ML20054L508

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Brief Opposing Commonwealth of PA 820428 & Citizens Against Nuclear Dangers 820421 Exceptions to ASLB 820412 Initial Decision.Pa Fails to Prove Dosimetry Issue Timely Raised. Citizens Failed to Comply W/Procedure.W/Certificate of Svc
ML20054L508
Person / Time
Site: Susquehanna  Talen Energy icon.png
Issue date: 07/06/1982
From: Cutchin J
NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:
NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
ISSUANCES-OL, NUDOCS 8207080191
Download: ML20054L508 (25)
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION -

BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

)

PENNSYLVANIA POWER AND LIGHT CO. ) Docket Nos. 50-387 OL ALLEGHENY ELECTRIC COOPERATIVE, INC. ) S0-388 OL

)

(Susquehanna Steam Electric Station. )

Units 1 and 2) )

NRC STAFF'S BRIEF IN OPPOSITION TO THE EXCEPTIONS OF THE COMMONWEALTH OF PENNSYLVANIA AND CITIZENS AGAINST NUCLEAR DANGERS TO THE LICENSING BOARD'S INITIAL DECISION DATED APRIL 12, 1982 James M. Cutchin IV Counsel for NRC Staff July 6, 1982 LZSIGNATED ORIGINAL Certified By M('N rj ,

4 8207080191 820706 DR ADOCK 05000

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD

. In the Matter of )

PENNSYLVANIA POWER AND LIGHT C0. Docket Nos. 50-387 OL

. ALLEGHENY ELECTRIC COOPERATIVE, INC. ) 50-388 OL

)

(Susquehanna Steam Electric Station, )

Units 1 and 2) )

i NRC STAFF'S BRIEF IN OPPOSITION TO THE EXCEPTIONS OF THE COMMONWEALTH OF PENNSYLVANIA AND CITIZENS AGAINST NUCLEAR DANGERS TO THE LICENSING BOARD'S INITIAL DECISION DATED APRIL 12, 1982 James M. Cutchin IV Counsel for NRC Staff July 6, 1982

1 TABLE OF CONTENTS Page I. INTRODUCTION................................................ 1 II. THE APPEAL OF THE COMMONWEALTH OF PENNSYLVANI A. . . . . . . . . . . . . . 1 A. Statement of the Case on Emergency Planning Issues..... 2 B. Questions Presented.................................... 4 C. Argument............................................... 5

1. The Licensing Board Correctly Dealt With The Dosimetry Issue Raised By The Commonwealth........ 5
2. One Permanent Record and Two Self-Reading Dosimeters Are Neither Required By Regulation Nor Necessary to Adequately Protect The Health and Safety Of Emergency Workers................... 10 D. Conclusion on the Commonwealth's Appeal................ 13 III. THE APPEAL 0F CITIZENS AGAINST NUCLEAR DANGERS.............. 13 A. Discussion............................................. 13 B. Conclusion on CAND's Appea1............................ 17 IV. CONCLUSION.................................................. 18 e

11 TABLE OF AUTHORITIES Page JUDICIAL DECISIONS BPI v. AEC, 502 F.2d 424 (D.C. Cir. 1974)........................ 9 ADMINISTRATIVE DECISIONS Commonwealth Edison Company (Zion Station, Units 1 and 2),

ALAB-616, 12 NRC 419 (1980).................................... 14 Consumers Power Company (Midland Plant, Units 1 and 2),

ALAB-123, 6 AEC 331 (1973)..................................... 16 Consumers Power Company (Midland Plant, Units 1 and 2),

ALAB-270, 11 NRC 473 (1975).................................... 16 Duke Power Company (Catawba Nuclear Station, Units 1 and 2),

ALAB-355, 4 NRC 397 (1976)..................................... 15 Gulf States Utilities Company (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760 (1977)............................ 9 Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, affirmed, CLI-73-12, 6 AEC 241 (1973), affirmed sub nom. BPI v. AEC, 502 F.2d 424 (D.C. Cir. 1974)...................................... 9 Public Service Electric and Gas Company (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 NRC 43 (1981)................... 15 Pennsylvania Power and Light Company (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-563, 10 NRC 449 (1979)........... 16 Pennsylvania Power and Light Company (Susquehanna Steam Electric Station, Units 1 and 2), LBP , 15 NRC (April 12, 1982)............................................... 1, 4, 17 Pennsylvania Power and Light Company (Susquehanna Steam Electric Station, Units 1 and 2), ASLB " Memorandum and Order on Pending Motions and Requests" (July 7, 1981)........................... 6 Pennsylvania Power and Light Company (Susquehanna Steam Electric Station, Units 1 and 2), ASLB " Memorandum and Order (Hearing Date and Prehearing Conference Matters)" (July 27,1981)....... 2 Pennsylvania' Power and Light Company (Susquehanna Steam Electric Station, Units 1 and 2), ASLB " Memorandum and Order"

( A p r i l 2 2 , 19 8 2 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

iii Page Tennessee Valley Authority (Hartsville Nuclear Plant, Units IA, 2A, 1B and 2B), ALAB-463, 7 NRC 341 (1978)..................... 15 REGULATIONS

. 10 CFR 2.714..................................................... I 10 CFR 2.715(c).................................................. 1, 2 10 CFR 2.760a.................................................... 17 10 CFR 2.762(a).................................................. 13 10 CFR 2.762(b).................................................. 14 10 CFR 2.762(f).................................................. 14 10 CFR 2, Appendix A, Q VIII..................................... 17 10 CFR 50.47(b).................................................. 5 10 CFR 50.47(b)(11).............................................. 10 OTHER NUREG-0654, FEMA-REP-1, Rev.1, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants"................. 5, 10, 11

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION s

BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

. )

PENNSYLVANIA POWER AND LIGHT C0. ) Docket Nos. 50-387 OL ALLEGHENY ELECTRIC COOPERATIVE, INC. ) 50-388 OL

. )

(Susquehanna Steam Electric Station, Units 1 and 2)

NRC STAFF'S BRIEF IN OPPOSITION T THE EXCEPTIONS OF THE COMMONWEALTH OF PENNSYLVANIA AND CITIZENS AGAINST NUCLEAR DANGERS TO THE i LICENSING BOARD'S INITIAL DECISION DATED APRIL 12, 1982 l

l I. INTRODUCTION On April 12, 1982, the Atomic Safety and Licensing Board

(" Licensing Board") issued its Initial Decision in this operating license proceeding. LBP , 15 NRC (1982). Only the Commonwealth of Pennsylvania (" Commonwealth") and Citizens Against Nuclear Dangers ("CAND") have appealed the decision.1/ The NRC Staff opposes both appeals for the reasons set forth below.

II. THE APPEAL OF THE COMMONWEALTH OF PENNSYLVANIA On April 28, 1982 the Commonwealth timely filed five exceptions to the Licensing Board's Initial Decision (ID). All were addressed to those portions of the ID relating to emergency planning issues. The 1/ The Coninonwealth is participating not as a party under 10 CFR 2.714 but as an interested State under 10 CFR 2.715(c). CAND was admitted to the proceeding as a party under 10 CFR 2.714.

2-Commonwealth filed a brief in support of its exceptions on May 28,

'1982.2/

A. Statement of the Case on Emergency Planning Issues The Licensing Board admitted only two contentions raising emergency ,

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planning issues; Contentions 6 and 20 asserted specific deficiencies in .

the written emergency plans of the Applicants, the Commonwealth and Luzerne County. The Commonwealth, having been admitted to the proceeding under , ,

10 CFR 2.715(c) and not having taken a position on the issues raised by , -s Contentions 6 and 203/ as was its right, participated in the litigation'

~2/ "Brief of the Commonwealth of Pennsylvania in Support of its '

Exceptions to the ASLB Initial Decision dated April 12, 1982 " ,

(" Commonwealth's Brief")

-3/ In its " Memorandum and Order (Hearing Date and Prehearing s a Conference Matters)" dated July 27, 1981 the Licensing Board directed the Commonwealth to indicate particular matters - ether-than issues already admitted - on which it desired to participate.

On August 12, 1981 the Commonwealth filed " Comme 6 wealth of Pennsylvania's Statement of Positions Based on Information -

Available as of August 10, 1981" in which it identified "those specific issues on which Pennsylvania intends to participate."

Stating that although the Board had directed it only to enumerate issues other than those already admitted it also wished to note the contentions in which it had a particular interest, the Condonwealth identified, and specified the basis for its interest in, four contentions. Neither Contention 6 nor Contention 20 -;' included in that list of specific contentions in which the Commonwtalth , .

envinced particular interest. On October 5, 1981 the Comminwealth-filed " Commonwealth of Pennsylvania's Revised Statement of s Positions Based on Information Available as of October 5, 1981"'in which it identified matters specified to be of concern to it in its- '

earlier statement that it now considered to be. resolved.1No new ccacerns were identified by the Commonwealth in'its October 5th statement.

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of both contentions by presenting witnesses of its own and by cross-examining the witnesses of others. During its cross-examination of the FEMA representative appearing as a Staff witness at the evidentiary hearing, the Comonwealth apparently first attempted to focus the attention of the Board and the partie!, on the Commonwealth's view that dosimetry supplies were at that time inadequate. However, not until it filed its proposed findings of fact and conclusions of law did it become clear that the Commonwealth was seeking to raise its views regarding the inadequacy of the supply of dosimeters to the status ofacontroversy.E To resolve its concern regarding a perceived dosimetry shortfall the Commonwealth recommended that the issuance of full power operating licenses for the Susquehanna units be subject to satisfacticn of the following condition regarding dosimetry:

No full power operating license shall be issued until the Director of Nuclear Reactor Regulation, in consultation with the Federal Emergency Management Agency, finds that . . . adequate numbers of self-reading and permanent record (thermoluminescent) dosimeters, consistent with applicable federal guidance, are available for distribution to all offsite emergency workers identified in the state and county emergency plans as requiring dosimetry; . . . .5/

Both the NRC Staff and the Applicants opposed the imposition of the license condition recommended by the Comonwealth.b Stating that the

-4/ See "Comonwealth of Pennsylvania's Proposed Findings of Fact and Conclusions of Law" filed December 7, 1981 at 10, PF 20.

5/ Id. at 17.

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6/ "NRC Staff's Proposed Findings of Fact and Conclusions of Law" l dated December 14,1981 at 17, n.4; " Applicants' Reply to the

. Proposed Findings of Fact and Conclusions of Law of the Other l Parties" dated December 22, 1981 at 13-15, RF 18-20.

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dosimetry issue that is the subject of the license condition recomended by the Commonwealth was not in its view within the scope'of Contentions 20(5)(b) or 20(8)(a), as had been asserted by the Commonwealth, and that the Comonwealth had not timely raised the issue, the Board declined to consider that issue or to impose the license condition.E In its timely filed exceptions and brief the Comonwealth asserts that the Licensing Board erred both factually and legally in dealing with the Commonwealth's claim that there is a shortage of dosimeters in the Commonwealth and thus that the operating licenses for the Susquehanna units should be conditioned to prohibit full power operation until the Director of Nuclear Reactor Regulation, in consultation with the Federal Emergency Management Agency, finds that there are sufficient dosimeters available for distribution to all offsite emergency workers identified in the emergency plans of the Comonwealth and the counties at risk as requiring dosimetry.

B. Questions Presented The Commonwealth's appeal raises the following questions:

1. Whether the Licensing Board properly refused to address the dosimetry issue raised by the Comonwealth.
2. Whether one permanent record and two self-reading dosimeters for each emergency worker either are required by regulation or are necessary to adequately protect the health and safety of emergency workers.

The NRC Staff's position on each of these questions is set forth below, y ID at 39-40.

C. Argument

1. The Licensing Board Correctly Dealt With The Dosimetry Issue Raised By The Comonwealth.

The Comonwealth asserts that the Licensing Board erred in refusing to rule on the issue of the adequacy of the supply of dosimetry for emergency workers to implement the emergency planning for the Susquehanna units because that issue, contrary to the Licensing Board's view, is within the scope of Contention 20. Comonwealth's Brief at 7-9. The two parts of Contention 20 asserted by the Comonwealth to encompass the issue are:

20. The emergency evacuation plans submitted by Luzerne County and the Commonwealth of Pennsylvania do not comply with the planning standards of 10 CFR 50.47(b) in that the recommendations and guidance of NUREG-0654 have not been satisfied as specified in attachment A, nor has compliance been demonstrated through some other acceptable alternative means.

20(5)(b). NUREG 0654 REV. 1 (H 10, p. 54) recommends that "each organization shall make provisions to inspect, inventory and operationally check emergency equipment / instruments at least once each calendar quarter and after each use.

There shall be sufficient reserves of instrument [ sic]/ equipment to replace those that are removed from emergency kits for calibration or repair." The state plan does not meet this recommendation since it does not mention inspection, inventory, or checking of such equipment, nor does it mention reserves. . . .

20(8)(a). No mention of how [ Radiological Exposure Control] should be done in . . . [the State or Luzerne County] plans. In state plans it is generally stated that the Dept. of Environmental Resources shall be in charge of radiological protective and health matters but nothing specific.

These and the other parts of Contention 20 were admitted by the Licensing Board as a condition of the acceptance of, and to make

" specific and litigable," a late-filed con.ention advanced by Intervenor Susquehanna Enviranmental Advocates which had simply stated that:

SEA-1. Emergency evacuation plans of Luzerne County and the State of Pennsylvania do not meet the requirements of NUREG-0654 in at least fifteen (15) specific ways.

Memorandum and Order on Pending Motions and Requests dated July 7,1981 at 3. Parts 20(5)(b) and 20(8)(a) of Contention 20 challenge only the failure of the written emergency plans of the Comonwealth and Luzerne County to mention certain subjects. In other words, those parts of Contention 20 as admitted merely challenge the completeness of the written plans and not whether those plans can be implemented. By no reasonable interpretation can they be construed to challenge the adequacy of then-available supplies of dosimetry for emergency workers; a challenge of the ability of the Comonwealtn and Luzerne County to implement their plans, as the Commonwealth argues. See_ Commonwealth's Brief at 4, 7 and 8. That the Comonwealth addressed shortfalls in available dosimetry in its prefiled written direct testimony on Contention 20 does not broaden the reach of the contention as admitted and interpreted by the Licensing Board. The Staff, the Licensee and the Comonwealth specifically addressed the subject of dosimetry for energemy ickers in their prcfiled written testimony only on Part20(8)(a).8_/ The subject was not specifically addressed in the prefiled written testimony on Part 20(5)(b). Only the Comonwealth addressed the then-available supplies of dosimeters in its prefiled written testimony, stating:

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

-8/ Swiren, ff. Tr. 2671 at 23 and 42; Henderson, ff. Tr. 2546 at 19 and 40; Belser et al., ff. Tr. 2586 at 19-20 and 32.

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dosimetry for emergency workers. As indicated in the State and l I

County Plans each emergency worker is to receive three dosimeters, a CD V-730 (with a range of 0-20 roentgens), a CD V-742 (with a 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 emergency workers will be predistributed by PEMA to Luzerne and Columbia Counties. Although a partial predistribution of the CD V-730s wil1 be made, the Commonwealth does not have a supply of TLDs that can be predistributed to the counties at this time.

(emphasis added) A request has been made by PEMA to the Federal Emergency Management 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. -

Following the receipt in evidence of the Comonwealth's prefiled written testimony on Contention 20 and prior to making its sponsoring witnesses available for cross-examination, Comonwealth's Counsel asked the Commonwealth's witnesses whether the deficiency in dosimetry supplies for emergency workers mentioned in their prefiled written testimony had been corrected and noted that the Commonwealth had asked the Federal Emergency Management Agency (FEMA) to provide sufficient quantities of dosimeters. Tr. 2607 (Adler). Mr. Belser replied that the deficiency had not been corrected and that FEMA had not replied to the Commonwealth's inquiry. Tr. 2607 (Belser). On cross-examina' ion by Applicants' Counsel Mr. Belser indicated that the shortige in dosimetry perceived by the Commonwealth was based on its assessment of current statewide needs and not solely on needs to supply emergency workers at the Susquehann- iacility. Tr. 2625 (Belser).

Foltowing the receipt in evidence of the Staff's prefiled written testimony on Contention 20 and prior to making the Staff witness Mr. Swiren of FEf1A available for cross-examination, Staff's Counsel

asked him if he had an opinion as to how the possible shortage in available thermoluminescent dosimeters (TLD's), if real, could be remedied. Tr. 2672 (Cutchin). Mr. Swiren answered that the shortage could be remedied by the Comonwealth's or the Applicants' purchasing or borrowing sufficient TLD's or by relying primarily on self-reading dosimeters. Tr. 2672 (Swiren). On cross-examination by Comonwealth's Counsel Mr. Swiren made clear his view that FEMA would not supply the dosimeters. Tr. 2676 (Swiren). However, Mr. Swiren agreed that an adequate number of dosimeters should be distributed [to emergency workers]priortoanemergency. Tr. 2676-77 (Swiren).

When the Commonwealth sought to have Applicant's operating licenses for the Susquehanna units conditioned, the Licensing Board properly declined to impose the license condition proposed by the Comonwealth because it was related to matters outside the scope of the issues admitted for litigation in the proceeding.

No one other than the Commonwealth has claimed that the capability to implement emergency planning provisions regarding dosimetry for emergency workers was in issue; even the Intervenor who advanced the contention has not made such a claim. Having failed to identify any specific interest in the emergency planning contentions in issue in the proceeding and having failed to timely identify additional concerns when directed by the Licensing Board to do so, the Comonwealth has no basis for its complaint as to the Licensing Board's treatment of the matter.

See note 3 supra. By its own admission the Comonwealth first made known its views regarding dosimetry supplies for emergency workers in its prefiled written testimony. Comonwealth's Brief at 10. Testimony that goes beyond the issue to be addressed is not, contrary to the

Commonwealth's assertion, a proper means for giving notice to th

' Licensing Board and the parties that the Comonwealth wished to take an adversary position on that issue, or sought to raise a new issue. A hearing participant must be specific as to the focus of the desired hearing. Gulf States Utilities Company (River Bend Station, Units 1 and 2),

ALAB-444, 6 NRC 760, 768 (1977); BPI v. Atomic Energy Commission, 502 F.2d 424, 429 (D.C. Cir. 1974). Contentions, or their equivalent in the case of an " interested state," serve the purpose of defining the concrete issues for adjudication in the proceeding. ALAB-444 supra; Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AFC 188, 191, affirmed, CLI-73-12, 6 AEC 241 f

(1973), affirmed sub nom. BPI v. AEC supra. The Licensing Board directed the Commonwealth to identify issues that it wished to raise, but the Coninonwealth did not timely do so.

There are important differences between the raising of issues by the representatives of an interested State on the one hand and their participation by introducing evidence, cross-examining witnesses and advising the Comission on the other. The fonner requires notice; the latter does not. See ALAB-444, supra, at 768-772. The Commonwealth's failure to give adequate notice to the Board and the parties of its desire to put into controversy whether the supply of dosimeters for emergency workers would be adequate to implement the emergency plans of the Commonwealth and the risk counties is crucial. The Licensing Board properly declined either to consider the issue or to impose the license condition.

2. One Permanent Record And Two Self-Reading Dosimeters Are Neither Required By Regulation Nor Necessary To Adequately

, Protect The Health And Safety Of Emergency Workers The Comonwealth asserts that the Comission's emergency planning regulations require that each emergency worker be provided with one thermoluminescent dosimeter (TLD) and two self-reading dosimeters and that this dosimetry is necessary to protect the health and safety of these workers. Commonwealth's Brief at 20.

The Staff agrees that adequate dosimetry should be distributed to emergency workers prior to their undertaking their' duties during an emergency. Tr. 2676-77 (Swiren). However, neither the Commission's applicable regulation nor its guidance for demonstrating compliance with those regulations requires that a specific quantity or type of dosimetry be provided to each emergency worker.

The pertinent regulation requires only that adequate means for controlling radiological exposures in an emergency be established for emergency workers and that those means include exposure guidelines consistent with applicable EPA Protective Action Guides. 10 CFR 50.47(b)(11). The Comission's guidance for demonstrating compliance with these requirements, NUREG-0654, recommends as to quantities and types of dosimetry for emergency workers only that:

Each organization shall make provision for 24-hour-per-day capability to determine the doses received by emergency personnel involved in any nuclear accident, including volunteers. Each organization shall make provisions for distribution of dosimeters, both self-reading and permanent record devices.

Staff Exhibit 7, % II.K.3.a., at 67. Thus, the Comission's regulations merely establish that there must be means for controlling radiological exposures of emergency workers without specifying what those means must

be. The guidance in NUREG-0654 on acceptable means for demonstrating

' compliance with the regulatory criteria, although referenced in 10 CFR 50.47, only recommends that each organization make provision for distribution of both self-reading and permanent record devices.

NUREG-0654 has not been designated by the Comission as constituting mandatory regulatory requirements. In short, there is no regulatory requirement that each emergency worker be provided either a specific type or a specific quantity of dosimetry. That the Commonwealth's Emergency Plan calls for more dosimetry to be provided to each emergency worker than is required is commendable, but that alone does not raise the provisions of the Comonwealth's plan to the level of a necessity.

Only that dosimetry without which there cannot be reasonable assurance that adequate means for controlling radiological exposures to emergency workers has been established is necessary dosimetry.

In arguing that a permanent record dosimeter in the form of a TLD is necessary, the Commonwealth does not attempt to establish, as a fact, that without a permanent r? cord dosimeter emergency workers cannot be adequately protected. Rather, the Commonwealth attacks the testimony of the Staff's FEMA witness, alleging that his testimony is insufficient to overcome the weight to be accorded the guidance in NUREG-0654.

Commonwealth's Brief at 16-18.

Moreover, although the Comonwealth's Emergency Plan specifies that each emergency worker is to be provided a TLD and two self-reading dosimeters, it is clear that primary reliance fci worker-exposure control is placed on the self-reading dosimeters. The plan states:

Each emergency worker is to be provided two self-reading dosimeters which will enable the worker to " read" at any time during the incident how much, if any, radiation he/she has received. Each emergency worker should read the dosimeters at least once each thirty minutes. The emergency worker protective action guide for whole body exposure used by BRP is 25 Rems; therefore an emergency worker should seek to be replaced or complete the assigned task and the[n] evacuate to a mass care center for personnel monitoring when either (emphasis added) of the self-reading dosimeters indicates a total dose in the 15-20 R range.

Further, each emergency worker operating in the plume exposure pathway EPZ will be provided with a TLD (Thermoluminescent dosimeter) dosimeter [ sic] which will allow precise (emphasis in original) measurement of radiation exposure at some time after the exposure has been incurred (emphasis added).

Commonwealth Exhibit 8, Appendix 16, pp. 16-6 to 16-7.

The Commonwealth appears to recognize that only the self-reading dosimeters can be read by a worker in the field, since, as indicated in the portion of its plan quoted above, the emergency worker is to control his or her exposure based on either of those dosimeters indicating a total dose in the 15-20 R range. The TLD is simply characterized as allowing a more " precise" exposure measurement at some time after the exposure has been incurred." This hardly establishes that one TLD and two self-reading dosimeters are necessary to provide reasonable assurance that an emergency worker is adequately protected.E There is no evidence of record that indicates that one TLD and two self-reading dosimeters for each emergency worker are either

-9/ The Comonwealth concedes that it has an adequate supply of the wider-range (0-200 R) self-reading dosimeters. Commonwealth's Brief at 16, n.13. It merely speculates that the narrower-range (0-20 R) self-reading dosimeter, of which it claims only a partially adequate supply,.is more sensitive and thus " logically" required. Id. at 14-15.

specifically required by the Commission's regulations or necessary to

- protect the health and safety of emergency workers. Thus, the Staff submits, the Commonwealth has not shown, and cannot show, that one TLD and two self-reading dosimeters are necessary to protect the health and safety of emergency workers.

D. Conclusion on Commonwealth's Appeal Because the Commonwealth has demonstrated neither that its dosimetry issue was properly and timely raised nor that as a matter of fact or law it has merit, the Appeal Board should reject the Commonwealth's appeal and decline to impose the requested license condition. ..

III. THE APPEAL OF THE CITIZENS AGAINST NUCLEAR DANGERS A. Discussion On April 21, 1982 CAND filed a two-paged document styled " Citizens Against Nuclear Dangers Exceptions to the ASLB Initial Decision . . . ."

Although the document was timely filed, it does not conform to the requirements of 10 CFR 2.762(a) that each exception be separately numbered, state concisely the single error of law or fact that is being asserted in the exception, and identify with particularity the portion 1

of the decision to which the exception is addressed. CAND merely alleges in consecutive unnumbered paragraphs that:

The ASLB has published a less than meticulous document that does not address the requirements of NEPA.

The ASLB did not evaluate the environmental assessments that are relevant to the several contentions under review in this license application case.

The ASLB did not take into consideration available alternatives which is the basic process of decision making mandated by NEPA.

The Initial Decision is laced with phrases that are the complete opposite of the true facts. ,

However, CAND fails to identify with particularity either by citation to the Initial Decision for examples, or otherwise, the precise origin of its complaints.

On May 21, 1982 CAND filed a three-paged document styled " Citizens Against Nuclear Dangers Brief in Support of Exceptions to the ASLB Initial Decision." This document also was timely filed but does not conform to the requirement of 10 CFR 2.762(b) that each factual assertion be supported by a reference to the precise portion of the record upon which it is based. Commonwealth Edison Company (Zion Station, Units 1 and 2), ALAB-616, 12 NRC 419, 424 (1980). The document simply reasserts CAND's complaint that the Licensing Board failed to comply with the National Environmental Policy Act (NEPA) and therefore that its Initial Decision is flawed. CAND also alleges errors of omission and/or commission by the Licensing Board, the Applicants, the Staff and the Commonwealth but fails to provide even one citation to the record to support its allegations.

For these reasons alone, the striking of both of the CAND filings is warranted under 10 CFR 2.762(f).

However, there are additional reasons why CAND's appeal should not be entertained. First, exceptions must relate to matters raised in a party's proposed findings of fact and conclusions of law with the I

possible exception of a situation involving a demonstration of the existence of a genuine problem related to a serious substantive issue.

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, Public Service Electric and Gas Company (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 NRC 43, 49 (1981); Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, IB and 28), ALAB-463, 7 NRC 341, 348 (1978). CAND filed no proposed findings of fact or conclusionsoflaw.E Nor has CAND, in the view of the Staff, demonstrated the existence of a genuine problem related to a serious substantive issue. It has merely put forth unsupported assertions.

Second, by failing to provide even a single citation to the record in its so-called "brief" CAND has provided neither the parties who wish to reply to it nor the Appeal Board any concrete issues with which to deal. A party's failure to submit a brief containing sufficient information and argument to allow the appellate tribunal to make intelligent disposition of the issues raised by exceptions is tantamount to abandonment of those issues. Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, 413 (1976). Finally, CAND was advised early in this proceeding to obtain and refer to a copy i

-10/ On March 26 and April 2,1982 CAND filed documents purporting to be

! proposed findings of fact and conclusions of law. They clearly l were not and were treated by the Licensing Board as motions to reopen the record. See the Licensing Board's " Memorandum and Order" dated April 27- 1982.

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of NRC rules, and if necessary, to request guidance from Staff Counsel S in procedural matters.E Pennsylvania Power and Light Company (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-563,10 NRC 449, 450 at n.1 (1979). The right of participation in an administrative proceeding carries with it the obligation of a party to assist in

" making the system work" and to aid the agency in discharging its statutory obligations. Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-123, 6 AEC 331, 332 (1973). The Rules of Practice, 10 CFR Part 2, were drafted to insure that, when followed, the arguments and positions of all parties -- Applicants, Staff and Intervenors -- would be spread fully upon the record in order to permit fair rebuttal by those holding opposing views and to facilitate the evaluation of the parties' competing views by the agency's adjudicatory tribunals.

Disregard of the Rules frustrates those purposes and unduly burdens rather than assists those adjudicatory bodies. Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-270, 1 NRC 473, 476 (1975).

The Staff sees no reason why, having previously warned CAND about the necessity of proceeding in accordance with the Rules, the Appeal

-11/ Staff Counsel understands that a copy of the loose-leafed version of the NRC Rules and Regulations was provided to the Susquehanna LPDR and that Supplements are transmitted as they are issued.

Staff Counsel provided CAND's representative, Mr. Halligan, with a copy of examples of proposed findings and conclusions of law filed in another proceeding and on more than one occasion offered guidance to CAND's representative in procedural matters.

Board should excuse CAND's failure to follow them, particularly in

circumstances (such as those obtaining) where it has contributed little to the development of the record.

Moreover, in this operating license proceeding the Licensing Board was required to determine only matters put into controversy by the parties in their contentions. 2.760a; 10 CFR 2, App. A, 6 VIII; ID at 3.

After withdrawals by sponsoring party intervenors and the granting of summary disposition motions filed by the Applicants and the Staff, only nine contentions remained to be heard. ID at 2. Only four of those contentions involved issues arising under NEPA; Contentions 1, 4, 9 and 17. The Licensing Board heard evidence and made appropriate determinations on each of those remaining issues. See ID at 3-11, 22-25, and 27-31. Thus, in the view of the Staff, the Licensing Board appropriately dealt with the environmental matters put before it. CAND has not shown, and cannot show, by citation to the record that its assertions have merit.

B. Conclusion on CAND's Appeal Because CAND has failed to comply with the Commission's Rules of Practice after having been previously admonished to do so and has neither identified by specific citation to a ruling, order or decision of the Licensing Board nor supported with a citation to the record even one of its general assertions of error, CAND's appeal should be dismissed.

IV. CONCLUSION For the reasons set forth above, the Staff believes,that the appeals of the Commonwealth of Pennsylvania and the Citizens Against Nuclear Dangers should be dismissed and that the Licensing Board's Initial Decision should be affirmed.

Respectfully submitted,

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James M. Cutchin IV

< Counsel for NRC, Staff Dated at Bethesda, Maryland this 6th day of July, 1982.

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UNITED STATES OF AMERICA '

NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of PENNSYLVANIA POWER AND LIGHT C0. ) Docket No. 50-387 ALLEGHENY ELECTRIC COOPERATIVE, INC. 50-388 (Susquehanna Steam Electric Station, )

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S BRIEF IN OPPOSITION TO THE EXCEPTIONS OF THE COMMONWEALTH OF PENNSYLVANIA AND CITIZENS AGAINST NUCLEAR DANGERS TO THE LICENSING BOARD'S INITIAL DECISION DATED APRIL 12, 1982" in the above-c(ptioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, this 6th day of July, 1982:

  • Mr. Thomas S. Moore, Chairman Dr. Judith H. Johnsrud Administrative Judge Co-Director Atomic Safety and Licensing Appeal Board Environmental Coalition on U.S. Nuclear Regulatory Commission Nuclear Power Washington, DC 20555 433 Orlando Avenue State College, Pennsylvania 16801
  • Dr. John H. Buck Administrative Judge Mr. Thomas H. Gerusky, Director Atomic Safety and Licensing Appeal Board Bureau of Radiation Protection U.S. Nuclear Regulatory Commission Department of Environmental Washington, DC 20555 Resources Comonwealth of Pennsylvania
  • Stephen F. Eilperin P. O. Box 2063 Administrative Judge Harrisburg, Pennsylvania 17120 Atomic Sciety and Licensing Appeal Board U.S. Nuciear Regulatory Comission Ms. Colleen Marsh Washington, DC 20555 Box 538A, RD#4 Hountain Top, Pennsylvania 18707 Jay Silberg, Esq.

Shaw, Pittman, Potts and Trowbridge Mr. Thomas J. Halligan 1800 M Street, N.W. Correspondent: CAND Washington, D.'C. -20036 P. O. Box 5 Scranton, Pennsylvania 18501 Bryan A. Snapp, Esq.

Pennsylvania Power & Light Company Two North Ninth Street Allentown, Pennsylvania 18101

James P. Gleason, Chairman Susquehanna Environmental Administrative Judge Advocates

- 513 Gilmoure Drive c/o Gerald Schultz, Esq.

Silver Spring, Maryland 20901 P. O. Box 1560 Wilkes-Barre, PA 18703

- *Ftr. Glenn 0. Bright, Administrative Judge G. Rhodes Atomic Safety and Licensing Board Resident Inspector U.S. Nuclear Regulatory Commission P. O. Box 52 Washington, D. C. 20555 Shickshinny, Pennsylvania 18655 Dr. Paul W. Purdom, Administrative Judge Robert W. Adler 245 Gulph Hills Road . Department of Environmental Resources Radnor, Pennsylvania 19087 505 Executive House s P. O. Box 2357

  • Atomic Safety & Licensing Board Panel Harrisburg, Pennsylvania 17120 U.S. Nuclear Regulatory Commission ,

Washington, D.C. 20555

  • Atomic Safety & Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555

' b m w.,

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James M. Cutchin, IV I

Counsel for NRC Staff l

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