ML20053D080

Brief in Support of Exceptions to ASLB 820412 Initial Decision Authorizing Issuance of Ols.Shortage in Supply of Dosimeters for Emergency Workers Clear & Uncontroverted. Certificate of Svc Encl

ML20053D080
Person / Time
Site:	Susquehanna
Issue date:	05/28/1982
From:	Adler R PENNSYLVANIA, COMMONWEALTH OF
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8206040040
Download: ML20053D080 (32)

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UNITED STATES OF ABERICA IUCLEAR REGULATORY 00tt41SSION g ga BEFORE 'DE ATQfIC SAFETI AND LICBEItU APPEAL BOARD In the Mitter of: '82 3; -j D136 PEREYLVANIA IUWER & LIQlT CO.  : ,.

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ALLEGIEN ELECIRIC COOPERATIVE,  : Docket tbs. 50-387 110. (Susquehanna Stem Electric  : 50-388 Station, Units 1 and 2)  :

BRIEF OF THE CatDIMEAL'DI 0F PEREYLVMTIA IN SUPPORT OF ITS EXCEPT10tB 10 THE ASLB INITIAL DECISION 1hTED APRIL 12, 1982 ROBERT W. ADLER Assistant Counsel Omnonwealth of Pennsylvania 505 Executive House, P.O. Box 2357 Harrisburg, Pennsylvania 17120 Telephone: (717) 787-7060 May 28,1982 Yo3 s 8206040040 820528 //

PDR ADOCK 05000387 //

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TABLE OF CONTENIS Page TABLE OF AUH10RITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 QUESTI01E PRESENTED.................................................. 1 STAIDENT OF REEVANT FACIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 ARGU4ENT............................................................. 7 I. 'DE ASLB IMPROPERLY REFUSED TO RULE ON 11E ADBQUACY 0F DOSIIEIRY EDR DERGEtU WORKERS (Exception 1) . . . . . . . . . . . 7 A. The Adequacy Of Supplies Of Dosimeters Is Encompassed By Contention 20....................... 7 B. The Conmonwealth's Failure To Raise An Issue Already Raised By Another Party Is Not A Bar To Connonwealth Participation In That Issue. . . . . . . . . . . 9 II. FEDERAL GUIDANCE ON 'IHE NUMBER OF DOSIMETERS FOR DERGEtU WORKERS IS AMBIGUOUS, AND PRESENIS A ROADBIDCK TO RESOLUTION OF 'IHE ISSUE. . . . . . . . . . . . . . . . . . . . 11 III. A DEFICIENCY EXISTS IN SUPPLIES OF DOSHEIERS FOR DISTRIBUTION TO OFFSITE DERGENCY WRKERS (Exc ep tion 3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 IV. DOSHEIRY REQUIRDENIS FOR DERGENCY WORKERS CANIOT BE MET ON A "IDAN" OR "ALIDCATION" BASIS (Excep tion 4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 V. ADEQUATE SUPPLIES OF DOSIMEIERS ARE FECESSARY

.10 PROF.Cr 'DE HEALTH AND SAFETY OF DERGENCY WORKERS (Excep tion 5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 VI. 00NCLUSION................................................ 21 ATTACHt4EtTIS

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TABLE OF AUDIORITIES Judicial Proceedings P_aage SEC v. Chenery Corp. , 318 U.S . 80 (1943) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Wingo v. Washington, 395 F.2d 633 (D.C. Cir. 1968)................... 21 lbclear Regulatory Conmission Proceedings In re Final Rule on Emergency Planning, CLI-80-40 (Decenber 5, 1980), 2 NUC. REG. REP. (CCll) 130,558.............. 17 Gulf State Utilities Co. (River Bend Station, Units 1 & 2) , AIAB-444~, 6 NRC 760, 772 (1977) . . . . . . . . . . . . . . . . . . . 9, 17 tbrthern States Power Co. (Prarie Island Ibclear Generating Plant, Units 1 & 2) , AIAB-104, 6 AEC 179 (1973) . . . . . . . . . . . . . . . . . 21 Pennsylvania Power and Light Co. and Allegheny Electric Cooperative, Inc. (Susquehanna Steam Electric Station, Units 1 & 2), LBP (April 12, 1982) . . . . . . . . . . . . . . . . . . . . . . . passim Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2) , AIAB-422, 6 tRC 33 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . 21 Public Service Co. of New Hanpshire (Seabrook Station, Units 1 & 2) , CL1-78-1, 7 IRC 1 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Tennessee Valley Authority (Hartsville Ibclear Plant),

AIAB-463, 7 NRC 341 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Toledo Edison Co. and Cleveland Electric Illuminating Co.

(Davis-Besse Nuclear Power Station, Units 1, 2, and 3, Perry Nuclear Plant, Units 1 & 2), AIAB-430, 6 NRC 451 (1977) . . . 12 Vernont Yankee Ibclear Power Corp. (Vermont Yankee Ibclear Power Station) , CLI-74-40, 8 AEC 809, 811 (1974) . . . . . . . . . . . . . . . . 17 Virginia Electric & Power Co. (tbrth Anna Power Station, i Units 1, 2, 3, and 4) , AIAB-256, 1 NRC 10 (1975) . . . . . . . . . . . . . . . . 17 i

Regulations 10 C.F.R. 52.732..................................................... 17 S2.754.......................................................... 5 550.47............... ..................................... .... 2, 3 5 50 . 47 (a) ( 1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7

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5 50. 47 (b) (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 , 7 5 50. 47 (b) (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 , 19 , 22

$ 50. 47 (b) (11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8 , 19 , 22

$ 50. 47 (c) ( 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Other Authorities Cmnonwealth of Pennsylvania, Disaster Operations Plan, Annex E, Fixed Nuclear Facility Incidents. . . . . . . . . . . . . . . . . . . . . . 19 FDR-REP-2, Guidance on Offsite Emergency Radiation Measurment Systen, Phase 1 - Airborne Release.

(Septmber 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 , 19 NUREG-0654; FDM-REP-1, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants". . . . . . . . . . . 2, 3, 8, 11, 19, 20 l

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l QUEST 10tE PRESEtEED 1.' , Whether the Licensing Board improperly refused to address the adequacy of dosimetry for energency wrkers?

2. Whether federal guidance regarding dosimetry requirenents for 1

energency workers is clear and unambiguous?

3. Whether the record supports a finding of a deficimcy in the supply of dosimeters for offsite energency workers?

4. Whether alternative methods of protecting offsite emergency workers, absent adequate supplies of dosimeters, were proven based on reliable and probative record evidence?

5. Whether adequate supplies of dosimeters are required to be available for distribution to offsite.anergency worl rs for compliance with the energency planning rule and applicable federal guidance?

STATBETr OF RELEVMTr FACIS h e action appealed from is the Initial Decision 1 of the Atomic ,

Safety and Licensing Board (ASLB) in Pennsylvania Power and LirJit Co.

and Allegheny Electric Cooperative, Inc. (Susquehanna Steam Electric Station, Units 1 and 2), LBP (April 12,1982) . W e Initial Decision and accompanying Order authorized the Director of Nuclear Reactor Regulation to issue operating licenses for Susquehanna Steam Electric Station GSES), Units 1 and 2, upon making certain findings and subject to certain conditions prescribed by the ASLB. I.D. 11222-23.

We Connomealth of Pennsylvania (Connonwealth) filed the following exceptions to the Initial Decision:

(1) W e Board erred as a matter of law in failing to consider and to rule upon the Connonwealth's proposed findings of fact and conclusions of law regarding the availability of dosimetry for off-site mergency workers (Connonwealth's Proposed Findings 20-29).

Initial Decision at 39-40.

9 (2) The Board erred in finding that there is no substantive disagreement regarding the reconniended number of dosimeters for each off-site miergency worker, according to federal guidance. Initial Decision at 39.

(3) h e record supports a finding that there is a deficiency in the supply of dosimeters for distribution to off-site mergency workers in the plume exposure pathway mergency planning zone for the Susquehanna Steam Electric Station.

W e Board erred in failing to make this finding.

(192).

(4) he Board erred in finding that dosimetry requirements for off-site mergency workers can be met on a " loan basis" or by allocating the " existing limited state supply to provide an approximate anount of coverage." (193).

1. L e Initial Decision hereafter will be cited as I.D. at or I.D. 1 . (We decision is divided into two portions, an opinion in narrative text and the specific findings of fact and conclusions of law in numbered paragraphs.)

(5) We Board erred as a matter of. law in failing.to conclude that adequate supplies of dosimeters.are required to be available for distribution to all off-site emergency workers identified in the state end county energency plans as requiring dosimetry, prior to.the issuance of a full power license for the Susquehanna Steam Electric Station.

While the Connonwealth does not object to the basic thrust of the ASLB Order, its exceptions constitute a request that the following additional condition be included in the SSES operating licenses:

Adequate numbers of self-reading and permanent record (thernoluninescent) dosimeters, d.

consistent with applicable federal guidance, are available for distribution to all offsite energency. workers identified in the state and county emergency plans as requiring dosimetry.

l Lis condition is necessary to provide reasonable assurance that the health and safety of energency workers in the plume exposure pathway 2

emergency planning mne for SSES will be protected in the event of a radiological .ine' dent. See 10 C.F.R. 550.47(b)(8), (10), (11) .

Two subsections of Contention 20 in the proceeding allege deficiencies regarding dosimetry for energency workers. Contention 20[5][b] states:

NUREG REV.1 (1110, page 54) recormends that "each organization shall make provisions to inspect, inventory and operationally check emergency equipment /instrunents at least once each calendar quarter and after each use. Were shall be sufficient reserves of instrument / equipment to replace those that are removed from energency kits for calibration or repair." he state plan

2. W e plume exposure EPZ is defined by regulation as an area approximately 10 miles in radius, depending on particular local conditions. 10 C.F.R. 550.47(c)(2) . For the theory oi the plume exposure EPZ, see Staff Ex.

7, at 8-9. Staff Exhibit 7 is NUREG-0654, " Criteria for Preparation and Evaluation of Radiological F2nergency Response Plans and Preparedness

., in Support of Nuclear Power Plants," a joint regulatory guidance i

docunent of the NRC and the Federal Emergency &nagenent Agency (FDR)

[hereafter "NUREG-0654"]. NUREG-0654 is referenced by footnote in the Conmission's omergency planning regulation as representing the standar(1s and criteria by which both onsite and offsite energency plans are to

be judged. 10 C.F.R. 550.47 n.l.

does not meet this requirment since it does not mention inspection, inventory, or checking of such equipment, nor does it mention reserves . . .

As explained further below, dosimeters for mergency workers are included in this category. Contention 20[8][a] alleges that there are inadequate procedures to ensure that dosimeters are read at appropriate frequencies and that dose records are maintained for mergency workers. IUREG-0654, at 67 (Planning Standard K, Criterion 3.b) .3 Obviously, this contention cannot be met unless there are adequate supplies of dosimeters to distribute to mergency workers at the time of an mergency.

'Ihe Gmmonwealth interpreted these contentions throughout the proceeding as challenging the ability to imp 1 ment mergency plans consistent with the requirments of the emergency planning rule and applicable regulatory guidance. 'Ihis view is supported by the fundamental requirment. of the emergency planning rule, which requires " reasonable assurance that adequate protective measures can and will be taken'in the event of a radiological mergency." 10 C.F.R. 550.47(a)(1) (mphasis added). Imp 1 mentation, of course, requires the availability of necessary equipment as well as appropriate plans, procedures, and trained personnel.

Consequently, the Cotrronwealth's prefiled written direct testimony addressed shortfalls in available dosimetry as a bar to emplete compliance with the mergency planning rule, as addressed by Contentions 20[5][b]

and 20[8][a]. In particular, the Connonwealth's witnesses testified:

Dosimetry for use by emergency wrkers and equipment for decontamination nonitoring of evacuees at mass care centers will be predistributed, as available, by the State to the counties that would be involved in the event of an incident. 'Ihe predistribution will include adequate reserves of

3. Planning standards A - P in ICREG-0654 correspond verbatim to the specific requirments in the mergency planning rule. 10 C.F.R.

$50.47(b)(1)-(16) . For each such standard, there is a list of criteria by which compliance with the standard is judged. See IUREG-0654, at 31-79.

these items. While sufficient decontamination monitoring equipment is available for-predistribution to the risk and support counties concerned with the Susquehanna Steam Electric Station there is a shortage of doshnetry for i emergency workers. As indicated in the State

, and County Plans each energency worker is to receive three dosimeters, a CD V-730 (with a range'of 0-20 roentgens), a CD V-742 (with a

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range of 0-200 roentgens) and a thermoluminescent dosimeter (TLD). The 730 and 742 are self-reading dosimeters while the TLDs will be read by BRP or the TLD vendor. Sufficient CD V-742s for all anergency workers will be predistributed by Pan to Inzerne and Columbia Counties. Although a partial predistribution of the CD V-730s will be made, the Cormonwealth does not have a supply of TLDs that can be predistributed to the counties at this time. A request has been made by PDR to the Federal Dnergency Wnagenent Agency in Washington to provide the 730s and TLDs needed for predistribution (including a reserve supply)

-to affected counties around all nuclear facilities within Pennsylvania.

Belser, et al., ff. Tr. 2586, at 19.4 This testimony was admitted into the record, without objection from any party _. Despite extensive additional oral testimony and cross-examination on this issue (discussed infra), at no time during the

hearing did any party assert that the evidence and views proffered by 1'

the Cormonwealth were beyond the scope of Contention 20 or othenrise irrelevart to the proceeding. (Parenthetically, the Connonwealth notes that the ASLB itself did not question the propriety of this issue during the hearing, when testinony on this issue was admitted.) In fact, the Applicant's initial Proposed Findings of Fact and Conclusions of Iaw

[hereafter App. PF 1 ] addressed the issue of adequacy of dosimeter supply as if it were an issue in the proceeding, without qualification.5

4. Testifying on behalf of the Connonwealth were Adolph L. Belser, Director, 4 Plans and Preparedness, Pennsylvania Emergency Nnagement Agency (PDR);

Ralph J. Hippert, Deputy Director, Plans and Preparedness, PDR; Kenneth R. Ionison, Operations Officer, PD R; and John J. Coney, Press Secretary, PD R. The professional qualifications of these individuals are attached to their testimony.

5. Having the burden of proof on all issues in the proceeding, the Applicant filed proposed findings and conclusions first, pursuant to 10 C.F.R.

$2.754.

App. PF 1104. Similarly, the Applicant's Reply Findings [hereafter App.

Reply PF 1 ] did not allege that the dosimetry issue was outside the scope of the proceeding. App. Reply PF 1118-20.6 Despite this extensive litigation and the apparent agrement by the parties that the availability of dosimeters for predistribution to mergency wrkers was a proper issue for resolution by the ASLB, the Board mysteriously refused to rule on the matter because it viewed the issue as outside the scope of Contention 20, and because the Connonwealth did not raise the issue as a separate matter.7 I.D. at 39. The Connonwealth asserts below that the issue of the adequacy of supplies of dosimeters for mergency workers in the SSES plune exposure patlway EPZ was properly within the ASLB's jurisdiction and should have been ruled upon by the Board. Moreover, the record supports a finding that supplies of such dosimeters are deficient, and a conclusion of law that adequate supplies of dosimeters are necessary to provide reasonable assurance that the health and safety of energency workers in the plume exposure pathway EPZ will be protected.

6. tbtably, the Applicant did make such an allegation with respect to the Connonwealth's Findings on public information. See App.

Reply PF 122. Apparently, the Applicant viewed the dosimetry issue as within the scope of the proceeding, while objecting to the public infonnation issue.

7. The ASLB erroneously states: "The dismite centers ... on the question of whether the federal goverment has che responsibility to furnish the necessary equipment." thhere in its proposed findings did the Connonwealth raise argunents regarding wha should provide the necessary equipment. Rather, the dispute centers on the question of whether the necessary equipment ,is_ currently available, and whether such equipment must be available to meet the requirments of the IRC's energency planning rule. Thus, the Board may have refused to rule on this issue due to a misunderstanding of the focus of the controversy.

ARG11IEtE I. TIE ASLB H! PROPERLY REFUSED 10 RULE ON DE ADEDJRCY OF DOSHEIRY FOR H4ERGENCY WORKERS (Exception 1).

As noted above, the ASUB refused to rule on the issue of dosimetry for emergency workers, ostersibly because it lacks jurisdiction to decide who has the responsibility to supply dosimeters. The issue presented for resolution, however, was simply thether adequate supplies of dosimeters for anergency workers in the SSES. plume exposure pathway EPZ are available from any source,8 and whether such availability is required as a matter of 12.w for cmpliance with the NRC energency planning rule. Once these issues are resolved, the various implanenting entities (local, state, federal, utility) can determine the appropriate.

source of funding.

A. The. Adequacy Of Supplies Of Dosimeters Is Encompassed By Contention 20.

The two provisions of Contention 20 discussed above clearly encompass the question of whether adequate supplies of dosimeters exist and are necessary to implanent state and local energency plans. As noted above, the key to the energency planning rule is whether adequate protective measures can and will be implenented, a principle founded both in logic and in law. 10 C.F.R. 550.47(a)(1) .

Contention 20[5][b] challenges compliance with NUREG-0654 Criterion H.10 (p. 54), which requires, inter alia, adequate reserves of emergency equipment. Planning Standard H and 10 C.F.R. 550.47(b)(8) require that

8. The ASLB's confusion may result fran Connonwealth Proposed Findings (hereafter Cwith. PF 1 ] paragraph 28, which denonstrates that dosimeters are not ava1Talle from FHR (based on direct testimony by Connonwealth witnesses and cross-examination of FBR witnesses).

The purpose of this testimony was simply to prove as a question of fact that dosimeters are not currently available fran any source.

Availability frmi FBR constituted one element of this proof.

" Adequate emergency facilities and equipment to support the merhancy response are provided and maintained." The criteria in IUREG-0654 indicate that this is intended to include radiological monitoring equipment. IUREG-0654, at 54 (Criterion H.ll) .9 Obviously, the availability of adequate supplies of dosimeters is necessary to implement this requirment.

Contention 20[8][a] challenges compliance with IUREG-0654 Criterion K.3.b. Planning Standard K and 10 C.F.R. $50.47(b)(ll) require that "means for controlling radiological exposures, in an mergency, are established for mergency wrkers." In order to imp 1 ment this requirment, IUREG-0654 mandates provisions for both self-reading and permanent record dosimeters. IUREG-0654, at 67 (Evaluation Criterion K.3.a). Criterion 3.b. requires that " dosimeters are read at appropriate frequencies und provide for maintaining dose records for mergency workers involved in any nuclear accident." Id. Again, availability of dosimeters in necessary to implement this requir ment. Indeed, even the Applicant's testinony recognizes that this contention carnot be met absent adequate supplies of dosimeters.

Standard K.3.b IUREG-0654 recomends that plans provide for the reading of dosimeters at appropriate times and that dose records be maintained. Appendix 16 " Radiological Exposure Control," to the State RERP provides guidance for emergency forces. ,It provides that each mergency wrker will be provided two self-reading dosimeters and that they will be read once each 30 minutes (see paragraph V, App.16). It also prescribed procedures for individual dose records (see page 16-7) .

The Inzerne County RERP provides that each emergency worker will be issued a CD V 730, CD V 742 and TLD dosimeters and states that the CD V 730 and CD V 742 are to be read every 30 minutes (see paragraph V. C. 5 page M-4 of Annex M

9. Criterion H.ll is referenced in Conten' tion 20[5][c].

" Radiological Exposure Control.") Appendix 4 to_

Annex M is a sample dosimetry report form designed to record pertinent data.

Henderson, ff. Tr. 2546, at 40.10 ,

The issue of the adequacy of dosimetry for anergency workers in the SSES plune exposure pathway EPZ thus was squarely presented to the ASLB_ ,

in Contention 20, and should have been resolved.

B. The Comonwealth's Failure To Raise An Issue Already Raised By-Another Party Is Not A Bar To Comonwealth Participation In That Issue.

The ASLB refused to rule on the dosimetry issue for the additional l reason that the Comonwealth did not specifically delineate its concerns with respect to dosimetry in its August 10 and October S,1981 position

, papers. I.D. at 40. The comonwealth interprets this ruling to mean i

that the issue is not judiciable since the Comonwealth did not raise ,

! the issue on its own and because it' was not the subject of a contention.

The Board did not object to the Comonwealth's participation' in other l valid contentions which were not specifically mentioned in the Comonwealth's I

position papers. Since, as denonstrated above, the Comonwealth's concerns were indeed encompassed by Contention 20, the Board's second  :

objection appears to dissolve.

I The ASLB was correct in noting that interested state participants

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are bound to the same procedural necessities as other participants, in 1

the context of providing reasonable advance notice of the issues to be

! litigated. Gulf State Utilities Co. (River Bend Station, Units 1 and 2) r AIAB-444, 6 NRC 760, 768 (1977). This is founded in fundamental notions of due process. However, where a party is already on notice of an issue i

to be litigated, there is no additional need for an interested state to

! 10. Mr. Henderson was formerly the Director of Pan.

raise the issue on its own. The fact that the Applicant at no time objected to the Camonwealth's litigation of this issue, and in fact addressed the issue in its own prefiled direct testimony evidences that the goal of adequate notice was served. Contrary to the ASLB's statenent, the Ccumonwealth did not address the issue first during cross-examination, but rather addressed the issue in its own prefiled testimony. Belser, et al. , ff. Tr. 2586, at 19.

Requiring an interested state participant to raise with specificity each issue it seeks to address, regardless of whether that issue has already been raised by another party, would render 10 C.F.R. 52.715(c) meaningless, and would place interested states on the same footing as all other intervening parties. This result obviously was not intended by the Camtission. Since the Applicant and other parties received adequate notice that dosimetry for emergency workers was a controverted issue, and in fact did not object to the litigation of the issue, the nutter should have been resolved by the Licensing Board.

II. FEDERAL GUIDANCE ON 3E NUMBER OF DOSDEIERSFOR EMERGENCY KORKERS IS AMBIGUOUS, AND PRESEtTIS A ROADBII)CK 'IO RESOLUTION OF 3E ISSUE.

'Ihe Licensing Board erroneously states in ite decision that there is no " substantive disagreement that federal guidance only reconmends a requirment for mergency workers to have tso dosimeters--one self-reading and the other a 'ILD." 1.D. at 39. In fact, the status of federal guidance on this point was unresolved at the time of the hearing, and reains unresolved at present. Resolution of the dosimetry requirments would greatly facilitate efforts to procure adequate dosimetry since responsible agencies wuld be presented with a clear definition of needs.

'Ihe function of dosimetry is to determine the radiological dose received by an individual. In the case of mergency workers, dosimetry is the method used to determine the amount of exposure the worker is receiving, specifically for purposes of advising the wrker to leave the plume exposure pathway mergency planning zone ("plme exposure EPZ")

once a predetermined level of exposure has been reached. Cormonwealth Ex. 8; Appendix 16,Section V.B.11 NUREG-0654 specifically requires provisions for both self-reading and permanent record dosimeters for emergency workers, including volunteers.

NURBG-0654 at 67 (Planning Standard K. Criterion 3.a.). 'Ihis criterion, however, does not indicate how many dosimeters of each type are to be provided.

'Ihe state plan, as reflected in Connonwealth Exhibit 8, presently calls for distribution of dosimetry to the mergency workers at the time of an incident. Connonwealth Ex. 8, Appendix 16,Section V.B. When available, dosimetry for mergency workers responding to an accident at i 11. Cormonwealth Ex. 8 is the state mergency plan (Disaster Operations Plan, Annex E) for fixed nuclear facility incidents.

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SSES will be predistributed by the state to the counties so that adequate rupplies will be readily available at the time of an incident. Le current state and county plans call for each anergency worker to receive three dosimeters: (1) a CD V-730 (self-reading with a range of 0-20 roentgens); (2) a CD V-742 (self reading with a range of 0-200 roentgens);

and a thennoluminescent dosimeter (TIB) for pennanent record dosimetry.

Belcer, et al. , ff. Tr. 2586, at 19; see also Henderson, ff. Tr. 2546, at 40. Wese plans are consistent with current federal guidance for required dosimetry. Tr. 2700 (Swiren) (Fan witness).

Based on Mr. Swiren's testimony (Tr. 2678, 2698-2700), the Applicant argues that " Federal Guidance, while calling for each emergency worker to have self-reading dosimetry, does not require two self-reading dosimeters for each anergency worker." Applicant's P.F.1104. Fan's position on this point, however, is inconsistent. W e State plan to provide two self-reading dosimeters is based on Fan's " Guidance on Offsite Emergency Radiation Measuranent Systans, Phase 1 - Airborne Release" (FH4A-REP-2, Septanber 1980). See Connonwealth Ex. 8, at 1. On cross-examination, the FDR witness confirmed that this publication has not been cancelled, and the State plan is currently consistent with FDR guidance. Tr. 2700 (Swiren).

Based on this dispute, PHR requested additional guidance from Fan officials in a letter dated January 7, 1982, from DeWitt C. Smith, Jr.,

Director of PER, to Robert Adamcik, Action Region III Director of FER.

Attachnent 1, at 2-3. L e FR R response letter p-ovided no answer to Pan's questions. Attachnent 2.12 lbreover, PHR has yet to receive a

12. Although in general documents may not be appended to an appellate brief in an effort to supplanent the record, new evidence may be brought to the attention of the Appeal Board. Toledo Edison Co. and Cleveland Electric Illuminating 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 at the time of the hearing.

response from FER headquarters.

In stun, the ASLB suggestion that current FDR dosimetry guidance is clear and undisputed is in error. The existing FDR guidance doctrnent requires two self-reading dosimeters, although PDR has been unable to-obtain a definitive statement from FDR as to whether this guidance is ,

still in effect.

III. A DEFICIENCY EXISIS IN SUPPLIES OF DOSRETERS FOR DISTRIBITTION TO OFFSITE HERGEtCl WORKERS (Exception 3).

The shortage of dosimeters for distribution to emergency workers in the SSES plume exposure pathway EPZ is undisputed. The Comonwealth currently does not have a sufficient supply of CD V-730s to predistribute to mergency workers within the plume exposure pathway EPZ. The CD V-730 is the smaller range, and hence more sensitive instrument. More inportantly, the Connonwealth has no available TLDs to predistribute to the counties.

Belser, et al., ff. Tr. 2586, at 19. .

PDR has forwarded a request to FDR in Washington to provide the necessary TLDs and CD V-730s to complete predistribution of adequate supplies of dosimeters. Belser, et al., ff. Tr. 2586, at 19. At the time of the hearing, the Comonwealth had not received a response to this request. Tr. 2607 (Belser) The FDR witness, however, indicated in oral testinony that this request will not be met by Fan. Tr. 2672-73 (Swiren) . Essentially, Mr. Swiren testified that, unless dosimeters are supplied by the state or the utility, they will not be available. Id.

No such arrangement has been made to date. Tr. 2677 (Swiren). The Connonwealth repeated its request for dosimeters in Attachnent 1. No response from FD R has been forthcoming. See Attachment 2.

The Licensing Board found merely that the state " identified a shortage of dosimeters statewide." 1.D. 192. The ASLB neglected to add, of course, that no party disputed the shortage, and that no party I

provided direct evidence of how mergency workers can be protected without procuranent of necessary dosimeters. While the Applicant suggests that a single self-reading dosimeter may be adequate, this assertion is completely unsupported by record evidence,regarding the nature of the two dosimeters, the range of exposure detennined by the two dosimeters, I

3 and thus, which of the instrunents provides an adequate degree of protection. See App. Reply P.F. 119. As discussed above, no guidance has been received from FHM on this point. It is logical to assume, however, that a lower range dosimeter than the CD V-742 would be required for the range of expected exposures to mergency workers.

The Comonwealth is at a loss to understand the ASLB's lackadaisical treatment of this issue. Emergency workers in county mergency plans are largely volunteers. Means to control radiological exposures to such workers during a nuclear mergency warrants consideration based on more than speculatica, unsupported assunptions, and ambiguous and incomplete feder.c guidance.

1 i

_15

IV. DOSIFEIRY REQUIRBENIS FOR RERGENCY KORKERS CANtDT BE FET ON A "IDAlf' OR " ALLOCATION" BASIS (Exception 4) .

The ASLB suggests that shortages of dosimeters for mergency workers can be reedied by obtaining dosimeters on a " loan basis" or by allocating "the existing limited State supply to provide an approximate anount of coverage." 1.D. 171. The Board's unsupported reasoning on these points is exmplary of its off-hand treatment of this significant issue.

The two options suggested by the Board stamed from empletely unsupported testimony by the Fan witness during suppleental questioning by Staff counsel. Tr. 2672 (Swiren). *ihese suggested " options" were not supported by a single fact or document to dmonstrate that the options could be implenented during an energency. For exanple, Mr. .

Swiren did not state where dosimeters were available on a " loan" basis, or whether the dosimeters could be transported in sufficient time during an energency to be of value. Obviously, Mr. Swiren's speculative testimony is insufficient to dmonstrate that adequate protective measures can and will be taken.13 ,

Mr. Swiren's opinion regarding the " allocation" of dosimeters is similarly speculative. First, the applicable mergency plans require that each energency worker receive adequate dosimetry. Gmnoruealth Ex.

i l

8, Appendix 16,Section V. This is inconsistent with the requiranent that the radiological dose to the individual be controlled. In assessing his alternative method, Mr. Swiren did not consider the numbers of dosimeters available for allocation; nor did he explain the logistics of such an allocation. In fact, on cross-examination, Mr. Swiren testified that only approximately 300 TLDs were available for the entire state of

13. Mr. Swiren did suggest that self-reading dosimeters were available at a storage site in Virginia. Tr. 2678. On further examination, however, it was detemined that these dosimeters were of the type already possessed by Pa n in adequate quantities. Tr. 2678- 79.

9

Pennsylvania. Tr. 2676. Based on this figure, Mr. Swiren testifed that adequate supplies of TLDs could not be allocated arrong mergency workers.

Id. at 2676-77. Obviously, there is little analysis and factual support underlying the allocation " option". Again, the sparse testimony on this point is insufficient to dmonstrate that adequate protective measures can and will be taken.

It should be noted that the Gmnomcalth's plan for compliance with the mergency planning rule is consistent with the requirments of applicable regulatory guidance, as dmonstrated above. While alternative means of compliance are pennissible, such cmpliance must be dmonstrated on the record on the basis of reliable and probative evidence. Gulf States Utilities Co. (River Bend Station, Units 1 & 2), MAB-444, 6 IRC 760, 772 (1977).

In applying this standard, the Appeal Board should take note that regulatory guides are entitled to " considerable prima facie weight."

Veniont Yankee Nuclear Power Corp. (Vermont Yankee Ibclear Power Station),

CLI-74-40, 8 AEC 809, 811 (1974). This concept was recently applied by the Cmmission with respect to IUREG-0654. In re Final Rule on Fmergency Planning, CLI-80-40 (Decmber 5, 1980), 2 IUC. REG. REP. (CCH) 130,558 (Conmission stated its intent to be guided by FBM's judgment in IURU;-0654 as to how to comply with the mergency planning rule). 1breover, 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 energency wrkers) will be protected. 10 C.F.R. 52.732. Tennessee Valley Authority (Hartsville Ibclear Plant), AIAB-463, 7 NRC 341, 356, 360 (1978). The magnitude of thic burden depends on the gravity of the matters in controversy. Virginia Electric & Power Co. (tbrth Anna Power Station, Lhits 1, 2, 3 & 4), AIAB-256,1 FRC 10,17 n.18 (1975).

'Ihe ASLB violated these fundamental principles by relying on ,

sparse, speculative oral testimony which identified potential but

. unproven alternative methods of protecting merget:cy torkers. The Applicant clearly did not meet its burden of proof idth respect to the viability of these " options".

V. ADBQUAIE SUPPLIES OF DOSHETERS ARE IECESSARY 10 PROTECT TIE HEALTI A10 SAFELY OF DERGENCY UORKERS (Exception 5).

The Conmonwealth's mergency plan provides for coupliance with 10 C.F.R. $50.47(b)(10) and (11) by requiring the following with respect to dosimetry:

Each mergency wrker is to be provided two self-reading dosimeters (one CD V 730 and one '

CD V 742) and one themoluninescent dosimeter (TLD). The self-reading dosimeters enable the worker to nonitor himself at the time of the mergency for total radiation dose received; the TLD is an independently read (by the TID valdor) device that is generally considered to be more dependable, accurate and precise than the self-reading. Each mergency wrker is responsible for following the dosimetry procedures, including record keeping.

Attachment B to this Appendix sets forth ,

guidance and procedures related to dosimetry for emergency wrkers.

Conmonwealth Ex. 8; Appendix 16,Section V.B (mphasis added). As discussed above, this is the means of compliance suggested by IUREG-0554, Criterion K.3.a. Ib party to the proceeding questioned the appropriateness or adequacy of this planning. In support of Appendix 16, the plan also references "FDR-REP-2, ' Guidance on Offsite Fmergency Radiation Measurment-Systems, Phase 1 - Airborne Release', September 1980." Id.Section I.C. Thus, the official state emergency. plan, which is consistent with IURBG-0654 and other applicable FDR guidance, requires the distribution of TLDs and self-reading dosimeters to mergency workers. Obviously, since the plan has been distributed to all appropriate emergency planning organizations and officials at the county and nunicipal level, and since -

i emergency workers must be trained in the proper procedures for the use of dosimeters (see Gmnonwealth Ex. 8; Appendix 16; Attachment B),

the dosimeter requirment is well known to the mergency workers (including volunteers) responsible for responding to an incident at SSES. Even more obviously, this plan cannot be implenented absent adequate supplies of dosimeters.

Absent a demonstrated alternative to the Comnonwealth's plan, based on reliable and probative evidence on the record of the proceeding and supported by appropriate procedures and revisions to existing energency plans, the Conmonwealth's method of compliance must be accepted as the only viabic means of compliance with the energency planning rule.

Alternative compliance options, while potentially viable, cannot be relied on to protect public health and safety until implenentability is denonstrated. Ib such denonstration has been made here, particularly in view of the fact that the burden of proof is on the Applicant.

In sumury, the Crmission's energency planning regulation, as interpreted by IUREG-0654, other Fan regulatory guidance, and most importantly the Comnonwealth's energency plan, requires that each energency worker be provided with a TLD and two self-reading dosimeters.

This concept is based on sound principles of health physics--that reliable means be established for recording the accunulated radiological doses received by individual workers. There is no reliable and probative evidence on the record of this proceeding that denonstrates that an alternative means of radiological exposure control for energency workers can and will be implenented. Therefore, the record supports a finding that adequate supplies of dosimeters nust ba provided to protect the health and safety of these worlwrs.

VI. CONCLUSION ne 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 Hampshire (Seabrook Station, Units 1 & 2), AIAB-422, 6 IRC 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 Nt$ clear Generating Plant, Units 1 & 2), AIAB-104, 6 AEC 179 (1973). By fa' ling to address adequately the issue of dosimetry for emergency workers in its Initial Decision, the Licensing Board violated these standards.

It is not necessary, however, to renand this issue to the Licensing Board for further determinations. he factual record danonstrating a shortage in the supply of dosimeters for energency wrkers is clear and uncontroverted. We legal requirenent that adequate supplies of dosimeters (or some demonstrated and effective alternative) be available is equally clear. % e Appeal Board has the authority to make the necessary supplanental findings of fact and conclusions of law to grant the Gmnonuealth's requested relief. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), CLI-78-1, 7 NRC 1, 29 (1978); 10 C.F.R.

S2.785.

Consequently, the Conmonwealth respectfully requests the Appeal Board to amend the Licensing Board's Order by adding the following supplanental condition:

Adequate numbers of self-reading and pernunent record (thermoluminescent) dosimeters, consistent with applicable federal guidance are available for distribution to all offsite anergency workers identified in state and county energency plans as requiring dosimetry.

l This condition is necessary to ensure compliance with the Comnission's emergency planning rule. 10 C.F.R. 550.47(b)(10), (11).

Respectfully submitted, 6 52 ROBERT W. ADLER bd '

Assistant Counsel Comonwealth of Pennsylvania May 28, 1982 I

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3 PENNSYLVANIA EIAERGENCY /AANAGE/AENT AGENCY r.o. soit 332

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January 7, 1982 f

j Mr. Rnhert Adamcik d Acting Replonal Director Federal Energency Management Agency l- Region III, Curtis Building .

l 6th and Halnut Streets Philadelphia, Pennsylvania 19106 i i

Dear Mr. Adancik:

j 4 During the final development of the Commoneccith cf 1

Pennsylvania Radiological Energency Respoane Plan for Fixed Nuclear

- Facility Incidents, we identified in our August 31, 1981 letter to

!  !!r. Adict tuo major shortfalls in requisite dosiretry for emergency l uorkern pursuant to Federal planning standards and evaluation criteria.

- -At t. ha t time ue requested TEtt/s to provide, or arrange for the provision of , the following dosimetry requirements for emergency corhers concerned with the Three !!ile Island Nucicar Station, Susquehanna Steam Electric Stat ion, Peach Bottom Atomic Power Station and the Beaver Valley Po. er Station.

i QUANTITY DESCRIPTION d

q t

5,054 CD V 730 Dosimeter (0-20r)

] -

i TLD (Thermoluminescent Dasincter) 11,184 The following important considerations relative to the request were also cited:

a. During the initial planning ef fort we opted for

• distribution of dosimet ry at the time of c: ergency since fewer total resources uonid be required and

s NUREG-0654 does not specif y the type of distribut ipn.

4

h. The ' current plan was changed to predist rihotion M of dosimetry before the cecrgency on the bani.n y of Federal observations and recommenifationr, y cited in (1) Review and (2) Exerciye of 2 -

Pennsylvania REP Site-Spec ific t o Thr ee Mile Island Fixed Mucicar racility.

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-4

!!r. Robert Adamcik '

- January 7, 1982 Page Two

c. The rationale for FEffA to identi.fy the CD V 730 as a possibic national resource to meet State RERP dosimetry needs.

d. The rationale for Federal procurement of all TLD RERP dosimetry needs.

In the State Plan we have specified that a suf ficient supply of personal dosimetry vl11 he issued to cach risk county to permit pre-distribution of two self-reading and one permanent-record dosime.ter each emergency uorker. While we have enough CD V 742 Dosimet.crs ' (0-200r) ,

there is the shortage of CD V 730s and TLDs indicated also. Our decision to opt for three dosimeters for cach cmergency worker is baned on paragraph 7.3b, page 7-5 of the EEt!A document entitled " Guidance on Of f site Emergency Radiation !!easurement. Systems, Phase 1,' Airborne Rel. case," dated September 1980, short t i tl e , FE!!A-REP-2' While it is indicated in the abstract that the document "provides interim guidance ~

to State and . local agencies'," ue have received no of ficial notification that the guidance has been cancelled , modified or superseded.

During the October 1981 ASLB llearings for the Sur.quehanna Steam Electric Plant, FDIA testified that it would not supply the unmet dosimetry needs of the State. It was_further indicated that either the State or the utility should finance .the purchase of _ this desir*ctry.

In view of FE!!A's strong recommendation for predistribut ion of donimet ry, this dogmatic position uns surprising since an answer to our August 31 letter has never been received. In renponne to another_ question, TEllA testifJed there uas no rcquirement in NilREG-0654 for tuo sclf-tcading dosimete s as called for in the State Plan. During subncquent cross-examination, however , FE!!A was questioned regard ing FCIA-rep-2 and testified that this document was not being continued , though in f act it had not been cancelled.

While the suorn statements made by fella at the refercuced ASLB IIcarings may not be conclusive, they are a natter of.public record and in the absence of any other statements f ron FDIA are of concern to us. To clarify there matters 1 ask thel the following he provided ivy your of fice or fella National:

a. A formal reply to our letter of August 31, 1981 to Vernon Adler, then Region Ili, Director, Plans and preparedness Divinion.

b. A definit ive critt en statement as t o whether the guidance in rDIA-RCp -2 relat ive t o the sc1 f-reading and permanent -record donimet crs is'still valid. ,

m _ _ _ __.

~

Mr. Robert Adamcik January 7, 1982 Page ihree

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.

lb. [, A DeWitt C. Smith, Jr.

Director DCS! sam (Tel: 717-783-8150) d

fy ,v' %h+ Federal Emergency Management Agency .

! Region III 6th & Walnut Streets Philadelphia, Pennsylvania 19106

. f IUAN 181982 -

Lt. Cen. DeVitt C. Smith, Jr.

Director Pennsylvania Emergency llanager,ient s Age.my P.O. Box 3321 l llarrisburg, PA 17105

Dear General Smith:

tie have received your letter of January 7,1982 in which you requested FEtIA assistance in the provision of dosinetry for energency workers located around four (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 F.mergency Radiation Measureraent Systems, Phase 1 - Airborne Release," also known as FDIA-REP-2 still is valid or if it has been superseded by sorae other guidance.

Your questions reflect issues which are of national interest and policy. There-f ore, as your letter suggests,- and as ue did e!th your letter of August 31, 1981, ue are forwarding your letter to our central office uith the request that they reply directly to you. You should receive their~ reply shortly. Pi car.n let us huou if ye.i do nnt.

Ue look foruard to continuing our nutual efforts in inproving our radiological energency preparedness capabilities. Please contact nc if we can be_of alld i,- .

tional assistance.

/

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-UNITED STATES OF AFERICA NUCLEAR REGULATORY 00tEISSION BEFORE 31E ATQ4IC SAFETY AND LICEtEIIC APPEAL BOARD In the Fhtter of:

PENISYLVANIA POWER & LIGD' 00.  :

and  :

ALLFREN ELECIRIC COOPERATIVE,  : Docket Ibs. 50-387

INC. (Susquehanna Steam Electric

50-388 Station, Units 1 and 2)  :

CERTIFICATE OF SERVICE I hereby certify that the foregoing "Brief of the Gmmonwealth of Pennsylvania in Support of its Exceptions to the ASLB Initial Decision Ihted April 12, 1982" was mailed this 28th day of thy,1982, to the persons on the attached service list by deposit in the U.S. mail, first class postage prepaid.

ROBERT W. ADLER '

Assistant Counsel Connemealth of Pennsylvania i

UNITED STATES OF MERICA NUCLEAR REGUIATORY C@ MISSION BEFORE 1HE ATQ11C SAFETY AND LICEtEltG APPEAL BOARD In the Ihtter of:

PEtESYLVANIA POWER & LIGHT CD.  :

and .

ALLEGHEIN ELECIRIC COOPERATIVE, Docket Ibs. 50-387 INC. (Susquehanna Steam Electric  : 30-388 Station, Units 1 and 2)  :

SERVICE LIST Secretary of the Conmtssion Ms. Colleen Marsh U.S. Nuclear Regulatory Conmission 558 A, R.D. #4 Washington, D.C. 20555 Mt. Top, Pennsylvania 18707 Docketing and Service Section Jay Silberg, Esquire Office of'the Secretary Shaw, Pittman, Potts & Trowbridge U.S. Ibclear Regulatory Conmission 1800 M Street, N.W.

Washington, D.C. 20555 Washington, D.C. 20036 Atomic Safety and Licensing Board Panel Bryan Snapp, Esquire U.S. Ibclear Regulatory Conmission Pennsylvania Power & Light Company Washington, D.C. 20555 2 tbrth Ninth Street Allentown, Pennsvivania 18101 Administrative Judge James P. Gleason 513 Gilnoure' Drive James M. Cutchin, IV Silver Spring, Maryland 20901 Office of the Executive Irgal Director U.S. Nuclear Regulatory Conmission Glenn O. Bright Washington, D.C. 20555 Atomic Safety & Licensing Board Panel U.S. Ibclear Regulatory Conmission DeWitt C. Smith, Director Washington, D.C. 20555 Pennsylvania Emergency thnagenent Agency Transportation and Safety Building Dr. Paul W. Purdom lbrrisburg, Pennsylvania 17120 245 Gulph Hills Road Radnor, Pennsylvania 19087 Thomas S. bbore, Chairann Atomic Safety & Licensing Appeal Board Dr. Judith H. Johnsrud, Co-Director U.S. Ibclear Regulatory Conmission Environmental Coalition on Ibclear Power Washington, D.C. 20555 433 Orlando Avenue State College, Pennsylvania 16801 Dr. John H. Buck Atomic Safety & Licensing Appeal Board Susquehanna Environmental Advocates ti.S. Nuclear Regulatory Conmission c/o Gerald Schultz, Esquire Washington, D.C. 20555 Post Office Building Wilkes-Barre, Pennsylvania 18703 Stephen F. Eilperin Atomic Safety & Licensing Appeal Board Thomas J. Halligan U.S. Ibclear Regulatory Cmmission Correspondent: CAND Washington, D.C. 20555 P.O. Box 5 Scranton, Pennsylvania 18501