ML20052G243
| ML20052G243 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 05/10/1982 |
| From: | Adler R PENNSYLVANIA, COMMONWEALTH OF |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8205140444 | |
| Download: ML20052G243 (28) | |
Text
i 6- 1 UNITED STATES OF AIERICA 00CMETED IUCLEAR REGUIAIDEN 00ttfISSION UMc BEEDRE 'DE A'IGiIC SAFETl AND LICENSIl0 APPEAL BOARD .7 0- Ii... ,12 pp .49 In the Matter of:
}EIROPOLITAN EDISON 011 PAIN, :
('Ihree Mile Island Nuclear : Docket Ib. 50-289 Station, Unit Ib.1) : (Restart) .
00tt0!NEAL"JI 0F PENNSYLVANIA'S REPLY 'IO LICENSEE'S BRIEF IN SUPPORT OF EXCEPTIO!E
'IO 'IHE ASLB PARTIAL INITIAL DECISION ON ENERGENCY PIRMING ISSUES (EXCEPITON NO. 3) p :: s e %
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35 d S ROBERT W. ADLER
/ / Assistant Counsel Cocmotwealth of Pennsylvania 505 Executive House, P.O. Box 357 Harrisburg, Pennsylvania 17120 Telephone: (717) 787-7060 May 10,1982 8203140444 820510 PDR ADOCK 05000209 0 PDR
l i t TABIE OF CONIENIS Pagte TABLE OF ADE0RMES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 COUNIERSTATHENT OF QUESTI0tB PRESENIED. . . . . . . . . . . . . . . . . . . . . . . . . . 1 COUmERSTAID4EtE OF EE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 ARGUMEtE......................................................... 8 I. EE LICEtmE BOARD RULIlU IS SUPPOR'IED BY RELIABLE AND PROBATIVE EVIDENCE, INCLUDIl0 BOIH GENERIC GUIDAICE DOCUMEtTIS AND EXPERT ESTDONY ON LICENSEE' S HERGEtCY RESPONSE ORGANIZATION. . . . . . . . . . . . . 8 A. h Licensing Board Did Not Place Urdue Reliance On Generic Regulatory Guidance........... 9 B. h Weight Of h Evidence Supports &
Licensing Board's Ruling......................... 11 II. 'IHE LICEBEItU BOARD'S DECISION IS AN APPROPRIAE EXERCISE OF RIEUIAIORY CONIROL OVER LICENSEE'S DERGENCY RESP 0 TEE ORGANIZATION IN A MATIER WHIG IS CRITICAL 'IO PUBLIC HEAL'IH AND SAFEIY. . . . . . . . . 21 III. 00NCLUSION............................................ 23 f
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i f TABIE OF AUIHCRITIES Judicial Proceedings Page(s)
California Bankers Assn. v. Shultz, 416 U.S. 21 (1974) . . . . . . . . . . 8 Jaffke v. Dunham, 352 U.S . 280 (1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Nuclear Regulatory Cmmission Proceedings Consuners Power Co. (Midland Plant, Units 1 & 2), AIAB-452 (December 30, 1977), 2 IUC. REG. REP. (CG) 130,263........ 9 Duke Power Co. (Catawba Nuclear Stations, Units 1 & 2),
ALAB-355 (October 29, 1976), 2 IUC. REG. REP.
(Cm) 13 0 ,116. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Duke Power Co. (Perkins Nuclear Station, Units 1, 2 & 3),
AIAB-302 (Deceber 10, 1975), 2 NUC. REG. REP.
(CG) 130 , 031. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Final Rule on Emergency Planning, CLI-80-40, (Deceber 5, 1980), 2 NUC. REG. REP. (CG) 130,558........ 10 Gulf States Utilities Co. (River Bend Station, Units 1 & 2) , AIAB-444, 6 NRC 760 (1977) . . . . . . . . . . . . . . . . . . 10 Metromlitan Edison Co. (Three Mile Island Nuclear Station, Jnit Ib.1), LBP , 14 NRC (Partial Initial Decision).......................................... 8, 9, 10, 11 Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2), AIAB 549 (February 16~, 1978), 2 NUC. REG. REP. (C W) 130,272.................. 8 Vernent Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station) , CLI-74-40, 8 AEC 809 (1974) . . . . . . . . . . . . . . . 10 Regulations 10 C . F . R. 5 50. 47 (b) (.1) n. l . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 10 C . F . R . 5 50. 47 (b) (.2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 10 C . F . R. 5 50. 47 (b) (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 10 C .F .R. 5 50. 54 (S) (.2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 10 C . F .R . Part 50, App . E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 , 18
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i e Other Authorities Page(s) ..
NLREG-0654; FER-REP-1, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants". . . . . . 3, 4, 8,10, 11, 16 NUREG-0696, Rev. 1, " Functional Criteria for Bnergency Response Facilities"............................ 4, 16 NUREG-0746, Supp.1, " Emergency Preparedness Evalua tion for M-1" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 16 1
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COUNTERSTATBET OF OUESTIOtB PRESENIED
- 1. Whether the Licensing Board was correct in ruling, on the basis of direct testimony presented by the IEC Staff and the Cottrnonwealth of Pennsylvania, as well as two generic IEC Staff regulatory guidance documents, that Licensee's failure to staff its offsite Emergency Operations Facility (EOF) with an Fmergency Support Director within one hour of declaration of a site energency, violates the requiranents of the IEC anergency planning rule?
- 2. Whether Licensee met its burden of proof to da:enstrate that its offsite energency response organization meets the requirenents of the IRC anergency planning rule, despite contrary direcc evidence presented by the IEC Staff and the Cocronwealth of Pennsylvania, as well as generic NRC regulatory guidance doctraents?
- 3. Whether a Licensing Board ruling regarding the interface during a nuclear energency between Licensee's energency response organization and the energency response organizations of federal, state and local agencies, and affecting protective action decisions for manbers of the general public, ccnstitutes an unwarranted intrusion into an " internal" Licensee managanent decision?
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00UNIERSTA'IDB7f OF DIE CASE
'Ihe issue addressed in Licensee's Exception No. 3 arose out of a finding by the IRC Staff that Licensee's offsite mergency response organization is deficient due to insufficient staffing of the offsite F2nergency Operations Facility (EOF) during the early hours of an accident.
'Ihis finding generated a controversy between the Licensee on one side and the staff and the Cormrmealth of Pennsylvania on the other. All three parties produced direct evidence on this issue, although Licensee's brief ignores entirely the evidence presented by the Cormrmealth.
tb party to this proceeding underestimates the importance of either the EOF or the F2nergency Support Director. Licensee's testimony refers to the EOF as the " central point for: (a) providing overall corporate managment and direction in responding to an energency, (b) coordinating administrative and logistical support, (c) interfacing with state and county representatives, and (~d) establishing the basis for long-term recovery efforts." Rogan, et al. , ff. Tr.13, 756, at 21-22; see aJ so, Licensee Ex. 30, at 7-3; Staff Ex. 8, at 16-24. 'Ihe importance of the Emergency Support Director is set forth in Licensee'u mergerry plan:
- 1. 'Ihe Emergency Support Director will be responsible for activating and directing the offsite energency support organization and ensuring that the functional groups provide a coordinated response in support of the on-s2.P.e mergency organization. 'Ihe Emergency l
Support Director will serve as the senior management representative at or in the l vicinity of the 'IMI site. As such, during anergency operations, the Emergency Support Director will direct all emergency efforts and policies; the Frergency Director, l however, will maintain responsibility for the operation and control of the plant. In the absence of tne Emergency Support Director,
! the senior nest BfI-l operations person will i
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, e assume hib responsibilities. As emergency situations tend to stabilize, the F2nergency Support Director may relieve the Energency Director of nore and nore accident managenent responsibilities. This will provide a controlled means of shifting to a recovery organization should that type of organizational arrangenent be desned necessary.
Licensee Ex. 30, at 5-16 to 5-17. Once the energency support director arrives at the EF, he assumes the responsibility for making protective action raurmmdations to the Comorsealth's Bureau of Radiation Protection (BRP). Tr.14, 779 (Rogan); 14, 781 (Giangi).
The Licensee correctly observes that the IRC anergency planning rule itself does not require a facility called an EF or a position entitled an Energency Support Director. This analysis, however, exalts form over substance. As denenstrated below, the regulations clearly envision that the functions served by both the EOF and the Emergency Support Director are required to be in place during an energency. This interpretation is supported by the IRC Staff's applicable regulatory guidance.
First, planning standard 8 of the regulation reads: " Adequate energency facilities and equipment to support the emergency response are provided and maintained." 10 C.F.R. 550.47(b)(_8) . As interpreted by hTREG-0654, there are two pertinent EOF requirenents:
- 2. Each licensee shall establish an Emergency Operations Facility from which evaluation and coordination of all licensee activities related to an emergency is to be carried out and from which the licensee shall provide information to Federal, State and local authorities responding to radiological anergencies in accordance with IREEG-0696; Revision 1.
- 4. Each organization shall provide for timely activation and staffing of the facilities and centers described in the plan.
Staff Ex. 7, at 52 (mphasis added). IUREG-0696, Revision 1, states, in pertinent part:
The EOF shall be staffed to provide the overall manag ment of licensee resources and the continuous evaluation and coordiration of licensee activities during and after an accident. Upon EOF activation, desi pated personnel shall report directly to tm EOF to achieve full functional operation within one hour. A senior managenent person designated by the licensee shall be in charge of all licensee activities in the FIF.
The EOF staff vill include personnel to manage the licensw onsite and offsite radiological monitoring, to perform radiological evaluations, and to interface with offsite officials. The EOF staff assigments shall be part of the licensee's energency plan. The specific number and type of personnel assigned to the EOF may vary according to the energency class. The staffing for each mergency class shall be i fully detailed in the licensee's emergency plan. Operating procedures and staff training in the use of data systens and instrmentation shall contain guidance on the limitations of instrumentation includinh stether the information can be relied upon following serious ac:idents.
Staff Ex. 8, at 19 (emphasis added).
Second, pia ~nning standard 2 states:
On-shift facility Licensee responsibilities for emergency response are unambiguously defined, adecuate staffing to provide initial facility accident response in key functional areas is maintained at all times, timely augmentation of response capabilities is available, and the interfaces among various onsite response activities and offsite support and response activities are specified.
10 C.F.R. 550.47(b)(2) (emphasis added) . Compliance with the timeliness elenents of this standard are defined by Table B-1 of IUREG-0654, which requires a senior manager to serve as EDF Director within 60 minutes.
Staff Ex. 7, at 37.
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Third, Appendix E to 10 C.F.R.' Part 50 requires that:
" Adequate provisions shall be made and described for mergency facilities and equipment, including .. 8. A licensee onsite technical support center and a licensee near-site emergency operations facility from which effective direction can be given and effective control can be exercised during an mergency." (mphasis added) .
It is difficult to interpret "during an mergency" as precluding the first four hours of an mergency. Licensee attspts to avoid this result by arguing that " emergency", according to the NRC Staff, does not include the two lowest classes of emergency (unusual event and alert),
nor does it include the first hour of a site emergency. Licensee Brief at 46-47 n. 23. From a functional perspective, there is a treendous difference between the lowest tw classes of sergency and a site mergency. Ib actual recomended protective actions are envisioned during the unusual event or alert stages. Thus, the interface between onsite and offsite organizations becomes cost critical (from the standpoint of EOF staffing) during a site mergency. Compare Staff Ex. 7 at 1-4, 1-6 with id. at 1-12, 1-16. The one hour activation time recognizes that it is impossible to achieve 4*4 ate activation of the BOF on i declaration of site emergency.
Contrary to the implications in Licensee's brief, the need to staff the EOF fully is supported by sound evidence in addition to generic 1RC regulatory guidance. The NRC Staff testified from the outset that Licensee must staff the Frergency Operations Facility (EOF) with a l senior manager acting as BOF Director within one hour of declaration of l
an emergency. Although many of the discrete functions performed by the Emergency Support Director (Licensee's FDF director) can be performed by l
other personnel on Licensee's ancrgency staff, the IEC Staff's position is based on the need to have "a senior manager who can speak with t
authority to other mergency organizations on radiological or operational matters ..." Chesnut, ff. Tr. 15, 007, at 23-24. Mr. Chesnut testifed with knowledge of all applicable site-specific energency plans. The IRC Staff maintained this position with documentary and testimonial evidence throughout the proceeding. See, e.g. , Tr. 22, 971 (Chesnut); Staff Ex.
27, at 11-13 to 11-14. (Emergency Preparedness Evaluation for 'IMI-1, IUREG-0746, Supp.1).
Moreover, the IRC Staff's' position was supported by reliable and probative evidence presented by the Comonwealth. Mr. William Dornsife, Supervising Ibclear Engineer for the Pennsylvania Department of Environmental Resources' Bureau of Radiation Protection, testified as to the need to transfer the Emergency Support Director functions to the EOF as soon as possible following declaration of a site energency. Tr.
23, 012-16 (Dornsife). This testimony is explained core fully below.
Licensee's brief focuses on the Licensee / state interface as the primary reason for providing an Emergency Support Director within one hour of declaration of a site emergency. In light of this realization, it is
! difficult to understand how Licensee's brief could have ignored the Connonwealth's expert testinony on this point. Ibtably, Mr. Dornsife is
fully manned. Tr. 23, 012; 23, 014 (Dornsife) .
Licensee, of course, presented witnesses who testified that full staffing of the FI)F within one hour of declaration of a site anergency is not necessary to cocply with the energency planning regulation. The question before this Appeal Board is whether Licensee met its burden of
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i proof on this issue, in light of the evidence to the contrary presented i
by the IE Staff and the Comonwealth, in addition to the IE Staff's '
- l generic regulatory guidance documents. 'Ibe Connonwealth submits that
- this burden was not met, and that the Licensing Board's ruling should be i upheld.
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ARGLIETr I. 'IHE LICENSItG BOARD RULI!U IS SUPR) RED BY RELIABLE AND PROBATIVE EVIDEtK'E, INCLUDING BO'IH GENERIC GUIDANCE DOCLNEtTIS A10 EXPERT TESTDONY ON LICENSEE'S BERGENCY RESPONSE ORGANIZATION.
Licensee urges the Appeal Board to reverse the judgment of the Licensing Board on the ground that " undue reliance" was placed on generic guidance documants that do not consider Licensee's site-specific emergency response organization. First, Licensee ignores the presumptive validity given to NRC regulatory guidance, and particularly to IUREG-0654, as discussed below. Second, the ASLB decision was based on reliable and probative record evidence in addition to the NRC guidance doctroents.
See, e.g. , Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit Ib.1) (Partial Initial Decision on Plant Design and Procedures, Plant Separation, and Emergency Planning Issues), LBP , 14 N.R.C.
(December 14,1981),111386-88 [ hereinafter cited as P.I.D.1 ].
Licensee appears to ignore this evidence. In addition, it must be noted that the Appeal Board is not limited to consideration of the reasons articulated by the ASLB. Successful parties before the ASLB may argue that the decision be sustained for any reason which finds support in the record. Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2), Docket Ib. SIN. 50-546, 547, AIAB 549 (February 16, 1978), 2 NUC. REG. REP. (CCH) 130,272.13, citing Jaffke
- v. Dunha, 352 U.S. 280 (1957), and California Bankers Assn. v. Shultz, 416 U.S. 21 (1974).
If the evidence is viewd in Licensee's perspective, the Board ignored Licensee's site-specific evidence and based its ruling solely on generic regulatory guidance. When viewed in the proper perspective, i.e. considering the direct site-specific evidence presented by all of
the parties in addition to the regulatory guidance, the Board weighed the evidence on both sides of the issue and determined that the evidence and arguments presented by the IRC Staff and the Cocmxwealth were more persuasive than the evidence and arguments presented by the Licensee.
PID 111367, 1392. This was a perfectly appropriate exercise of judgment which should be upheld by the Appeal Board. While the Appeal Board may substitute its judgment for that of an ASLB, it should not do so lightly.
Duke Power Co. (Catawba Nuclear Stations, Units 1 & 2), Docket Ibs. 50-413, 414, AIAB-355 (October 29, 1976), 2 IUC. REG. REP. (CCH) 130,116.03.
Duke Power Co. (Perkins Nuclear Station, Units 1, 2 & 3), Docket Nos.
SIN. 50,488, 489, 490, AIAB-302 (Deceioer 10, 1975), 2 IUC. REG. REP, 130,031.04. In short, prestu:ptive validity should be given to the ASLB's findings and conclusions, Consumers Power Co. (Midland Plant, Units 1 & 2), Docket Ib. 50-329A, 330A, AIAB-452 (Dececher 30, 1977), 2 IUC. REG. REP. (CCH) 130,263.15, as lotig as the ASLB considered the appropriate evidence and factors, and made no errors of law. Licensee atte:: pts to evade this result by accusing the Board of ignoring Licensee's evidence, while Licensee itself ignores the evidence presented by the NRC Staff and the Coma m ealth.
, A. The Licensing Board Did Ibt Place Undue Reliance On Generic Regulatory reidance.
Licensee acknowledges that it clearly bears the burden of proving ccepliance with the applicable energency planning regulations. Licensee Brief at 51, citing PID 11391. What Licensee fails to recognize is the presumptive validity of IRC regulatory guidance as an appropriate means of complying with the energency planning rule. In this context, the Licensing Board was correct in using first the regulation, and then the I
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regulatory guidance, as the starting point for its analysis. See PID 111377-80. Following its discussion of these sources of authority, the ASLB states:
1380. We bear in mind in our subsequent findings these roles of the EOF and of the Emergency Support Director.
1381. We next present Licensee's case, as set forth in its proposed findings.
It is clear from this language that the Board used the regulatory guidance only as a starting point. It then provided Licensee with the opportunity to rebut the presumptive validity of the regulatory guidance.
The nature and legal effect of regulatory guidance in NRC proceedings was discussed in the Cocmonwealth's Brief on Exceptions to the ASLB Partial Initial Decision on Plant Design and Emergency Planning, at 8-10.
Briefly, regulatory guides represent one possible means of meeting the planning standards in the emergency planning rule. While alternative means of compliance are permissible, such conpliance must be demonstrated on the record on the basis of reliable and probative evidence. Gulf States Utilities Co. (River Bend Station, Units 1 & 2), AIAB-444, 6 NRC 760, 772 (1977). In conducting this analysis, the accepted standard is
! that regulatory guides are entitled to " considerable prima facie weight."
Venmnt Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),
CLI-74-40, 8 AEC 809, 811 (1974). This concept was recently applied by the Cocinission with respect to ICREG-0654. In re Final Rule on Emergency Planning, CLI-80-40 (December 5, 1980), 2 IUC. RM. REP. (CCH) 130,558 i (Conraission stated its intent to be guided by FBM's judgment in 10 REG-0654 as to how to cocply with the emergency plannirg rule). Ibtably, NUREG-0654 is unique among regulatory guidance in that it is footnoted O O in the regulation. 10 C.F.R. 550.47(b)(1) n.1.
L e Licensing Board gave the relevant regulatory guidance appropriate, but not undue, weight in resolving this issue. h e very language quoted by the Licensee (Licensee Brief at 52) is indicative of this fact: "In light of the Staff and 0:xmomealth having come forward with this evidence, including (but not limited to] the guidance of NUREG-0654 ..." PID 11392 (enphasis added). Le only remining question, therefore, is whether the Licensing Board erred in its judgment that Licensee failed to meet its burden o" proving that its alternative method of compliance with the energency planning rule is adequate, in light of the evidence to the contrary presented by the IRC Staff and the Ccnnomealth.
B. L e Weight Of he Evidence Supports % e Licensing Board's Ruling.
We Board's ruling is supported by direc.t testimony from NRC Staff and Cormemealth witnesses, all of whom were familine with the applicable site-specific energency plans.
Mr. William Dornsife testified on this issue on behalf of the Connonwealth of Pennsylvania.1 Mr. Dornsife is responsible for comtunicating with Licensee to determine the operational status of the facility during an energency, in order to provide insight into protective action recoammdations based on operational factors. 'Ihe Q:cconwealth has determined, through drills at til and at other plants, as well as during the TII-2 accident, that operational information is a critical input into the protective action recocmendation. In order to perform this function, Mr. Dornsife will report initially to the state Bureau of
- 1. Mr. Dornsife is the supervising nuclear engineer for the Cocromealth of Pennsylvania. Biographic Information of William P. Dornsife, P.E., ff. Tr. 23,011.
Radidon Protection (BRP) headquarters in Harrisburg, and to the EF as so m as the E F is manned. Tr. 23,012; 23,014 (Dornsife).
Originally, it was envisioned that Mr. Dornsife could satisfactorily obtain the necessary operational information by renaining at BRP headquarters. During drills conducted in preparation for the June 2, 1981 comprehensive energency planning exercise at 'IMI-1, however, the Cocinorwealth determined that it was difficult to obtain the necessary
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operational information through dedicated te1ephone lines. Significantly, based on this deficiency in information flow, it was Licensee who recocinended that Mr. Dornsife be dispatched to the EOF as soon as possible.
Tr. 23, 013-14 (Dornsife). The IRC Staff witness also agreed with this conclusion due to his observation of the June 2 exercise. Tr. 23, 062 (Chesnut).2 Another alternative would have been to provide for direct telephone conversations between the BRP nuclear engineer and the emergmcy director in the control room. See Licensee Brief at 60 n.28.
Licensee chose the EOF alternative, however, since the emergency director's worklod7might prevent iM4 ate cmmmications with the BRP representative.
Tr. 23, 035 (Dornsife). The Cormrxuealth continues to believe that adequate operational information cannot be obtained through the use of dedicated telephone lines.
- 2. The Staff's views regarding interface with offsite agencies was based, in part, on the assumption that the state nuclear engineer would report to the EOF. Tr.15, 523 (Chesnut). Mr. Chesnut stated:
. . . one function the staff considers important is that of interface in coordination with other offsite agencies as well, and some coordination of the overall energency offsite response.
Several other agencies will be responding to an erergency at Three Mile Island Unit 1, and they in many cases will report to the energency operations facility. Staff believes that this function should be available within one hour of the declaraticn of an er.ergency.
Tr.15, 013 (Chesnut) . See also Tr.15, 036 (Grd=es) .
le. Dornsife explained further that, during drills conducted prior to the June 2 exercise, the status boards and other technical and radiological information available at the EOF tras behind real time, and was not necessarily consistent with information actually used to formlate protective action raum,mdations. Critical real time infornntion was obtained through direct connunications between the energency director and the emergency support director. ft. Dornsife expressed doubts as to whether such information would necessarily be transmitted to the EOF without the presence of the Energency Support Director. Tr. 23, 014-15 (Ibrnsife) . Moreover, It. Dornsife opined that face-to-face contact between the state and the energency support director was "very important not only for us directly understanding what the protective action considerations were, but for us being able to provide our input into that protective action recocrmndation prior to it being made by the Licensee." Id,.d at 23, 016; 23, 045-35.
ft. Dornsife's view that the attention devoted to the EDF staff will diminish in the absence of the Dnergency Support Director also appears to be supported by Licensee's anergency plan:
- 2. The Fmergency Staff Support located at the EOF will assist the Emergency Support Director by interfacing with the offsite energency support organization leaders and providing status reports to the Dnergency Support Director. In the absence of the Emergoncy Support Director the l Emergency Staff Support will not assume
'anergency responsibilities rather it will i be the most senior IMI-l operations person (i.e.: VP-7MI-1).
Licensee Ex. 30, at 5-17 (anphasis added).
i The Contrxwealth's view is also suppcrted by the canner in which the June 2, 1981 comprehensive exercise was conducted. When It. Dornsife l _
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arrived at Licensee's EOF, approximately one half-hour after declaration of site emergency, the EOF was fully manned, including the energency support director. Tr. 23, 015 (Dornsife). 'Ihus, the exercise can be used only as evidence that Licensee's energency response organization can function efficiently, including adequate interface with BRP, with the EOF manned and the anergency s'pport director present early into the accident sequence. By cuntrast, Ilcensee's witness, &. Rogan, was not aware of any drills conducted at 'IMI-1 that did not involve activation of the EOF when the exercise was caried through to making protective action recomendations to the state.3 .Ihus, there is no demonstrated capability to interface with the state in tenas of transmitting protective action recomendations absent full activation of the EOF. Clearly, Licensee has failed to meet its burden of proof on this critical point.
&. Dornsife also demonstrated, by using an example from the June 2 exercise, that some types of operational status information are not available through the normal display panels available at the EOF. Tr.
23, 022-24 (Dornsife) . Indeed, numerical parameters alone could not possibly convey a complete and accurate depiction of the operational status of a facility as complex as a cocmercial nuclear power plant.
Again, &. Dornsife expressed doubt as to whether such information would be conveyed to the EOF without the presence of the ecergency support director. Id. at 23, 023-25. 'Ihe burden of proof is on Licensee to denonstrate the workability of its energency plan. Sirce Licensee conducted the June 2 drill with the EF manned as envisioned by the IEC Staff and the Connunwealth, the Ilcensee danonstrated the workability of the IRC Staff's and the Cocronwealth's concept of operations, rather than their own.
- 3. Mr. Bogan is the Manager-Emergency Preparedness for GPU Nuclear.
Rogan, et al., ff. Tr. 13,756, at 1.
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The Comonwealth's position, mreover, trascends the need to ,
obtain raw operational data. h Camonwealth's preference is to cocuunicate directly with the official actually responsible for making '
protective action reemmndations. Tr. 23, 053-56. As explained by counsel for the Comomealth, the Comonwealth views the interface between Licensee and the state for the purpose of conveying protective action ramw=ndations as an overridhig consideration in emergency planning. Tr. 22, 982-83; 23,'063 (R. Adler). h focus of the mergency planning rule is " reasonable assurance that appropriate protective measures can and will be taken ..." 10 C.F.R. 550.54(S)(2) . h transmission of protection action recomendations from Licensee to the state is the initial, and hence a critical step in the process of taking appropriate protective measures to safeguard the health and safety of tha public in the event of a radiological emergency. The importance of ~ ,
this initial interface, therefore, cannot be understated. '
Lic6csee, apparently, does not disagree empletel$r with the Comomealth's reasoning. Oncross-examination,Q.Roi,anagreedwith Mr. Dornsife that the adequacy of comunication o( prot tive action '
recmumndations is a valid concern. Mr. 'Rogan stat;ed that: .,
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"The mechanical process of cremrdcating '$ '
is an essential element of makingthe '
racemmndation to the state.s In terms of -
cotmunicating.the buis for that recocinendation s^
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certainly the more information that was made available to the state.the more of an i
appreciation they muld have of the licensee's -
reasons for making'the remwndations and, -
therefore, I presume, would be in a,better ,
posture to determine whethersto accept or reject that reenendation.
Tr. 23, 086-87 (Rogan) .
In fact, earlier in the' hearing, Mr. Rogan recognized the benefit.
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of face-to-face contact between the BRP representative and the aaergency support director:
upon activation of the e ergency offsite facility, a representative of the BRP is stationed in that facility and will be aware both of the identification of the emergency support director and will have access to the same information that the emergency support director has, so that in effect that representative could serve as the verifying process within his own agency should there be any question as to whether or not the person who picked up the phone as designated mergency support director-and made a protective action recormmdation was doing so properly.
Tr.14, 783 (Rogan).
Mr..Fcgan also agreed that deficiencies in the use of dedicated phone lines, .particularly in terms of receiving operatioral information,
~
hrpered cormunications betseen Licensee and the Comconwealth. Mr.
Rogan apoarently feels that such cmmmication probles can be resolved throu;;h amended procedures. Tr. 23, 088-89 (Rogan) . Licensee has in no way da:cnstrated that this problen has been corrected, however, and therefoce has not met its burden of proof.
As noted repeatedly above, the Cocmanwealth's position was supported by tRC Staff testimony. The NRC Staff submitted domenmD7 evidence on this point as well. In Supplement 1 to the tRC Staff's Emergency Preparedness Evaluation for 'IMI-l (NUREG-0746), the IRC Staff indicated that full staffing of the EOF within about one hour of an energency declaration was necessary for cocpliance with both IUREG-0654 and tCREG-0696. This document further indicated that " staff,ing falling below the minimum staffing guidelines of Table B-1 to IUREG-0654 should, by Septenber
- 1. 1981, be capable of being augnented within 30 minutes and that deficiencies should be fully re:oved by July 1,1982." Staff Ex. 27, at
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II-13 to 11-14. The IEC Staff's view is essentially that there is a:
need to have a separate individual responsible for making protective action recomendations and perf i some of those nonplant related functions, that he should be removed from the control room to eliminate some of the confusion that exists . . .
Tr. 22, 971 (Chesnut). Thus, the IEC Staff suggests a separation of functions between operation tasks to be performed in the control room and non-operational tasks, such as protective action ran = =ndations.
Licensee accuses the Board of misunderstanding or misrepresenting Licensee's position and testimony on this issue. Even as presented in Licensee's brief, however, Licensee's arguments fall far short of rebutting the testimony presented by the IRC Staff and the Ccxmonwealth and the applicable regulatory guidnnce.
Licensee argues first that it balanced the need to minimize the ntxnber of people and functions performed within the control room with the need to station the person making the protective action recoamendation inside the control rocm so as to impw ee the accuracy of information on which the reconmendation is based. Licensee Brief at 54-56. Licensee does not explain how the infonnation flow between the control room and the EOF is improved between one and four hours after declaration of a site energency. If the information available in the EOF is inadequate for purposes of formlating protective action recocmendations at hour one, it will be similarly inadequate at hour four. Secord, and nore importantly, Licensee's argument fails even to consider, much less overecxne, the basic thrust of the Connenwealth's position. Protective action recocmendations are made by the Licensee (as well as the IEC).
Protective action decisions are made entirely by the state (ultimately by the Governor 1 It is dtical that such decisions be based on 3
i timely, accurate, and complete information, including an understanding 3
of the subtleties of the overall plant status. h Carmonwealth learned through direct experience that this information cannot be obtained
- unless the protective action reccarendations are fornulated at the place of interface with the state liason official, so that the state will understand not only the recocmendation, but also the reasons for and the information underlying the rem ==1dation. Incredibly, Licensee's analysis focuses entirely on Licensee's functions, and ignores the interface with the state offsite response organization and the manner in
- which the information conveyed fmn the Licensee to the state is used.4 1
I Next, Licensee launches into a long, self-serving but irrelevant, discussion of the adequacy of staffing of the control room during an mergency. N Conmxwealth does not question the adequacy of the current control room organization during an mergency to perform the functions that should be handled in the control room. Tnis discussion .
simply misses the point. h question is whether protective action recmewvhtions should be (rather than "can be") made in the control room. Licensee fails to address the Carmonwealth's concern in this regard.
Licensee's real concern, as represented by Licensee's counsel, is that the separation of functions between the EOF and the control room i i
l may result in a less senior corporate official in the EOF than in the i
control room. Tr. 22, 972-73 (Zahler). See also, Tr. 23, 074-75 (Rogan);
- 4. Licensee lamely argues in a footnote that adecuate coordination and l control can be achieved by sending six indivic'u al representatives from six segments of Licensee's organization to the EOF. Licensee Brief at 56 n.26. Surely this contrcl by Cxcittee is not what the i Cocmission had in mind in requiring a "near-site mergency operations
, facility from which effective direction and effective control can be exercised during an mergency." 10 C.F.R., Part 50, App. E, $1V.E.8.
i
, 4 L
Licensee's Brief at 62. Licensee's concern is contradicted, however, by Licensee's own testimony throughout the record that a cultitude of 'IMI-l officials are trained and qualified to make protective action reconmendations, down to the level of shift forman. EA , Rogan, et al., ff. Tr. 13, 756, at 26-27; Ltcensee Ex. 30, at 5-6 to 5-7.
Licensee's first two choices for emergency support director are &.
Arnold and &. Clark.5 Both of these officials are located at GPU's corporate offices in Parsippany, New Jersey, and therefore may not be available during the early phases of an mergency. Licensee acknowledges, however, that there are other officials who would be well-qualified to serve as mergency support director until the arrival of &. Arnold or W. Clark. Tr. 23, 039-40 (Rogan) . 'Ihe Ccumonwealth muld not object to such substitution. Tr. 23, 016 (Dornsife) . tbr would the NRC Staff, Tr. 22, 973-74 (Chesnut).
Previously, &. Rogan had identified four possible candidates for Emergency Support Director. 'Ihese individuals all will receive the same training in making protective action reconmendations as all of the emergency directors. Tr.14, 784-85 (Rogan). &. Chesnut had also testified earlier that the EOF Director function could be filled by any
" senior site or corporate manager who could arrive and who had knowledge of the piant's procedures." Tr.15, 022 (Chesnut) . See also, Tr.
15, 024 (Grimes); Tr. 22, 969 (Chesnut); Tr. 22, 974 (Chesnut) (acceptability of Fnergency Directors as Emergenc'/ Support Directors). It is not clear why the insertion of one of these officials as an interim mergency support director for purposes of unking protective action reconmendations j during a three-hour period early into an accident muld be detrimental to public health and safety. ,
- 5. &. Arnold is the Chief Executive Officer of GPU Ibclear Corporation;
& . Clark is his deputy. Arruld, ff. Tr. 11, 434, at 7-10, Figure 1.
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In sun, licensee has not met its burden of proof to deronstrate that its proposed alternative method of compliance with the requirenents of the energency planning rule will provide an adequate interface for the fornulation and transmittal of protective action rec %tions to the state. Tne wrkability of Licensee's plan was not proven on the record of this proceeding; nor was it proven in a single drill or exercise. Consequently, the Board's ruling that Licensee failed to meet its burden of proof on this issue should be upheld.
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II. DIE LIQ 1EIlU BOARD'S DECISION IS AN APPROPRIATE EXERCISE OF RESULATORY CONIROL OVER LICENSEE'S B4ERGENCY RESP 0 TEE OPIMNIZATION IN A MATIER WHIGI IS CRITICAL 10 PUBLIC HEAL 31 AND SAFETY.
Licensee argues in Part C of (and implies throughout) its brief that the Board's action is an impermissible, unwarranted, and unprecedented intrusion upon Licensee's " internal" management decisions. Underlying this argunent is the premise that only Licensee is substantially affected by, and hence has a right to determine the outcome of, the question of where protective action reemnmdations are made, and by whom. The very fact that the parties litigated this issue so extensively belies this assunption. In fact, the outcome of this question has a potentially significant effect on the approximately 135,000 individuals in the TIE-1 plume exposure pathway eciergency planning zone. Labelling the key decisionnaking process to determine the appropriate Inanner of protecting the general population during a nuclear power plant energercy as an
" internal" decision, affecting no one but the Licensee, borders on the absurd.
It should be noted that the inadequacy of information flow to offsite response organizations, including BRP, was one of the major lessons learned from the 'IMI-2 accident. An investigation into information flow during the DfI-2 accident, conducted by the IEC Office of Inspection and Enforcenent, concluded that "information was not adequately transmitted to the Nuclear Regulatory Ccurnission or the Bureau of Radiation Protection (BRP) . .. 'Ihe predominant factor was the absence of an effective onsite system to accuculate, evaluate and disseminate information." Staff Ex. 5, at 10; see also id. at 10-11 (Conclusions 1, 2, 4, and 8). In light of these conclusions, the Commorrmalth's concerns cannot be taken lightly.
The Comxwealth does not imply that either the NRC or the Comxwealth should intrude in Licensee's internal management decisions lightly. Where the managaunt decision in question, however, bears a direct and substantial relationship to the Comonwealth's ability to provide for the protection of public health and safety in the vicinity of a nuclear power plant, the intrusion is appropriate. Nor does the '
Coexuealth believe that the intrusion here is particularly onerous.
Therefore, the Licensing Board's jiirignmt constituted a necessary and appropriate exercise of the NRC's regulatory authority.
III. CONCUJSION For the foregoing reasons, Licensee's Exception No. 3 should be denied, and the Licensing Board's decision on this issue should be upheld.
Respectfully suhnitted, LY % hl ROBERT W. ADER
' c. Llj r
Assistant Counsel Comonwealth of Pennsylvania May 10, 1982 I
I
UNITED STATES OF AMERICA NUCLEAR REGUIA10RY COMISSION BEFORE THE AlWIC SAFETY AND LICENSING APPEAL BOARD In the Matter of:
MEIROPOLITAN EDISON OCNPANY, :
(1hree Mile Island Nuclear : Docket No. 50-289 Station, Unit No.1) : (Restart)
Utxru1CATE OF SERVICE.
This is to certify that the foregoing "Comaonwealth of Pennsylvania's Reply to Licensee's Brief in Support of Exceptions to the ASLB Partial Initial Decision on Emergency Planning Issues (Exception No. 3)" was mailed to the persons on the attached service list this 10th day of May, 1982, by deposit in the U.S. mail, first class postage prepaid.
, ,i .
14c-cu t1 .nV.(te
/
EBERT W. ADUR Assistant Counsel (f Ccmaanwealth of Pennsylvania i
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e~s o -
12il'IED STAES T NERICA NUCIEAR IEEUIAHY 03tIISSIci BEIVRE 'DE A*IU4IC SAFFIY RD LICE EIm BOARD In the Matter of:
IEIROFOLITAN EDISai C24PKN, )
) Docket !b. 50-289
('Ihree !!ile Island !bclear ) (Restart)
Station, thit !b.1) )
SERVICE LIST Docketing and Service Section Mr. Steven C. Sholly Office of the Secretary Union of Cnneam 1 Scientists U.S. !bclear Regulatory em-f usion 1346 Comecticut Averue, N.W.
Washington, D.C. 20555 Dupont Circle Building, suite 1101 Washington, D.C. 20036 Ivan U. Smith, Esquire, Gairran Atomic Safety and Licensing Board Panel Ms. Iouise Bradford U.S. !bclear Regulatory Cocmission 'DII Alert E shington, D.C. 20555 315 Peffer Street Harrisburg, Pennsylvania 17102 Dr. W1ter H. Jordan Atomic Safety an! Licensing Board Panel Joln A. Ievin, Esquire 881 West Outer Drive Assistant Counsci Oak Ridge, Tennessee 37830 Pennsylvania Public Utility Qcmission P.O. Box 3265 Dr. Linda W. Little Harrisburg, Pemsylvania 17120 Atomic Safety and Licensing Board Panel 5000 Hermitage Drive Jordan D. Cunningham, Esquire Raleigh, Ibrth Carolina 27612 Attorney for Newberry Township T.M.I. Steering Caccittee George F. Trowbridge, Esquire 2323 lbrth Second Street Shaw, Pittrnn, Potts & Trowbridge Harrisburg, Pennsylvania 17110 1800 M Street, N.W.
Eshington, D.C. 20006 Marvin I. Imwis 6504 Bradford Terrace James A. Tourtellotte, Esquire Philadelphia, Pennsylvania 19149 Office of the Executive Imgal Director U.S. Ibclear Regulatory Carrission 'Ihocus J. Germine, Esquire Wshington, D.C. 20555 Deputy Attorrey General, Division of Law Roam 316, 1100 Raymond Boulevard Ellyn R. Weiss Newark, New Jersey 07102 Harron & Weiss 1725 Eye Street, N.W., Suite 506 Judge Gary J. Edles, Chairman Washington, D.C. 20006 Atreie Safety & Licensing Appeal Board U.S. Ibclear Ramarmy Cxxcission Karin P. Shelcbn, Esquire (PANE) Eshington, D.C. 20555 Harron & Wiss 1725 Eye Street, N.W., Suite 506 Judge John H. Buck Washington, D.C. 20006 Accrme Safety & Licensing Appeal Board U.S. tbclear Regulatory em,f =sim Ms. Marjorie M. Aamodt Wahington, D.C. 20555 R.D. #5 Coatesv111e, Pennsylvania 19320 Judge Christine H. Kohl Armic Safety & Lic.ensing Appeal Board Ms. Gail Bradford U.S. Ibclear Regulatory Ccccission Anti-thelear Group Representing York Wshington, D.C. 20555 245 West Philadelphia Street York, Pennsylvania 17404 Judge Reginald L. Gotchy Atmic Safety and Licensing Appeal Board Walter W. Cohen, Esquire U.S. !bclear Regulatory Cxcission Consumer Advocate, Dept. of Justice E shington, D.C. 20555 Strawberry Square,14th Floor Ha:Tisburg, Pennsylvania 17127 Dr. Gauncey I'epford & Judith Johnsrui Envirommtal Coalition on Ibclear Power 433 Orla:xio Avenue State College, Pennsylvania 16301