ML20041F670
| ML20041F670 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 03/10/1982 |
| From: | Adler R PENNSYLVANIA, COMMONWEALTH OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8203170285 | |
| Download: ML20041F670 (28) | |
Text
, m-000 METED yr =q INITED STATES OF AMERICA '5? !"' 1 " "o :i
- NUCEAR REGUIAIORY 03HISSION
, BEFURE '11E ATCMIC SAFEIY AND LICENSING BOARD In the Matter of )
)
METROPOLITAN EDISON 034PANY, )
) Docket No. 50-289 Chree Mile Island Nuclear ) (Restart)
Station, thit No.1) )
W q
BRIEF OF HE 03tONWEALTH 1 DU )
0F PENNSYLVANIA ON '
MllR16JgggA T EXCEFfIONS TO DE ASLB Ctaa -4 PARTIAL INITIAL DECISION ON ng thI* '
PIANT DESIGN AND ENERGENCY PIANNING '3 R I'Q ;$\ y~
ROBmr u. ADua MICHELE STRAUBE Assistant Counsel 3 505 Executive House gO5 P.O. Box 2357 Harrisburg, PA 17120 March 10, 1982 (717) 787-7060 / /
F203170295 820310 PDR ADOCK 05000289 O PDR
TAME OF CONIFEES TAME OF AU110R1 TIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 STATEMENT OF RELEVANT FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGLNENT ..................................................... 5 I. TIE RECORD SUPPORTS A FINDING OF A DEFICIENCY IN TIE SUPPLY OF PERMANENT RECORD DOSIMETERS AVAIIAEE EUR DISTRIBUTION 'IO OFFdut EMERGENCY WRKERS IN HE EVENT OF AN EMERGENCY AT 'IMI-l . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 II. ADEQUATE SUPPLIES OF PERMANENT RECORD DOSIME'IERS ARE REQUIRED TO BE PREDISIRIBLTIED TO HE 'IMI-l RISK COUNIIES PRIOR 10 'IMI-l RESTART . . . . . . . . . . . . . . . . . . . . . . . . . 8 A. The Applicable law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 B. The Record Below Dernonstrates ht Penenent Record Dosimeters Are Necessary To Protect The Health and Safety Of 'IMI-l Emergency Wor'ars . . . . . . 11 III.11E BOARD FAILED 10 "00NRONT DE FACIS" SET EURIH BY DE Ottt0tEEALTH WIIH RESPECT TO DOSIME*IRY EUR EMERGENCY WRKERS, AND TO PROVIDE THE APPROPRIATE RFT.TFF'.................................................. 16 IV. CONCLUSION ............................................. 17 i
e
- J s, 4 - -A- - - - - =_-
TABLE OF AUDORITIES JUDICIAL PROCEEDINGS Page SEC v. Chenery Corp., 318 U.S. 80 (1943) ................... 16 Wingo . Washington, 395 F.2d 633 (D.C. Cir. 1%8) . . . . . . . . . 16 NUCLEAR REGUUGORY CTMISSION PROCEEDINGS In re Final Rule on Emergency Planning, CLI-80-40 (December 5, 1980), 2 NUC. Fee. REP. (CCH) 130,558 ......... 10 Gulf State Utilities Co. (River Bend Station, Uhits 1 & 2),
AIAB-444, 6 NRC 760, 772 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.1), CLI-79-8,10 NRC 141 (1979) . . . . . 1, 2 Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit no. 1), LBP , 14 NRC (Partial Initial Decision) . ........................................
1,4,6,9 Northern States Power Co. (Prarie Island Nuclear Generating Plant, thits 1 & 2), AIAB-104, 6 AEC 179 (1973) . . . . . . . . . . . . 16 I
Public Service Co. of New Hanpshire (Seabrook Staticn, lhits 1 & 2) , A1AB-422, 6 NRC 33 (1977) . . . . . . . . . . . . . . . . . . . . 16 Public Service Co. of New Hampshire (Seabrook Station, thics 1 & 2) , CLI-78-1, 7 NRC 1 (1978) . . . . . . . . . . . . . . . . . . . . . 16 Public Service Electric and Gas Co. , et al. (Hope Creek Generating Station, Units 1 & 2), AIAB-394, 1
5 NRC 769 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Tennessee Valley Authority (Hartsville Nuclear Plant),
AIAB-463, 7 NRC 341 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Toledo Maan Co. and Cleveland Electric Illuminating Co.
(Davis-Besse Nuclear Power Station, thits 1, 2 and 3, Perry Nuclear Plant,1 hits 1 & 2), A1AB-430, 7
6 NRC 451 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
l l
Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CL1-74-40, 8 AEC 809, 811 (1974) . . . 10 l
Virginia Electric & Power Co. (North Anna Power Station, Ibits 1, 2, 3 & 4) AIAB-256, 1 NRC 10 (1975) . . . . . . . . . . . . . . . 10 1
11 i
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.---m- -. m w r.,y .- ~-m y
c .
REGUIATIONS Page 10 C.F.R. 52.732 ........................................... 10 52.785 ...........................................
550.33(g) ....................................... 3 550.47 .......................................... 3 5 50. 47 (a) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 12 550. 47 (a) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 55 0. 47 (b) (1)n.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 9 550. 47 (b) (1) - (16) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 ,,8_
5 50. 47 (b) (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 5 5 0. 47 (b) (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 11, 14, 18 550. 47 (b) (11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 11, 13, 18 5 50. 47 (c) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 5 5 0. 54 (q) - (u) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 55 0. 54 (s) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Part 50, Appendix E .................................. 3 45 Fed. Reg. 55,402 (August 19, 1980) ..................... 3, 9 OnER AUn0RITIES Cocmxiwealth of Pennsylvania, Disaster Operations Plan, l
Annex E, Fixed Nuclear Facility Incidents ................. 5, 11, 15 1
FDR-REP-2, Guidance on Offsite Emergency Pndiation l Measurement Systems, Phase 1 - Airborne Release l (Septenber 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12 NUREG-%54; FDR-REP-1, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants" .......... passhn iii
STATEMENT OF RELEVANI FACTS The Conmxualth sets forth herein only those facts and items of procedural history necessary for review of the two exceptions filed by the Connonwealth. See Public Service Electric and Gas Cocpany et al.
(Hope Creek Generating Station, Units 1 and 2), AIAB-394, 5 NRC 769, 771 n.2 (1977). A couplete procedural history of this proceeding can be found in Metropolitan Edison Conpany (Three Mile Island Nuclear Station, U. tit No. 1), LBP , 14 NRC , Partial Initial Decision (Procedural Background and Management Issues) (August 27, 1981) 111-36.
The 'IMI-l Restart Proceeding was conducted pursuant to the Conndssion's Order and Notice of Hearing dated August 9, 1979, Metropolitan Edison Conpany (Three Mile Island Nuclear Station, Unit No.1), CL1-79-8,10 NRC 141 (1979). 2 This Order and Notice of Hearing set forth certain "short-term actions" and "long-term actions" necessary to permit a finding of reasonable assurance that 1MI-l can saQly resune operation.
10 NRC at 144-45. The general subjects of the hearing were whether these "short-term" and "long-term" actions are necessary and sufficient to provide reasonable assurance that the 'IMI-1 facility can be operated without endangering the health and safety of the public, and should be
- 1. The ASLB decision will hereinafter be cited as PID 11 .
- 2. Hereinafter cited as August 9,1979 Order and Notice of Hearing.
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required [before restmption of operation ("short-tem actions")]
(as soon as practicable ("long-tem actions")) . . . ." 10 NRC at 148.
With respect to emergency planning and preparedness at 'IM1-1, the Order and Notice of Hearing established the following short-term condition:
- 3. The licensee shall inprove his emergency preparedness in accordance with the following:
(a) Upgrade emergency plans to satisfy Regulatory Guide 1.101 with special attention to action level criteria based on plant parameters.
(b) Establish an Emergency Operations Center for Federal, State and local Officials and designate a location and an alternate location and provide conmmications to plant.
(c) Upgrade offsite nonitoring capability, including additional thernoltadnescent dosimeters or equivalent.
(d) Assess the relationship of State /Incal plans to the licensee plans so as to assure the capability to take emergency actions.
(e) Conduct a test exercise of its emergency plan; and the following long-term condition:
l
- 4. inprove emergency preparedness in accordance with the following:
(a) nodify emergency plans to address changing capabilities of plant instrtmentation, (b) extend the capability to take appropriate emergency actions for the population around t w site to a distance of ten miles.
10 NRC at 144-45.
l During the course of the litigation, however, the law governing emergscy planning and preparedness for nuclear power facilities changed considerably. On August 19, 1980, the Conmission published a new final 2
rule on emergecy planning. 45 Fed. Feg. 55,402 (codified at 10 C.F.R. 5550.33(g), 50.47, 50.54(q)-(u), Appendix E). Moreover, this final rule refereced by footnote new standards and criteria by which both onsite and offsite emergency response plans are to be judged: NUREG-0654; FDR-REP-1, " Criteria for Preparation and Evaluation of Radiological 4 Eg=rg ucy Response Plans and Preparedness in Support of Nuclear Power Plants". 10 C.F.R. 550.47 n.l. 3 NUREG-%54 replaced previous gnwnee on emergecy planning criteria, including Reg. Guide 1.101 (see short-term action 3(a), quoted above).
'Ihe effect of the new mergency planning rule and NUREG-0654 on the M-1 Restart Proceeding was the subject of protracted debate.
Folicwing a series of briefs and oral argment, the Board ultimately ruled that the Licensee's as well as the applicable state and local mergency plans were required to couply with the requirements of the emergency planning rule prior to M -1 restart. Metropolitan Edison Conpany (Three Mile Island Nuclear Station, Unit No.1), Memorande and Order on Effect of New Emergmcy Planning Regulations (March 23, 1981),
slip. op. at 2-3. The Board further ruled that, altho d it was "not prepared to cloak NUREG-M54 with the mantle of a regulation," it would use the NURE as an indication of one means to couply with the regulation, and that it was open to argument, based on the factual record, 4 ,
- 3. The doc ment referenced in the final rule was labeled "For Interim Use and Connent" January 1980. This docment has been superseded by "NUREG-0654; FDR-REP-1, Rev.1 (November 1980)," which was entered into evidence in this proceeding as Staff Exhibit 7. The docment will hereinafter be cited as "NUREG-0654".
- 4. As discussed at pp. 9-10, infra, the burden of proof is on the party alleging that coupliance with NUREG-0654 is either not necessary or not sufficient to meet the requirements of the emergency planning rule.
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whether coupliance with hTREG-0654 is necessary and sufficient. Id. at 5-6. Both of these rulings were repeated by the Board in its Partial Initial Decision. PID 111337-43. 5 Significantly, no party challenged these legal standards before this Appeal Board.
Following the extensive litigation of emergency planning issues, the Board issued a 412-page Partial Initial Decision on these issues.
PID 111330-2011. The Cournonwealth of Pennsylvania took exception to this decision in only the following two respects:
(1) The record supports a finding that there is a deficiency in the supply of permanent record dosimeters (thermoluninescent dosimeters or ILD's) for distribution to emerge 1cy workers in the plume exposure pathway energency planning zone for M-1. The Board erred in failing to make this finding. (11936).
(2) The Board erred as a matter of law in not concluding that adequate supplies of permanent record dosimeters are required to be predistributed to the M -1 risk counties prior to M -1 restart, in conformance with 10 C.F.R. 550.47(b) and IUREG-0654. Such conpliance is required by the Conmission's Order and Notice of
- Hearing on M-1 Restart.
These issues are briefed below.
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- 5. The Board indicated the extent of its reliance on hTREG-0654 by stating that "in many instances NLEEG-0654 is the only source in the record of detailed exanples of how the broader planning l standards of the new emergency planning rule can be inplemented."
PID 11343.
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ARGUMENT I. THE RFERD SUPPORTS A FINDING OF A DEFICIENCY IN THE SUPPLY OF PERMANENT RECORD DOSIFEIERS AVAIIABLE FOR DISTRIBITfION '10 Ondat.
EMERGENCY WORKERS IN THE EVENT OF AN EMERGENCY AT 'IMI-l The function of dosimetry is to determine the radiological dose received by an individual. In the case of emergency workers, dosimetry is the method used to determine the amount of exposure the worker is receiving, specifically for purposes of advising the worker to leave the plune exposure pathway emergency planning zone ("plune exposure EPZ") 0 once a predetermLned level of exposure has been reached. Gormonwealth Ex. 2; Appendix 16,Section V.B. 7 NUREG-0654 specifically requires provisions for both self-reading and permanent record dosimeters for emergency workers, including volunteers.
NUREU-0654 at 67 (Planning Standard K, Criterion 3.a.). Conmonwealth Proposed Emergency Planning Finding 74 indicated that there were adequate supplies of self-reading dosimeters available for distribution to mergency workers in the plune exposure EPZ. The same proposed finding, however, alleged that there was a shortfall of permanent record dosimeters (therroluninescent dosimeters or ILD's) for distribution to emergency workers.
- 6. The plune exposure EPZ is defined by regulation as an area approximately 10 niles in radius, depending on particular local conditions. 10 C.F.R. 550.47(c)(2). For the theory of the plume exposure EPZ, see NUREG-%54 at 8-9.
- 7. Connonwealth Ex. 2 is the state emergency plan (Disaster Operations Plan, Annex E) for fixed nuclear facility incidents.
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This proposed finding uas clearly supgad by the record. A FDR critique based on the June 2,1981 mergency planning exercise at 1MI-1 indicated that "there are insufficient therncluminescence dosimeters (TG) for pmmnent record dosimetry of emergency workers. PD % is in ,
the process of securing them. (See planning Standard K)," Staff Ex. 21 at 15. See also Staff Ex. 20 at 21 (specific deficiencies in supplies of dosimeters during the June 2,1981 exercise). ihis docmentary evidence is bolstered by the testimony of FDR witnesses. Tr. 22, 387 (Bath) ("The shortfall appears to be in . . . permanent record dosi-metry . . . ."); Tr. 22,476-77; Tr. 22,769-71 (V. Adler).
The Board did address the shortfall of T D's for York County emergency workers as part of its discussion on agricultural emergency workers. PID 11936. The evidence cited above, however, is not limited to York County. The shortage of ILD's for emergency workers enconpasses all five counties in the 7MI-l plume exposure EPZ.
The Board's discussion in PID 11936 also indicates that "PDR is in the process of securing TLD dosimetry for emergency workers, of which
- 8. FDM is the Federal Eu agency Management Agency. According to the emergency planning rule, '*Ihe NRC will base its finding on a review of the [FD%) findings and determinations as to whether State and Iocal emergscy plans are adequate and capable of being l inplemented . . . ." 10 C.F.R. 550.47(a)(2).
- 9. As noted in Part III, infra, the Board did not address directly the shortage of dosimeters for emergency workers. This issue was addressed tangentially by the Board in its discussion of agricultural m ergency workers, to which the Conmonwealth does j not take exceotion.
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there is a current shortfall." (Ihe Board may be referring here to all five risk counties, although the remainder of the paragraph refers only to York County.) In fact, PD R's source for obtaining additional TLD's was H2%. The Comonwealth's Proposed Findings of Fact argi Conclusions of law on Emergency Planning indicated that Pennsylvania was " requesting additional supplies of 'IID's from FDR . . . ." (PF 176).
Thus far, PD% has been msuccessful in obtaining these TLD's. Attach-ments 1 and 2 to this Brief are items of correspondence between FD%
and PD% which indicate that, as of January 18, 1982, PD% had not received a satisfactory reply from FD% on the issue of dosimetry for 10 emergency workers. Therefore, the shortage of permanent record dosimeters for predistribution to 'IMI-l emergency workers has not been rectified.
- 10. Although in general doctments may not be appended to an appellate brief in an effort to supplement the record, new evidence may be brought to the attention of the Appeal Board. Toledo Edison Co. and Cleveland Electric Illtmdnating Co. (Davis-Besse Nuclear Power Station, Units 1, 2 and 3; Perry Nuclear Plant, Units 1 and 2), AIAB-430, 6 NRC 451 (1977). Obviously, Attachments 1 and 2 did not exist until after the Board issued its Partial Initial Decision.
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II. ADEQlRTE SUPPLIES OF PERMANENT RECORD DOSIMEIERS ARE REQUIRED TO BE PREDISIRIBUIED TO THE 'IMI-1 RISK COUNTIES PRIOR TO 'IMI-l RESTARE A. The Applicable Isa The fmdar=ntal requirement of the Conmission's new rule on emergency preparedness is that casite and offsite emergency plans provide " reason-able assurance that adequate protective measures can and will be inple-mented." 10 C.F.R. 5550.47(a)(1), 50.54(s)(2). This general principle i
j is supplemented by 16 specific standards that nust be met by onsite and offsite emergency response plans for nuclear power reactors. Id.
5?0.47(b)(1)-(16) . Anong these specific regulatory standards are requirements that "a range of protective actions have been developed for the pitne exposure pathway EPZ for emergency workers . . . ," id.
1 550.47(b)(10), and that "means for controlling radiological exposures, in an emergency, are established for emergency workers," id. 550.47(b)(11).
These 16 standards are further defined by a set of evaluation criteria in MJREG-0654. With respect to "means for controlling radiological exposures . . . for emergency workers," NUREG-0654 requires provisions for both self-reading and yw =nt record dosimeters.-
NUREG-0654 at 67 (Evaluation Criterion K.3.a.). In addicinn, 10 C.F.R. 550.47(b)(8) requires that " Adequate emergency facilities and equipment to support the emergency response are provided and maintainad." 'Ihe criteria in NUREG-%54 indicate that this is intended to include radiological nonitoring equi ==nt. NUREG-0654 at 54 (Criterion H.11).
The precise legal effect of NUREG-%54 is debatable. It could be argued that NUREG-0654 bears scxnewhat nore weight than a regulatory
- 11. Part II of NUREG-%54 (pp. 31-79) is entitled " Planning Standards and Evaluation Criteria." Planning standards A-P repeat verbatim the 16 standards in 10 C.F.R. 550.47(b). For each planning standard, there is a detailed set of evaluation criteria.
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P
- guide, since it is actually footnoted in the regulation. 10 C.F.R. 550.47(b)(1) n.l. Under this analysis, i.e. viewing hTREG-0654 as having been " approved" by the Comission by virtue of its footnote reference in a Cormdssion regulation, coupliance with the specific evaluation criteria in NUREG-0654 would be considered virtually mandatory to achieve conpliance with the regulation.
In view of the fact that hEREG-0654 was not officially approved by the Comission,12 however, the Licensing Board elected to treat it as regulatory guidance. PID 11343. The Comonwealth did not object to this ruling. See Conmonwealth's Proposed Emergency Plarning Finding 11 13-15. Nor did the Licensee, Licensee's Proposed Emergency Planning Findings 114, or the NRC staff, Staff's Proposed Emergency Planning Findings 127.
As such, the evaluation criteria in NUFIG-0654 represent one possible means of meeting the planning standards in the emergency planning rule.
khile alternative means of compliance are permissible, such cmpliance nust be demonstrated on the record on the basis of reliable and probative evidence. Conversely, a party could also attenpt to demonstrate, based on record evidace, that conpliance with hEREG-0654 alone is not sufficient to cmply with the emergency planning rule. Gulf State:: Utilities Co.
(River Bend Station, Units 1 & 2), AIAB-444, 6 NRC 760, 772 (1977).
In applying this standard, the Appeal Board should take note that regulatory guides are entitled to " considerable prima facie weight."
- 12. In fact, the current version of NUREG-0654, dated Novenber 1980, was not even in effect when the emergmcy planning rule was promulgated on August 19, 1980. 45 Fed. Reg. 55402.
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Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-74-40, 8 AEC 809, 811 (1974). This concept was recently applied by the Comdssion with respect to NUREG-0654. In re Final Rule on Energecy Planning, CLI-80-40 (Decenber 5,1980),2 NUC. REG. REP.
(CCH) 130,558 (Comission statec its intent to be guided by FDR's j%ommt in NUREG-0654 as to how to couply with the emergency planning rule). &reover, as a general proposition the burden of proof is on the Licensee to dmonstrate reasonable assurance that the health and safety of the public (including emergency workers) will be protected.
10 C.F.R. 52.732. Tennessee Valley Authority (Hartsville Nuclear Plant),
ALAB-463, 7 NRC 341, 356, 360 (1978). The mgnitude of this burden depends on the gravity of the matters in controversy. Virginia Electric &
Power Co. (North Anna Power Station, thits 1, 2, 3 & 4), ALAB-256, 1 NRC 10, 17 n.18 (1975).
NUREU-0654 has been viewed consistently as the foundation document for upgrading emergency plaming and preparedness by plaming agencies around the country, including in the &=mwealth of Pemsylvania. 'Ihis was conRM in this proceeding by both NRC and FDR witnesses. _Se_e Chestnut & Bath, ff. Tr.19,626, at 19; Tr.18,%9-70 (V. Adler);
Tr. 22,531 (Dickey); Tr. 4232 (McConnell). See also NUREG-%54 at 1 (Foreword). In light of the legal standards outlined above, the Appeal Board should view with great scrutiny an argment that coupliance with the evaluation criteria of NUREG-%54 is not required to denonstrate 13 Moreover, such an coupliance with the emergency plaming rule.
argment nust be based on reliable and probative evidence on the record l of the 'IMI-l restart proceeding.
- 13. This is parHmlarly true where the party asserting that coupliance with NUREG-0654 is not necessary is one of tle sources of that j
guidance, i.e., the NRC Staff.
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B. 'Ibe Record Below Deconstrates ht Permanent Record Dosimeters Are Necessary To Protect 'Pae Health And Safety Of 'IMI-l Emergency Workers.
'Ihe Cceonwealth's emergency plan provides for coupliance with 10 C.F.R. 550.47(b)(10) and (11) by requiring the following with respect to dosimetry:
Each emergency worker is to be provided two self-reading dosimetec: (one CD V 730 and one CD V 742) and one thermo-luminescent dosimeter (TLD). 'Ihe self-reading dosimeters enable the worker to nonitor himself at the time of the emergency for total radiation dose received; the 'ILD is an independently read (by the TLD vendor) device that is generally considered to 'oe nore dependable, accurate and precise than the self-reading dosimeters. Each emergency worker is responsible for following the cbsimetry procedures, including record keeping. Attachment B to this Appendix sets forth guidance gd procedures related to dosimetry for emergency workers.
Conmonwealth Ex. 2; Appendix 16,Section V.B (enphasis added). As dis-cussed above, this is the means of coupliance suggested by NUREG-0654, Criterion K.3.a. No party to the proceeding questioned the appropriateness or adequacy of this planning. In support of Appendix 16, the plan also references " FEMA-REP-2, ' Guidance on Offsite Emergency Radiation Measurement Systems, Phase 1 - Airborne Release', Septenber 1980." Id.
Section I.C. 'Ihe Cnmnnnwealth has not been informed that this guidance j has been cancelled or superseded. (Nor is there any evidmce to this effect on the record.) 'Ihus, the official state emergency plan, which is consistent with NURH;-0654 and other applicable FEMA guidance, requires the distribution of 'ILD's to emergency workers. Obviously, since the plan has been distributed to all appropriate emergency planning organNHnns and officials at the county and umicipal level, and since emergency 14 This quotation is from the current version of the Conronwealth's emergency plan (dated Novenber 1981), which has been forwarded to FEMA for review. h current version did not alter the requirement that each energency worker receive both self-reading and permanent record dosimeters. Attachaent B contains nore detailed informaticn regarding the distribution and use of 'ILD's and other means of protecting emergency workers (self-reading dosimeters and thyroid prophylaxis) .
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workers nust be trained in the proper procedures for the use of dosimeters, (see Conmonwealth Ex. 2; Appendix 16; Attachment B) the TLD requirement is well known to the emergency workers (including volunteers) responsible for responding to an incident at 1MI-1. Even nore obviously, this plan cannot be inplemented absent adequate supplfes of TLD's. The Board erred, therefore, in failing to rule that such supplies are required prior to IMI-l restart.
The only evidence on the record to rebut the need for TLD's for energency workers is the unsupported oral testinony of two FDR witnesses.
These statments (discussed below), which arose during cross-examination and were not supported by any direct or documentary evidence, fall far short of the factual evidence necessary to overcome the presucptive weight that attaches to NUREG-0654 requirements. m st inportantly, a theoretical alternative means of coupliance mentioned by a FD% repre-sentative cannot constitute an acceptable method of coupliance abset adoption and inplementation by the responsible planning agencies. The basic requirement of the emergency planning rule is that " adequate protective measures can and will be taken . . . ." 10 C.F.R. 550.47(a)(1).
The Connonwealth's plan provides an inplementable means of conplying with the emergency planning rule, once adequate supplies of ILD's are obtained.
First, FD R witness Bath 15 testified that the TMI-1 emergency plans could be inplemented by sending emergmcy workers out into the l field without dosimetry. Tr. 22,388-89. However, Mr. Bath also stated
- 15. Mr. Bath is an Emergency Management Specialist for FDR Region III.
Notably, Mr. Bath is not a health physicist. Bath & Adler, ff.
Tr.18,975 (Statement of Professional Qualifications).
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that he would not recomend this practice. Id. at 22,388. In fact, Mr. Bath later testified that additional TLD's "should be secured."
16 Id. at 22,476-77. When asked whether he could assure ne that emergency workers would perform their tasks without adequate dosimetry, Mr. Bath responded:
I don't really have an answer to that. I think my answr was based on, can soneone inplement a plan.
Yes, I think someone can inplement a plan. And I wouldn't want to qualify on whether or not that plan can adequately meet the problems without sufficient equipment. But I would suggest that the plan certainly could be inplemented even though they don't have the dosinetry.
Id. at 22,389 (enphasis added). Mr. Bath further eglained that this opinion was based on his " personal belief," as well as the history of real disasters, that " emergency workers will take risks in order to perform their mergency function." Id. at 22,390.
Analysis of this testimony demonstrates virtually no value in overcoming the requirements inposed by NUREG-0654. First, Mr. Bath's assertion that the 'IMI-l emergency plans could be inplemented without dosimetry was alnest entirely speculative. Second, even if Mr. Bath were correct that emergency workers would perform their functions without adequate dosimetry, the requirement of the emergency planning rule with respect to protection of emergency workers would still not be met.
10 C.F.R. 550.47(b)(11) establishes a requirement that neans for controlling the radiological egosures of emergency workers be established.
'Ihis requirement is independent of the general requirment that protective i 16. Mr. Bath eglained that he could not use a word stronger than "should" because FE R has no direct regulatory authority.
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actions be developed to safeguard the general public. 10 C.F.R. 550.47(b)(10).
W. Bath provided no information from a health physics perspective regarding the potential effect on mergency workers of not using 'ILD's.
The second FDR witness who addressed the inadequate supplies of 17 TLD's was &. Vernon Adler. First, &. Adler addressed the potential use of " film badge measurement" in lieu of 'ILD's. &. Adler referred to this, however, as only a possibility rather than a denonstrated alternative:
I know this is a very detailed and technical area, and I am pursuing it with our experts in FDR If it is a simpler and equally adequate methoTfor the protection of emergency personnel workers, then you can be assured that FD R will not only endorse it'but encourage its use.
Tr. 22,769-70 (emphasis added). &. Adler subsequently testified that he had "relatively little assurance" that adequate precautionary measures could be taken with regard to (inter alia) dosimetry for mergency workers, given current shortages of dosimeters. Id. at 22,772. &. Adler 18 did, however, suggest two possible means of d=Hng with shortages l
! of dosimeters during an emergency: (1) keeping emergency workers in exposed areas for "a shorter period of time than might otherwise be necessary" by " rotating . . . larger numbers of people than might otherwise be planned for;" Tr. 22,772-73; and (2) " sharing" dosimeters anong groups of emergscy workers. Id. at 22,773.
- 17. &. Adler has worked for FDR since January 1,1981 as Director, Division of Plans and Preparedness, Region III. Again, &. Adler is not a health physicist. Bath and Adler, ff. Tr. 18,975 (Statement of Professional Qualifications).
- 18. The testinony at Tr. 22,772 et seq. is slightly confusing since Mr. Adler discussed alternative precautionary measures for both dosimetry and thyroid prophylaxis (potassium iodide). &. Adler's suggestions regarding the use of wet gauze, breathing apparatus, etc. refer to potassium iodide substitutes rather than dosimetry substitutes, and therefore are not relevant here.
14 l _ _
Again, Mr. Adler's analysis can be characterized as sheer specu-lation. Mr. Adler did not analyze the neber of available dosimeters; the nunber of available, trained emergency wrkers for " rotation", or the viability of sharing dosimeters on the basis of personnel deployment.
Such procedures, if possible, would require extmsive changes in emergmcy plans at the state, county, and local levels. Rotation timing necessarily depends on such variable factors as exposure rate, wind speed and wind direction. The concept of " sharing" dosimeters is contrary to the very purpose of permanent record dosimetry, which is to record the acennulnted dose received by the individual. The Connonwealth's emergmcy plan speMFically states that "In no case should the TLD be worn by nore than one person since there is no way of ascertaining later how cuch of the dose recorded on the TLD was received by each individual if nore than one person was involved." Connonwealth Ex. 2; Appendix 16; Attachment B;Section IV.A.1. This is not to say that Mr. Adler's suggestions would be inpossible under any circustances. For purposes of this analysis, however, the party seeking to demonstrate an alternative means of cmpliance with the regulation nust prove that the alternative can and
- will be inplemented in this instance. No such showing has bem made.
In stamary, the Conndssion's emergency planning regulation, as i
interpreted by NUREG-0654, other FDR regulatory guidance, and nost inportantly the Conmonwealth's emergency plan, requires that each emergency l worker be provided with a TLD. This concept is based on a sound principle of health physics--that a reliable means be established for recording the acetrulated radiological doses received by individual workers. There is no reliable and probative evidence on the record of l
l I
15 l
this proceeding that denonstrates that an alternative means of radiological exposure control for emergency workers can and will be inplemented. Therefore, the record supports a finding that adequate supplies of TLD's nust be provided prior to the restart of M-1.
III. DE BOARD FAILED 10 " CONFRONT 11E FACIS" SET EDRIH BY HE CMONWEALTH WITH ienff TO DOSIMETRY EUR EMERGENCY WRKERS, AND TO PROVIDE HE APPROPRIATE RELIEF The general duty of a Licensing Board is to " confront the facts" presented to it and to articulate the basis for its decision. Public Service Co. of New Hanpshire (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33, 42 (1977), citing SEC v. Chenery Corp. , 318 U.S. 80, 94 (1943);
Wingo v. Washington, 395 F.2d 633, 636 (D.C. Cir.1968); Northern States Power Co. (Prarie Island Nuclear Generating Plant, Units 1 & 2), -
AIAB-104, 6 AEC 179 (1973). By failing to address the issue of dosimetry for emergency workers in its Partial Initial Decision, see p. 6 supra, the Licensing Board violated these standards.
It is not necessary, however, to remand this issue to the Licensing i Board for further determinations. As discussed in Part I, supra, the l
factual record demonstrating a shortage in the supply of 1LD's for M-1 emergency workers is clear and uncontroverted. As denonstrated in Part II, supra, the legal requirenent that adequate supplies of TLD's (or some demonstrated and effective alternative) be available prior to M -1 restart is equally clear. The Appeal Board has the authority to male the necessary supplemental findings of fact and i
conclusions of law to grant the Comonwealth's requested relief.
Public Service Co. of New Hanoshire (Seabrook Station, Units 1 & 2),
CLI-78-1, 7 NRC 1, 29 (1978); 10 C.F.R. 52.785.
16
Before the Licensing Board, the Ocxmrx1 wealth requested the following relief:
The Board directs the NRC Staff to certify to the Comnf.ssion that the following itens have been accmplished prior to restart:
- 2. To the extent that sufficient supplies of permanent record dosimetry have not been pre-distributed, state and county plans include other necns to provide reasonable assurance that the health and safety of emergency workers will be insured.
Conmonwealth's Proposed Emergency Planning Finding 177. 'Ihis proposed finding recognizes the possibility of alter.mtive means of cmpliance with the requirement that radiological exposure control be provided for emerge 1cy workers. However, tnlike FEMA, the Connonwealth proposes to require that the capability to inplement such alternative conpliance be denonstrated. Absent su:h a showing, adequate supplies of 'ILD's would have to be supplied prior to 'IMI-l restart.
IV. CONCLUSION
'Ihe Connonwealth respectfully requests this Honorable Appeal Board to amend the Licensing Board's Partial Initial Decision by making the following supplemental finding of fact and conclusion of law:
Finding of Fact There is a shortage of permanent record dosimeters ('ILD's) for distribution to emergency workers in the pitme exposure pathway emergency planning zone in the event of an accident at 'IMI-1.
Conclusion of Law
'Ibe Appeal Board directs the NRC Staff to certify to the Connission 17
that :he following condition has been net prior to 1MI-l restart:
To the extent that sufficient supplies of permanent record dosimetry have not been pre-distributed, state and county plans include other means to provide reasonable assurance that the health and safety of emergency wrkers will be protected.
'Ihis condition is necessary to ensure cmpliance with the Conmi.ssion's energscy planning rule. 10 C.F.R. 550.47(b)(10), (11).
Respectfully submitte L .
msm w. mm MICHELE STRAUBE Assistant Counsel Conmanwealth of Pennsylvania 18
AMBD HR17
- y. .
.- ;-..y sc W d PENNSYLVANIA EMEP.GENCY /AANAGEIAENT AGENCY 'd
((W r.o.nox w s j ijf; -i?g Q t f. h k,b!?LW~ ' '
HARRl55UltG, PENN5YLVANIA 17105 x%.@@.I _3' January 7, 1982 Mr. Robert Adamcik-Acting Regional Director Federal Energency Management Agency Region III, Curtis Building 6th and Walnut Streets Philadelphia, Pennsylvania 19106
Dear Mr. Adamcik:
During the final development of the Commonecalth of Pennsylvania Radiological Energency Response Plan for Fixed Nucient Facility Incidents, we identified in our August 31, 1981 letter to
!!r. Adict tuo major shortfalls in requisite dosiectry for emers;cncy
-vorkers pursuant to Federal planning standards and evaluation criteria.
At that time uc requested TEt!A to provide, or arrange. for the provision of, the following douimetry requirements for emergency uorkers concerned with the Threc !!ile Island Nuclear Station, Susqtichanna Steam Electric Station, Peach Bottom Atomic Power Station and the Beaver Valley Po.rer Station.
QUANTITY DESCRIPTIOK 5,054 CD V 730 Dosimeter (0-20r) 11,184 TLD (Thermoluminescent Dasimeter)
The following important considerations relativc to the request were also cited:
- a. During the initial planning effort we opted for distribution of dosimetry at the time of emergency since fewer total resources would he required and NUREG-0654 does not specif y the type of distribut ion.
- h. The current plan was changed to predistribution of dosimetry before the emergency on the bani.s of Federal observations and recommendations cited in (1) gylew and (2) Exercise. of Pennsylvania REP Site-specific t o Threc !!ile Island Fixed Nuclear racilit y.
3 J
Mr. Robert Adamcik' January 7, 1982 Page Two
- c. The rationale for FEMA to identify the CD V 730 as a possibic national resource to meet State RERP dosimetry needs.
In the State Plan we have specified that a sufficient supply of personal dosimetry will be issued to cach risk county to permit pre-distribution of two self-reading and one permanent-record dosimeter each ccergency worker. While we have enough CD V 742 Dosimeters (0-200r),
there is the shortage of CD V 730s and TLDs indicated also. Our decision to opt for three dosimeters for cach cmcrgency worker is based on paragraph 7.3b, page 7-5 of the FEMA document entitled " Guidance on Of fsite Emergency Radiation Measurement Systems, Phase 1, Airborne Release," dated September 1980, short title, FEMA-REP-2. While it is indicated in the abstract that the document "provides interim guidance
- to State and local agencies," we have rcccived no official notification that the guidance has been canec11cd, modified or superseded.
During the October 1981 ASLB IIcarings for the Susquehanna Steam Electric Plant, FEMA testified that it vould not supply the unmet dosimetry needs of the State. It was further indicated Lhat cither the State or the utility should finance the purchase of this dosinntry.
In view of FEMA's strong recommendation for predistribution of donimet ry, this dogmatic position uns surprising since an answer to our August 31 letter has never been received. In response to another question, FEMA testified there was no requirement in NUREG-0654 for tun self-reading dosimeters as called for in the State Plan. During subsequent cross-c>: amination, however, FEMi was questioned regarding FEMA-REP-2 and testified that this document was not being continued, though in f act it had not been cancelled.
While the sworn statements made by fella at the referenced ASLB llearings may not be conclusive, they are a matter of public record and in the absence of any other statements f ron FEMA arc of concern to us. To clarify these matters 1 ask that the following be provided by your of fice or FEMA National:
- a. A formal reply to our 1ctter of August 31, 1981 to Vernon Adler, then Region Ili, Director, Plans and Preparedness Division.
i b. A definit ive writt en statement as t o whether the guidance in FEMA-REP -2 relatIvc t o the sci f-reading and permanent -record donimeters -
is still valid.
Mr. Robert Adamcik January 7, 1982 Page Three
- c. If the FEMA-REP-2 guidance is' no longer to be followed, then what specifically is the FEMA requirement for predistributed dosimetry -
to offsite emergency workers.
Sincerely, A
DeWitt C. Smith, Jr.
Director DCSfsam (Tel: 717-783-8150)
J i .
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/ g Federal Emergency Management Agency .
I< Region III 6th & Walnut Streets Philadelphia, Pennsylvania 19106 U
7AN 18'1982 c-Lt. Gen. Dellitt C. Smith, Jr.
Director \
Pennsylvania Emergency IIanagegent Agency P.O. Box 3321 Harrisburg, PA 17105
Dear General Smith:
We have received your letter of January 7,1982 ift which you requested fella assistance in the provision of dosinetry for emergency workers located around f our (4) nuclear power plant sites in Pennsylvania. In the same letter you also inquired as to whether the guidance on dosiractry contained in the publication entitled " Guidance on Offsite Emergency Radiation Measurement Systems, Phase 1 - Airborne Release," also known as FD!A-REP-2 still is valid or if it has been superseded by some other guidance.
Your questions reflect issues which are of national interest and policy. There-fore, as your letter suggests, and as uc did with'your letter of August 31, l 1981, uc are forwarding your letter to our centrcl office uith the request that .
they reply directly to you. You should receive their reply shortly. Please ~
let us know if you do not. _
We look forward to continuing our nutual efforts in improving our radiological energency preparedness capabilitics. Please contact oc if we can be of a g - ,
tional assistance.
Si nce, ely y ur ,
a- //
s
'/
- Joh . B ucker Regi 1;a l Director m *
- 1 e 5 : ~. , - ,
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f UNITED STATES OF AMERICA NUCEAR REGUIATORY COMISSION BEFORE THE ATQ4IC SAFEIY AND LICENSING BOARD In the Matter of )
)
'EIROPOLITAN EDISON 034PANY, )
) Docket No. 50-289 (Three Mile Island Nuclear ) (Restart)
Station, Unit No. 1) )
ct.turnCATE OF SERVICE I hereby certify that copies of the attached Brief of the Connonwealth of Pennsylvania on Exceptions to the ASLB Partial Initial Decision on Plant Design and Emergency Planning w re served on the persons on the attached Service List, this 10th day of March,1982, by deposit in the U.S. Mail, first class, postage prepaid.
T i
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ROBERT W. ADLER MICHELE STRAUBE Assistant Counsel Connonwealth of Pennsylvania l
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UNITED STAIES T AMERICA NUQIAR RDMAlTY EttESSION BERRE ' DIE ATUCC SAFE 1Y MD IlCDEUU BOARD In the Wtter of:
IGDPOLITAN EDISON CTPMW, )
) Docket !b. 50-289
("Diree !ttle Island !bclear ) (Restart)
Station, thit Ib.1) )
S EVI LIST Docketing and Service Section Mr. Stevm C. Sholly Office of the Secretary thion of Concerned Scientists U.S. !bclear Regulatory Carmztssion 1346 Comecticut Averme, N.W.
Eshington, D.C. 20555 Dtpont Circle Building, Suite 1101 E shington, D.C. 20036 Ivan W. Smith, Esquire, 01 airman Atomic Safety and Licensing Board Panel Ms. Iouise Bradford U.S. Ibclear Regulatory Ctum:ission 'DtI Alert W shington, D.C. 20555 315 Peffer Street Harrisburg, Pemsylvania 17102 Dr. W lter H. Jordan Atc.%c Safety and Licensing Board Panel John A. Ievin, Esquire 881 West Cbter Drive Assistant Counsel Oak Ridge, Tennessee 37830 Pennsylvania Public Utility Carmrission P.O. Box 3265 Dr. Linda W. Little Harrisburg, Pennsylvania 17120 Atomic Safety and Licesing Board Panel 5000 Hermitage Drive Jordan D. Cuminghan, Esquire Raleigh, Ibrth Carolina 27612 Attorney for Newberry Township T.M.I. Steering Corm:ittee George F. Trowbridge, Esquire 2320 tbrth Second Street Shaw, Pittrnn, Potts & Trowbridge Harrisburg, Pemsylvania 17110 1800 M Street, N.W.
Washington, D.C. 20006' Marvin I. Irwis 6504 Bradford Terrace Janes A. 'lburtellotte, Esquire Philadelphia, Pemsylvania 19149 Office of the Executive legal Director U.S. Ibclear Regulatory Cmcrission Thcx:1as J. Germine, Esquire mshington, D.C. 20555 Deputy Attorney Ceneral, Division of Iai Room 316, 1100 Raymond Boulevard Ellyn R. Wiss Newark, New Jersey 07102 Har::en & Weiss 1725 Eye Street, N.W., Suite 506 Judge Gary J. Edles, 01 airman Eshin6 ton, D.C. 20006 Atomic Safety & Lic e sing Appeal Board Karin P. Sheldon, Esquire (PANE)
U.S. Nuclear Regulatory h miasion Harton & Weiss Eshington, D.C. 20555 1725 Eye Street, N.W., Suite 506 Judge Join H. Nck Eshington, D.C. 20006 -
Atomic Safety & Licmsing Appeal Board U.S. Ibclear Regulatory Corm:ission N. Marjorie M. Aamodt unehinatrm, D.C. 20555 R.D. #5 ~
Coatesville, Pemsylvania 19320 l Judge Qiristine H. Kohl Arrwir Safety & Licensing Appeal Board Ms. Gail Bradford U.S. Nuclear Regulatory Cocc:issicn Anti-lbclear Croup Representing York Eshington, D.C. 20555 245 West Philadelphia Street York, Pensylvania 17404 Judge Reginald L. Gotcirf g Accxrde Safety and Licesing Appeal Board W lter W. Cohen, Esquire U.S. Nuclear Regulatory Carmission Consuner Advocate, Dept. of Justice W =hineton, D.C. 20555 Strawberry Square, 14th Floor ~
Harrisburg, Pennsylvania 17127 Dr. 01auncey l'cpford & Judith Johnsrud Enviramental Coalition on !bclear Power 433 Orlando Avenue State College, Pemsylvania 16301