ML20062H716

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Response in Opposition to Guard & as Carstens,Et Al 820701 Brief Supporting Appeal of ASLB Initial Decision,LBP-82-39, on Emergency Planning.Intervenors Failed to Show Reversible Error.Certificate of Svc Encl
ML20062H716
Person / Time
Site: San Onofre  Southern California Edison icon.png
Issue date: 08/13/1982
From: Chandler L
NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:
NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
ISSUANCES-OL, LBP-82-39, LBP-82-40, NUDOCS 8208160142
Download: ML20062H716 (40)
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UNITED STATES OF AMERICA -

NUCLEAR REGULATORY COMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 4

In the Matter of SOUTHERN CALIFORNIA EDIS0N COMPANY, Docket Nos. 50-361 OL EL AL. 50-362 OL (San Onofre Nuclear Generating Station, Units 2 and 3) )

l NRC STAFF RESPONSE IN OPPOSITION TO INTERVENORS GUARD AND CARSTENS, ET AL., BRIEF IN SUPPORT OF APPEAL 0F THE LICENSING BOARD'S INITIAL DECISION ON EMERGENCY PLANNING o

Lawrence J. Chandler Deputy Assistant Chief Hearing Counsel ,

Dated: August 13, 1982 I:

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1

. UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION  :

BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD ,

In the Matter of SOUTHERN CALIFORNIA EDISON COMPANY, Docket Nos. 50-361 OL EL AL. 50-362 OL (San Onofre Nuclear Generating Station, Units 2 and 3)

NRC STAFF RESPONSE IN OPPOSITION TO INTERVENORS GUARD AND CARSTENS, ET AL., BRIEF IN SUPPORT OF APPEAL OF THE LICENSING BOARD'S INITIAL DECISION ON EMERGENCY PLANNING l

I l .

l Lawrence J. Chandler g Deputy Assistant Chief Hearing Counsel r

Dated: August 13, 1982 l

e--

  • TABLE OF CONTENTS Page

. TABLE OF AUTHORITIES.................................... iii I. INTRODUCTION............................................ 1 II. STATEMENT OF THE CASE................................... 2 III. STATEMENT OF THE ISSUES ON APPEAL....................... 3 IV. ARGUMENT................................................ 4 A. The Licensing Board Properly Allowed Operation Of SONGS 2 For A Period Of Six Months Pending Completion Of Arrangements For Medical Services For The Of fs i te General Publ i c. . . . . . . . . . . . . . . . . . . . . . . . 4 B. The Licensing Properly Determined That There Are Adequate Alternative Means Of Providing Prompt Notification In The

" Extended" EPZ Pending Installation Of Sirens Within Six Months........................... 9 C. The Licensing Board Properly Took Into Consideration The Applicants' Capabilities Respecting Radiological Assessment And Monitoring In Concluding That The Defi-ciencies In Offsite Jurisdictions' Plans Are Insignificant (Contention 2H) And Properly Ruled That Contention 2J (Inges-tion Pathway) Was No Longer Contested.............. 13

1. The Applicants' Capabilities Are Properly Taken Into Consideration In Assessing The Significance Of The Deficiencies In The Plans Of The Of fsi te Ju risdictions. . . . . . . . . . . . . . . . . . . . 14 r
2. The Licensing Board Properly

, Determined That The Contention 2J j Was No Longer Contested And Con-sequently Was Correct In Not Making Any Depositive Findings On This Matter................................ 16

  • - ii -

Page D. The Licensing Board Properly Found That There Were Adequate Protective  :

. Measures Which Could Be Taken On ,

Behal f Of Special Populations. . . . . . . . . . . . . . . . . . . . . . 18  ;

1. Hospital Patients, Nursing Homes, '

And The Handicapped........................... 18

2. S c ho o l C h i l d re n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 -
3. Ocean-Going Vessels........................... 22
4. Sa n Jua n Ca pi s tra no. . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5. Riverside County.............................. 24 E. The Intervenors Were Not Denied Due Process As A Result Of Applicants' Rebuttal Of FEMA Findings.......................... 26
1. ' Ex Pa rte Conside ra tions. . . . . . . . . . . . . . . . . . . . . . . . 26
2. Testimony Regarding Corrective Action......... 27 V. C0NCUSION............................................... 32 l

. - iii -

TABLE OF AUTHORITIES Page Cases Administrative Decisions Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-22, 14 NRC 598 (1981)............................................ 3 Vermont Yankee Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520 (1973).................... 3, 27, 29 Public Service Electric & Gas Co. (Salem Nuclear Generating 14 NRC 43 (Station, Unit 1),ALAB-650,1981).............................................

14, 17 South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-663, 14 NRC 1140 (1981)....... 17 Southern California Edison Co., et al (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-680, NRC (1982)......................................... 17 Southern California Edison Co., et al (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-82-39, NRC (1982)......................................... 1,3,4,5,6,7, 8, 10, 11, 14, 15, 16, 19, 22, 25, 29, 30, 31, 32 Southern California Edison Co., et al (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-82-40, NRC (1982)........................................... 1, 10 Statutes Administrative Procedure Act, 5 U.S.C. 5 556(c).............. 31 W

d

- iv -

Page

. Reculations 10 C.F.R. 2.754 (b).......................................... 17 10 C.F.R. 2.762.............................................. 1 10 C.F.R. 2.780.............................................. 26, 27 10 C.F.R. 50.33(g)........................................... 25 10 C.F.R. 50.47.............................................. 3, 29 10C.F.R.50.47(a)(1)........................................ 27 10C.F.R.50.47(a)(2)........................................ 27, 28, 31 10 C.F.R. 50.47(b)........................................... 3, 23 10 C.F.R. 50.47(b)(9)........................................ 13, 14 10 C.F.R 50.47(b)(14)........................................ 29 10 C.F.R. 50.47(c)........................................... 23, 25 ,

10C.F.R50.47(c)(1)......................................... 3, 9, 13 10 C.F.R. 50.47(c)(2)........................................ 9 10 C.F.R. 50.47(d)........................................... 3 10 C.F.R. 50.54(a)-(t)....................................... 29 10 C.F.R. 50.54(s)(2)(1)..................................... 4 10 C.F.R. 50.54(s)(2)(ii).................................... 5, 29 1

10 C.F.R. Part 50. Appendix E IV.D.3......................... 11 10 C. F. R Pa rt 50, Appendix E IV. F. . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 m

Treatises 4 Mezines, Stein, Gruff, Administrative Law (1977)........... 28 Wright & Graham, Federal Practice and Procedure (1977)....... 28

08/13/82

. UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of SOUTHERN CALIFORNIA EDIS0N COMPANY, Docket Nos. 50-361 OL EL AL. 50-362 OL (San Onofre Nuclear Generating Station, Units 2 and 3)

NRC STAFF RESPONSE IN OPPOSITION TO INTERVELORS GUARD AND CARSTENS, ET AL., BRIEF IN SUPPORT OF APPEAL 0F THE LICENSING BOARD'S INITIAL DECISION ON EMERGENCY PLANNING I. INTRODUCTION This matter is before the Atomic Safety and Licensing Appeal Board (Appeal Board) on the appeal of the Atomic Safety and Licensing Board's (Licensing Board) Initial Decision (ID), LBP-82-39, NRC (1982), issued on May 14, 1982, by Intervenors GUARD and Carstens, et al., (Intervenors), pursuant to 10 C.F.R. 5 2.762.

II. STATEMENT OF THE CASE On May 14, 1982, the Licensing Board issued its Initial Decision (ID) on Emergency Planning, resolving the matters in controversy

, generally in favor of the Applicants. LBP-82-39; see also, Order (Making Clarifying Change in Initial Decision), May 25, 1982, LBP-82-40.

Accordingly, subject to a number of conditions, the Licensing Board authorized the Director, Office of Nuclear Reactor Regulation to issue an operating license for San Onofre Nuclear Generating Station, Units 2 and 3, permitting operation at full-power (Id.)

4 On July 1,1982, Intervenors filed their "Brief in Support of Appeal of Initial Decision on Emergency Planning" (Brief).

III. STATEMENT OF THE ISSUES ON APPEAL A. WHETHER THE LICENSING BOARD ERRED IN ALLOWING OPERATION OF SONGS 2 FOR A PERIOD OF SIX MONTHS PENDING COMPLETION OF ARRANGEMENTS FOR MEDICAL SERVICES FOR THE OFFSITE GENERAL PUBLIC.

B. WHETHER THE LICENSING BOARD ERRED IN ALLOWING OPERATION OF SONGS 2 FOR A PERIOD OF SIX MONTHS PENDING INSTALLATION OF SIRENS IN AN EXTENDED P0RTION OF THE PLUME EXPOSURE PATHWAY EMERGENCY PLANNING ZONE.

C. WHETHER THE LICENSING BOARD ERRED IN ALLOWING OPERATION OF SONGS 2 ON THE BASIS OF APPLICANTS' CAPABILITY TO SATISFY OFFSITE RADIOLOGICAL MONITORING AND ASSESSMENT REQUIREMENTS PENDING REMEDY OF DEFICIENCIES IN SUCH CAPABILITIES ON THE PART OF 0FFSITE AGENCIES.

D. WHETHER THE LICENSING BOARD ERRED IN FINDING THAT ADEQUATE ARRANGEMENTS HAVE BEEN MADE FOR PROTECTIVE ACTIONS FOR SPECIAL GROUPS (INCLUDING OCEAN-G0ING VESSELS, SCHOOL CHILDREN, HANDICAPPED INDIVIDUALS, THE CITY OF SAN JUAN CAPISTRAN0 AND THE COUNTY OF RIVERSIDE).

E. WHETHER INTERVEN0RS WERE DENIED DUE PROCESS AS A CONSEQUENCE OF THE LICENSING BOARD RULING THAT REJECTED A REQUIREMENT THAT INTERVENORS BE GIVEN NOTICE OF AND AN OPPORTUNITY TO PARTICIPATE IN MEETINGS BETWEEN THE APPLICANTS AND THE FEDERAL EMERGENCY MANAGEMENT AGENCY.

IV. ARGUMENT A. The Licensing Board Properly Allowed Operation Of SONGS 2 For A Period Of Six Months Pending Completion Of Arrangements For Medical Services For The Offsite General Public '

Intervenors contend that, while the Licensing Board correctly found that Applicants must provide arrangements for medical services for the offsite general public, it erred by allowing a period of six months after

- full-power operation in which to make the required arrangements (Brief at 1-8). Such error, they argue, follows from the Licensing Board's inappropriate use of a risk analysis and the absence of findings by the

Licensing Board that adequate interim measures exist (Id.) See,10 C.F.R. 950.47(c)(1).1/

The Licensing Board's use of probabilities in connection with this issue must be placed in its proper context. The Licensing Board did not find the probability of an accident to be so low over the life of the plant that arrangements for medical services for the offsite general public need not be made at all. Rather, it found that "pending rapid development of appropriate medical arrangements...such operations for a brief period, no longer than six months, will not significantly endanger the public health and safety." (IDat44.) It is towards the finding of significance, 10 C.F.R. 9 50.47(c)(1), that the use of probabilities was directed, and properly so.

The Staff does not dispute that the principal objective of the Commission's emergency preparedness regulations is to assure that the level of protection for the public health and safety in the event of

-1/ Intervenors reliance on Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520 (1973) (Brief at 5), is misplaced. In marked contrast to the regulations at issue in that decision, the Comission's regulations governing emergency preparedness,10 C.F.R. 9 50.47, expressly provide for alternative considerations in satisfying its requirements. 10 C.F.R.

l 50.47(c)(1). The Licensing Boards' determination respecting this issue are consistent with the Commission's regulations and do not

, constitute a challenge thereto. Similarly, Intervenors misconstrue the Comission's decision in Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-22, 14 NRC 598

. (1981). Therein the issue of probabilities is not explicitly dealt with by the Comission. Rather, cognizant of the lower accident probabilities attendant to low-power operation, the Comission raised the question, subsequently resolved by amendment to 10 C.F.R. 9 50.47 in July 1982 (47 Fed. Reg. 30232), as to which of the planning standards set forth in 10 C.F.R. 9 50.47(b) were applicable to low-power operation. See, 10 C.F.R. 9 50.47(d) (July 1982.)

This decision has no applicabilty to the subject appeal.

an accident is adequate. As a general proposition, it would be

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inconsistent with this objective to assert that the probability of an

, accident was so low as to warrant dispensing with emergency planning, perhaps,the ultimate and most questionable extension of the use of probabilities. Yet, this is essentially what Intervenors imply that the Licensing Board has done. On the contrary, the Licensing Board has, based on several findings, determined that the present deficiency regarding medical services for the offsite general public is insignificant during the six month period permitted by the Licensing Board to remedy the deficiency.

The Licensing Board first recognized that the probability of accident at a nuclear facility is a function of the length of time '. hat a facility is operating. Consequently, it is more likely that a specific event, including a serious accident, will occur over a 40-year period of plant operation than over a six-month period of operation. (IDat 44-46.) Intervenors do not contest this proposition. Regardless of the level of risk associated with plant operation over a 40-year period and against which the emergency planning regulations were designed to protect, the risk is reduced considerably when one considers only a brief period of plant operation. The Commission itself has recognized this principle in the emergency planning regulations themselves by granting operating plants a period of time within which to come into compliance with the regulations while continuing to operate. The emergency planning regulations which became effective November 3,1980 permitted operating facilities until April 1,1981 to implement emergency planning.

10 C.F.R. 50.54(s)(2)(i). Even thereafter, the regulations themselves

5 provide an additional four-months for an operating facility to come into

. compliance should significant deficiencies be found. 10 C.F.R. 550.54(s)(2)(ii). Consequently, the Board's reasoning on this point is sound and consistent with that of the Commission.

As important, we would suggest, are the Licensing Board's findings i

that the Applicants' onsite plan could, in the six-month interim, provide some level of medical services for the offsite general public; further, that Applicants have provided some training to offsite personnel; and, finally, that "other medical service capacities in the area" could be i

called upon on an ad hoc basis in this period of time (ID at 45). These findings clearly reflect that several compensating measures exist which tend to offset the deficiency found (10 C.F.R. 5 50.47(c)(1). Given these compensatory measures and the low probability of an accident in this brief period of time, the interim deficiency is rendered insignificant. Id. As the Commission observed:

In determining the sufficiency of " adequate interim compensatory actions" under this rule, the Commission will examine State plans, local plans, and licensee plans to determine whether features of a plan can compensate for deficiencies in another plan so that the level of protection for the public health and safety is adequate. Statement of Considerations, 45 F.R. 55402.

(Emphasis added)

The fundamental measures which the Licensing Board suggests need to be provided are the identification of medical facilities to transport and

. accommodate persons severely exposed to radiation and the training of medical services personnel. (See, e.g., ID at 29, 34, 39 and 47.) As described in the ID:

4. " Time is not of the essence in decontamination or treatment of excess radiation. Treatment

of a tramatic [ sic] injury always takes precedence. Persons can be decontaminated at home or at any facilities where showers are available. (Linnemann,Tr. 7084, 7087; Hauck, Tr. 7121-22, 7798.)

5. In excessive exposure cases, there is an uninterruptible clinical course which evolves over days and weeks. The gradual evaluation of the injury allows for time in which to bring the results of tests and expertise to bear. (Linnemann,Tr. 7102-03,10,843-44.)"

(ID 94-95 at 132.)

It is principally for members of the general public who may have been seriously contaminated or exposed that the Licensing Board has directed that arrangments be made (See, ID 11 12, and 13, at 135, 43, 46 n.30.)

Against this background, we turn to the evidence of record. "The Applicants have contracted with three area hospitals and three area doctors to provide treatment facilities and care for patients suffering from injuries complicated by radiation contamination or excessive radiation (App. Ex. #51, Appendix A; Hauck, Tr. 7118-19, 7123-24)" (ID 1 3 at 132). The County of Orange has identified 12 other hospitals as able to handle patients with radioactive contamination complications. (See, Applicants Exhibit No. 53, County of Orange San Onofre Nuclear Generating Station Emergency Response Plan, December 1980 at V-39, Orange County Plan.) The capacity of each of the identified facilities is, however, undetermined (Id., at V-38 1 e.(1)).

The Interagency Agreement and Evacuation Procedure for the San Onofre Plume Exposure Pathway Emergency Planning Zone, December 1980 (Applicants Exhibit No. 59, IAEP) identifies an additional two hospitals in Orange County to which persons requiring hospital care would be transported (Id_. at VIII VIII-2). Two

additional hospitals are located in San Diego County (Id. at VIII-4).

. Further, the Nuclear Power Plant Response Plan, San Diego County, December 1980, ( Applicants Exhibit No. 54 at XIV-3, San Diego Plan) shows an additional five county hospitals which are equipped to handle contaminated patients. Thus, in these two counties of southern California, the evidence reflects that there are 24 facilities available for the treatment of exposed individuals.

As pointed out by Intervenors' witness, Dr. Ehling, Health Officer for the County of Orange, in the event of a high dose, the immediate effects would not require hospital treatment and long-term effects would not necessarily have to be handled in Orange County (Tr. 9979). Orange County alone would have available at any one time about 2000 hospital beds and Los Angeles County, which is directly continguous, would probably have as many as an additional 10,000 beds (_Id.; also, Tr. 9992).

Furthermore, it was Dr. Ehling's belief that facilities exist at the University of California at Irvine, as well as in Los Angeles, to provide laboratory consultations relative to emergency care for seriously contaminated persons (Tr. 9985-9986). Rather than providing beds, the major problem appears to be in providing the necessary expertise (see, Tr. 9980). In this regard, the Licensing Board found:

6. The Applicants have contracted with an organization called " Radiation Management Corporation" (RMC) to obtain its " Emergency Medical Assistance Program." RMC

, is staffed by well qualified people and can offer specialized services for the treatment of radiation injuries. It offers such services to a number of nuclear utilities in all parts of the country. (App.

Ex. #82-84; Linnemann, Tr. 7102-04)

7. The Emergency Medical Assistance Program provides train-ing, inspection of equipment and supplies and drills of

the medical support at the facility and the contract hospitals. The program also makes available the

. services of RMC experts for treatment including, if necessary, teams of health specialists. (Linnemann, Tr. 7104)

8. RMC backup support includes laboratories in Philadelphia and Chicago which can perform all types of analyses of bioassay samples from radiation patients. Backup support also includes consultants in radiation medicine and related fields. (Linnemann,Tr. 7104-05)
9. If it is determined that a victim of radiation needs long-term definitive care, he can be transferred to a California hospital equipped to perform the clinical treatment of radiation injuries or to RMC's special facilities in Philadelphia or Chicago. (Linnemann,Tr.

7106) (IDat133)

RMC has provided training to offsite personnel of private and public agencies within Orange and San Diego Ccunties who might be called upon in an emergency (Linnemann, Tr. 7091-7092). Over 350 persons in these

, counties received such training (Id; see, h general, Tr. 7094-7101). To augment local expertise, RMC can provide timely back-up both locally and at its Chicago and Philadelphia labs and can arrange for clinicial evaluation and treatment of serious radiation injuries in both areas.

(Linnemann,Tr. 7104-7105,7106.)

Accordingly, while the Licensing Board found that utilization of the foregoing capabilities on an a_d hoc basis for the substantial number of persons it envisions might require such care "would not be a wholly adequate basis" (ID at B5), it is clear that substantial capability

. exists to provide for the care and treatment of severely exposed members of the offsite general public. When coupled with the low probability of an accident potentially requiring implementation of such measures over the brief period of plant operation permitted by the Licensing Board, the

deficiency is rendered insignificant for this facility. 10 C.F.R.

. 950.47(c)(1). As discussed above, these matters are amply reflected in the record of this proceeding and are generally recounted in the Licensing Board's findings; hence, no error was committed in allowing interim operation.

B. The Licensing Board Properly Determined That There Are Adequate Alternative Means Of Providing Prompt Notification In The

" Extended" EPZ Pending Installation Of Sirens Within Six Months The thrust of Intervenors' argument on this matter is that the evidence of record does not support the Licensing Board's finding that /

there are adequate alternative means of providing prompt notification in 2

the " extended" EPZ_/ pending installation of sirens within six months of full power operation. (Briefat9-11.) The Licensing Board's conclusion respecting siren coverage, they suggest, is based on the same low-probability argument previously used with respect to the question of medical services and its determination that the existence of vehicles and helicopters with loud speakers constitute an adequate interim compensatory measure (Brief at 10).

A brief statement of backgrcund is helpful to place the Intervenors' argument in its proper context. The plume exposure pathway Emergency Planning Zone (EPZ) initially established by the Applicants pursuant to

, 10 C.F.R % 50.47(c)(2) consisted of an area generally within the bounds of a circle derived with a 10-mile radius. As relevent to this aspect of the appeal, this circle excluded Dana Point in its entirety and the

~

2/ The Staff agrees with Intervenors (Brief at 9 n.3) that for purposes of this appeal the term " extended" should be used for clarity.

portion of San Juan Capistrano north of San Juan Creek. Within the EPZ all elements of emergency planning were to be provided. Based on discussions between Applicants and responsible officials of Orange County and San Juan Capistrano, it was agreed that an " extended" EPZ would be designated which would provide all elements of emergency planning except siren coverage in Dana Point and the remainder of San Juan Capistrano (See, ID Ss 1-14 at 83-91). The Licensing Board concluded, however, that the concept of separate " extended" EPZ should be eliminated and that all elements of emergency planning including installed siren coverage should be provided throughout the EPZ which would now include all of San Juan Capistrano and Dana Point as a single area. (See, ID 1 25 at 97-98 and 1 C.5 at 216.)

We turn now to Intervenors' argument which at this point focuses solely on the Licensing Board's conclusion that the single deficiency in this regard - the lack of an installed siren system in the extended areas

- could be remedied within six months following full power operation.

(See, Order (Making Clarifying Change in Initial Decision), May 25, 1982).

The bases for the Licensing Board's decision in this regard are that the probability of an accident in the six month period permitted is

, sufficiently low and that " adequate alternate means of public notification of an emergency exist for the interim period...." (Id.) The same reasoning discussed above regarding medical services, i.e., that safety risks are reduced by virtue of the limited duration of permitted

, plant operation, extends to siren coverage. The deficiency noted by the Board here is not as broad as that dealing with medical services. The

overwhelming portion of the re-defined EPZ has a functioning siren systen

. in place. The areas not covered are limited to Dana Point and a portion of San Juan Capistrano.

In addition to assessing significance, the Board also examined whether alternate compensatory measures were present.

In regard to the existence of adequate alternate means for prompt notification, the Licensing Board refers to its Finding of Fact 1 G.11 at 172. There, citing the evidence of record, the Licensing Board has found that " Vehicles and helicopters from the California Highway Patrol, Orange County Sheriff's Department and State Parks are equipped with loudspeakers and could be used to alert the public instead of or as a supplement to the siren system. Vehicles and helicopters from Camp Pendleton could also be called upon to assist." The existence of the foregoing means, Intervenors argue, does not demonstrate that the means for prompt notification are adequate to comply with the Commission's regulations governing this matter, specifically,10 C.F.R. Part 50, Appendix E.IV D.3 or with the guidance of NUREG-0654, Appendix 3 at 3-3.

(Brief at 10.)

The Commission's regulations call for:

...the capability to essentially complete the initial notification of the public within the plume exposure pathway EPZ within about 15 minutes. 10 C.F.R. Part 50, Appendix E, D.3.

Guidance in this area is provided by NUREG-0654, Appendix 3, which specifies that initial notification should assure direct coverage of

"... essentially 100% of the population within 5 miles of the site" but provides that 100% initial notification within the remainder of the plume exposure EPZ should be complete within 45 minutes.

As the portions of the extended EPZ at issue here, specifically Dana

. Point and a portion of San Juan Capistrano, are beyond the 5 mile limit discussed in NUREG-0654, the guidance of NUREG-0654 would allow up to 45 minutes to complete notification. While it is likely that a substantial portion of the population in these areas would be informed of ,

any required notificatien by radio, television and word of mouth, and possibly even by the sirens already installed (Pilmer, Tr. 7372) the record establishes that capabilities exist for alternate means of prompt notification, as noted by the Licensing Board.

The record establishes more than the mere existence of alternate means of prompt notification. It also establishes that these means could and would be used in the event of an emergency. Within the EPZ, the County of Orange will use sirens, mobile PA units, tone-activated signalling devices, telephone ringing systems and door-to-door contacts to alert people although they estimate that as long as one hour may be required to complete this effort, apparently independent of the siren system then to be installed by the Applicants. (0 range County Plan, 9 V.B.2.a.(1) at V-6. Although the Orange County Plan, as of the time of the hearing, provided that "No sirens or other overt methods to obtain public attention will be employed immediately" in the " extended" EPZ (Id._

Q V.B.2.b.(1) at V-7), deletion of the concept of a separate "exter.ded" EPZ as directed by the Licensing Board should result in a conforming change in the Orange County Plan to extend the above-noted measures to the expanded EPZ.

In any event, the Orange County plan already calls for the Sheriff to warn residents of Dana Point of an impending threat, using assigned

patrol units with sirens and loud speakers (Id., E IV.A.3.a at IV-5).

The Interagency Agreement and Evacuation Procedure further calls for the Orange County Sheriff to augment local fire and police vehicles to sound the ale,rt in San Juan Capistrano utilizing public address systems. (IAEP Q IX.A.3.a at IX-2.)

Consequently, the record supports the Licensing Board's finding that adequate alternate means of public notification of an emergency exist for the six-month period which the Licensing Board allowed to remedy this deficiency.3.,/ This conclusion, when considered with the reduced significance of the deficiency due to the brief period during which it is permitted, clearly support a finding under 10 C.F.R. 50.47(c)(1) that an operating license may be issued.

C. The Licensing Board Properly Took Into Consideration The Applicants' Capabilities Respecting Radiological Assessment And Monitoring In Concluding That The Deficiencies In Offsite Jurisdictions' Plans Are Insignificant (Contention 2H) And Properly Ruled That Contention 2J (Ingestion Pathway) Was No Longer Contested Intervenors contend that, as a matter of law, the Applicants' capabilities to undertake radiological assessment and monitoring activities is insufficient to satisfy the requirements of the Commission's regulations, specifically 10 C.F.R. 6 50.47(b)(9), which, in their view 3/ The Licensing Board's conclusion in this respect appears to be consistent with the Commission's determination in amending the emergecy preparedness regulations to delay the implementation date for installed prompt notification systems from July 1,1981 to February 1,1982, "that there exist customary warning systems (police, radio, telephone) which are viewed as sufficiently effective in many postulated accident scenarios. In view of the above, the Commission finds that there exists sufficient reason to believe that appropriate protective measures can and will be taken...during the extended time period for compliance." 46 Fed.

Reg. 63031.

must be separately provided by the offsite jurisdictions. (Brief at o

12-15.) Under the heading of this issue, Intervenors also argue that the Licensing Board erred in determining that Contention 2J was no longer contested by virtue of Intervenors' failure to propose findings on this matter in controversy and, accordingly, that it was appropriately left for informal resolution by the Staff (Id. at 15-16).

1. The Applicants' Capabilities Are Properly Taken Into Consid-eration In Assessing The Significance Of The Deficiencies In The Plans Of The Offsite Jurisdictions It is not disputed that, as of the time of the hearing, the evidence reflected certain deficiencies on the part of the offsite jurisdictions regarding their radiological assessment and monitoring capabilities. As the Licensing Board found, the deficiencies, as identified by FEMA, encompassed staffing, training, development of SOPS i and lack of equipment (ID 1 20 at 143). While these deficiencies were most pronounced as of the May 13, 1981 exercise as reflected in the June 3,1981 Interim Findings provided by FEMA (Intervenors Exhibit No.15), even as of the time of the hearing steps were being taken to remedy these deficiencies (ID 1 21 at 143). These efforts continued thereafter and were essentially completed by November 1981. (See, FEMA Update Findings, Staff Exhibit No. 14).

The purpose and significance of the relevant planning standard, 10 C.F.R. Q 50.47(b)(9), have already been recognized by the Appeal Board in this proceeding. ALAB-680, NRC (Slip op. at 22-25, July 16, 1981). Intervenors do not generally contest the Licensing Board's

findingsrespectingtheadequacyoftheApplicants' capabilities.S/ The

. cornerstone of their appeal on this issue, however, is that one cannot as matter of law take into account the collective capabilities of the utility and local jurisdictions in determining whether this standard is satisfied. As Intervenors state: "

...the regulations and law clearly contemplate a separate and additional capability to monitor and cssess radiation...." (Brief at 14.) Intervenors' argument, however, is incorrect. Again, we must focus on the fact that the Licensing Board was not resolving this issue solely on the basis of a wholesale substitu-tion of the Applicants' capabilities for those of the offsite jurisdic-tions now and forevermore. Rather, the ID makes clear that significant progress has been and continues to be made in correcting the deficiencies previously found in the capabilities of the offsite agencies. (See, e.g., ID at 49, 1 24 at 144). Pending completion of the remedies for

-4/ An exception appears to be Intervenors' reference to the testimony of Applicants' witness, Mr. Barr, regarding the availability of two offsite monitoring teams (Brief at 14). Intervenors suggest that the two teams which Mr. Barr stated would be available are the same teams as those " required under the minimum staffing requirements...

specified in Table B.1 of NUREG-0654, page 36," and thus staffing is inadequate. This revelation, Intervenors claim, was made under cross-examination by the Staff. (Id.) Our review of the transcript of Mr. Barr's testimony reflects tFat the Staff asked no questions of him (Tr. 7680, line 19). In the absence of a specific reference

. to the record by the Intervenors, we are unable to ascertain the context of the alleged statement. Beyond that, however, Mr. Barr's testimony establishes that within 30-minutes, two teams would be

. available and within 60-minutes, an additional two. (Barr, Tr. 9071.) This appears to exceed the minimum staffing requirement set forth in NUREG-0654, Table B-1 which requires 1 individual for offsite dose assessment (on a 30-minute availability basis) and 4 individuals for offsite surveys (2 on a 30-minute basis, 2 on a 60+ minute basis); each team consists of two individuals (Barr; Tr. 7173). Additional offsite monitoring support has also been arranged for through agreements with Pacific Gas & Electric Company and the Sacramento Municipal Utilities District (Ray, Tr. 7137-7138; Barr, Tr. 7174).

these deficiencies, it was entirely appropriate for the Licensing Board

. to take into consideration the collective capabilities provided by the Applicants' plan in conjunction with the plans of offsite agencies to determine the significance of the deficiency with respect to the particular facility. As the Commission stated:

In deciding whether to permit reactor operation in the face of some deficiencies, the Commission will examine among other factors whether the deficiencies, are significant for the reactor in question, whether adequate interim compensatory actions have been or will be taken promptly, or whether other compelling reasons exist for reactor operation. In determining the sufficiency of " adequate interim compensatory actions" under this rule, the Commission will examine State plans, local plans, and licensee plans to determine whether features of one plan can compensate for deficiencies in another plan so that the level of protection for the public health and safety is adequate. This interpretation is consistent with the provisions of the NRC Authorization Act for fiscal year 1980. Pub. L.96-295.

Statement of Considerations accompanying Final Emergency Planning rules, 45 Fed. Reg. 55402, 55403; emphasis added. Accordingly, the Licensing Board's disposition of this issue was wholly in accordance with the applicable regulatory requirements and the record developed.

2. The Licensing Board Properly Determined That Contention 2J Was No Longer Contested And Consequently Was Correct In Not Making Any Dispositive Findings On This Matter.

Intervenors argue that their failure to submit findings of fact regarding contention 2J concerning ingestion pathway planning is " purely a technical ' default'", that there is " sufficient information contained

. in Intervenors' findings of fact 120-147 taken together with the conclusion of law (#11) to put the matter in issue," and, as a consequence, the Licensing Board's failure to make any findings on this issue was error. (Briefat15-16.)

Intervenors' failure to propose specific findings of fact on

. this contention is not merely a " technical default." In accordance with 10 C.F.R. 5 2.754(b), a party failing to file proposed findings of fact may be found to be in default and an initial decision entered accordingly. As the Appeal Board in this proceeding has already observed:

"Where a party has not pursued a contention before the Licensing Board through proposed findings of fact, we will not entertain it "for the first time on appeal -- absent a

' serious substantive issue. Public Service Electric and Gas Co. (Salem No lear Generating Station, Unit 1), ALAB-650, 14 NRC 43, 49 (1981). Here, a serious substantive issue is not presented by the Licensing Board's determination to leave the adequacy of ingestion pathway monitoring question for resolution by the staff. As we have previously remarked:

"at the operating license stage, the staff generally has the final word on all safety matters not placed into controversy by the parties." South Carolina Electric and Gas Co.

(Virgil C. Summer Nuclear Station, Unit 1), ALAB-663, 14 NRC 1140, 1156 n.31 (1981). This does not work an unfairness or compromise safety. The NRC Staff has a continuing responsibility to assure that all regulatory requirements are met by an applicant and continue to be throughouttheoperatinglifeofanuclearpowerplant.2gpt --

We thus see no basis for a stay based upon the Board's relegation of an uncontested issue to the staff for resolution.

ALAB-680 (Slip op. at 31-32; footnote omitted).

Furthermore, Intervenors' belated effort to resurrect this contention by reference to its proposed findings of fact 120-147 is simply of no avail. In spite of fleeting reference to the ingestion i

pathway in a few findings, the unambiguous purpose of those findings was to be responsive to contention 2H which deals with the plume exposure pathway EPZ. (See, in particular, Intervenors' Findings of Fact at 36 and 47). Accordingly, Intervenors' Conclusion of Law No. 11 is without foundation and is properly disregarded.

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In light of the foregoing, Intervenors have failed to show that

. the Licensing Board erred in its disposition of either Contention 2H or 2J.

D. The Licensing Board Properly Found That There Were Adequate Protec-tive Measures Which Could Be Taken On Behalf Of Special Populations Intervenors contend that the Licensing Board erred in determining that there were adequate protective measures which could be taken on behalf of five special groups of individuals: (1) hospital patients, nursing homes, and the handicapped; (2) school children; (3) ocean-going vessels; (4) the City of San Juan Capistrano; and, (5) Riverside County (Brief at 17-27). Intervenors appear to concede that plans for each of the foregoing have been made; their argument, rather, is soley that such plans are inadequate. (Id.) The Staff will address in turn each of the i special populations identified by the Intervenors.

1. Hospital Patients, Nursing Homes, And The Handicapped Intervenors do not dispute that there are buses available to transport the above populaticns. Rather, the thrust of their argument is that the record does not support a finding that there are an adequate number of buses or that there are adequate procedures for their use (Id.

at 19). The singular object of Intervenors' challenge appears to be the Licensing Board's Finding of Fact 47 at 122-123 regarding the adequacy of buses (Brief at 18). Again, the record belies Intervenors' contention.

- Specifically with respect to the captioned population, five institutions, housing over 360 bedridden individuals, have been identified in the EPZ within Orange County as having special requirements (IAEP at VIII-1; Orange County Plan at V-15; see also, San Juan

Capistrano Radiological Emergency Response Plan, December 1980,

. Applicants Exhibit No. 56, at 11 and Figure 2-5).5_/ These persons are to be " relocated via cooperating Ambulance Company's to several facilities" Qd.). Persons at the five identified facilities require a combination of bus and ambulance transportation, the convalescent hospital and two nursing homes requiring bus transportation and the two hospitals requiring both. (0 range County Plan at V-15.) In addition to the foregoing, there may be persons in private homes who require special transporation consideration due to medical conditions (0 range County Plan at V-15). All such persons are to be identified by the Orange County Human Services Agency Emergency Services Division (Id.) "

... Applicants, in cooperation with the Cities and Orange County have provided a post card to the residents of the...EPZ...which may be returned in advance of an emergency notifying the responsible official of the person's need for transportation assistance.. .. Various representatives of organizations involved with caring for the elderly and the handicapped are also becoming involved in this effort. (App. Ex. #66; Brothers, Tr. 7292-93; Warner, Tr. 7042-43, 7049, 7462-63; Turner, Tr. 8908-09; Ferguson, Tr. 8695: Coleman, Tr. 8578; Ditty, Tr. 9862; Logue, Tr.10,093)". (ID 1 46 at 122, also, Applicants Exhibit No. 53 at 7-10).

5/ The capability of San Diego County are not germane to this matter as i . the plume exposure pathway EPZ does not encompass any institutions requiring special consideration in that County (IAEP at VIII-4; San Diego Plan at XIII-4).

1

With respect to implementing procedures, the Orange County Plan

. makes clear that arrangments exist for the transport of persons using the Orange County Transit District to assure that this capability is effectively utilized (Grange County Plan, Attachment 2; also 1 6 atV-12).

2. School Children As with the foregoing special population, Intervenors argue that the record does not establish that the number of buses available to transport school children is adequate. (Briefat20-21).

Potentially affected schools are identified in both the Orange County Plan and the IAEP (See, pp. V-13-14 and Figure 2-5, and VIII-2-5, respectively). "In the event that an evacuation is ordered while school is in session, Orange County School Districts will be supported by 0CTD

[0 range County Transit District] to provide for the relocation of the pupils in school ... ." (0 range County Plan at V-14; IAEP at VIII-2-4).

The Capistrano Unified School District has available 15 buses (IAEP atX-9),inadditiontotheOCTDbuses.5/

In connection with both special populat uns described above, it is estimated that up to 400 buses and 16 ambulances would be required to transport all persons within the EPZ requiring transportation assistance

. (including Dana Point and all of San Juan Capistrano) - about 200 to transport school children (assuming school is in session) and 200 for all 6/ Note that all special institutions requiring special evacuation consideration are also identified by EPZ Subsector in the Orange County Plan on Figure 2-5 and at V-19-24).

other resident and transient individuals who do not have access to a

- private automobile. (Brothers,Tr. 7294-7295).

The Orange County Transit District can provide about 125 buses for immediate response between 7:00 a.m. and 8:30 p.m. Monday through Friday. At all other times, 75 buses can be provided on a 2-hour response basis (IAEP at X-9). Additionally, there are about 200 radio-equipped buses in Irvine, just outside the emergency planning zone which could be available in about 45 minutes (Turner, Tr. 8907; Brothers, Tr. 7295). San Diego County has available about 60 buses (IAEP at X-2).

OCTD has available an additional 200 buses at their Garden Grove facility. Accordingly, these buses plus the buses available to the Capistrano Unified School District, are adequate to transport all populations requiring bus transport. (Brothers, Tr. 7295.)

Regarding ambulance service, there are approximately 62 ambulances within Orange County, about 12 of which are in the southern part of the County (I_d.)

d Since it is doubtful that, as a general matter, evacuation of patients in intensive care units would be attempted, the 16 ambulance requirement is likely to be overstated (M. at 7295-7296). In any event, the Orange County Office of Emergency Services has the authority to take control of private ambulance services. (M.at7296-

. 7297).E i

l The foregoing evidence is uncontroverted by any evidence of record and demonstrates that adequate means for transporting these 7f For reasons stated above in fn. 5, the capabilities of San Diego County are not pertinent to this issue.

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special populations exist. The Intervenors' argument is simply unfounded

. and should be rejected.

3. Ocean-Going Vessels Under the general heading of their fourth exception, Intervenors argue that the record does not support the Licensing Board's finding that prompt notification can be provided to ocean-going vessels.

(Brief at 21-23.) The predicate for Intervenors' contention is that only ad hoc arrangements for notification exist and will not assure that notification can be provided witnin 15 minutes. (Id.at22.)

Intervenors' argument simply ignores the record of this proceeding. The U.S. Coast Guard has the responsibility for for clearing the offshore area within a 10 mile radius of the site. (IAEPatIV-9.)

The Coast Guard, in San Diego, would be promptly notified and would immediately send a radio alert on marine channels to boaters.

Additionally, a Coast Guard helicopter could follow up and be on the scene within about 15 minutes to 1/2 hour. (Pilmer, Tr. 9211-9215.)

Closer helicopters could also be available from Orange County and Camp Pendleton. (ID 1 22 at 176-177 and 1 11 at 172; Stowe, Tr. 8503, 8533-8534.) Helicopter assistance could, in addition, be obtained from San Diego County. (Stowe, Tr. 8544-8545.) Furthermore, the State Parks

, Department maintains a 30-foot rescue boat at nearby Doheny Beach which could promptly be made available. (ID 5 22 at 176; Stowe, Tr.

8557-8559.) Collectively, these measures were found to provide reasonable assurance that the required prompt notification could be provided. (ID 1 28 at 179.)

4. San Juan Capistrano

, Intervenors suggest the Licensing Board erred by not finding that the City of San Juan Capistrano was a " principal response organization" thereby avoiding the assessment of its emergency preparedness against the Commission's regulatory requirements, specifically, 10 C.F.R. 69 50.47(b) and 50.47(c) and NUREG-0654. (Brief at23-24.)

Intervenors' argument on this matter overlooks entirely the relationship between the City of San Juan Capistrano and the County of Orange with respect to emergency preparedness relative to this proceeding. The uncontroverted testimony of Ms. Cynthia Ferguson, administrative assistant to the Director of Public Works for the City, establishes that, as reflected in the Unified Orange County / Cities Emergency Management Agreement (Applicants Exhibit No. 134), the City's plan is to be incorporated as an addendum to the overall County response plan (Ferguson, Tr. 8689). "This action is being pursued because, although the City retains the responsibility to its citizenry to respond to a radiological inc1 dent, the physical ability to perform rests with contracted County services, fire and sheriff. Additionally, an M00

[ Memorandum of Understanding] between the County and City is being negotiated, whereby specific emergency services are acknowledged in -

addition to unified mutual assistance." (Id.) "The County provides the evacuation and monitoring equipment as well as personnel for the City.

Therefore the majority of the physical evacuation response is not done by City crews. The MOV with the County and the unified cities / county energency management agreement, as well as contractual fire and sheriff

agreements, assure the City that mutual assistance around the clock can

. be obtained." (Ferguson,Tr. 8691-8692,8713-8714.) The adequacy of the San Juan Capistrano plan, with the addition of Orange County assistance, assures adequacy. (Ferguson,Tr. 8693,8698.) The main function of the City is to provide notification and public information. (Ferguson, Tr.

8706). The principal role of the City appears to be to assure coordination of services for the City which are to be provided by the County. (See,Ferguson,Tr. 8708-8709,8712.)

In light of the foregoing, the Licensing Board was wholly ,

justified in determining that the City of San Juan Capistrano is not a

" principal response organization," as contemplated by NUREG-0654 (See NUREG-0654, GLOSSARY, definition of " Principal" at 5-1 and " Local" at 5-2; see also, Part I, section E, Example No. I at 19-20; also, Murri, Tr. 7247).

5. Riverside County Intervenors next contend that the Licensing Board erred by excluding Riverside County from the plume exposure pathway EPZ.

Intervenors appear to complain that this error follows from the failure to involve Riverside County officials in determining to exclude their county. (Brief at 25-26.) Its inclusion in the EPZ, they argue, would

. provide more adequate measures for preparedness "in the event of a radiological emergency exceeding the bounds of the ten mile zone...and 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." (Id. at 26.)

The Licensing Board's findings regarding the exclusion of

. Riverside County are found in 117 of the ID at 92-93. As the record supports, and the Intervenors do not dispute, only about 1/2 square mile of Riverside County lies within 10 miles of San Onofre and is a remote, mountainous area (Pilmer, Tr. 7370). Accordingly, it was excluded from the EPZ on the basis of its jurisdictional boundary. (Id.; Brothers, Tr.

7277.)

Intervenors' reliance on 10 C.F.R. 6 50.33(g) in support of the premise that " governmental entities wholly or partially within the plume exposure EPZ should develop plans" (Brief at 26) is misplaced for it ignores the predicate to such premise, namely, that a governmental entity must first be within the EPZ. This determination as provided by 10 C.F.R. 6 50.33(g) and 10 C.F.R. 6 50.47(c) contemplates that:

The exact size and configuration of the EPZ's surrounding a particular nuclear power plant s'.ll be determined in relation to the local emergency response needs and capabilities as they are affected by such conditions as demography, topography, land characteristics, access routes, and jurisdictional boundaries.

The testimony of both Mr. Pilmer and Dr. Brothers, referred to above, makes clear that the foregoing factors were taken into account in

! excluding the extremely small area of Riverside County which is within 10 miles of the plant. Of course, Riverside County within 50 miles of San l

l Onofre is included in the ingestion pathway EPZ (See, generally, Re, Tr.

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7343 et. seq. and Applicants Exhibit No. 121).

Accordingly, on this matter as well, Intervenors have failed to show l

l that the Licensing Board erred.

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E. The Intervenors Were Not Denied Due Process As A Result Of Applicants' Rebuttal Of FEMA Findings Intervenors' final argument is generally directed to evidence presented by the Applicants and Staff respecting corrective actions proposed by the Applicants to remedy deficiencies found by FEMA. (Brief at28-33.)

1. Ex Parte Considerations Intervenors suggest that they were denied due process as a consequence of the Licensing Board's ruling which rejected a requirement that Intervenors be given notice of and an opportunity to participate in meetings between the Applicants and FEMA (Brief at 28, 32). Intervenors' complaint is based on the Licensing Board's determination that the Commission's fg! parte rules did not apply to communications between the Applicants and FEMA. (Tr. 11, 369.) The Licensing Board's ruling is well-founded.

The subject of the Commission's rule on ex parte communications is communication between this agency's decision makers and the parties appearing in proceedings before them. 10 C.F.R. 5 2.780. The relevant decision makers for purposes of this proceeding are the Commission and its adjudicatory tribunals. FEMA, on the other hand, is an independent federal agency. FEMA is not a party to this proceeding; the Staff has, however, presented a witness from FEMA in this proceeding with respect to its review of the state of emergency preparedness. (See, Tr. 645.)

Furthermore, insofar as the Commission's independent responsibilities regarding emergency preparedness are concerned, FEMA is not a decision maker. Rather, the Commission itself must find that "the state of onsite

and offsite emergency preparedness provides reasonable assurance that

, adequate protective measures can and will be taken in the event of a radiological emergency." 10 C.F.R. 6 50.47(a)(1). With respect to the adequacy of offsite emergency preparedness, the Commission "will base its finding on a review..." of the FEMA findings. 10 C.F.R. 6 50.47(a)(2);

emphasis added. It is clear, therefore, that FEMA is not a decision maker within the proscriptions of 10 C.F.R. 6 2.780 and communications between it and the Applicants are thus not barred thereby.

2. Testimony Regarding Corrective Actions Intervenors also assert that they were denied due process because of their inability to ascertain the basis for and acceptability of corrective actions proposed by the Applicants in connection with the deficiencies identified by FEMA. (Briefat29-32.)

Intervenors argue that testimony by Mr. Nauman of FEMA, regarding the acceptability of the proposed corrective actions " violates the spirit of the regulations and the Memorandum of Understanding which provides for and contemplates testimony by FEMA Staff as to their personal knowledge of the emergency plan and contemplates the use of EEMA [ sic] findings to be a rebuttable presumption in the hearing 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." (Briefat30.)

This testimony, Intervenors contend, thus " challenges the NRC regulations and its admission is, therefore, error. Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-138, (1973)."

(Id. at 31.)

Intervenors' argument misapprehends both the law and the import

, of the testimony offered in this proceeding. Intervenors correctly acknowledge that the FEMA findings of June 3,1981 (Intervenors' Exhibit No.15) although entitled " interim" are findings to which a rebuttable presumption is intended to attach pursuant to 10 C.F.R. 9 50.47(a)(2).

Presumptions are employed in the administrative process to shift the existingburdenofprooforproductionofevidence.S/ Such presumptions as the Licensing Board observed, "can have the effect of deciding a question only in the absence of persuasive contrary evidence." (ID at 72, citing generally, Wright & Graham, Federal Practice and Procedure, 9 5126 (1977).) Accordingly, to the extent that a contention was predicated on a deficiency found by FEMA, the existence of such deficiency is entitled to be treated as a rebuttable presumption (see ID at 70-71).

In the context of Intervenors' arguments, however, neither the Applicants' proposed corrective actions (Applicants Exhibit No. 144), nor the testimony of FEMA witness, Mr. Nauman (see also, Applicants Exhibit No.146), are properly viewed as being proffered for the purpose of rebutting any of the FEMA findings. That is, this evidence was not offered to demonstrate that the deficiencies found by FEMA did not exist at the time they were identified. Nor did the Licensing Board so view this evidence. Rather, the evidence was offered and was used by the Licensing Board to establish that the deficiencies which do exist (or at p/ 4 Mezines, Stein, Gruff, Administrative Law % 24.04(1977).

least which existed at the time of the hearing) were being resolved and

. that such deficiencies as continued to exist were insignificiant. See, 10 C.F.R. 6 50.47(c)(1), see also, ID at 72-74.

Such evidence from FEMA is wholly consistent with the regulatory framework for emergency preparedness reflected in 10 C.F.R.

ll 50.47 and 50.54(a)-(t) and Appendix E which recognize the need for flexibility and improvements of emergency preparedness over time. See, in particular, 10 C.F.R. ll 50.47(b)(14), 50.54(s)(2)(ii), and Appendix E.IV.F. It is also wholly consistent with the Memorandum of Understanding between the NRC and FEMA of November 4, 1980, 45 Fed.

Reg. 82713, which provides that FEMA will provide findings and determinations on the current status of emergency preparedness at the request of the NRC and will make continuing assessments over the lifetime of the facility. In this case, the FEMA findings of June 3, 1981 (Intervenors Exhibit No. 15) reflected the then-current status and Mr. Nauman's testimony (as well as Applicants Exhibit No.146) reflect the more up-to-date position of FEMA regarding the state of preparedness (as did the FEMA Update Findings, Staff Exhibit No. 14). This evidence, as previously noted, does not rebut the initial FEMA findings at all nor does it in any way challenge a Commission regulation. In short,

. Intervenors reliance on the Vermont Yankee decision, ALAB-138, is simply misplaced.

Furthermore, Intervenors take out of context the testimony of FEMA witness, Mr. Nauman, suggesting that "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 the general statement and

. his authorization to make it. Tr. 10,431." (Briefat32.) Rather, Mr. Nauman stated that:

I can respond to the events that are in the record, the record of the national office document to which I have referred, as of the -- if you will -- June 3rd date. But those actions that are subsequent to that are not formal opinions on the part of FEMA...

I have explained the process. We render an opinion from the regional office to the national office either concurs or dissents in that opinion and issues a finding from the national office, and there have been no findings issued subsequent to 3 June in regards to the nature of the capability of offsite emergency planning. (Tr. 10,437-10,438; emphasis added) 9/ '

What Mr. Nauman testified to, although not a model of clarity, was literally true - as of that point in time, the only " national" FEMA findings which had issued were those of June 3, 1981 (Intervenors Exhibit No. 15). Although the proposed corrective actions had been fundamentally accepted by FEMA (Applicants Exhibit No.146), such acceptability was not evidenced in a document which, under the process described by Mr. Nauman, could be described as setting forth " formal findings." (See,e.g.,IDat 73-74.) Nevertheless, Mr. Nauman was able and did respond to examination concerning the deficiencies as well as the proposed corrective actions.

. Thus, Intervenors' complaint that they were unable to " challenge the basis of this general statement..." (Brief at 32) is simply unfounded.

In fact, the Licensing Board's ruling at Tr.10,431 simply barred further

--9/ The FEMA Update Findings, Staff Exhibit No. 14, were issued subsequent to the close of the record. See, ID at 79-80.

4 inquiry into Mr. Nauman's authority to present the " national" position as

=

opposed to the " regional" or his " personal" position. As the Licensing Board observed, this is "more of a distinction than a difference on this record." (IDat73-74.) Intervenors have pointed to nothing in the record which suggests that this ruling prevented their meaningful participation on the substantive issues in this proceeding and, indeed, we do not believe that there is anything to be pointed to.

In short, they were not denied any due process right provided either by the Constitution, Amendment 5 or the Administrative Procedure Act, 5 USC s 556(c), as they allege (Brief at 32).

Moreover, the Licensing Board's decision to permit certain matters to be subject to subsequent confirmation by the Staff did not allow the Licensing Board "to side-step actual decisions on these areas of potential inadequacy...." (Briefat32-33.) Rather, the Licensing Board's decision reflected thoughtful consideration not only of the deficiencies identified but of the proposed correction actions; it is only the implementation of the corrective actions which is subject to confirmation, not the substance of them. In large measure, such implementation was to be verified by FEMA on the basis of future exercises (ID at 75-76). As the Commission recently determined, such exercises are part of the operational inspection process and are not required for any initial licensing decision. See, Statement of Considerations accompanying amendments to emergency preparedness rules, 47 Fed. Reg. 30232, g seq. and 10 C.F.R. 5 50.47(a)(2) (July 1982). The substance of the corrective actions was the subject of testimony at the hearing and thus was a matter with which the Licensing Board explicitly

-.,n. .. - - - - . . , - - . . ,

e came to grips (see, e.g. ID at 75-78). Consequently, Intervenors were

. not deprived of any opportunity to be heard regarding any of the substantive issues before the Licensing Board.

V. CONCLUSION Based on the foregoing, the Staff believes that Intervenors have failed to show that the Licensing Board committed reversible error and, thus, the Initial Decision should be affirmed.

Respectfully submitted, GNW McA = nmfk Lawrence J. Chandler dav-Deputy Assistant Chief Hearing Counsel Dated at Bethesda, Maryland this 13th day of August 1982 9

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UNITED STATES OF AMERICA -

NUCLEAR REGULATORY COMilSSION F

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

SOUTHERN CALIFORNIA EDISON COMPANY, Docket Nos. 50-361 OL ETT A1 ) 50 ~462 OL (San Onofre Nuclear Generating Station, Units 2 and 3)

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE IN OPPOSITION TO INTERVENORS GUARD AND CARSTENS, ET AL., BRIEF IN SUPPORT OF APPEAL OF THE LICENSING BOARD'S INITIAL DECISION ON EMERGENCY PLANNING" in the above-capt.ioned proceeding have been served on the fol. lowing by  :

deposit in the United States mail, first class, or, as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, this 13th day of August 1982:

Stephen F. Eilperin, Esq. , Chairman Dr. Cadet H. Hand, Jr. ,

Atomic Safety and Licensing Appeal Administrative Judge i Board c/o Bodega Marine Laboratory U.S. Nuclear Regulatory Comission University of California Washington, D.C. 20555* P. O. Box 247 .

Dr. Reginald L. Gotchy ,

Atomic Safety and Licensing Appeal Mrs. Elizabeth B. Johnson, Board Administrative Judge U.S. Nuclear Regulatory Comission Oak Ridge National Laboratory Washington, D.C. 20555* P. O. Box X, Building 3500 Oak Ridge, Tennessee 37830 Dr. W. Reed Johnson Atomic Safety and Licensing Appeal Janice E. Kerr, Esq.

Board J. Calvin Simpson, Esq. .

U.S. Nuclear Regulatory Comission Lawrence Q. Garcia, Esq.

Washington, D.C. 20555* CA. Public Utilities Comission o 5066 State Building James L. Kelley, Esq., Chainnan San Francisco, CA 94I02 Administrative Judge Atomic Safety and Licensing Board Mrs. Lyn Harris Hicks U.S. Nuclear Regulatory Comission GUARD Washington, D.C. 20555* 3908 Calle Ariana San Clemente, California 92672

. , , .  ; ,. ..~

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Alan R. Watts, Esq. David R. Pigott, Esq.

Daniel K. Spradlin Samuel B. Casey, Esq.

Rourke & Woodruff John A. Mendez, Esq.

,. 10555 North Main Street . Edward B. Rogin, Esq.

Suite 1020 Of Orrick, Herrington & Sutcliffe Santa Ana, California 92701 A Professional Corporation 600 Montgomery St.

Gary D. Cotton San Francisco, California .94111 Louis Bernath San Diego Gas & Electric Company Richard J. Wharton, Esq.

101 Ash St., P. O. Box 1831 University of San Diego School San Diego, California 92112 of Law, Alcala Park

~ :'" ~ San Diego, California 92110 A. S. Carstens 2071 Caminito Circulo Norte Charles R. Kocher, Esq.

' Mt. La Jolla, California 92037 Janes A. Beoletto, Esq.

_ Southern California Edison Company Atomic Safety and Licensing Board 2244 Walnut Grove Avenue U.S. Nuclear Regulatory Comission Rosemead, California 91770 Washington, D.C. 20555* -

Phyllis M. Gallagher, Esq.

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Atomic Safety and Licensing Appeal 1695 West Crescent Avenue Panel Suite 222 U.S. Nuclear Regulatory Commission Anaheim, California 92701 Washington, D.C. 20555*

Charles E. McClung, Jr. , Esq.

Secretary Fleming, Anderson, McClung & Finch U.S. Nuclear Regulatory Comission 24012 Calle de la Plata ATTN: Chief, Docketing & Service Suite 330 Branch Laguna Hills, California 92653 Washington, D.C. 20555*

GA))7eMea .

4p/

Lawrence J. Ch

, Deputy Assistant Chief Hearing Counsel o

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