ML20054L275
| ML20054L275 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 06/29/1982 |
| From: | Mcclung C GUARD |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| ISSUANCES-OL, NUDOCS 8207070333 | |
| Download: ML20054L275 (45) | |
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. u. .7 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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, - 6 P l !. :0 n BEFORE THE ATOMIC SAFETY AND ' LICENSINd ~ APPEAL BOARD
,n...:
In the Matter of )
) Docket Nos. 50-361 OL SOUTHERN CALIFORNIA EDISON COMPANY, )
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)
(San Onofre Nuclear Generating )
Station, Units 2 and 3) )
INTERVENORS GUARD, ET AL. BRIEF IN SUPPORT OF APPEAL OF INITIAL DECISION .
ON EMERGENCY PLANNING 1
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A Charles E. McClung, Jr.
Attorney for Intervenors
- s. Guard, et al.
June 29, 1982 8207070333 B20629 PDR ADOCK 05000361 -
C PDR
- heF U >~L> J
4 e d UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
cket Nos<.
SOUTHERN CALIFORNIA EDISON COMPANY, ET AL. )
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)
(San Onofre Nuclear Generating )
Station, Units 2 and 3) )
TO: THE HONORABLE NUCLEAR REGULATORY COMMISSION, THE ATOMIC SAFETY AND LICENSING APPEAL BOARD:
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STATEMENT OF THE CASE The Atomic Safety and Licensing Board (ASLB) issued its Initial Decision (ID) authorizing full power operation of The San Onofre Nuclear Generating Stations (SONGS) Units'2 and 3, subject to certain conditions, on May 14, 1982. The ID resolved the contested Emergency Planning contentions and found generally that there was reasonable assurance that the health and safety l
j of the public surrounding SONGS would be protected in the event of f
( a radiological emergency. The Intervenors, Guard, et al.,
(hereinafter referred to as " Guard") contested the Emergency
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Planning issues at the Hearing. The substance of their appeal is l
generally set forth in the questions presented below. An Application for a Stay of the ID pending the decision of this appeal was filed by Guard and oral argument was presented on June 25, 1982. Decision has not been made on that application at this time. Guard hereby respectfully submits-this Brief in support of its appeal of the ID.
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QUESTIONS PRESENTED
- 1. Whether the Licensing Board erred in granting a full power operating license for six months, despite the fact that it found that the arrangements for medical services for the public are inadequate, because it determined that the probability of a serious accident is low.
- 2. Whether the Licer3ing Board erred in granting a full power license for six months despite the fact that there was no record demonstration that the people in the City of San Juan Capistrano and Dana Point can be notified of an accident within the required fifteen minutes.
- 3. Whether the Licensing Board erred in determining that n
the on-site capability to assess and make projections of potential radiological accidents can provide a basis of adequacy for off-site monitoring when it is unable to make a finding that s.
the off-site monitoring by State and local jurisdictions is adequate.
- 4. Whether the Licensing Board er' red in accepting the Applicants ' conclusory findings regarding the adequacy of evacuation and protective actions for special groups, (including ocean going vessels, school children, handicapped individuals, the City of San Juan Capistrano, and the County of Riverside) l l
4 without requiring that a standard of adequacy be applied to demonstrate Ebat capability to protect the people really exists.
- 5. Whether the Licensing Board violated Guard's right to due process and fair hearing in allowing the Applicant: to have continued and ongoing communications with the Federal Emergency Management Agency (FEFA) subsequent to that Agency's findings of June 3, 1982, without requiring notice of those meetings to the Intervenors or offering the Intervenors an opportunity to be involved in those meetings and then allowing a FEMA witness to present evidence for the NRC Staff rebutting its findings. ,
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4 TABLE OF CONTENTS Page I THE LICENSING BOARD ERRED IN ALLOWING THE APPLICANTS TO OPERATE SONGS UNITS 2 AT FULL POWER FOR SIX MONTHS WITHOUT A DEMONSTRATION THAT THERE ARE ADEQUATE ARRANGEMENTS FOR MEDICAL SERVICES FOR THE GENERAL PUBLIC BECAUSE THERE IS NO RECORD DEMONSTRATION THAT THERE ARE ADEQUATE INTERIM COMPENSATING MEASURES. 1 II THE LICENSING BOARD ERRED IN ALLOWING THE APPLICANTS TO OPERATE SONGS UNIT 2 AT FULL POWER FOR SIX MONTHS DESPITE THE FACT THAT IT FOUND THAT THERE IS NO SIREN CAPABILITY IN THE " EXTENDED" EPZ BECAUSE THERE IS NO RECORD DEMON-STRATION THAT THERE AG ADEQUATE ALTERNATIVE MEASURES TO NO2IFY THE POPULATION IN THOSE AREAS WITHIN THE 15 MINUTE DESIGN CRITERION. 9 III THE LICENSING BOARD ERRED IN DETERMINING . . . . T.
THAT THERE WERE ADEQUATE RADIATION ,
MONITORING AND ASSESSMENT CAPABILITIES OFF-SITE WITHOUT A FINDING THAT THE OFF-SITE JURISDICTIONS HAVE THE CAPABILITY TO MONITOR AND ASSESS A POTENTIAL l RADIOLOGICAL ACCIDENT. 12 l
IV THE LICENSING BOARD ERRED WHEN IT FOUND THAT THERE WERE ADEQUATE EMERGENCY MEASURES WHICH COULD BE TAKEN ON BEHALF
, OF SPECIAL POPULATIONS, (INCLUDING OCEAN l GOING VESSELS, SCHOOL CHILDREN, HANDI-t CAPPED INDIVIDUALS, THE CITY OF SAN JUAN CAPISTRANO AND THE COUNTY OF RIVERSIDE)
WITHOUT ANY RECORD EVIDENCE OF HOW 'MUCH l
EQUIPMENT, MAN POWER, STANDARD OPERATING I
PROCEDURES AND PLANS WOULD BE REQUIRED TO EVACUATE OR OTHERWISE PROTECT TIIESE PEOPLE. 17 i
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Page V THE LICENSING BOARD VIOLATED DUE PROCESS OF LAW WHEN IT ALLOWED THE i APPLICANTS AND FEMA ITSELF TO REBUT THE FINDINGS OF FEMA AND IN EFFECT NEGATE '
THE REBUTTABLE PRESUMPTION REQUIRED BY NRC REGULATIONS. -
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TABLE OF AUTHORITIES Administrative Decisions Page Consolidated Edison Company of New York (Indian Point Nuclear Generating Station, Unit 3) CCH Nuc. Reg. Reptr.
P. 30,027 (1975) 1 Consumers Power Company (Midland Plant, Units 1 and 2) ALAB-315, 3 NRC 101 (1976) 2 Duke Power Company (Catawba Nuclear Stations, Units 1 and 2), ALAB-335, CCH Nuc. Reg. Reptr. P. 30,116 (1976) 2 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant) 14 NRC 598 (1981) -
6.
Vermont Yankee Nuclear Power Corp.
(Vermont Yankee Nuclear Power Station) . . .
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ALAB-138 (1973)~ 5, 31 "-
Virginia Electric ~and Power Company (North Anna Power Station, Units 1-4)
ALAB-256, 1 NRC 10 (1975) 2, 11 s
Statutes NRC Appropriations Act (1980) 4 i
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Administrative Reculations Pace 10 CFR 50.47 (b) (12) 6 10 CFR 50.47 (c) (1) - 2, 4
, Other Documents l
Kemeny Commission Report 3 NUREG-0396 Passim NUREG-0654 Passim United States Constitution, Amendment 5
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t- Administrative Procedure Act, 5
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USC 556(c)
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THE LICENSING BOARD ERRED IN ALLOWING THE APPLICANTS TO OPERATE SONGS UNIT 2 AT FULL POWER FOR SIX MONTHS WITHOUT A DEMONSTRA-TION THAT THERE ARE ADEQUATE ARRANGEMENTS FOR MEDICAL SERVICES FOR THE GENERAL PUBLIC BECAUSE THERE IS NO RECORD DEMONSTRATION THAT THERE ARE ADEQUATE INTERIM COMPENSAT-ING MEASURES.
l The ASLB correctly determined in a well reasoned opinion that the off-site emergency response plans must contain arrange-ments for medical services for the general public. ID at 44.
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The ASLB then found that full power operation of the plant could take place for six months pending a demonstration that such arrangements had been made. The Board did so based on the fact that the probability of accidents would be low during the first six months of operation.2 It reasoned there would be time to complete adequate medical arrangements. " '
- The use by the ASLB of risk analysis to provide the basis for a S50. 47 (c) (1) exemption does not pass muster. It
! is long settled MRC law that there is an evidenciary burden on the Applicant to prove its case fqp any such exemption by " pro-ponderance of the evidence". See, e.g. Consolidated Edison Company.of New York (Indian Point Nuclear Generating Station, 1 '
The contentions of the Intervenors in this proceeding basically tracted certain of the emergency planning standards contained in S.50.47(b) viz., each contention asked whether or not there was reasonable assurance at the various standards were met. In this Brief there is no mention of the contentions per se. See ID at 9.
2 The Board purports to find that the Applicants' arrangements (footnote continued on next page) 4 Unit 3), CCH Nuc. Reg. Reptr. P. 34027 (1975); Duke Power Company (Catawba Nuclear Stations, Units 1 and 2), ALAB-335, CCH Nuc. Reg. Reptr. P. 30,116 (1976); Consumers Power Com-Eagy (Midland Plant, Units 1. and 2) ALAB-315, 3 NRC 101 (1976).
The magnitude of this burden is influenced by the gravity of the matter in controversy. Virginia Electric and Power Company (North Anna Power Station, Units 1 - 4), ALAB-256, 1 NRC 10 (1975). In this proceeding where the controversy is the ade-quacy of emergency response actions to protect public health and safety the Applicants have the burden of making the most con-clusive showing for an exemption from the regulations.
There was no attempt in this case by the Applicants, to demonstrate th'at the arrangements they had made for on-site l personnel were sufficient ot take care of any arrangements
, necessary for the general public in a radiological emergency. . r It was the Applicants' position that no off-site arrangements were required. ID at 130. The ASLB based its argument for an exemption under Section 50.47 (c) (1) on the premise that the l probability of serious accident during the first six months of N.
operation is low. This type of argument harkens back to the i
NRC Staff's pre TMI thinking that emergency planning is not re-
, to take care of on-site radiation injuries, i.e. arrangements with three hospitals and three doctors would provide sufficient interim capacity to respond to a larger accident on an "ad hoc" basis. This finding should be disregarded by the Appeal Board because it flies in the face of the findings in which the Board l finds that such "ad hoc" response is inadequate. ID 134, 135.
The ASLB does not find these arrangements to be adequate interim compensating measures. 10 CFR 50.47 (c) (1) . Therefore, the ASLB relied on the fact that the probability of accident will be low during the six month period.
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quired off-site because serious accidents do not happen. Indeed, the TMI accident compelled the NRC to adopt reality as its prospective in promulgating emergency preparedness requirements.
The regulations do not make room for arguments that an accidental release might not or should not occur during any given period of time. The regulations are rather designed to prepare for consecuences of accidental releases and contemplated.that, for emergency planning preparedness purposes, accidental release can and, in fact, will occur. The release is, therefore, the
" fundamental" given under the regulations. It is the first principal from which the development of an emergency plan and later the preparedness under that plan are required to commence.
The TMI accident taught this emergency planning principal con-clusively and the Kemeny Commission underscored it with a forth-right statement of fundamental policy: ,, :-
One must do everything possible to prevent accidents of this seriousness but at the same time assume such an accident may occur and be prepared for response to the resulting emergency.
s The fact that too many individuals and organiza-tions were not aware of the dimensions of serious accidents at Nuclear Power Plants ac-counts for a great deal'of the lack of prepared-ness and the poor quality of the response.
Kemeny Report, Page 17 (emphasis supplied) .
Similarly the Senate report that accompanies the 1980 NRC Appropriations Act, the Statute which directed the NRC to upgrade its emergency planning and preparedness requirements, states:
In the wake of the accident at Three Mile Island, the logic of low probability can no longer be allowed to justify less than priority treatment of emergency preparedness. S. Rep. ,97-176, 96 Congress, Second Session 27 (1980)
(emphasis supplied). !
l The regulations, of course, embrace, the directives of the Kemeny Commission and the Senate Committee. Thus, in NUREG-0654, Utilities and State and Local Governments are.re-quired to include a wide range of accidents in the planning assumptions up to and including core melt sequences combined _.
with a failure of containment isolation. See, MUREG-0654, Pages 42, 1-3, 1-16 through 1-19.
The NRC's emergency preparedness regulations are pre-mised on the fact that a severe accidental release is assumed s
to happen. The release is a given'. The Applicants have the opportunity under S 50.47 (c) (1) to " demonstrate to the satisfac-tion of the Commission" that the consequences of a given accident i
l will not be sufficiently severe to require full compliance with j 5 50. 4 7 (b) (1) -(16) . The Applicants have failed to demonstrate i
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4 this. They did not even offer evidence on this issue. Instead of arguing that the consequences of a given accident would be adequately mitigated by the existing "ad hoc" medical care facilities in and around the emergency planning zone, the ASLB finds that the ad hoc measures will suffice only because the probability of an accident during the six month period is low.
This reasoning is erroneous as a matter of law. In making this finding the Board has in substance impermissably challenged the regulation which is contrary to the provisions of Section 2.758.
The effect of the Section 2.758 proclusion was addressed in Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138 (1973) where the Staff had argued that the low probability of a loss of a coolant accident during the brief time that would be required to qualify the ECCS against applica-ble acceptance criteria justified continued operation of the . _ .
facility. The Appeal Board sharply rejected the Staff's argu-a ment. The Board stated that "once a regulation is adopted, the standards it embodies represents the Commission's definition of l what is required to protect the public health and safety." The mandate of Vermont Yankee controls'here, where the ASLB has adopted a rationale of low probability to permit essential non-complia'nce with the Commission's regulations. As the Appeal Board stated in Vermont Yankee the ASLE's rationale here con-stitutes "an indirect challenge to the applicable criteria, in that it would permit license of a non-complying reactor".
.Mindfull of these arguments the ASLB refers in its initial decision to the Commission's Memorandum and Order dated December 8, 1981 in this proceeding, where on the basis of the low probability of a radiological accident happening at the thc commission same time as an earthquake / directed the ASLB not to address that issue in the hearing and that it would address it on a generic basis. This argument does not apply here. There is no mention of earthquakes in the emergency planning regulations. The ASLB (sua spoute) attempted to address the adequacy of the emergency plans during an earthquake. The Commission ruled that the earthquake issue was not encompassed within the regulations and that the low probability of a concomitant accident made it mgre profitably a subject for generic review.
In this case regulations have been adopted providing
, that off-site emergency medical arrangements be made. It is ... .
not a question which is subject to generic interpretation. The Commission has spoken regarding the probabilities in question.
Similarly the Diablo Canyon decision (Pacific Gas and s.
Electric Co. (Diablo Canyon Nuclear Power Plant) 14 NRC 598 (1981) is of no help to the ASLB's position. In that case the Commission ruled on immediate effectiveness review that the low risk of accident at low power justified a low power operation of the plant despite the fact that off-site emergency plans did not meet the criteria based in the regulations. It is clear from the review of the decision and concurring opinions in that matter (taken together with the new emergency planning regula-tions promulgated June 11, 1982) that the Commission meant to address the low power accident probability question in the same vein as the earthquake contention above, i.e. on a generic basis because it was not spelled out in the emergency planning regu-lations. The fact that the Commission has amended 50.47(c) (1) indicates that it felt the appl'ication of that section and the use of " low probability" in that section was inappropriate.
In the instant case the ASLB has ruled that adequate arrangements had not been made for potential injuries and con-tamination of the general public in the event of a radiological emergency. It finds that "ad hoc" arrangements are simply not sufficient. ID at 134, 135. The ASLB states:
, "[T]here are no emergency plans in place for .. T the medical services for the public in the event of an accident involving a'large release of l radiation off-site. Should such an accident occur some significant numbers of off-site public 1
might be badly contaminated and/or receive large radiation doses. As matters now stand medical services for such people probably would be inade-i quate .
Therefore'the Board finds that the off-site
! emergency response plans do not meet the planning standard of 10 CFR 50.4 7 (b) (12) . " (emphasis supplied)
(ID at 135).
The ASLB does not make a finding of fact that the Applicants' on-site arrangements will adequately meet the requirements of S 50.47 (c) (1) nor does the licensing condition (ID at 216) make any reference to 50.47 (c) (15) regarding the Applicants capabilities. The only reference that is made is on page 45 and 46 in which the ASLB states that the Applicants' abilities are "one of the factors" which leads it to allow six months of full power operation. Without a finding that there are adequate interim measures, Guard contends that the six month extension of the operating license without compliance of the regulations violates both the letter and spirit of the regulations and is improper and therefore, that decision of the ASLB should be reversed. -
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II THE LICENSING BOARD ERRED IN ALLOWING THE APPLICANTS TO OPERATE SONGS UNIT 2 AT FULL POWER FOR SIX MONTHS DESPITE THE FACT THAT IT FOUND THAT THERE IS NO SIREN CAPABILITY IN THE " EXTENDED" EPZ BECAUSE THERE IS NO RECORD DEMONSTRATION THAT THERE ARE ADEQUATE ALTERNATIVE MEASURES TO NOTIFY THE POPULATION IN THOSE AREAS WITHIN THE 15 MINUTE CRITERION.
The ASLB determined that the emergency planning zone (EPZ) as established by the Applicants and adopted by the local jurisdic-tions was inadequate in that the northern sector should be extended to include the jurisdictions of San Juan Capistrano and 3
Dana Point. The ASLB determined that these population centers 1
on the edge of th.e ten mile radius should be included within the plume exposure pathway EPZ based on the provisions of 10 CFR 50.47 (c) (2) .
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. T Although the Applicant had "voluntari'ly" included these
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areas within its public information program it has declined to i
! include them in its public notification system and, therefore, f
there are no sirens installed by the Applicants for public
( notification in these areas. ID ht 97.
l Initially the ASLB's decision required that adequate means of public notification (the siren system) be installed in the extended EPZ before the full power pperation of the Plant.
the 3 In the Applicants planning documents / extension of the emergency planning zone was referred to as the " extended EPZ" and for the purposes of simplicity this Brief shall also call it that.
That portion of the decision was modified by the Board order dated May 21, 1982, indicating that it was the ASLB's initial intent to allow the Applicants six months to meet this condition for "similar reasons as we allowed six months to remedy the deficiencies in the off-site arrangements for medical services".
The ASLB in that Order also made reference to its findings of fact G.ll (ID at 172) which provides that alternative means exist to provide a prompt alert to the public concerning an emergency if a siren malfunctioned. This Order appears to incorporate the low probability of accident argument that was addressed in the previous section and will not be repeated here. To this the Board adds a further argument by making a finding that there are adequate interim compensating measures. But the finding on page 172 merely says that "should part of the siren system fail to function there, T exists alternative means to alert the public concerning the emergency". It points out the existence of vehicles and helicopters with loud speakers. The mere fact that such vehicles exist does not demonstrate that they will be adequate to notify the 30,000 people in the extended EPZ within the 15 minute design criterion set forth in Part 50 of Appendix E.IV D.3. Nor, as the Applicants have argued are there any special arrangements in the record which indicate that the area of the extended EPZ could be notified within 45 minutes as provided in NUREG-0654, Appendix 3 at 3-3.
Guard contends that this finding of adequacy based on 550.47(c)G) and the existence of emergency vehicles is insufficient as a matter of law to demonstrate compliance with the emergency
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v planning regulation. The mere fact that emergency vehicles exist does not satisfy the burden of proof of the exemption by preponderance of the evidence. Virginia Electric and Power Company (North Anna Power Station, Units 1-4), ALAB 256, 1 NRC 10 (1975).
The Applicants contended to the end that it was not necessary to notify those people and, therefore, no evidence was put into the record of whether or not those people could be notified. The evidence that there exists an alternative means of notifying the people in the extended EPZ does not constitute evidence that such means would be adequate to comply with the regulations.
Accordingly the decision of the ASLB should be reversed.
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III THE LICENSING BOARD ERRED IN DETERMINING THAT THERE WERE ADEQUATE RADIATION MONITORING AND ASSESSMENT CAPABILITIES 1 OFF-SITE WITHOUT-A FINDING THAT THE OFF-SITE JURISDICTIONS HAVE THE CAPABILITY TO MONITOR AND ASSESS A POTENTIAL RAD'0 LOGICAL ACCIDENT.
The ASLB did not make a finding that the off-site jurisdictions could adequately monitor and assess the effect of a radiological emergency.at this time. It found deficiencies in those plans:
"It was clear, however, that there were signif deficiencies in the capabilities .
of the off-site jurisdictions in this area."
ID at 49.
. The ASLB does not make an express finding of adequacy or inadequac['-
, in this regard because it bases its ruling on the fact that the Applicants have the capability to monitor and assess radiation both on-site and in the plume EPZ. The ASLB finds that because of the Applicants on-site capabil{ty, any deficiencies in the off-site capability are "not significant for San Onofre within the meaning of 10 CFR 50. 47 (c) (1) " . ID at 50.
Guard does not dispute the fact that the Applicants have demonstrated significant on-site capability to monitor the escaping radiation and project dosage for off-site areas. Indeed, Guard does not dispute the ASLB's finding at page 139 which indicates that two trained health physicians together with two people from
' the Plant maintenance department will be available for monitoring I 4
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off-site wi' thin 30 minutes of the arising need. Guard contends, however, that this is insufficient as a matter of law to satisfy J
the off-site capability to nyonitor and assess the plume that
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trave's from the Plant.
NUREG-0651 sets forth at page 58 I, 8,9 and 10, the appropriate capabilities of the response organizatins in the monitoring and assessment category. Each orcanization is supposed to have equipment, methods and expertise to make assessments of radiological hazards. This includes field monit-oring teams, equipment and estimated deployment times. (I.8)
Each organization is, supposed to have the capability to detect a major radio nucleic concentrations in the air in a plume exposure EPZ (I.9). Each organization is supposed to establish means for relating the various measurements and perameters to dose rates . . .
for key isotopes together with provisions for estimating integrated dose from the projected and actual dose rates and for
, comparing these dose rates with the protective action guides.
( I.10 ) NUREG-0654 provides that these accident assessment characteristic be maintained by the State and also by the local ,
I jurisdictions. The State of California' emergency response plan provide's that these assessment and monitoring functions be provided by the local jurisdictions IntLrvenors' Exhibit 23 at 21,30,36.
The ASLB indicates in finding of fact 26,page 145 that the Applicants have sufficient Staff and equipment to handle the of f-site monitoring and dose assessment. The Board goes on to note in findings of fact 28, page 146 that it cannot make a finding at this time that the off-site jurisdictions have the capability on their own to monitor and assess the radiological release as is required in NUREG-0654 and 10 CFRS50.47 (B) (9) .
Guard contends that the regulations contemplate separate radiation and monitoring capabilities by both the Applicants and off-site jurisdictions not for an on-site monitoring capability which is supplemented "by the resources available to them" in off-site organizations as the ASLB found. ID at 145.
The two off-site monitoring teams that are available according to the testimony of Mr. Barr (under cross-examination by the Staff) were indicated to be none other than those teams actually required. under the minimum staffing requirements. for the NRC licensees specified in Table B.1 of NUREG-0654, page 36.
Guard contends that the Applicants meeting of the minimum .. .-
standards required under NUREG-0654 and having two health people to do off-site monitoring cannot possibly be adequate, as a matter of law, because the regulations and NUREG-0654 clearly contemplate a separate and additional capability to monitor and assess radiation in an accident by the oIf-site jurisdictions. If all
! that was required is that the Applicants meet the minimum I
staffing requirements for their on-site plan it would make the other regulations and guidelines meaningless and, therefore, it should not be read to do so. The ASLB's decision purports to indicate that the off-site organizations are going to somehow work with the Applicant to do dose assessment and monitoring. This is not the case. The communications between the Applicants and the field monitoring teams of the local jurisdictions are simply not planned for and not part of the standard operating procedures nor are they in the record. The Board cannot adequately find that these off-site monitoring personnel are going to aide the Applicants and, therefore, it is essentially improper for the Board to add together the capabilities of the Applicants plus the capabilities of the off-site jurisdictions to somehow arrive at a combined capability which is sufficient.
The ASLB erred in refusing to make a finding on the adequacy of ingestion pathway monitoring when, in fact, the record indicated -that a finding that adequacy could not be made.
The ASLB indicates in its decision the weakness of the ingestion pathway EPZ radiation monitoring and assessment. Ther,e. -
was no finding of fa-'. filed by Guard expressly related this point although there were findings of fact which indicated that Guard disputed the adequacy of off-site radiation monitoring.
l See Intervenors finding of fact 120-147. Guard also filed a s
conclusion of law (#11) which provided that the plans and procedures and capabilities of the local jurisdictions to monitor and assess the radiation in the ingestion pathway were inadequate.
i The ASLB failure to make a finbing on this issue because l of the purely technical " default" of omitting a finding of fact, l
is error. There is sufficient information contained in Intervenors l findings of fact 120-147 taken together with the conclusion of law l to put the matter in issue. Guard should not be defaulted and it l
was error for the ASLB to do so.
As the ASLB points out the ingestion pathway at this time does not provide adequate monitoring assessment and a finding must be made in this regard before full power license can be granted either that it is adequate under 50.47(B) or that there are adequate compensating measures under 50.47 (C) (1) . This was not done and it was error not to do so.
This issue is of utmost importance because the Board's decision leaves the entire dose assessment and monitoring function in the hands of the Applicant and determinas that it is adequate so long as the Applicant maintains its current stated objectives. Guard strongly contends that there must be a basis and showing in the record that the off-site radiation assessment and monitoring capability is sufficient and accordingly the ASLB's 7 decision should be revarsed.
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I IV THE LICENSING BOARD ERRED WHEN IT FOUND THAT THERE WERE ADEQUATE EMERGENCY MEASURES WHICH COULD BE TAKEN ON BEHALF OF SPECIAL POPULATIONS, (INCLUDING OCEAN GOING VESSELS, SCHOOL CHILDREN, HANDICAPPED INDIVIDUALS, THE CITY OF SAN JUAN CAPISTRANO AND THE COUNTY OF RIVERSIDE) WITHOUT ANY RECORD EVIDENCE OF HOW MUCH EQUIPMENT, MAN POWER, STANDARD OPERATING PROCEDURES AND PLANS WOULD BE REQUIRED TO EVACUATE OR OTHERWISE PROTECT THESE PEOPLE.
There are numerous areas in the ASLB's decision when it appears that the ASLB has determined that because some planning exists for various emergency problems then the planning is adequate without regard to an objective standard of whether that planning is actually going to be able to protect the various people involved during an actual emergency. In other words, there has been no balancing by the ASLB of the amount of preparations or ,,, 7, planning that have been made verses the actual safety to the individuals involved such that a finding that there is adequate protection can be made.
Intervenors have strongly asserted that there must be s
adequate planning in place to prot'ect the following groups:
- 1. Hospital patients, nursing homes, and handicapped. ;
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- 2. School Children.
- 3. Ocean going vessels. '
l 4. The City of San Juan Capistrano.
- 5. Riverside County.
It is Guard % contention that the ASLB based its decision only on the fact that some planning exists for these required areas and not that there is,really adequate care. It has not been shown that these people could be notified within the required 15 minutes or that special arrangements had been made to notify them of 45 minutes or that they could be evacuated within the time frames set forth in the Wilbur Smith time esti, mates.
The various specific groups are addressed in separate sections below.
- 1. Hospital patients, nursing homes and, handicapped people.
Despite testimony of Intervenors witness Charles Fleming i
that fully 7% of the population in the emergency planning zone is seriously disabled, the ASLB finds simply that a postcard mailed .
to everyone taken together with the fact that the Orange County buses exist, is sufficient to adequately protect those persons in the event of an emergency. See ID at 121, 122; Intervenors Finding #6. The ASLB adopts wholesale, the findings of fact proposed by the Applicants with respect to these groups. These findings contain conclusions which are not supported by their citations. In the ASLB's finding 47, page 123 it notes that "a sufficient number of buses and ambulances are available committed to evacuation based on the most conservative estimates of persons who might require some transportation assistance". There is no testimony in the record as to how many buses are necessary and how many buses are committed and whether the buses can reach a population of approximately 7,000 people or 7% of 100,000 people in the emergency planning zone EPZ. In fact, the testimony of Intervenors' witness Jan Goodwin, the only person to testify in connection to the Orange County Transit District which is to provide these buses (President of the Bus Drivers Union) indicated in her testimony that there were no emergency plans other than a basic civil defense plan, that there were no specific plans designed for radiological emergency and that the drivers were completely unaware of any such plans, that there were no training programs for drivers in the event of radiological emergency nor any plans in place in any way to protect the special populations who may need special transportation.
The Applicants merely cite the conclusion:that there are buses which Guard does not dispute. But the fact that buses exist _.
does not mean that there are enough buses; it does not mean that they are going to adequately reach the special populations. A showing must be made that there are implemented procedures for i
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use of these buses in the event of a radiological emergency. This has not been done and the finding'that such implementing procedures exist is contrary to evidence.
The testimony of Mr. Brothers from the Wilber Smith and l
Associates who performed the traffic arelysis is particularly unpersuasive and should be disregarded when used to determine adequacy of numbers of buses and other emergency vehicles. Mr.
Brothers' testimony is that of an expert in traffic analysis. His L
research was based on a determination of how fast the population in the EPZ could evacuate if there were sufficient vehicles and if there were sufficient buses. It was not his testimony that sufficient buses exist because he is not an expert in how many buses there are and is not qualified to testify as to the amount of buses. In fact, none of the citations for the findings of fact 47 support that finding and the Board's conclusion that adequate measures exist for the handicapped should be reversed.
- 2. School Children.
The ASLB substantially relies on the testimony of Mr.
Brothers that there are sufficient buses to evacuate the school children. This is despite the fact that Applicants witness from the school district,Ms. Swanson, indicates that Orange County ... T Transit support vehicles would be necessary. There is no showing
, that an adequate number of these buses exist to cover both the school children and those who may need transportation either because they are handicapped or because they are transient. There s.
was never a showing for the number of buses that would be available. And there is no showing that any plan exists at the Orange County Transit District or at the school district for implementing an actual protective evacuation measure. It is interesting to note that the Applicants Exhibit #140, the school district's emergency planning guide is dated August 24, 1981 and was , in fact . written and adopted during the emergency planning hearings. This is despite the fact that there had been a finding by the Appeal Board in the construction permit stage that there was inadequate planning for evacuation of school children.
Southern California Edison (SONGS 2 and 3) ALAB-248.
No planning was done in this regard until the lith hour of the hearing.
Exhibit 140 indicates no specified number of buses or evacuation procedures which would take effect in the event of emergency.
It is unsuitable and not adequate for the thousand of school children in the district.
Guard contends there must be some showing that the number of buses will be adequate with the number of school children and that there is an implementable plan to actually evacuate or otherwise protect- the school children in the event of a radiological emergency, not simply conclusions.
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- 3. Ocean going vessels.
The ASLB dismisses the ten ~ mile EPZ in the ocean for an ear between one and two miles off shore. ID at 175, footnote 62.
There is no justification in the record for this one or two mile s
shrunken EPZ. The ASLB attempts to create a separate emergency planning zone called a " marine EPZ" in which the requirements of prompt notification are not required. It is indicated by the ASLB that the boat which is allegedly alailable from Doheny Beach at the tip of one end of the EPZ would be enough together with helicopters to notify the people in this one or two mile area in the required 15 minutes. This is despite the fact that there is no record determination of how many helicopters would be available and how the boaters would be no tified and that there are no w
plans or procedures in the record to be used to notify these boaters. In fact the ocean population will be notified on an "ad hoc" basis. There is simply no basis for the ASLB's decision that this can be done in 15 minutes. The record does reflect the fact that there is a Dana Point Yacht Harbor now within the EPZ wnich contains numerous boats and that there is much pleasure boating and fishing in the area. See eg FES and SER.
Guard contends it must be affirmatively demonstrated by preponderance of the evidence that these people will be notified in the event of radiological emergency. There is simply no basis for a conclusion that the people who may be one mile away from the plant offshore or four miles away do not have to.be notified of a radiological emergency. Contrary to the ASLB's conclusion that it was assumed in the hearings that the ocean was . . .
not part of the plume exposure pathway. The Intervenors assumed a
that in fact the ocean out to ten miles was in the EPZ and, therefore, did not raise that as a separate contention. It is our feeling that there must be a demonstration that the people in the emergency planning zone can be not'ified within the 15 minute guideline and that conclusions by the ASLB that helicopters exist and that one boat at the Doheny State Beach exists is simply not sufficient to demonstrate that the actual numbers of boaters that may be in the area can be notified in the event of a radiological l emergency.
Guard contends that the unique geographical environment
- of SONGS on a coastline where there is a substantial amount of boating, both commercial and recreational, must be dealt with on adequate emergency response plans. Intervenors exhibits indicate that the FEMA RAC Review would suggest introducing the NOAA system of emergency notification for use of the people over I
water. Intervenors Exhibit #13, page 9.
- 4. San Juan Capistrano, The City of Despite the fact that San Juan Capistrano is an incorpor-ated city and it contains nearly half the population of the EPZ and the fact that- the emergency response officials of the City are going to be making emergency response decisions for that area the ASLB has found that it is not a " principal response organizat. ion,"
and, therefore, it does not need to meet the specific standards a
set forth in NUREG-0654. ID at 6.
l Guard contends that San Juan Capistrano is a principal response organization because it must take protective action decisions for its population. Certainly it is more " principal" than the State Parks and Beaches which the Board finds is a principal response organization. See, Intervenors Findings of Fact #53, et. seg. The ASLB on the oth$r hand makes essentially a finding that it is not a principal response organization simply because it does not meet the NUREG-0654 criteria. In this way the ASLB does not need to make any specific findings either under S54. 4 7 (b) or under 554.47(c) with~ respect to San Juan Capistrano.
It merely finds that Orange County can have the adequate resources to take care of any problems that may arise in the City.
Orange County does .not have any authority to take protective action or to make protective action orders for the City of San Juan Capistrano. These actim's must be taken by the emergency planning officials of San Juan Capistrano pursuant to their emergency response plan. Applicants exhibit #56. It is demonstrated in the record that San Juan Capistrano does not have 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> alert and notify capability to its emergency response organization.
This is not deemed necessary by the Board because it is not a principal response organization. Guard contends that the strictures of NUREG-0654 and~ the regulations cannot be set aside simply by playing with definitions and that as the most populace city in the EPZ San Juan Capistrano must have an emergency response plan .. T which conforms in an adequate way to the NUREG-0654 and emergency
, planning regulations. Alternatively the Board must make a specific finding based on S50. 47 (c) (1) that the deficiencies in the emergency plan of San Juan Capistrano are overcome by the Orange County plan. The Board has not taken this latter course but has taken the course of simply changing the definition. The record does not indicate that the planning for San Juan Capistrano is yet adequate in a number of respects. See, Intervenors Findings of Fact #56, et. sea.
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- 5. Riverside County, The ASLB has agreed with the Applicants and drawn the revised EPZ to exclude any part of Riverside County despite the fact that the ten mile radius of the Plant contains a portion of Riverside County within it.
There is no record evidence that any emergency planning l official in the jurisdiction of Riverside County was consulted l with respect to the San Onofre Nuclear Plant. Guard contends that the drawing of the boundary of the EPZ to exclude Riverside County without consulting that county was error and that that County should be consulted to determine whether or not it should be included or whether perhaps an even larger portion of that county should be included within the EPZ. The NUREG-0654 and the planning documents and the regulations indicate that the plume . . .
exposure pathway EPZ shall consist of an area of about ten miles
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in radius with the exact boundaries being determined by the local l emergency response needs and capabilities. 10 CFR 50. 47 (c) (2) .
l l The regulations contemplate that the local response organizations 1
will be developing the plans. Guard contends that Riverside County should have been notified that it fell within the ten mile radius'and should have been consulted in the decision to exclude it from the EPZ. The ASLB relies solely on the written ' testimony of David Pilmer, health physicist for the Applicants, to the effect that that portion of Riverside County was not significantly populated with individuals. But there is no testimony in the record that an area right near there is not significantly populated l
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and there is no testimony at all from anyone from Riverside County.
The regulations contemplate that governmental entities wholly or partially within the plume exposure EPZ should develop plans.
10 CFR 50. 33 (g) . The NUREG-0396 which sets forth the rationale for the ten mile EPZ indicates that planning beyond the ten mile zone will take place on an "ad hoc" basis because of the develop-ment of the planning for the ten miles. It is the position of Guard that developrent of emergency response plans for Riverside County will provide more adequate "ad hoc" measures in the event of a radiological emergency exceeding the bounds of the ten mile zone and went deeper into the Riverside County. Indeed, it would also provide a basis for the beginning of the ingestion pathway emergency planning in that area which, as the records indicate, is non-existent at this time. See, NUREG-0396, page 15, et. sec. ..
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It is interesting to note that the Applicant appeared to agree with this type of concept in discussions with the ASLB indicating that this rationale was the reason wny there was an emergency response plan for San Diego County despite the fact that only a small portion' cf San Diego County'was contained within the emergency planning zone, essentially equivalent to that portion of Riverside County which was excluded. Tr.9279.
In each of these specific areas Guard contends the ASLB made a mistake based on insufficient record evidence and without requiring an adequate objective reasonable assurance that protective action can be taken. All these are errors which produce a
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J substantial amount of uncertainty as to the adequacy of the emergency plans in connection with these specific groups and accordingly the ASLB's dec.;sions should be reversed.
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V WHETHER THE LICENSING BOARD VIOLATED DUE PROCESS OF LAW FHEN IT ALLOWED THE APPLICANTS AND FEMA ITSELF TO REEUT THE FINDINGS OF FEMA AND IN EFFECT NEGATE THE REBUTTABLE PRESUMP-TION REQUIRED BY NRC REGULATIONS.
On the second day of the hearing in this matter Guard raised the issue of the status of FEMA in this hearing in the form of an oral motion. That motion asks for an ASLB clarifi-cation as to whether or not FEMA was going to be an agent for the Staff. It requested if FEMA was going to be an agent for the Staff in these proceedings it would be performing a quasi-judicial function for the NRC in reviewing the emergency plans because its determination would be considered as a rebuttable presumption under Section 50.47(a). Any communications directly or indirectly between the Applicants and the national level .-
policy making body issuing those findings could only be done or notice and opportunity heard to the Intervenors because the ex-parte communications provisions of 10 CFR 2.780 should apply.
(Tr. 7422). The motion requested such notice. No ruling was made by the ASLB at that time on the Motion despite the fact e
that Guard protested that it would later have to move to exclude any testimony or conclusions purporting to come from FEMA which would rebut the findings of June 3rd Intervenors' Exhibit #15, Tr, 7426. The ASLB ultimately ruled that the provisions of the ex-parte communications ban did not apply to any conversations or writing to FEMA and overruled the Motion. Tr. 11,369.
Intervenors and Staff submitted FEMA findings of June 3rd (" Interim Findings") (Intervenors' Exhibit #15) as an exhibit in this proceeding. The ASLB found that for purposes of this proceeding those findings were to be given the effect of the rebuttable presumption provided in 10 CFR 50.47 (a) . The Interim Findings as the ASLB points out on pages 71, et. seq. of its ID formed the basis of many of the Intervenors contentions in this case and many of the deficiencies pointed out in those findings were not corrected at the time of the hearing.
Applicants and Staff in order to deflate and devalue Intervenors' evidence based on the FEMA documents, sought to show that the relevance of the Interim Findings was generally minimal because ongoing work was being done to correct the de- .
ficiencies outlined in the FEMA documents.
This line of reasoning goes, that because work is being done to correct the deficiencies and because this work is of a specified " doable" nature a finding of adequacy can generally s
be made with respect to most of the significant contentions in l
l issue without specifically addressing the Intervenors' objections because' the ASLB can be convinced that the corrective actions will be taken in the future and, therefbre, reasonable assurance that protective actions can and will be taken exists today.
In this regard Applicants introduced Exhibit #14, which is a letter from their office to FEMA proposing certain corrective measures to be taken to remedy the major concerns identified in the Interim Findings. This document was allowed in evidence by Guard simply as showing some evidence that work is being done, but not for the purpose of showing FEMA had agreed that if those actions were done, a favorable finding of adequacy would be given.
The distinction is important because on the one hand it simply indicates what the Applicants are and will be doing in emergency planning area and the second indicates that a finding of adequacy will be issued by FEMA under precise conditions..
When the' Staff presented a FEMA Staff person, Mr.
Nauman, as a witness in this proceeding the Intervenors did not
,, object to his first hand personal knowledge testimony as to the - - T
, adequacy of the plans and as to the Intervenors' contentions l .
and that evidence was admitted without objection and thorough cross-examination was had in that respect.
But the Staff went further %with Mr. Nauman and asked him to admit a piece of testimony purporting to state the " FEMA national view". See, ID at 75. This additional testimony sim-ply asked Mr. Nauman whether he was familiar with the " national view" with respect to emergency planning at San Onofre to which he replied "yes". He then states that " view", viz., if the
Applicants complete adequately the corrective actions proposed in Applicants' Exhibit #144, FEMA will be in a position to issue a finding that there is reasonable assurance that the health and safety of the public can be protected.
This line of testimony was vehemently objected to by Guard both at the onset and through cubsequent motions to strike Tr. 10,377, 10,439.
The objection which, of course, was foretold early in the hearings when Guard made a motion to define the fole of FEMA.
This testimony violates the letter in the spirit of the regulations and the Memorandum of Understanding which pro-vides for and contemplates testimony by FEMA Staff as to their personal knowledge of the emerTency plan and contemplates the use of EEMA findings to be a rebuttable presumption in the hear ,, T.
ing process. But it does not contemplate a use of the Staff witness to rebut the FEMA findings by making a prediction of future FEMA findings.
Accordingly this testimony indirectly challenges the 4
NRC regulation and its admission is, therefore, error. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),
ALAB-138 (1973).
It is further indicated under choss-examination of Mr.
Nauman that despite this general conclusion and authorization to discuss this general conclusion he could not evaluate "the FEMA national view" on each of the corrective measures. Tr.
10,437. The ASLB refused to allow the Intervenors to probe the nature and extent of Mr. Nauman's personal knowledge with respect to this general statement and his authorization to make it.
Tr. 10,431. Guard's lack of ability to challenge the basis of s
this general statement and because Intervenors motion to define the scope of FEMA's participation in the view on the second day of the hearing and to have notice and opportunity to participate in discussions batween, either directly or indirectly, the Ap-plicants and the FEMA national office, Guard has been deprived of an opportanity and notice to be heard and its right of due process as provided in.the Constitution and the Administrative Procedure Act. United States Constitution, Amendment 5; Adminis-trative Procedure Act, 5 USC 556(c). ... T The prejudicial character of the ASLB's error in this regard is clear. The admission of this further FEMA evidence provides the basis for the ASLB's determination that an adequate FEMA finding will come in the future. This served as a bacis for the ASLB's decision that the corrective actions which are lef t to be taken were of essentially simple , verifiable and easy. This allowed the ASLB to side-step actual decisions on these areas of potential inadequacy and leave them for future confirma-tion by the Staff, or as set forth in its licensing condition l
h relating to emergency medical arrangements for the general public for future hearing.
This testimony allowed the ASLB to dismiss many of ;
Guard's findings as outdated without addressing the specific
, problem raised by each. Accordingly, the ASLB's decision should be reversed.
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CONCLUSION The record der.onstrates serious deficiencies found by the Board in Emergency Planning in the areas of notification of the public health arrangements for the public, and actual monitoring and assessment of off-site. Guard contends that these matters must be corrected on the record in this proceeding before the full power license should be granted. Additionally serious deficiencies in the planning and implementation for protection of special populations exist despite the finding of adequacy because the Board did not apply a standard of actual need to these j
groups, but simply relied on the existence of general ad hoc resources.
Finally the Board resolved a major portion of the issues ,,
in the case by relying on FEMA and the resolut' ion of the FEMA findings without need to address the Intervenors specific t
l objections to specific elements to the plans. The admission of FEMA's rebuttal testimony together with ongoing consultations l between the Applicant' and FEMA to bproduce said testimony violated the Intervenors right of due process and a fair hearing in this case. This was substantial prejudice to Guard because FEMA evidence and findings formed the basis of its case.
Accordingly it is respectfully submitted that the ID should be reversed and further hearings ordered where appropriate.
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A
/ /l- l, m , . , '- 'Z'!/'s j jr Dated: June I' v, , 1982 / i M . 4-e
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- F. .
CHARLES E. McCLUNG, JR. - l ,
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UNITED STATES OF AMERICA ~
NUCLEAR REGULATORY COMMISSION n,dv BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
) Docket Nos. 50-361 OL SOUTHERN CALIFORNIA EDISON COMPANY, ) 50-362 OL ET AL. )
)
(San Onofre Nuclear Generating Station,)
Units 2 and 3) )
?
CERTIFICATE OF SERVICE I hereby certify that copies of a Brief in support of Intervenors' Appeal of the Emergency Planning Decision dated June 29, 1982 in the above captioned proceeding have been served on the following parties by deposit in
- the United States first class mail on the .ilst day of July, 1982.
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- I-
- ' Stephen F. Eilperin, Esq. -
Chairman, Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission l Washington, D.C. 20555 James L. Kelley, Esq., Chairman David R. Pigott, Esq.
Administrative Judge Samuel B. Casey, Esq.
Atomic Safety and Licensing Board y' John A. Mendez, Esq.
U.S. Nuclear Regulatory Commission Edward B. Rogin, Esq.
Wa shing ton , D.C. 20555 of Orrick, Herrington & Sutcliffc A Professional Corporation Dr. Cadet H. Hand, Jr., 600 Montgomery Street Administrative Judge San Francisco, California 94111 c/o Bodega Marine Laboratory University of California Alan R. Watts, Esq.
P.O. Box 247 Daniel K. Spradlin Bodega Bay, California 94923 Rourke & Woodruff 1055 North Main Street, #1020 Dr. Reginald L. Gotchy Santa Ana, California 92701 Atomic Safety and Licensing Appeal Board Dr. W. Reed Johnson l U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Wasnington, D.C. 20555 Appeal Board U.S. Nuclear Regulatory Commissi(
Washington, D'.C. 20555
Mrs. Elizabeth B. Johnson, Richard J. Pharton, Esg.
Administrative Judge University of San Diego Oak Ridge National Laboratory School of Law A3cala Park P. O. Box X, Building 3500 San Diego, California 92110 Oak Ridge, Tennessee 37830 Mrs. Lyn Harris Ficks Janice E. Kerr, Pso. GUARD J. Calvin Simpson, Esq. 3908 Calle Ariana Lawrence O. Garcia, esc. San Clemente, California 92672 California Utilities Commission 5066 State Building A. S. Carstens San Francisco, California 94102 2071 Caminito Circulo Norte Mt. La Jolla, California 92037 Charles R. Kocher, Esq.
James A. Beoletto, Eso.
Southern California Fdison Company Lawrence J. Chandler, Esq.
4244 Walnut Grove Avenue Donald Hassel, Esg.
Rosemead, California 91770 U. S. Nuclear Regulatory Commission
- Gary D. Cotton Office of the Fxecutive Louis Bernath Legal Director San Diego Gas & Electric Company Washington, D.'C. 20555 P. O. Box 1831, 101 Asn Street San Diego, California 92112 Atomic Safety and Licensing Appeal Board Panel Phyllis M. Gallagher, Esc. U. S. Nuclear Reculatory 1695 West Crescent Avenue Commission Suite 222 Fashington D. C. 20555 Anaheim, California 92701 . . .
~
Secretary Robert Dietch, Vice President U. S. Nuclear Reculatory Comm.
Sduthern Edison California Company Attn: Chief, Docketing &
P. O. Box 800 Service Branch 2244 Walnut Grove Avenue Washington, D. C. 20555 Rosemead, California 91770 l
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(
Charles E. McClung, Jbr '
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