion the specific requirements of emergmcy See id. at 215-17. Petitioners' construction of paragraph planning. The alternative structure of section tomb)

(a) is certainly plausible. perhaps esen desirable as a mat.

re lects Congress's assumption that the NRC could ter of policy, but it is not the only reasonable reading of develop generic standards that would reasonably assure the regulation. We conclude that the Commission's inter-pretation is not plainly incnnsistent with any language in

% tWn its of the 1990 NRC Autimrizatism Act is reprinted j

section 50 47.

' " * * * " * ' " " " ' " * * " * ' ~ ~ '

k

1 i

i 26 27 I

l the public safety without having to examine the specific protection for the public from hypothetical accidents that [

safety consequences of each emergency plan for each surpass the containment capabilities of engineered safety s

plant.

features and onsite precautions. The only possible mes-I sure of such effectiveness, they claim, is dose conse-i-I,etitioners do not contend that the agency failed to t

9"'"##

comply with section 109(c) of the Act, which simply j

required the NRC to report to Congress on the emergency Petitioners conte.:nd that in its 1980 rulemaking pro-l response capabilities of each plant then under construc-ceedings on emegency planning, the NRC embraced this i

tion and to include in that report a description of the concept and. m resp <mse to the Authorization Act, !

maximum feasible emergency planning zone for such rejded the pre-TMI practice of relying on a checklist to j plant. See id. I 109(c). The fact that Congress directed the guide state and local authorities in the development of NRC to identify enlarged EPZs for all new facilities with emergency plans because that approach was insufficient }

reference to feasible evacuation times does not signify to achieve " adequate protection." Petitioners argue that ;

that a resp (mse plan could only be approved if it would the Commission's current interpretation of section 50.47 [

achieve nome minimum safe evacuation time for persons represents a throwback to the pre-Authorization Act prac-L in the EPZ. This provision did not constrain the NRC's tice Incause the paragraph (b) catalog of standards is discretion to define generic standards for such protective almost identical to the earlier checklist used by the NRC.

measures. See H.R. Rep. No. 1070, 96th Cong., 2d Sess.

Cf. NRC, Guide and Checklist for the Development and

• 27 (1980) (conference re;mrt) (while designation of EPZ Evaluation of State and Local Government Radiological should consider capability to implement protective mea-Emergency Response Plans in Support of Fixed Nuclear sures such as evacuation and sheltering quickly and facilities, NUREG-75/111 (1974).

saf m

un r uirements for planning standards left in CLI-90-2, the Commission agreed that emergency planning under section 50.44 is a "first-tier safety }

Petitioners o!Ier a second statutory basis for their rem-requirement designed to implement the " adequate i tention that the adequacy of emergency planning must be protection' standard of section 182(a) of the AEA. 31 ;

measured by the actual mitigation of harmful cimse-N.RC. at 210-13. But the Commission did not lelieve this "

quences. As a result of the TMI accident, they argue, the fact was material to whether evidence like the Shol-NRC came to realize that emergency planning is an essen-Iv/Bevea testimony is properly considered in the review tial "first tier" safety requirement, along with siting and of an emergency plan. Ed. as 210. According to the Com-design engineerine, for achieving " adequate protection to mission, even though offsite planning is an essential ele-the health and safety of the public." the goal of licensing ment of adequate public protection, it is not necessarily under section 182(a) of the AEA,42 U.S.C. 5 2232(a) Nec of equal safety significance with other protective require-44 Fed. Reg. 75,167, 75,169 (1979) (rationale for promul' ments:

gation of section 50.47). They conclude from this that the 1980 Authorization Act required that the same standards

[ Aldequate emergency planning is. ssential,. -just a.

e be applied in determining the adequacy of offsite emer-adequate Efeboats are essential br a br ca@o pasa.cngers at sea. Rut it is only common sense it gency planning as are applied m. determining the ade-acknowledge that emergency plains, like lifeboats, an quacy of site selection and plant c,esign.

a backstop, a second or third line of defense that From this premise, petitioners reason that each emer.

comes into play only in the extremely rare circum gency response plan must be judged to provide effective stance that engineered design features and homas

28 29' capacity to take corrective action have both failed to Contrary to petitioners

• contention, the Commicion's avert a serious mishap.

,Iuly 21, 1980, rulemaking pmceedings do not desdy estabbsh that ection 50.47 was intended ic-achim a Id. at 213.

measurable lesel of effective protection in specibe can F.or mitial siting approval, the NitC requires the appli.

In choosing the word " adequate over *apptwriate~ for cant to estabush around the proposed plant an exclusion paragraph (a) certain members of the Commission voiced the opinion that "adequaev"' would cannote reas.onabie area and low populatmn zone

("LPZ'). the sires of I

t assurance of effective dose reductions, wherces which must be dercrmined on the basis of specific maxi-might be satisfied by a less demanding best-mum safe radiation exposure levels for the public assum-1 appropriate ing a fission product release from the reactor core Sec In efforts standard that could. leave the public in danger. S.ee C.F.It. 61()O ll(a)(1)-(.!). The siting regulations als" Transcript of NRC Itulemaking Session. July 23,1980, at

" population center n.28, 3 4 53, reprinted in JA at 25-31, 37-16. Petitioners require the determination of a

~~

e3istance, measurmg the distance to the nearest area of dense population, which must be at least one and one-

'II"'"***'"*'"'

third times the radius of the LPZ. See id. $ 100.II(aH3).

We are not convinced. At most, the 1980 rulemaking Thus, the shorter the p<,pulation center distance, the greater the design-engineered safegimrds required in order proceedmgs establish that the overall goal of emergency to have an LPZ with an outer boundary of no more than planning is reasonable and feasible dose reductions under three-fourths the distance to the nearest population cen-the circumstances, a proposition reiterated in the Com-ter. In emergency planning, by contrast, the goal of miti-mission's ruling see CLI-90 2,31 N.It.C. at 216-17. In the gating dose consequences in the larger EPZs is to be same hearing cited by petitioners, one commissioner attained through the application of generalized planning stued:

standards without consideration of actual levels of dose

[T]he whole thrust of the rule as I perceive it is that j

i savings. Sec Shveham, 24 N.It.C. at 30.

we do things with plant design and operation to try keep things from happening. Then you say if Our limited task on this point is to determine whether, to something does happen it seems sensible... to have given its recognition that emergency planning is "first-pre-existing plans and notification means so that we tier.' the NRC's generalized approach to dose mitigation can take whatever measures are practical... to in offsite planning is a reasonable exercise of the agencv's reduce the radiological hazard.

~

discretion under section 182(a). We believe it is. Section i

JA at 38. Another commissioner noted that a plan need 182(a) does ryot expressly require that 'adequat e protection be judged by a sm, gle standard for different I

not categories of safety features. In fact, we have repeatedly be found inadequate just because you know that emphasized the broad discretion available to the agency there are going to be some periods of time when you in devising appropriate standards and have hehl that can't do that which you would really like to be able I

' adequate protection" permits the acceptance of some

' " 0 " -

• b"" ""' "I ' h ' '""

""*"I'

' ""'0'"' "

level of risk. See Union of Concerned Scientists v. NRC.

the conditions of the weather.

824 F.2d 108.117-18 (D.C. Cir.1987). It is for the NitC to determine whether a level of, or approach to, risk Id. at 41-42. While the adequacy of a plan is necessarily determined on a case-by-case Imsis, the rulemaking record nduction is acceptable for offsite planning that may not does not contradict the Commissian's decision that the be adequate for plant siting and design engineer;ng.

31 30 comply with the detailed requirements of Appendix E.

minimization of harm to the public in each case may be These enhanced safety requirements plainly represent inferred from satisfaction of the sixteen planning stan.

something more ihan a checklist review.

dards, regardless of whether the plan will nctually protect the entire EPZ under all conditions if one of the particu-Furthermore, we do not take it from the Commission's lar accidents assessed m the underlying guidelines shouhl ruling in CLI-90-2 that paragraph (a) has no meaning independent of paragraph (b). As we understand the Nor do we accept the claim that under the Commis-NRC's application of the regulation, paragraph (a) requires the agency to determine that compliance with the sion's interpretation, section 50.47 amounts to little more sixteen planning standards is more than pro forma. The

- hecklist."

than a pre-TMl reliance on a pro forma c

Hefore 1980, the Commission did not require nn NHC-NitC must assure itself, based on FEMA's review, that approved o!Isite emergency plan as a condition of beens-the plan addresses each of the individual requirements in a manner that is adequate and implementable. There is ing. The checklist provided state and local governments ample indication in the adn.inistrative record that the with criteria for the development of plans far responding to radiological emergencies and facilitated their a>ordma-Licensing Board employed this approach in its approval tion with those of the licensee. Scc NRC, Emergency of the NIf Plan for Seabrook.

Planning for Nuclear Power Plants, Regulatory Guide For example, the planning standard in section 1.101 (rev. I Mar.1977). The regulatory scheme for emer.

50.47(h)(10) is satisfied if the respons+ plar demonstrates gency planning developed by the NRC in resp <mse to TMI that laj range of protective actions [has] heen developed and the 1980 Authorization Act is markediv more

~

.. for emergency workers and the public." 10 C.FJL demanding than the prior practice, even though the para.

s 50.47thH 10). Petitioners argued before the Licensing graph (b) planning standards are largely drawn from the Ibard that the Nil Plan did not satisfy (b)(10) because earlier criteria. Sec rencrolly 45 Fed. Reg. 55.401, 55.102 it did not contain adequate provisions for sheltering the

~

08 (1980).

beach population. See CLI-90-3, 31 N.R.C. at 244. Com-Af ter 1980. satisfaction of these standards became for inission guidance makes clear, however, that th)(10) does the first time a condition of licensing that required the not require sheltering as an op* ion but does require an l

i tinding of adequacy by FEMA and the NRC. Id. at 55.401 evaluation of the expected advantages of sheltering under The new schen.e provided that where significant deficien-local circumstances. Id_ (citing NUREG-0654, Critermn cies in a plan would preclude the finding of adequacy, the IM10.m). Pursuant to this guidance, the Licensing Board plant could be shut down it the deficiencies were not cor~

set out to determine "whether the State of New Itamp-rected within four months. Id. The geographical area for shire has given careful and adequate c<msideration to offsite planning was substantially expanded from the LPZ sheltering as a protective action" in the Nil P!sn. LHP-to two larger zones, the tengnile radius plume ex;wsur" ET

• $ RRCm nu w Gl'M"4 m N R C m ~' n pathway EPZ and the litty-mile radius ingestion pathway The Hoard found that the State had satisfied this stan-EPZ. Sec id. at 55.40R 44 Fed. Reg. 61.123 (1979h see aim dard. In respemse to comments from FEMA. the State had Seacret Anti-l%I!ution Isugue c. NRC. 690 F.2d 1925 provided detailed explanations of its appraach to the use 1028-29 & nn.10 & 12 (D.C. Cir.1982). Alm,the new of sheltering for the beach population. 28 N.ILC. at 758.

scheme required detailed implementing procedures an i Under almost all cirannstmes, early beach closure or more stringent public notification capabilities. Sec 45 Fed.

evacuation would be the preferred action for the beach llen. at 55.103. 55.407. Finallv, emercencv plans must M

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34 35 L:

tive emergency planning at Seabmok is, inherently to justify the waiver or exception.' AL Petitioners failed impossible because the plant is located so near the to avail themselves of this opportunity.

crowded ccean beaches, a fact that was described by C.

Immediate Effectiveness Review i

SAPL counsel at oral argument as an " operating license bh cker They point to post-TMI rules 6at require appli-Petitioners argue that the Appeal Board's ruling in i

cants for nuclear facility construction permits to file pre-ALAB-924 mandated that the Licensing Board tw4d fur-timinary emergency plans, sw 10 C.F.It 9 50.34(a)(10),

ther hearings on beach sheltering and on the other Appendix E.ll CPreliminary Safety Analyis Report") and remanded issues prior to authorizing a full power license they suggest that this requirement means that after 1980 for Seabrook and that, therefore, the Commission acted j

the feasibility of emergency planning was meant to influ.

unlawfully in refusing to vacate authorization of the i

j ence site selection. The implication apparently is that license and in allowing the Licensing Board's decisions to inherent planning ditticulties created by the siting of a become immediately effective. They also contend that the Commission's action in CLI.90 3 violated their statutory facility may block section 50.47 approval where the plant received its construction permit, as did Seabrook, prior to right to a hearing under section 189(a).

TMI.

The NRC's rules of practice do not specifically provide for the " mandatory refier~ petitioners were seeking in i

The problem is that, as discussed above, neither the their motion to vacate. See CLI.90-3. 31 N.ILC. at 229.

AEA nor section 50.47 as interpreted by the Commission As a practical matter, r.o order was necessary because an

'l Icads to this implication. The Commission has given no amtial decision authorizing a full power license is auto-indication that preliminary emergency plans under section matically stayed pending the immediate effectiveness j

50.14(a)(10) will be used as " site bhickers' any more than

""'*' See 10 C.F.IL $ 2.764(f)(3)(iii). Nevertheless, the I

final emergency plans under section 50.47.

Commission chose to entertain petitioners motion, and.

?

]

Finally, we note that although the Commission held the borrowing from the law of judicial mandamus, decided j

Sholly/Hevea testimony inadmissible for purposes of the that such ext.aordinary relief would only be appropriate l

section 54 % proceeding, the Commission did succest a if the Licensing Hoani had breached "a clear, mmdiscre-possible use for such evidence. See CLIW2. 31 N.RC tionary duty to withhold... authorization." CLI-90-3,31 j

at 217. It noted that when the licensing P.oard refused N R.C. at 229-30 (citing Genem o. HecMa. 746 F.2d 844,

{

to admit the evidence. petitioners could have filed a peti.

852 (D.C. Cir.1930). The decision to adopt this approach i

l tion for a waiver of or excepikm io the normal apphcation was peculiarly within the Commission's discretion.

l uf section 50.47, requesting more st ringent pe.nning We cannot say that the Commission acted arbitrarily requirements for Seabrook on the greemd that S;>ccial or capricious!v in concluding that the Licensing Board

~

circumstances with respect to the subject matter of the had not violated such a duty. As the Commission particular proceeding are such that application of the rule observed, no NRC rules preclude the mthorization of a or regulation.... would not serve the purpows for which license while remand proceedings are pending. and there the rule or regulation was adopted' 10 C.F.It $ 2.7.94ht is precedent for such authorizations. CLi-90-3. 31 N.RC.

]

With their ap;dication for a waiter, petitioners could then at 230; see, eg. Long bland Lixhting Co. (Shoreham j

have submitted the Sholly/Heyea testimony te the Licens-Nuclear Power Station. Unit 1). LHP.84 53, 20 N.RC.

I f

ing Board in the form of supporting a!!idavits setitingl 1531, 1542-48 (1984). Indeed, 10 C.F.IL $ 50.47(c)(1) e l

1 i

37 36 sider all issues relating to deficiencies in a particular plan that are "not significant for the plant in question-resp nse plan to be material to the basic findings required may be resolved by the Licensing Board after license issu_

for use authorization under sections 50.47(a)(1) and ance. 31 N.itC. at 230-So.57(a)(3). Thus, consistent with the AEA, the Lice:: sing The Appeal Board Aid not state that the deficiencies it Ibard could choose to address the remar ded issues in identified in the LHP-88-32 partial initid decision pre-post-licensing hearings upon finding that the issues were cluded authorization. It expressly affirmed the Licensing not significant for emergency planning at Seabrook. S<e Ibard's decision in all respects other than the four spe-CLI-90-3, 31 N.ILC. at 230-31. In addition, it is estah-cific items and said only that these items required lished NRC practice that, where appropriate, the Licens-j

" appropriate corrective action." ALAH-924. 30 N. LLC. at ing Board may refer minor safety matters not pertinent

-373. ALAB-924 did make it clear that so long as the Nil to its basic findings to the NRC staff for post-hearing res-Plan was to include sheltering as a possible protective clution, and may make predictive findings regarding option for the general transient beach population, imple-emergency p!anning that are subject to post-hearing veri.

menting details would have to be included in it, id. at 368, fication. M at 231 n.11.

372 n.194; but the Appeal Boaro's directiv-s did not rule Turning to its immediate effectiveness review, the Com-out a finding by the Licensing Ikard that the planning

'n exannned the nasonableness of the Licensirig deficiencies were not significant under section 50.47fc). In Hoan.s supp menta opinmn expiaming why the four fact. the Appeal Ikard deferred any action on petitioners.

remanded issues were not significant for the adequacy of i

motion to vacate in order to give the Licensing Board emngency planm,ng. On the issue of letters of agreement I

an opportunity to provide 'some explanation or the rele-with school personnel, the Commission beheved that the vance of to C.F.It 6 50.47(c)(1).' JA at 1049. And, as the Licensing i ard's further explanatmn of its origmal find-Licensing Board peinted out in its supplemental opinion.

ings might well satisfy the Appeal Ikard's concerns; at LHP-89-33, 30 N.ILC. at 657 & n.2,,mly one week prior any rate, e was svport for the finding that sufficient l

to the issuance of ALAH-924, the Appeal Ibard had pawnnel would accompany children in an emer-sc I

denied a motion by petitioners for an order directmg the gency and no mdication that evacuation would be delayed Ucensing Board to withhold its impending decision in even if the personnel did not participate. M at 234-35.

LH1,-89-32, even though the Commissen had made it The Commission found reasonable the Licensing Ikard's known that LHP-89-32_ would have the potential t"

opinion that the second remanded issue - the accuracv authorize issuance or the full-power beense, CLI-89-19 of the special-needs survey - was a question more or 30 N. LLC.171,173 (1989).

fine-tuning an acceptable methodology than of developing We do not agree that the Commission's application of a datferent methodology, and that any uncertainty about section 50X.(c) is inconsistent with petitioners

• right to the size of the special-needs population was probably not

~

a hearing under section 189 of the AEA. Section lH9f a) targe enough to require additional trans;mrtation provides that in any licensing proceeding. *the Commis.

resources. M at 239-40. The accuracy of the evacuation time estimates for advanced life support patients sion shall grant a hearing upem the request of any person nmamed unresolved, in the Commission's opinion, but whose interest may be affected." 42 U.S.C. % 2239(alfl).

the error was not large enough to cause authorities to ree-We have held that section 189f a) guarantees an opportu.

ommend sheltering over evacuatien and could easily be nity for a hearing on issues that the NRC considers mate.

l riai to licensing. See UCS 1. 735 F.2d at 1443.1447-43.

corrected, given that such patients were found at only two t~-.o;o e u

,3.

m ri r,4

.on

n

)

l t

j 38 39 Finail.

n the lack of implementing details for beach They argue only that the Appeal Board acted arbitranly sheltering, the Commission believed that correcting this by ignoring certain terms in the contention that could deficiency would not be difficult because a comprehensive conceivably be read to encompass the build-up of micro-survey of available beachside shelters had been prepared, scopic aquatic organisms, and that the Board had no res-and the Appeal Board's mandate simply required that the sonable grounds for disregarding the opinion of NECNP's NH Plan designate which shelters on the survey list expert concerning the technica! interpretation of these would be suitable and available for use. Id. at 248 & n.45.

terms. We think the Appeal Board's construction was en-Moreover, the Commission concurred with the LicensinK sonable because it took into acco:mt the entire context of Heard that the sheltering issue was not significant. Evacu-the contention, whose heading and stated basis focus ation would be the primary protective action for the beach solely on the blockage of cooling systems due to the accu-and the record showed that the protection affarded by the rnulation of marine life and debris. See ALAB-899, 28 structures at the beach was 'tnvial," as further evidenced N.ILC. at 96-97. One important purpose of the NRC's by the fact that the Utihties Plan, which the Licensing pleading requirements in 10 C.F.It $ 2.714(b)(2) is to put Board had found adequate, did not mclude sheltering as "U parties masonably on notice about what issues may be an option for the Massachusetts beach < s. Id. at 248. Ir>

raised. 28 N.itt. at S7. Therefore, it was sensible for the this regard, we note that in later proceedings, New Hamp-shire revised its plan to omit any provision for sheltermg Board to cproach the matter as a straightforward ques-the general beach population other than a " shelter in tion of linguistic construction and not as a matter of tech-3 place" option, and the Licensing ik>ard therefore con.

nical interpretation requiring a battle of experts. We deny cluded that this issue was resolved. LHP-90-20,31 N. LLC.

the petition as to this issue.

581, 585 (19130).

The second low power issue in No. 39-1306, however.

l It is evident that the Commission did not abuse its dis-does raise questions that justify granting this petition.

cretion in concluding that the Licensing Iloard's findings Petitioners argue that the NRC violated their statutory on these matters were reasonable. Sec OvstershcIl Allioner.

right to a hearing by rejecting the contention concerning 800 F.2d at 1206. Hence, we also deny the petitions for the onsite weaknesses identified in the 1988 full participa-review as to this full power issue.

tion exerciw. See background discussion at pagas 15-16.

Because we am unable to determine whether the Appeal D.

Low Power Licensing issues (No. 89-1306)

Board properly considered the potential materiality of the We need not devote much analysis to petitioners' argu-allegations involved, we must remand this issue for fur-ments concerning the Appeal Board's interpretation of ther explanation.

the cooling system contention in the low power proceed-ings. See background discussica at pages 13-14 above. On The Appeal Board's ruling in ALAB.918 is the final this issue, petitioners direct most of their effort toward agency action on the exercise contention and is the only relitigating the question of whether microbiohcically opinion before us. Petitioners challenge the Appeal induced corrosion is within the four corners of NECNP's Board's application, in ALAH-918, of the late-filed con-1982 contention. This court, however, is limited to decid-tention criteria of to C.F.it 5 2.714(a)O) on the ground ing whether the Appeal Hoard's ruling in ALAll-873 was that use of these enteria cannot be squared with our deci-arbitrary or capricious, or otherwise contrary to law. S,y sions in UCS I and Son Luis Obispo Mathers for Ihr c.

5 U.S.C. 5 70C:2H A). Petitioners have not shawn that it NRC, 751 F.2d 1287 (D.C. Cir.1984) (" Mothers for Ihr wm Il mented in rwrt 760 F ?d 13?t # D C. Cir.19RM (en

i 4I 40 banc), and a/T'd. 789 F.2d 26 (D.C. Cir.) (en banc), cert.

emergency preparedness exercises. 735 F.2d at 1443-48; denicd' 479 U.S. 923 (1986).

see U m on o, Omcerned Scienties v. NRC, No. L9-16Y,',

slip op. at 'i-8 (D.C. Cir. Nov.30,1990) (reading UCS I Under the NitCN rules, intervenors in licensing pro-to require a hearing on all material " issues," as distinct ceedings must file their proposed contentions at least fif-from all " evidence" or "information" that comes to light teen days prior to the Licensing Boa rd's prehearing after the time of the initial application). At the same time, conference.10 C.F.It. $ 2.714(b)(1). The Board may grant we fully recognize that the NItC has ' wide discretion to additional time for the filing of contentions based upon structure its licensing hearings in the interests of speed l

a balancing of the factors set forth in section 2.714(a)(1) ard etliciency." 735 F.2d at 1448. This discretion may governing nontimely petitions for intervention. Id. Those include, for e2 ample, ruies on the admissibility of evi-l l

factors are:

dence, enhanced pleading requirements in support of con-(i) Good cause, if any, for failuA to file on time.

tentions, and procedures for summary disposition of claims not meeting the agency's crrerm. See id. In short, (ii) The availability of other meems whereby the we allow for a balancing between the public's right to a petitioner's interest will be protected.

hearing under section 189 and the NHC's discretion to.

(iii) The extent to which the petitioner's partici.

structure efficient licensing pmceedings. See id. at 1446-pation may reasonably be expected to assist in devel-49.

oping a sound record-We are not willing to say that the sensitive balance out-(iv) The ext *nt to which the petitioner's interest lined in UCS I is upset wnenever the NltC applies the will be represented by existing parties.

late-iiled contention factor 3 to submissions based on defi-(v) The extent to which the petitioner's participa.

ciencies revealed in exerci.es occurring after the prehear-tion wiP broaden the issues or delay the proceeding.

mg cut.uti. "I he unfettered au, ity to file a late contention d

may significantly underrame the efficiency of a proceeding Id. $ 2.714(a)(1h even if the contention is based on newly discovered infor-Because of the requirement, under section 2.71 t(b)(1h mation. The NitC should retain discretion to impose that contentions be filed prior to the prehearing conter.

enhanced pro (ederal requirements on such filings so long as the use of that discretion is consistent with section 189.

ence, it would appear thet abnost any cor.tention based on the results of a plant's full participation exercise wouhl On their face, the five factors listed in section be subject to a balancing of these factors; under NitC 2.714(a)(1) as justifying intervention are not well suited rules, the exercise must take place less than two years to the question of whether a late-filed contention should prior to full power licensing, id, l'a rt f,0, Appendix be considered where based on deficiencies found in a sub-E.lv.F.1, a period that generally fa!!s well after the pre-sequent exercise, and we think it odd that the NRC would hearing conference. The full participation exercise for choose to apply them in this context. An exercise conten-t Seabrook, for example. occurred in. lune 1988, more than tion will in practice almost always be filed out of time, so six years arter the prehearing conference on the low the question of " good cause" seems less central. Two of power licensing issues.

the other factors also do not make much sense here. Fac-to fiv) does not seem relevant because there will almost Under UCS 1. the NRC may not eliminute from the licensing proceedings consideration of evidence that is rel.

never be other parties already litigating the issues raised m, i i,,.

by the new contention. And factor (v) is potentially incon-ie a.

%y,.

x.

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r

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.9

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'y 7,

e.

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1 JLai 43 42 good cause for their failure to tender the exercise conten-sistent with UCS l's holding that emergency preparedness tion ;iromptly. The Appeal Board agreed with the Licens-he a exercises are material to licensing; it should not ing Board that petitioners had no convincing justification st rike against adinit ting the contention that it wdl for waiting unti! September 16,1988, to present their con-

" broaden the issues" to include material questions abot tention when all of the essential information on which it the adequacy of preparedness. Meertheless, in pracoce was based was available in the July 6 inspection report, the NRC's hoards have attempted to compensate some-which was received by petitioners no later than Ju!y 15.

what for the problematic nature of these factors, ar,d we Id. at 482-81. Although this period of approximately two will look to the manner in which they have been applied months does not strike us as an exceptional delay, we are in the particular case before us.

not willing to interpose our judgment. The low power pro-We think the Appeal Board's application of factor (i) ceedings had advanced to a stage when promptness might l

to Iretitioners' exercise contention is reasonable and con-have been especially important. Indeed, the Licensing 1

sistent wah section 189. In consio,ering.gomi cause ror Ho ro had renewed its authorization of a low power late filing

• the adjudicatory boards insist that lic ense when petitioners moved to admit their contention.

"a late-filed contention must he tender ~1 promptgy upon t e tris-A,rc id. at 4,u, _6.

n 4

i l

covery of the information upon

h. pi it is giase<g. igagg-The problem with the Appeal Board's reasoning reiates ic (Catawha 918, U9 N.R.C. at 482 (citing Duke Pou er Co to its application of the remaining four factors. The NRC Nuclear Station, Units I and 2). CLim-19.17 N R C requires a compelling' showing on these factors to over-l is m 104!, 1048 (1983)). This prompt. filing iequirement come a lack of good cause under (i). Id. at 484. In this line with the agency's broad discretion to structure elb counterbalancing. the greatest emphasis seems to be on l

cient proceedings. Moreover, we have been presented with f actor (iii) - the ability of the petitioning party to assist no argument for rejecting the Hoard's view that factor (i) in developing a sound record. See id at 40 s. tie l

is the "most crucial" in the analysis. See 29 N.R.C. at 481 Appeal Hoard stated that petitioners "had an obligation j

Applied in this fashion, the first factor is not contrary in addressmg the third criterion to set out with as much l

Mothers for Peace I. which held that under section particulanty as possible the precise issues r. hey plan to t

unjust'tiahly require that cover, the identyty of their proyectise witnesses, and a a

18m a), the NHC may not material contention satisf, the heightened evidentiary sununary of their proposed testimony., Id. at 4pl. Here, standards for reo;>ening a closed record. Sec 751 F.2d at the Appeal Board upheld tne hnd,ng that this sigmficant tal& Mothers for Peme 4 does not constrain the NHC's f aC'".r weighed against admitting the contention because discretion to impose reasonable limits on the untimely petitioners, who were " experienced litigants.

had failed prewntati m of claims, including claims based on late Y their motion papers "to furnish the required mforma-a ~ deselopments that are not promptly filed. We do tmn m the prescribed form.' Id. at 483 84.

bre her the Ni(C mav spress an opinimi here about whet

()ur concern is that in focusing on whether petitioners

• n' mably apply thesu tive factors to contenqns that are rewaW papers saGstied these formal" particularity

• requirements, udered promptly upon discovery

<*{ newly m!'ormation. The appeal Board..ae it clear that that

& W M Hed % a km @ v & pe would be the agecy's practice in such cases M,e 3

materiality of the issuea raised by the contention and thus may have stray *d from the line laid dewn in UCS 1. We N.R.C at 480 think yection Ih's required the Appeal Board to provide in the present cine. the Appeal Hoard did not act nrhi-

,, o....,, :....a

. u,_.. ; :... a.,u m

_ ~

w

r 9

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l 44 45 i

gatic.ns raised any material issue and,' if they did, how exercise, such as serious shortcomings in staff training,

[

that mntetinlity was to be weighed against petitiorers' were substentially corrected. Cf.10 C.F.R 9 50.47(b)(15)

.i delay in nptly iiling the contentimt We note, for (requiring plan to provide for adequate training of emer '

[

example, wt petitioners offered an expert affidavit alleg-gency personnel). Thus we noted that the agency would ing that the July G inspection report showed fundamental still be subject to challenge for applying the standard arbi-deficiencies in Seabrook's onsite emergency preparednesa.

trarily or capriciously. Sec 735 F.2d at 1448 n.20.

[

See Affidavit of Robert D. Pollard, Sept. 16,1988. Peti-t tioners specificall; cntended that the deficiencies in the Here, we are unaq to Mernu.ne from the Appeal Hoard s terse explanation whet, er at ' acted properly in n

onsite plan precluded a finding of compliance with para-grcphs (b)(2), (b)(14), and (b)(15) cf the section 50.47 applying the fundamental flaw concept. The Board samply

-l stated the concluston that the purported weaknesses m planning guidelines. JA, No. 89-1306, at 253-54.

the training of Techm,eal b,upport Center and E,mergency 3

The Appeal Board failed to consider these allegations Operations Facility sta!f could be readily corrected in analyzing whether, on balance, it was proper to reject through minor modifications in operating procedures or petitioners'. late-filed claims. The Licensing Board did supplemental training and would not require any revision -

j engage in an extemied discussion of the safety significante in the onsir.e plan. ALAH-918,29 N.RC. at 485-86. Once of the exercise issues in the context ofits ruling on peti-cgain, this judgment does not meet the allegations set out i

tioners' motion to reopen the record, see Li!P-d9-4, 29 in petitioners' ccctention and in the Pollard Affidavit cen-N.R.C. 62, 74-86 (1989), but the Appeal Hoard declined ceaning wdequate compliance with specific planning stan-to address that portion of the Licensing Board's decision.

dards. Moreover, in a second affidavit, filed in response ALAH-918,29 N.RC. et 485. Thus, we cannot impute this to the NHC's September 28 follow-up inspection report, reasoning to the higher board.

petiteners presented further evidence to support their i

1 The Appeal Board provided a second, independent basis claim that the alleged deficiencies had not been ada-l for its opinion, namely, that no' hearing was required on quately ad.iressed. See Second Affidavit of Robert il Pol-i petitioners

• exercise contention because the contention tard, Nov. 3,1988.

did not involve a ' fundamental flaw' in the onsite plan.

We fail to see hovi the Appeal Board could reasonably i

Id. at 485. Under NRC piecedent, a fundamental flaw is determine the materiality of this contention under the i

~

a deficiency that precludes the finding of reasonable fundamental flaw rubric without considering the support-l assurance under 50.47(a)(1), and is confined to deficien~

ing allegations. The LILCO opinion relied on by the cies that reflect a failure of an essential element of the Appeal Board draws a distinction between fundamental-plan that can be remedied only through a significant revi-flaws and "ImFnor or isolated problems on the day of the -

sion of the plan. See Long Island Lighting Co. (Shoreham exercise' that can ha "readily correewd." ALAH-903, 28 Nuclear Power Statmn, Unit 1), ALAH-903, 28 N RC.

N.RC. at 505, 506, cited in AL6H-916 29 N.RC. at 485.

499,504-05 (1988) ("LILCO")..We acknowledged this con-There would appear to be a substanusi variance between t

cept in UCS I, and stated that our gloss on section 189 such nonfundamental deficiencies and the mieus short-does not restrict the NRC's authority to adopt this sub-comings in staff competency alleged in the Pollard Affida-stantive hcensmg standard. 735 F.2d at 1448. -We never~

vit~

theless recognized that even the best of plans may be m poorly implemented that it would be foolhardy to license Accordingly, we must grant the petition for review of

(

.c thi* iune nnd vs mand Al.AH 91R to the Armeal !!nJrd for i

9 47 46 potentially implicated by petitioners' contention, we see i

further consideration of tL; materiality of petitioners

• nothing in the results of that exercise to indicate any exercise contention.

ongoing flaws in staff competency. Most important, we l

note that Seabrook was schaluted for a second futi par-As.is apparent, we disagree with the NRC and PSNil ticipation exercise in December 1990. A clean record in tlyat this issue was mooted by the September 1989 exer-that exercise will likely moot this issue. Hence, we decide cese of Seabrook's onsite plan. Appendix E of the emer-against imposing an immensely disruptive interim status gwry planning regulations calls for a prelicense onsite quo that may itself be displaced by the Appeal Board's drill if the fell participation exercise occurs more than a

-ubsequent reasoning or by the more recent full partici-year before full power licensing.10 C.F.R. Part 50, Appen-dix E.IV.F.1. We do not believe that such an onsite exer-pation exercise.

cisa is intended to supersede the full participation drill

• We therefore leave it to the Appea! Hoaro. to determme and thus we reject the NRC's contention that the onsite whether our opinion suggests any reason for s'tering the exercise becomes the " legal underpinning" for approval of Nant s beensing stam in pahar, we p recM the full pever license. Supple:nental Hrief for ifespon-fmm petitioners no guidance as to how, if at all, the dents at 6. The Licensing Hoard essentially rejected the APP'"I Hoard's ruling in ALAH-918 may bear on the issmn's decision to allow the authorization of full view now adopted by staff counsel when it described the Comm.

purpose of the more limited onsite drill: "to ensure that power operations. Because the full power license necessar-z emergency response personnel retain sutlicient knowledge ily depends upon the resolution of all issues material to

{

~

I l

and expertise to actuate en emergency [ plan l already Iow pown heensmg, sceluding the adequacy of the onsite determined through a reastmably current ' full particismtion.

emergency plan, this question merits the agency's consid-l 1

exercise to be adc<;unte anl without fundamental flaws..,

" ' i" " -

t j

l LHP-89-38, 30 N.R.C. 725, 744-45 (1989) f emphasis added).

III. Concarsios i

In granting the petition for review of ALAIL918, we do We deny the petitions for review of Seabrook's Tull power license in Nos. 90-1132 and 90-1218. The Commis-I not vacate the authorization of Seabrook's operating licenses. In appropriate cases, we will remand without sion's interpretation of its emergency planning regulation vacating an agency's order where the reason for the does not do violence to the language of the rule and is remand is a lack of reasoned decisionmaking. Eg. Inter.

sithin the agency's statutory discretion, and the related natwnal Union, UMW v. Mine Safety & Health Admin.

decision to exclude the Sholly/Heyea testimony was not No. 89-1702, slip op. at 12 (D.C Cir. Nov. 30, 1990;.

arbitrary or capricious or otherwise unlawful. Further-

"Helcunt to the choice are the seriousness of the order's mare, the Commission did not abuse its discretion in l

deficiencies (and thus the extent of doubt whether the allowing the immediate effectiveness of the full power agency chose correctly) and the disruptive consequences authorization. The decision denying a waiver of the agen-(

of an interim change that may itself he changed." Id cy's financial qualification exemption is not a finai order, On the record before us, only the allegations and utlid ~

and oetitioners' challenge to that ruling is not properly vits offered by petitioners provide a bas,s for concern before us.

l.

i about the adequacy of onsite preparedness. Although we The low power licensin.g petition in No. 89-1306 is l

are unwilling to conclude that the September 1989 onsite denied in part and granted in part. The Appeal Board

..i-..-

y 9

1

)

48 ArrErroix acted reasonably in interpreting the scope of petitioners

• 10 C.F.II. 5 ML47(a), (b) (1990):

cooling system contention, and we deny review of ALAlb SW. We are, however, unable to conclude that the Appeal l Emergenei rJans.

Except as provided in paragraph (d) of this sec-Iloard pmperly considered petitioners

• rights under sec-tor will (a)(1) tion 189 when it rejected their onsite exercise contention.

tion, no operating license for a nuclear power reacg the petition for review of be issued unless a findm.

For that reason, we grarit reasor sble asmance that adequete protective measures ALAll-918 and remand th,s ruling for reasoned decismn-rnaking. This conclusion, however, does not give us reason can and w,ll be taken in the event of a radiological emer-i i

to disturb Seabrook's operating licenses.

C'"'Y-The NitC will base its finding on a review of the

~

So ordered.

Federal Emergency Manegement Agency (FEMA) fin (2) ings and determinations as to whether State and lo i

emergency plans are adequate and whether there s rea-d d on sonable assurance that they can be implemente, anlicant's ons h

the NIIC assessment as to whether t e app i

a emergency plans are adequate and whether there s re -im sonable assurance that they can be FEMA finding wi!! primarily be based on a review of th A

.er information already available to FEM pians. Anvmay be considered in assessing whether ther i

n d In any able assurance that the plans can be implemente.

NitC licensing proceeding, a FEMA finding will constitute d

a rebuttable presumption on questions of adequacy an implementation capability.

The onsite and, except as provided in paragraph (d) of thir ;ection, o!Isite emergency respese plans fo (b) meet the fdlowing stan-nuclear power reactors must dards:

Primary responsibilities for emergency response by the nuclear facility licensee and by State and lo (1) have organizations within the Emergency P ll tb aus supporting organizations have bee to resped and to augment its initial response on a con-tinuous basis,

i f e

2 3

(2) On-shift facility licensee responsibilities for media for dissemination of information during an emer-I emergency response are unambiguously define 1, adequate gency'. (including the physical location or locations) are -

stalling to provide initial facility accident response in key established in advance, and procedures for coordinated functional areas is maintained at all times, timely aug.

dissemination of information to the put>lic are established. t mentation of response capabilities is available and the (8) Adequate emergency facilities and equipment to mterfaces among various onsite response activities and support the emergency response are provided and main-,

l offsite support and response activities are specified.

tained.

(3) Arrangements for. requesting and Wrectively (9) - Adequate methods, systems, and equipment for - '!

using assistance resources have been made, arrangements assessing and monitoring actual or potential offsite conse- !

to accommodate State and local staff at the licensee's quences of a radiological emergency condition are in use. i near-site Emergency Operations Facility have been made, (10) A range of protective actions have been devel-and other orgamzations capable of augmentmg the oped for the plume exposure pathway EPZ for emergency.

planned response have been identified.

workers and the public. Guidelines for the choice of pro- [

(4) A standard emergency clessification and action tective actions during an emergency, consistent with Fed- !

level scheme, the bases of which include facility system eral guidance, are developed and in place, and protective !

actions for the ingestion exposure pathway EPZ appropri- ;

and elliuent parameters, is in use by the nuclear facility ate to the locale have been developed.

licensee, and State and local response plans call for reli-i ance on information provided by facility licensees for (11) Means for controlling radiological exposures in e determinations of minimum initial offsite response mea-an emergency, are established for emergency workers.The i means for controlling radiological exposures shall include sures.

exposum guidelines cons,istent with EPA Emergency l (5) Procedures have been established for notifica-Worker and Lifesaving Activity Protectsve Action Guides.

t tion, by the licensee, cf State and local response organiza-tions and for notification of emergency personnel by all (12) Arrangments [ sic] are made for medical ser 1 organizations; the content of initial and followup mes.

vices for contaminated injured individuals.

sages to response organizations and the public has been (13) General plans for recovery and reentry - are i established; and means to provide early notification and developed.

clear instruction to the populace within the plume eym-(14) Periodic exercises are (will be) conducted to evaluate major portions of emergency response sure pathway Emergency Planning Zone have been es;ab.

i lished~

ties, periodic drills are (will be) conducted to develop and (6) Provisions' exist for prompt communication,

maintain key skills, and deficiencies identified as a result j

among principal response organizations to emagency per.

of exercises or drills are (will be) corrected.

sonnel and to the public.

(15) Radiological emergency response training is-(7) Information is made available to the public un provided to those who may be called on to assist in an a periodic basis on how they will be notified and what emergency.

their initial actiens should be in an emergency (e.g., lis-(16) Responsibilities for plan development and "

i tening to ' a local broadcast station and remaining review and for distribution of emergency plans are estab-in,lmird the nrincinal unints of contnet with the news lished. and planners are properly trained.

4 5

(A) standards for State radiological emer-gency response plans, developed in consultation NitC Authorization Act for Fiscal Year 1980, Pub. L. No.

with the Director of the Federal Emergency Man-96-295, s 109, 94 Stat. 780, 783-85 (1980):

agement Agency, and other appropriate agencies, (a)

F" k authorized to be appropriated pursuant to which provide for the response to a radiological emegnq inv tving any utilization facility, this Act s be used by the Nuclear llegulatory Commis-sion to conduct proceedings, and take other actions, with (B) a requirement that -

respect to the issuance of an operating license for a utili-(i) the Commission will issue operating zation facility only if the Commission determines that -

licenses for utilization facilities only if the (1) there exists a State or h> cal emergency pre-Commission determines that -

paredness plan which -

(I) there exists a State or local radio-(A) provides for responding to accidents at logical emergency response plan which the facility concerned, and provides for responding to any radiclogical C" N C"CY "I I"C YC "CC'"N.and (H) as it applies to the facility concerned only, which complies with the Commission s complies with the Commission's guidelines for standards for such plans under subpara-such plans, or graph (A), or (2) in the absence of a plan which satisfies the (II) in the absence of a plan which sat-requirements of paragraph (1), there exists a State, isfies the requirements of subclause (I),

local, or utihty plan which prov, des reasonable assur-there exists a State, local, or utility plan i

ance that public health and safety is not endangered which provides reas<mable assurance that e

hv operation of the facility concerned.

public health and safety is not endangered A determination by the Commission under paragraph (1) by operation of the facility concerned, and may be made only in consultation with the Director of the (ii) any determination by the Commission Federal Emergency Management Agency. If, in any pri under subclause (1) may be made only in con-ceeding for the issuance of an operating license for a utih-sultation with the Director of the Federal zation facihty to which this subsectmn applies, the Emergency Management Agency and other Commission determines that there exists a reasonable appropriate agencies, and assurance that public health and safety is endangered by operation of the facility, the Commission shall identify the (C) a echanism to encourage and assist States to comply as expeditiously as practicable risk to public health and safety and provide the applicant with the standards promulgated under subpara-with a detailed statement of the reasons for such determi_

graph (A) of this paragraph, nation. For purposes of this section, the term " utilization facility" means a facility required to be licensed under sec-(2) review all plans and other preparations tion 103 or 104(b) of the Atomic Energy Act of 1951.

respecting such an emergency which have been made by each State in which there is located a utilization (b) Of the amounts author.ized to be appropriated under facility or in which construction of such a facility has section 101(a), such sums as may be necessary shall be been commenced and by each State which may be used by the Nuclear Itegulatory Commission to -

atrected (as determined by the Commission) by any (1) establish hv rule -

such emergency,

4

- f pPPy Nkil f d~ l

~

6

.i (3) assess the -adec.uacy of the plans and other preparations reviewed under paragraph (2) and the a

ability of the States involved to carry out emergency evacimtions.during an emergency. referred to in para-graph (1) and submit a repo;t' of such ' assessment to the appropriate committees of the Congress within 6 months of the date of the enactment of this Act, (4). identify which, if any, of the States described in paragraph (2) do not have adequate plans and s

preparations for such _an emergency a..d notify the d

Governor and other appropriate auth< ities in each such State of the respects in which such plans and

. preparations, if any, do not conform to the guidelines promulgated under paragraph (1), and (5) submit a report to Congress containing (A) the results of its actions under the preceding paragraphs and (B) its recommendations respecting any. addi-tional Federal statutory authority which the Commis-sion deems necessary to provide that adequate plans and preparations for such radiological emergencies are in effect for each State described in paragraph (2).

(c) In carrying out its review and assessment under subsection (b)(2) and (3).and in submitting its report

,I under subsection (a)(5), the Commission shall include a review and assessment, with' respect to each utilization facility and each site for which a const:uction permit has t

been issued for such a facility, of the emergency response capability of State and kwal authorities and of the owner or operator (or proposed owner or operator) of such facil-ity. Such review and assessment shall include a determi-nation by the Commission.'or the maximum zone in the

. vicinity of each such facility for which evacuation of indi-viduals is feasihte at various' different times corresponding -

to the representative warning times for various different.

types of accidents.

F m

q

--- +

m

.