ML20063N962

Brief in Support of Revised Exceptions to ASLB 820621 Initial Decision.Certificate of Svc Encl

ML20063N962
Person / Time
Site:	Zimmer
Issue date:	10/04/1982
From:	Conner T CINCINNATI GAS & ELECTRIC CO., CONNER & WETTERHAHN
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8210070402
Download: ML20063N962 (57)

Text

. _ _ _. _.

G UNITED STATES OF AMERICA

,5 NUCLEAR REGULATORY COMMISSION' Dojpgg0 g

,Before the Atomic Safety and Licensing Appeal Board.

12 00T -6 M1 :37 Administrative Judges

(-e n n-cy v ','

Alan S.

Rosenthal, Chairman Stephen F. Eilperin Howard A. Wilber In the Matter of

)

)

The Cincinnati Gas & Electric

)

Docket No. 50-358 Company, et al.

)

)

(Wm. H.

Zimmer Nuclear Power

)

Station)

)

APPLICANTS' BRIEF IN SUPPORT OF ITS REVISED EXCEPTIONS RELATING TO THE ATOMIC SAFETY AND LICENSING BOARD'S JUNE 21, 1982 INITIAL DECISION Troy B. Conner, Jr.

Mark J. Wetterhahn Robert M. Rader Conner & Wetterhahn, P.C.

1747 Pennsylvania Avenue, N.W.

Washington, D.C.

20006 Councel for the Applicants The Cincinnati Gas & Electric l

Company, et al.

Of Counsel:

William J. Moran Jerome A. Vennemann The Cincinnati Gas &

Electric Company 139 E. Fourth Street Cincinnati, Ohio 45202 October 4,.1982 g g 10070'402 8216 4

~

~ ~ ~ '

.I~PDR ADOCK 05000358 U

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i TABLE OF CONTENTS Page Introduction.

1 Statement of Facts.

3 Argument 7

Exceptions 12, 13 and 14 7

Exceptions 1, 2, 3,4,5,6,7, 8 24 Exceptions 10, 11, 15, 16 45 Exception 9 47 Conclusion.

49 i

STATUTES CITED Administrative Procedure Act, 5 U.S.C.

S701 et seq.

22 Atomic Energy Act of 1954, 42 U.S.C.

S2011 et seq.

22 TABLE OF CASES CITED Chicago, M.

& St.

P.

Ry. Co. v. Minnesota, 134 U.S. 418 (1890) 23 COMMISSION ISSUANCES CITED Houston Lighting and Power Company (South Texas Project, Unit Nos. 1 and 2), CLI-77-13, 5 NRC 1303 (1977) 15 Pacific Gas & Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5, 13 NRC 361 (1981) 19 Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452 (1981) 20 i

ALAB ISSUANCES CITED Page The Cincinnati Gas & Electric Company (Wm. H.

Zimmer Nuclear Power Station, Unit 1), ALAB " Order" (July 15, 1982) 1,7 Commonwealth Edison Company (Zion Station, Units 1 and 2), ALAB-616,-12 NRC 419 (1980) 17 Kansas Gas & Electric Company (Wolf Creek Generating Station, Unit No. 1), ALAB-462, 7 NRC 320 (1978) 19 Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-252, 8 AEC 1175 (1975), aff'd, CLI-75-1, 1 NRC 1 (1975).

48 Offshore Power Systems (Floating Nuclear Power j

Plants), ALAB-489, 8 NRC 194 (1978) 19 Pacific Gas and Electric Company, (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

ALAB-504, 8 NRC 406 (1978) 8 Pacific Gas & Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-644, 13 NRC 903 (1981) 19 LICENSING BOARD ISSUANCES CITED The Cincinnati Gas & Electric Company (Wm. H.

Zimmer Nuclear Power Station, Unit 1)," Initial Decision," LBP-82-48, 16 NRC (1982) 1,4,8, 19,23, 25,37, 38 LBP-80-6, 11 NRC 148 (1980) 4 LBP-80-14, 11 NRC 570 (1980).

4 LBP-80-19, 12 NRC 67 (1980) 4 Memorandum and Order Admitting Kentucky as an " Interested State" (April 1, 1980) 4 Memorandum and Order Admitting Clermont 4

County, Ohio, Pursuant to 10 C.F.R.

S2. 715 (c) (June 11, 1980) 4 ii v

,,,-.,,-e

-.,e

_u,m-,

-y..-

y

Page Order (Approving Settlement Agreement DismiJsing the City of Cincinnati (October 30, 1981) 4 Prehearing Conference Order (November 5, 1981) 14 Prehearing Conference Order (Ruling on Revised Contentions Relating to Emergency Planning) (December 3,1982 )

5 Memorandum and Order (Ruling on Applicants' Motion for Reconsideration and Clarification of the Licensing Board's Initial Decision Dated June 21, 1982) (August 24, 1982) 2,7,10, 16,17, 18,20 Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), LBP-81-59, 14 NRC 1211 (1981) 13 Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

Docket Nos. 50-275 OL and 50-323 OL

" Memorandum in Reponse to NRC Staff's Motion for Clarification of the Licensing Board's Initial Decision Dated August 31, 1982" (September 27, 1982) 14 South Carolina Electric and Gas Company (Virgil C.

Summer Nuclear Station, Unit 1),

Docket No. 50-395 " Memorandum and Order" (September 14, 1981) 34 Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3),

Docket Nos. 50-361-OL and 50-362-OL " Order" (October 2, 1981) 33 Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3),

LBP-81-36, 14 NRC 691 (1981) 34 Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3),

Docket Nos. 50-361-OL and 50-362-OL " Order (Closing the Record Subject to Certain Conditions)"

(October 6, 1981) 21 Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3),

Docket Nos. 50-361 and 50-362, " Initial Decision" (May 14, 1982) 13 iii

NRC REGULATIONS CITED Page 10 C.F.R. S2.206 21 10 C.F.R. S 2. 715 (c) 4 10 C.F.R. 52.743(c) 4,16 10 C.F.R. Part 50, Appendix E 20,27 10 C.F.R. Part 50, Appendix E, Section D3 39 10 C.F.R. 550.47.

19,21 10 C.F.R. S50.47 (a) (2) 9,10 10 C.F.R. 550.47 (c) (2) 34 10 C.F.R. S50.57 11 FEMA REGULATIONS CITED 44 C.F.R. Part 350 7,10 44 C.F.R. S350.9(a) 12 MISCELLANEOUS Receipt of Application for Facility Operating

(

License; Availability of Applicant's Environmental Report; and Consideration of Issuance of Facility Operating License and Opportunity for Hea-40 Fed. Reg. 43959 (September 24, 1975) 3 Review and Approval of State and Local Radiological Emergency Plans and Preparedness, 45 Fed. Reg. 42341 (June 24, 1980) 10 Memorandum of Understanding Between NRC and FEMA Relating to Radiological Emergency Planning and I

Preparedness, 45 Fed. Reg. 82713 (December 16, 1980) 13 Review and Approval of State and Local Radiological Emergeny Plan and Preparedness, 47 Fed. Reg. 36386 (August 19, 1982) 10,12 Emergency Planning and Preparedness, 47 Fed. Reg. 30232 (July 13, 1982) 11,21 iv

Page Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants, NUREG-0654, Rev. 1 (November 1980) 27,28 38 An Analysis of Evacuation Time Estimates Around 52 Nuclear Power Plant Sites NUREG/CR-1856, Vol. 1 (May 1981) 29 V

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of

)

)

The Cincinnati Gas & Electric )

Docket No. 50-358 Company, et al.

)

)

(Wm. H. Zimmer Nuclear Power

)

Station)

)

APPLICANTS' BRIEF IN SUPPORT OF ITS REVISED EXCEPTIONS RELATING TO THE ATOMIC SAFETY AND LICENSING BOARD'S JUNE 21, 1982 INITIAL DECISION l

l Introduction l

Exceptions to the presiding Atomic Safety and Licensing Board's

(" Licensing Board") Initial Decision, dated June 21, 1982, relating to emergency planning and other issues in the captioned proceeding were filed by The Cincinnati Gas &

Electric Company, et al. ("Applicanta") on July 7, 1982.d/

Subsequently, Applicants were permitted to file revised exceptions- -

pursuant to an Order entered by the. Atomic Safety and Licensing Appeal Board

(" Appeal Board") on July 15, 1982, which noted that Applicants had filed a motion for l

1/

Applicants' Exceptions Relating to the Atomic Safety and Licensing Board's June 21, 1982 Initial Decision and Motion to Toll the Briefing Schedule (July 7,

j 1982).

j 2/

Applicants' Revised Exceptions Relating to the Atomic Safety and Licensing Board's June 21, 1982 Initial Decision (September 3,1982).

reconsideration and clarification of the Initial Decision with the Licensing Board on points related to its appeal.

As requested by Applicants, the Appeal Board permitted the filing of revised exceptions five days after service of the Licensing Board's decision on the motion for reconsideration and clarification. 3_/

As discussed below, the Licensing Board committed legal and factual error which requires reversal of portions of its decision.

All of Applicants' exceptions relate to the I

Licensing Board's findings as to the adequacy of offsite emergency planning for the Wm.

H.

Zimmer Nuclear Power Station

("Zimmer Station").1!

The Licensing Board's excepted rulings represent a misconstruction of critical aspects of the emergency planning regulations promulgated by the Nuclear Regulatory Commission

(" Commission" or "NRC")

and the Federal Emergency Management Agency (" FEMA") and the guidance issued thereunder.

In particular, the Licensing Board has misconstrued its function in receiving testimony from FEMA witnesses at an operating license hearing as well l

as its proper relationship with the NRC Staff in making the l

final findings regarding emergency planning necessary for issuance of an operating license.

The Licensing Board also 3/

See Memorandum and Order (Ruling on Applicants' Motion for Reconsideration and Clarification of the Licensing Board's Initial Decision Dated June 21, 1982)

(August 24, 1982) (hereinafter " Reconsideration Order").

4/- None of the. issues relating to emergency planning directly involves the Applicants' onsite plan.

l committed error in making a number of factual findings

related, for the most part, to evacuation planning for school systems.

j Statement of Facts The matter before the Appeal Board involves the i

application filed on September 10, 1975 by The Cincinnati Gas & Electric Company, et al.d for an operating license

~

for the Zimmer Station, a boiling water reactor designed to operate at a core power level up to 2436 thermal megawatts i

with a net electrical output of approximately 800 megawatts.

j The Zimmer Station is located on the eastern shore of the t

Ohio

River, one-half mile north of

Moscow, Onio,

[

approximately 24 miles southeast of Cincinnati, in j

Washington Township, Clermont County, Ohio.

i On September 24, 1975 the NRC published in the Federal Register a notice entitled

" Receipt of Application for

]

Facility Operating License; Availability of Applicants' f

Environmental Report; and Consideration of Issnance of Facility Operating License and Opportunity for Hearing."

Petitions seeking leave to intervene were thereafter filed i

by the Miami Valley Power Project

("MVPP"), Dr. David B.

5/

The Cincinnati Gas & Electric Company is responsible f

for the construction and operation of the Zimmer Station and acts on its own behalf and as agent for Columbus Southern Ohio Electric Company and The Dayton Power & Light Company, which are co-applicants.

6/

40 Fed. Reg. 43959 (September 24, 1975).

J t'

-___m._

,wc._

_ _ _ - _ _ - _ _ _ _ Fankhauser, Mrs.

Marie B.

Leighd!

and the City of Cincinnati. 8_/

The Licensing Board admitted each of these petitioners as parties.

Subsequently, the Licensing Board permitted the late intervention of Zimmer Area Citizens and Zimmer Area Citizens of Kentucky ("ZAC-ZACK" or "ZAC").d The City of Mentor, Kentucky was admitted pursuant to 10 C.P.R. S2.715(c) thereafter,El as were the Commonwealth of Kentuckyb!

and Clermont County, Ohio. N!

A prehearing conference was held on October 29 and 30, 1981 to discuss the status of the operating license proceeding and the specification of remaining contentions 7/

Mrs.

Leigh died in 1977.

The Licensing Board determined that her contentions are therefore moot.

See The Cincinnati Gas

& Electric Company (Wm.

H.

Zimmer Nuclear Power Station, Unit 1),

LBP-82-48, 16 NRC

" Initial Decision" (Operating License

)

Proceeding) at 2 (June 21, 1982)

(hereinafter " Initial Decision").

-8/

The City of Cincinnati subsequently withdrew from the proceeding pursuant to a

settlement agreement with Applicants approved by the Licensing Board in its Order (Approving Settlement Agreement Dismissing the City of Cincinnati) (October 30, 1981).

9/

See LBP-80-14, 11 NRC 570 (April 22, 1980); LBP-80-19, TE NRC 67 (July 2, 1980).

l g/

LBP-80-6, 11 NRC 148 (January 29, 1980).

l 11/

Memorandum and Order Admitting Kentucky as an

" Interested State" (April 1, 1980).

I M/

Memorandum and Order Admitting Clermont County, Ohio, Pursuant to 10 C.F.R.

S2.715(c) (June 11, 1980).

relating to offsite emergency planning.13/

As a result of r

the prehearing conference, the Licensing Board ordered that i

the emergency planning contentions which had been submitted i

be revised to provide additional specificity.

FEMA I

i voluntarily agreed to respond to interrogatories relating to

{

its function in the review of emergency planning for the Zimmer Station.

In a subsequent prehearing conference order l

issued on December 3, 1981,b the Licensing Board admitted certain of the revised contentions filed pursuant to its l

1 earlier prehearing conference order.

Pursuant to the Licensing Board's direction, Applicants contacted i

appropriate officials within the State of Ohio and the i

Kentucky counties within the plume exposure Emergency l

Planning Zone

(" plume EPZ")

to provide the necessary

[

witnesses to sponsor offsite emergency plans.

l Evidentiary hearings on offsite emergency planning contentions were held on January 25-29, 1982, February 2-5, 1982 and March 1-4, 1982 in Cincinnati.

Witnesses provided i

by Applicants, the NRC Staff, FEMA, the State of Ohio, the t

Commonwealth of

Kentucky, Clermont

County, Ohio, and 13/

While thare were a number of other contested issues

[

-~

considered by the Licensing Board, relating to such matters as cable tray construction and fire protection of cable trays, the procedural history relating to these matters has been omitted since no appeals as to these matters have been filed.

I 14/

Prehearing Conference Order (Ruling on Revised i

Contentions Relating to Emergency Planning)

(December 3, 1981).

I r

t

+

Bracken, Campbell and Pendleton Counties, Kentucky testified as to the adequacy and capability of implementing tho offsite emergency plans for the respective jurisdictions.

Witnesses on behalf of ZAC-ZACK and the city of Mentor also furnished testimony on a number of the contentions.

At the 1

[

conclusion of the presentation of the cases in chief and

rebuttal, the #.:. l i c a n t s '

unopposed motion to close the record was granted by the Licensing Board (Tr. 7979).

On June 21,

1982, tnt Licensing Board issued its Initial Decision.

In its Initial Decision the Licensing Board disposed of a number of issues unrelated to offsite emergency planning in Applicants' favor.

No other party has appealed from any of those rulings.

Applicants appeal from certain portions of the Initial Decision in which the Licensing Board has indicated the necessity for further proceedings.

As noted, Applicants filed exceptions initially on July 7,

1982.

Concurrently, Applicants sought reconsideration and clarification from the Licensing Board of its Initial Decision with regard to authorization for a

low-power license and other matters, discussed infra, as to which the Board perceived a need for further proceedings.

The Licens-ing Board subsequently clarified its Initial Decision to indicate that a low-power (5% of rated power) license would l

i issue upon the making of necessary findings by the Director

of Nuclear Reactor Regulation, but denied the additional j

relief sought by the motion.El Applicants subsequently filed revised exceptions on September 3, 1982, pursuant to the Appeal Board's approval of this request,16/

based upon the additional findings provided by the Licensing Board in its Reconsideration Order.

Whatever further proceedings that are contemplated by the Licensing Board have not yet been scheduled.

Presumably, any further proceedings could not be completed until the Licensing Board and parties have received the formal findings from FEMA pursuant to 44 C.F.R. Part 350 as

. discussed infra with regard to Exceptions 12, 13 and 14.

Argument Exceptions 12, 13 and 14 E!

12.

The Board erred in holding that the legal proceeding before the Board must consider.the

" final FEMA findings" relating to contentions and the Staff's supplement to the Safety Evaluation Report thereon before it can legally authorize operation at power levels greater than 5% of rated (I.D. at 50; Memorandum and Order on Reconsidera-tion at 3-11).

M/

Reconsideration Order (August 24, 1982).

M/

Order (July 15, 1982).

17/

In order to assist the Appeal Board in its disposition, Applicants have grouped their exceptions to include matters of related concern within a

single presentation.

J

13.

The Board erred in holding that the parties to the proceeding must have a reasonable opportunity to assess the impacts of the final FEMA findings that relate to the contentions admitted on November 25, 1981, and the Staff's supplement to the Safety Evaluation Report related to those findings cn the admitted contentions and Initial Decision prior to authorizing operation at power levels greater than 5% of rated (Memorandum and Order on Reconsideration at 3-11).

14.

The Board erred in failing to articulata the legal basis for its holdings described in Exceptions 12 and 13.

I.

The Licensing Board Misconstrued The Role Of FEMA In NRC Licensing Proceedings.

The basis for these exceptions is the finding by the Licensing Board

that, before the Board can authorize issuance of a

full power

license, intervenors must be l

afforded an opportunity to consider and comment upon (1) the formal FEMA findings made pursuant to its own regulations

)

for the Zimmer Station insofar as they pertain to admitted contentions and (2) the Staff's supplement to the Safety Evaluation Report

("SER")

related to FEMA's findings.E!

The Board did not articulate the legal basis for this finding in its Initial DacisionE! and its discussion of the matter in its Reconsideration Order reflects a misconception M/

Initial Decision at 48-50.

M/

See generally Pacific Gas and Electric Company, (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-504, 8 NRC 406, 410-11 (1978).

of the role of FEMA in NRC licensing proceedings and I

constitutes clear legal error.

I In essence, the Licensing Board incorrectly meshed the function of FEMA in rendering " final findings," which result in that agency's formal approval or disapproval of State and local emergency

plans, with FEMA's role in providing evidence regarding admitted contentions in a

licensing hearing.

Thus, the Licensing Board's decision is based on l

l the erroneous premise that emergency planning contentions 1

cannot be decided without considering FEMA's formal findings.EI The Licensing Board's misunderstanding is l

shown by its statement that the Board itself must make the 550.47 (a) (2)E! and may not findings required by 10 C.F.R.

l i

-20/

While the Board would limit its rulings to the facts of this case, Applicants see no way to distinguish it from any other operating license case.

M/

This regulation provides:

The NRC will base its finding on a review of the Federal Emergency Management Agency (FEMA) findings and determinations as to whether State and local emergency plans are adequate and whether there is reasonable assurance that they can be implemented, and on the NRC assessment as to whether the applicant's onsite emergency plans are adequate and whether there is reasonable assurance that they can be implemented.

A FEMA finding will primarily be based on a review of the plans.

Any other information already available to FEMA may be considered in assessing whether there is reasonable assurance that the (Footnote 2J/ continued on next page)

_ " delegate" this function to the Staff.E As discussed below, the Licensing Board's misinterpretation of Section 50.47 (a) (2) led it to the erroneous conclusion that che Board must

itself, and not merely the NRC Staff (and Commissioners), consider FEMA's formal findings as part of its own limited adjudicatory function.

The formal FEMA process for evaluating and approving State and local emergency plans is established in proposed FEMA rules under 44 C.F.R. Part 350.E Under the proposed rules, a State or locality obtains FEMA approval of that

(

jurisdiction's emergency plan by initiating the specified 21/

(continued) plans can be implemented.

In any NRC licensing proceeding, a

FEMA finding will constitute a rebuttable presumption on questions of adequacy and implementation capability.

Emergency preparedness exercises (required by paragraph (b) (14) of this section and Appendix E, Section F of this part) are part of the operational inspection process and are not required for any initial licensing decision.

The Licensing Board interpreted this provision to mean that "this Board is still charged with the obligation, pursuant to section 50.47 (a) (2),

to base our conclusions regarding the adequacy of offsite emergency preparedness as to those matters in controversy upon FEMA's review of the adequacy of State and local emergency preparedness, as presented to us through FEMA's testimony."

Reconsideration Order at 5.

M/

Reconsideration Order at 8-9.

-23/

45 Fed. Reg. 42341 (June 24, 1980).

The proposed rule was recently republished for comment at 47 Fed. Reg. 36386 (August 19, 1982).

evaluation procedures.

Nothing in the NRC's regulations, however, indicates that the Commission intended that these formal final findings are to be the subject of licensing hearings.

The regulation upon which the Licensing Board

relied, 10 C.F.R. 550.47 (a) (2),

merely states that the Commission must base its finding on a review of FEMA's

" findings and determinations as to whether State and local emergency plans are adequate and can be implemented."

l Such an analysis would, in due ccurse, be made by the Director of Nuclear Reactor Regulation in making his final safety determinations pursuant to 10 C.F.R. S50.57 necessary for issuance of a license.

There is certainly no indication in Section 50.47 (a) (2) that further scrutiny is required independently by a licensing board, even as those findings may relate to admitted contentions.

To read the NRC's and FEMA's rules as the Board did, in fact, would would render them inconsistent and meaningless.

As set forth in a recent amendment to the rule, 10 C.F.R.

S50.47 (a) (2) now expressly permits licensing decisions to be made prior to conducting emergency preparedness exercises.24/

This change by the Commission must be contrasted with the almost contemporaneous republication of l

FEMA's proposed rule, 44 C.F.R.

Part 350, which that agency l

-24/

This recent change to the rule was made after a careful consideration of the matter by the Commission.

47 Fed.

Reg. 30232 (July 13, 1982).

(

• is utilizing for review of submitted plans pending adoption of a final rule.

Section 350.9(a) states in pertinent part:

Before a Regional Director can forward a State plan to the Associate Director for approval, the State, together with all appropriate local governments, must conduct a

complete exercise of that State plan, involving participation of appropriate local government entities, the State and the appropriate licensee of NRC. 25/

Thus, no formal FEMA findings may be issued until after the emergency exercise is complete.

Consequently, to give effect to both regulations and read them consistently, it necessarily follows that the NRC may make its licensing decisions prior to the issuance formal FEMA findings.

As a legal

matter, the Board's interpretation is therefore incorrect.N!

By contrast, the provisions for FEMA's participation in NRC licensing hearings are completely distinct and 25/

47 Fed. Reg at 36391.

M/

The statement of considerations accompanying FEMA's proposed rule even reflects the possibility that a formal FEMA finding may, in some

cases, never be issued:

Insofar as FEMA is concerned, there is no legal requirement that a State or local government submit its plan to FEMA for

review, and FEMA's failure to approve such plan is not accompanied by any sanction or refusal to accord a benefit.

47 Fed. Reg. at 36387.

L different.

Procedures have been established for obtaining interim FEMA findings and determinations as to the adequacy of State and local emergency plans for use in licensing hearings pursuant to the

" Memorandum of Understanding Between NRC and FEMA Relating to Radiological Emergency Planning and Preparedness"

(" Memorandum of Understanding"),

executed by the NRC and FEMA on November 4, 1980.E!

Under the Memorandum of Understanding, which the Licensing Board below did not discuss in its Initial Decision, FEMA has agreed to provide its interim findings and determinations to the NRC in the form of supporting testimony in licensing hearings.

Section III of the Memorandum of Understanding states that "[t]o support its findings and determinations, FEMA will make expert witnesses available before the NRC hearing boards and during any related discovery proceedings."

Such testimony has been provided in at least nine proceedings for facilities which have been granted operating licenses.2_8_/

Applicants are aware of no other 27/

45 Fed. Reg. 82713 (December 16, 1980).

28/

See, e.g.,

Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3),

j Docket Nos. 50-361 and 50-362, " Initial Decision" (May 14, 1982)

(slip op.

at 67-78); Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1),

LBP-81-59, 14 NRC 1211, 1461 (1981).

It is noted that the Licensing Board in Diablo Canyon recently concluded that the interim FEMA findings did (Footnote 28/ continued on next page)

j l contested proceeding in which a licensing board has delayed or withheld issuance of a license because the final FEMA findings had not been made.

In fact, FEMA review in this case was at a more advanced stage than other contested cases inasmuch as the coordinated emergency planning exercise had been conducted in November 1981 prior to the hearings.

In the instant proceeding, FEMA voluntarily agreed to answer interrogatories, but none was directed to it by the intervenors.

FEMA also filed substantial written testimony, portions of which went unchallenged.

Thus, the role of FEMA at the licensing hearing below was to provide i

expert testimony upon the admitted contentions relating to emergency planning.

There is no basis for elevating that testimony, as a

legal matter, to any higher level of 28/

(continued) not satisfy the requirements under 10 C.F.R.

S50.47 (a) (2).

Rather than requiring further proceedings, however, the Board merely required "that the results of (future FEMA] review should be submitted to the NRC Staff prior to the issuance of a full power license."

Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), Docket Nos.

50-275 OL and 50-323 OL, " Memorandum in Response to NRC Staff's Motion for Clarification of the Licensing Board's Initial Decision dated August 31, 1982" (September 27, 1982) (slip op at 2) (emphasis added).

-29/

See Prehearing Conference Order at 8

(November 5,

1H1).

l l

i L--

importance than that of any other expert witness proferred by the Staff, Applicant or other parties.EI Admittedly, the FEMA witnesses made a

poor presentation.

There was, nonetheless, no basis for the Licensing Board to disregard, in

effect, the evidence proffered by Applicants, Staff and the State and local planning officials in support of their plans, establishing that offsite emergency plans are adequate and capable of implementation.

Significantly, with the exception of the school evacuation matters discussed below, the Licensing 1

Board did not find that Applicants had failed to carry their burden of proof by a preponderance of the evidence as to any matter in issue.

Thus, the Licensing Board's disposition I

effectively negated the independently persuasive evidentiary proffers by Applicants, Staff and the State and local planners who are by law charged with implementing the plans.

The Initial Decision thereby had the effect vf elevating form over substance.EI The dichotomy between emergency planning matters as considered by licensing boards with the input of FEMA and that agency's separate compliance with its own rules has 30,/

No party even claimed that the testimony had a

presumptive validity.

31/

Compare, e.g.,

Houston Lighting & Power Company (South Texas Project, Unit Nos. 1 and 2), CLI-77-13, 5 NRC 1303, 1318 (1977)

(permitting initiation of antitrust review - process prior to submission of FSAR with the formal application).

already been considered by the Commission, both for contestod and uncontested cases.

As discussed at the hearings and noted above, the Commission.has authorized the issuance of operating licenses prior to the completion of the formal.

procedures contemplated by FEMA's proposed regulations.EI Yet, the Licensing Board below chose to withhold an operating license until such formal findings had been submitted and reviewed by intervenors because of "the nature 1

l of the FEMA presentation and the detailed, sharply focused nature of the contentions."3_3,/

In stating that it was 1

dissatisfied with the FEMA testimony "which

[was) so preliminary and conclusory as to fail to meet the standards which the Commission expects of other testimony,"E! the Licensing Board failed to articulate any reason why it could

(

not have simply rejected the FEMA testimony in whole or in part as unreliable N and based its findings upon tl.e "other l

testimony" in the record, which included that of those officials charged with planning for emergencies and responding to any situation which may arise.

32/

Tr.

6650-59, 7048-55.

See note 28,

supra, citing proceedings in which testimony based on interim findings has been received and emergency planning contentions have been finally decided.

M/

Reconsideration Order at 11.

34/

Id. at 8 (emphasis added).

35/

10 C.F.R. 52.743(c).

5

In effect, the Licensing Board made the " adequacy" of FEMA's testimony a separate contested issue.

Thus, the Board stated that further proceedings would not be necessary

"[h]ad FEMA effectively dealt with the contentions by providing a reasonable basis on which to conclude that they were unfounded" or "[h]ad only portions of the FEMA response been inadequate.3_6,/

It is difficult to conceive of the legal standard which the Licensing Board would apply to determine the " adequacy" of the testimony it expected from l

FEMA in order to dispose of the contentions in Applicants' favor.

Thus, although the Licensing Board stated that FEMA should have been able to demonstrate "that there existed some reasonable bases for their conclusion that (State and local emergency) plans are adequate and capable of impicmentation,"

no basis is cited for imposing upon Applicants this additional evidentiary burden. W 36,/

Reconsideration Order at 7.

31/

The applicable burden of proof was defined by the Appeal Board in Zion as follows:

1

[The Applicant) was not obliged to meet I

an absolute standard but to provide

" reasonable assurance" the t public

health, safety and environmental concerns were protected, and to demonstrate that assurance "by a

preponderance of the evidence."

This standard is set by the Administrative Procedure Act which governs Commission adjudicatory hearings.

Commonwealth Edison Company (Zion Station, Units 1 and 2),

ALAB-616, 12 NRC

419, 421 (1980)

(citations omitted).

II.

The Licensing Board Improperly Eliminated The Legal Requirements For Reopening The Record.

As part of its rationale for exploring the " adequacy" of FEMA as a separate matter, the Licensing Board concluded l

that closing the record before the filing of final FEMA findings "would allow the Government to ignore the results reached in the hearing process" because "the work product of

[ state and local) planners

[is]

subject to review and approval by FEMA."E!

There is no basis in the record f

below, the Memorandum of Understanding between FEMA and the NRC nor in FEMA's regulations for the conclusion that FEMA j

would " ignore" the results achieved by the planners to ensure that all emergency plans.are adequate and capable of i

implementation.

The Licensing Board's unsubstantiated concern that FEMA's actions might detract from emergency planning effectiveness at Zimmer is entirely unwarranted and not a legal basis for thrusting the final FEMA findings into the hearing process to be scrutinized by the Licensing Board as to any aspect of emergency planning.EI Significantly, i

the Licensing Board did not limit its disposition regarding final FEMA findings to those particular matters it found to l

H/

Reconsideration Order at 8.

39/

As discussed infra, Applicant noted during the hearing that the parties would,.in any event, always have the right to seek - a reopening of the record upon the showing of some significant change materially affecting the public health and safety as a result of FEMA's actions.

Tr. 7050-51.

o require further proceedings.

Rather, the Board granted intervenors an cpportunity to review and comment upon the final FEMA findings as they relate to all admitted contentions.

The Licensing Board's actions are thus inconsistent with having closed the record and, with one exception, having decided all matters in Applicants' favor.

Although a licensing board has considerable discretion to shape the course of a proceeding, such discretion is not unlimited.

A licensing board is obliged to respect the independence of the NRC Staff and, in this case, FEMA, to perform their own functions under the governing regulations. E!

Having closed the record in this proceedingSI and having ruled upon all presently outstanding contentions,SI there was no basis for the Licensing Board to restructure the proceeding in such a way as to permit a reopening of the record without the requisite showing under the Commission's precedents.SI The Licensing Board has not cited any language in 10 C.F.R.

-40/

Offshore Power Systems (Floating Nuclear Power Plants),

ALAB-489, 8 NRC 194 (1978).

41/

Tr. 7979.

M/

Initial Decision at 3.

-"-43/

Pacific Gas & Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

CLI-81-5, 13 NRC 361 (1981); Pacific Gas & Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-644, 13 NRC 903, 994-95 (1981); Kansas Gas & Electric Company (Wolf Creek Generating Station, Unit No. 1), ALAB-462, 7 NRC 320 (1978).

L

S50.47, Appendix E to 10 C.F.R. Part 50, or any other regulation which authorizes a departure from these settled standards.

Moreover, such a

procedure is totally inconsistent with the Commission's policy against unjustifiable delay in licensing proceedings.EI In creating a new and unique structure for licensing proceedings, the Licensing Board has effectively granted intervenors an automatic right to reopen the proceeding based upon the final FEMA findings or the Staff's SER i

supplement related to those findings.

The Board has cited no authority for its extraordinary measure of allowing intervenors to raise matters in their contentions which have been abandoned or decided on the record favorably to l

l Applicants in the Initial Decision.

Despite the disclaimer by the Licensing Board,5 the difference between its grant of an automatic right to reopen and the standard customarily utilized 5I is significant.EI 44/

Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452 (1981).

The Licensing Board also failed to specify any provision of the Administrative Procedure Act, 5 U.S.C. S701 et seq.

requiring such a procedure.

g/

See Reconsideration Order 9-10.

M/

See note 43, supra.

47/

The Licensing Board attempted to utilize a

recent decision in San onofre as support for this proposition.

See Reconsideration Order at 10.

The Board there, (Footnote E/ continued on next page) 1

It is noteworthy that in its Statement of Considerations supporting the recent change to its emergency planning rule regarding emergency preparedness exercises, the Commission suggested that post-hearing developments (in that situation, the exercise) should Le addressed by a petition to reopen the proceeding or a petition for action pursuant to 10 C.F.R. S2.206.

Significantly the Commission distinguished between " fundamental defects," which call into question whether the requirements of 10 C.F.R. 50.47 can or will be met, and " deficiencies identified by an exercise which only reflect the actual state of emergency preparedness on a particular day in question but which do not represent some basic flaw in emergency planning,"48/

which would not be an appropriate basis for reopening.

Applicants submit that the Commission's intent was clearly to utilize its criteria for reopening, and not to eliminate reopening standards altogether as was done by the Board below.N!

The Licensing Board lacks authority to H/

(continued) nonetheless, clearly stated that "any party may move to reopen the record for further hearings [after service of the final FEMA findings] for good cause shown," not automatically.

See Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3), Docket Nos. 50-361-OL and 50-362-OL, " Order" (October 6, 1981) (slip op. at 2).

4_8_/

47 Fed. Reg. at 30233.

49/

The Commission specifically noted the availability of a request to reopen the record or for relief under 10 C.F.R. 52.206.

_I_d.

d

relieve intervenors of their burden, as established by the Commission's decisional law, for reopening a closed record.

Moreover, to the extent that the Board has disposed of issues, it is without jurisdiction to further consider the matter.

i The Licensing Board's analysis of the hearing's adjudicatory nature was also in error.

The Board incorrectly stated that the parties and the Board would be deprived of "any opportunity to cross-examine FEMA witnesses as to the bases for a Government's conclusions" if the parties were not permitted to raise further issues regarding FEMA's final findings.b To the

contrary, the FEMA witnesses were available for cross-examination.

Thus, despite the views of the Licensing Board, the procedure utilized by other licensing boards for considering emergency planning and deciding contentions based upon FEMA's interim findinge fully accords all parties to the proceeding all rights existing under the Atomic Energy Act of 1954, 42 U.S.C.

52011 et seg. and the Administrative Procedure Act, including the right to cross-examine witnesses.E/

{

50/

Reconsideration Order at 8.

51/

In the proceeding below, ZAC-ZACK contended that the procedures outlined in Applicants' position would constitute a

denial of due process in ZAC-ZACK's constitutional right to a hearing.

See "Intervenor ZAC-ZACK's Memorandum in Opposition to Applicant's Motion for Reconsideration and Clarification of the Licensing Board's Initial Decision Dated June 21, 1982" (Footnote M/ continued on next page) i l

l As stated by Applicants' counsel at the

hearing, intervenors undoubtedly have a right to be informed of significant new developments and to request reopening of the

record, where such request is properly supported and documented. b The right to seek reopening,

hovever, falls far short of any

right, in

effect, to stop the proceeding dead in its tracks and to keep the record open indefinitely until final FEMA findings have been furnished to the NRC and intervenors have had an opportunity to relitigate their contentions based upon this information.

The Licensing Board has not shown any basis for any reasonable expectation that anything new will, in fact, be contained in FEMA's formal findings.

For all the reasons discussed above, the Licensing Board's decision establishing a new requirement for an opportunity for review of FEMA's Sl/

(continued) at p.

11-13 (July 23, 1982).

However, the line of cases cited by ZAC-ZACK beginning with Chicago, M.

St.

P.

Ry.

Co.

v.

Minnesota, 134 U.S.

418 (1890),

concerning due process rights to a hearing on factual determinations is inapposite.

Each of these cases concerns either the lack of any hearing whatsoever, the substantiality of the evidence, or reliance upon facts outside the record.

None of the cases raised the issue of whether there is a right to a second hearing on an issue previously presented and decided.

-52/

See Initial Decision at 50.

As noted

supra, the Licensing Board's reference to this statemen't by Applicants' counsel at the

hearing, attempting to belittle the difference between this statement and the Board's ruling, was simply inaccurate.

l

_- I i

formal findings prior to issuance of a full power operating license should be reversed.

Exceptions 1, 2, 3, 4, 5, 6, 7, 8 1.

The Board erred in finding that "all of the population within five miles of the Statior, is to be notified within 15 minutes of the declaration of a site emergency" (I.D. at 32, 68).

2.

The Board erred in finding that

" plans have not been developed to mobilize school bus drivers and buses l

and other school personnel if telephone service is curtailed or eliminated" l

(I.D. at 27, 32, 71, 72).

3.

The Board erred in finding that l

l

? ans have not been developed to deal with the problems presented if buses are in the process of transporting students when the decision to evacuate is made l

(I.D. at 27, 32, 71, 72).

4.

The Board erred in holding that the capability to evacuate school children simultaneously, i.e.,

without return

trips, is required by Nuclear j

Regulatory Commission

("NRC")

regulations or NUREG-0654, " Criteria for Preparation and Evaluation of Radiological Emergency

Response

Plans and Preparedness in Support of Nuclear Power Plants" (I.D. at 32-33, 73).

5.

The Board erred in finding that sufficient buses are not available to evacuate all the students in the New Richmond School District within the EPZ

" simultaneously" (I.D. at 33, 75).

6.

The Board erred in finding that two-way communication between all schools and public school emergency resource response agencies is necessary under the NRC regulations and NUREG-0654 to implement emergency procedures at 68-69).

(I.D.

)

7.

The Board erred in finding that two-way communication among school officers and personnel during a Zimmer emergency is presently limited to the use of commercial telephones (I.D.

at 67, 70).

8.

The Board erred in not making specific findings and articulating the legal basis as to the criteria it chose for determining

" untimeliness" as related to its conclusions regarding evacuation of the schools within the plume EPZ (I.D. at 73, 75).

The next group of exceptions relate directly or indirectly to the Licensing Board's findings with regard to emergency planning for the school districts within the plume exposure Emergency Planning Zone ("EPZ").

The basic facts, e.g.,

the location of schools, number of students attending school within the EPZ and number and location of school buses and drivers, are not in dispute.

Applicants take exception to the manner in which the Board arrived at its ultimate conclusions without reference to FEMA or NRC regulations and guidance or any explanation of its analytical processes in finding some general inadequacy in these plans.

Instead of pinpointing specific deficiencies which would enable the Applicants, in conjunction with the responsible State and local emergency planning officials, to address them and take appropriate action, the Board merely noted the " complexity" of the problem. b It then scated that " solutions to this problem are available" and "these 5_3f' Initial Decision at 48.

L

l i

officials are aware of the advantages and disadvantages of the various solutions and hence able to arrive at the optimum solution."

The heart of the problem is that the l

Licensing Board has never stated the exact criteria that it used in determining that a general deficiency exists or f

issued guidance as to what would be acceptable at a

f l

reconvened hearing under NRC and FEMA standards.

Applicants

{

in fact are working with the cognizable State and local agencies to complete all phases o# emergency planning.

However, given the nonspecificity of the Licensing Board's findings, it cannot be assured that the Board's reservations have been resolved.

Applicants did not assert at the hearing and do not claim on appeal that, at the time of the hearing, school procedures were complete and in final form and that planners and school officials were in accord.

What Applicants do

submit, however, is that (1) the fundamental planning concepts were sufficiently developed at the time of the hearing to permit an assessment of their adequacy and capacity for implementation and (2) that these concepts met all applicable criteria.

Thus, while procedures were yet to be finalized regarding the evacuation of school children at the time of the hearing, there was no evidence of any impediment which would prevent such procedures from being completed in a

timely manner.

As with all other 54/

Id.

procedures, these matters can be reviewed by FEMA and the NRC Staff, as previously discussed. N A fundamental misconception which Applicants submit led the Licensing Board to err in a number of instances was its failure to define its concept of " timeliness" as applied to evacuation of school children (and, for that matter, the general public) from within the EPZ designated for the Zimmer Station.

The Licensing Board never specifically defined what it meant by " timely," or by what standard it judged the plans for evacuation of school children.

As a preliminary matter, it is therefore necessary to establish certain very fundamental points regarding the NRC's requirements for emergency evacuation.

l The governing criteria for emergency planning in nuclear reactor licensing are contained in NUREG-0654, Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants (Rev.

1, 1980), which was developed jointly by the NRC and FEMA. N!

NUREG-0654 requires each licensee's emergency plan to contain time estimates for evacuation of those individuals within the plume exposure

-~55/

As recognized in NUREG-0654, a

distinction exists between the elements of an emergency plan and the

" supporting and reference documents and tables" incorporated therein, since " [ t] he average plan should consist of perhaps hundreds of pages, not thousands."

NUREG-0654, I.J. " Form and Content of Plans" at p. 29.

56/

Fee Appendix E to 10 C.F.R. Part 50 at n.l.

I EPZ.

The involved State and local jurisdictions are required to provide in their plans the bases for the choice of recommended protective actions for the plume exposure pathway during emergency conditions. 57/

Significantly, no rule or regulation, nor even the detailed NRC-FEMA guidance

(

for evaluation of radiological response plans and preparedness contained in NUREG-0654, contains any absolute time limits for evacuation of the plume EPZ surrounding a nuclear power plant.

The reason for the absence of any binding, absolute time limits is quite understandable.

First, what is reasonable at a nuclear power plant for evacuation under one set of circumstances, e.g.,

on a bright, sunny day, would not be applicable to a different set of circumstances, e.g.,

during a

snowstorm.

Second, there are significant variations in evacuation times among different sites.

To illustrate, one study showed a median general population evacuation time of 5.0 hours0 days <br />0 hours <br />0 weeks <br />0 months <br /> under normal conditions and 5.2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> under

" adverse" conditions for 52 nuclear power stations. -58/

However, the maximum times reported in that 57/

NUREG-0654, Part II.J,

" Protective Response," Planning Standard and Evaluation Criteria 8 and 10m thereunder.

58/

NUREG/CR-1856, Vol.

1, An Analysis of Evacuation Time Estimates Around 52 Nuclear Power Plant Sites at 12 (May-1981).

study were 21.0 hours0 days <br />0 hours <br />0 weeks <br />0 months <br /> for normal conditions and 27.0 hours0 days <br />0 hours <br />0 weeks <br />0 months <br /> for adverse conditions. 59/

Inasmuch as no absolute limits have been imposed for evacuation times, it is necessary to understand the exact function served by evacuation time estimates in emergency planning decisionmaking in order to determine whether plans for evacuation of school children are adequate or deficient.

Evacuation of the public surrounding a nuclear power plant is one of the actions which may be considered following an accident should protective actions be required.

Generally, evacuation is considered along with sheltering to determine which of these protective actions would produce the greatest total dose savings in the particular circumstances that might exist following a nuclear power plant accident.61/

The decision to evacuate a segment of the population within the plume EPZ, i.e.,

at some radial distance from the plant in a particular sector or sectors, as opposed to sheltering those individuals, is made on the basis of calculations which take into account dose rates, the time 59/

Id.

-60/

That is not to suggest that there might not be an instance where evacuation times at a facility were so.

extremely high as not to be acceptable.

The point is that the NRC has found a broad range of evacuation times to be acceptable.

I 61/

Tr. 5063, 5995.

The use of radioprotective drugs such as potassium iodide may be used as an adjunct to either evacuation or sheltering.

for evacuation and the dose savings provided by sheltering.62/

The algorithm for such calculations as applied to the Zimmer Station is presented in the various emergency plans.S As set forth therein, evacuation could and would be ordered if (1) a segment of the population which may be affected by a release from the plant could be evacuated before the release either occurs or reaches their location and (2) the projected release would adversely affect these individuals as determined by reference to the EPA Protective Action Guides, which are incorporated into the various State and local emergency plans.

Of course, since most scenarios of accidents are relatively slow to develop and emergency plans require local officials to become involved at an early stage, evacuation actions would I

usually take place prior to any significant release rates.S!

If, on the other hand, looking at an extreme case, roads were impassable due to severe adverse weather, such as a heavy snowstorm, evacuation would be ruled out inasmuch as sheltering would provide a dose savings greater than a situation in which individuals in cars were unable to safely evacuate.SI g/

Tr. 5063, 5995-96.

g/

See, e.g., Board Exhibit 3 at F-4-1.

M/

Tr. 4987.

M/

Tr. 5018, 5959, 6299-300, 6302, 6748.

I 3

In this circumstance, the risk of an ordinary accident and exposure would probably significantly outweigh the advantages of evacuation.

For the range of intermediate conditions, that is, various release projections and conditions affecting evacuation, the decision as to whether to shelter or evacuate must be made by the appropriate official at the time of the declaration of an emergency based upon calculations following the methodology set forth in the algorithm discussed above.S/

\\

In factoring in evacuation

times, the planner is seeking a realistic estimate as to what the time will be for evacuation of a significant percentage of the population located in particular sectors at various radial distances h

from the facility.

In this way, the appropriate official will be able to gauge the dose savings by sheltering as compared to evacuation in order to determine the best 67/

alternative.

It is important that such planners have realistic assessments of evacuation times available in order to assure proper decisionmaking.

Before turning to a discussion of evacuation of school children as it relates to the Zimmer Station, one further general point must be considered.

As is typical in the consideration of any number of issues in licensing hearings, 6_6/

Tr. 6306.

61 /

Tr. 6007, 6012.

i

.)

-the intervenors' testimony and cross-examination in the proceeding below on the issue of evacuation, generally, and of evacuation of school children, in particular, tended to focus on the worst assumptions or worst combination of conditions to the exclusion of conditions which would be actually anticipated even in the unlikely event of a serious accident at the Zimmer Station.68/

It must be recognized that the hypothetical assumptions and permutation of events which were postulated are not representative of conditions which are likely to occur at the time of an accident and

(

which thereby constitute the broader portion of the spectrum of situations which a planner may encounter.6_9,/

For example, it was always implicitly assumed that the entire plume EPZ had to be evacuated after an accident.

This hypothetical worst case is extremely low in probability.

If evacuation were needed at all, it is likely that only a few sectors will have to be evacuated.EI This worst case assumption was combined with additional extreme hypotheses, such as postulating a severe accident coincident with the greatest flood of record or a snowfall which rendered roads impassable for days and even weeks.EI The combination of these extremely low probability events should 68/

Tr. 5893.

69/

See, e.g.,

Tr. 6298.

70_/

Tr. 4987.

0 l/

Tr. 6298, 6302.

not be allowed to dominate the NRC's licensing decisionmaking to the exclusion of the entire spectrum of substantially more probable planning conditions for which 1

local and state authorities must provide in their plans.

Indeed, while a spectrum of conditions must be examined, the planners should be concentrating on those scenarios which are more likely to occur if an accident situation arose.3 School children are an important subclass of the population with regard to protective action decisionmaking.

The Applicants have recognized this and have worked with the cognizant authorities in the development of plans and procedures for each affected school system.

Within the plume EPZ of the Zimmer Station, 21 schools are located in six school districts.

Of the 21 schools, the 3/

As the Licensing Board stated in San Onofre:

Planning responsibilities decrease-with decreasing accident probabilities.

As indicated in many regulatory

contexts, including the probability-based, 10-mile plume exposure pathway EPZ for emergency plans (10 CFR 50.47 (c) (2) ),

there is a

relationship between

" adequacy" of emergency plans and accident risk; levels of risk, in

turn, depend both upon consequences and probabilities.

Plans should be fully adequate to deal with accidents and consequences that are reasonably to be anticipated.

At the other end of the spectrum, we do not believe that full scale emergency planning is necessary to deal fully with the possible consequences of a

very low probability-high consequence accident.

Southern California Edison Company (San Onofre Nuclear Generating

Station, Units 2

and 3),

Docket Nos.

50-361-OL and 50-362-OL, " Order" (October 2, 1981).

L

closest is approximately 3.5 miles from the plant, only 3 are closer than 5.0 miles, 9 are more than 10 miles from the Zimmer Station, and another two are 9 or more miles away.

The 9 schools which are located more than 10 miles from the Zimmer Station have been included in the EPZ by local officials for planning purposes.

/

However, given the 73 development of a 10-mile EPZ distance by the NRC,74/ it is not likely that schools located more than 10 miles from the Zimmer Station will have to be evacuated in any set of circumstances.

Again, to place the matter in perspective, the contentions, direct testimony and cross-examination at the hearing regarding plans made for school children tended to address the "end of the spectrum" cases to the exclusion of the greater majority of possible. scenarios.

It was implicitly assumed that all school children within the entire plume EPZ had to be evacuated, rather than a limited number of sectors or for a

limited distance from the facility.E It was also assumed that the accident was not slow in developing, but required immediate significant t

H/

Appl. Exh. 15 at 78-79.

l 1

74/

See 10 C.F.R. 550.47 (c) (2) ; South Carolina Electric and Gas Company (Virgil C.

Summer Nuclear Station, Unit 1, Docket No.

50-395,

" Memorandum and Order" (September 14, 1981)

(slip op. at 5); Southern California Edison Compajn (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-81-36, 14 NRC 691, 698 (1981).

75/

For example, an evacuation of the area within less than 5.0 miles would only involve two small schools.

1

action by school authorities, namely the start of evacuation, upon its occurrence.

The findings by the Licensing Board therefore implicitly discount the ability of the school districts to begin or complete a precautionary evacuation of some or all of the schools within the potentially affected area before the start of any substantial release.

It is the intention of public officials in the event of evacuation to direct resources first towards the closer schools and the ones which may be in the sector or sectors affected by the plume.EI Each of the affected schools has or will have a set of protective action procedures to implement the concepts contained in the various emergency plans in the event of an emergency. EI H/

Appl. 3xh. 15 at 79; Tr. 5921, 6137, 6311, 6313, 6394.

-77/

Appl. Exh. 15 at 79; Tr. 6387-88.

At the time of the evidentiary proceeding, the implementing procedures were in various stages of completion, but were nearing completion.

At the conclusion of the hearings, Mr.

Monroe, Director, Campbell County Disaster and Emergency

Services, a

witness called by the intervenors, testified concerning a

meeting with Superintendent Sell and Mr. Voelker, officials of the Campbell County school system responsible for emergency planning, subsequent to their appearances as witnesses for the intervenors.

Specifically, Mr. Monroe stated l

that standard operating procedures for schools have been developed to the point that they could be termed a

" final draft."

Mr. Monroe also stated that within the next week, the procedures would be presented to school authorities as well as State and local disaster emergency services authority for final review (Tr.

7956).

(Footnote H/ continued on next page) l

- 0-Because there are a number of school systems involved, the equipment possessed by

each, the manner in which they conduct their everyday activities and their procedures do differ in certain respects.

However, it is possible to generalize regarding the underlying principles utilized in the development of the plans for school children and methods of implementation.E In the event of an emergency, the school superintendents of the affected districts can be notified by

pager, tone-activated NOAA

radio, monitor radio and/or telephone call from the appropriate Emergency Operations Center ("EOC") personnel.79/

In turn, the primary means of H/

(continued)

From

this, Mr.

Monroe indicated no problem in finalizing school procedures or in the overall implementation of the Campbell County emergency plan (Tr. 7996-67).

In its Motion for Reconsideration, Applicants appended copies of certain completed procedures and those that were near final.

Applicants noted that the effect of the Board's Initial Decision had been to freeze the development of these procedures even if the school and other authorities were themselves satisfied with the procedures pending resolution of the matters singled out as deficiencies by the Licensing Board.

Applicants recognize, of course, that these procedures are not part of the evidentiary record before the Appeal Board.

t 78/

It should be recognized that only evacuation from

' schools in Campbell

County, Kentucky and Clermont

County, Ohio were, in

fact, at issue and are the subject of the exceptions.

The discussion herein should be considered to be limited to those counties.

M/

Appl. Exh. 15 at 79; Tr. 5545, 5699; Board Exhs.

4, 5

and 6 at C-4.

communication with the schools will be by telephone.SI The principal in each school is responsible for implementation of the protection action for his school.

With regard to notification and communications with the school systems in Clermont County and Campbell County, the primary means is the telephone.

Both counties contemplate that notification will take place r_ior to public notification.

In these circumstances, overloading of I

l circuits at schools and at exchanges would not be a problem.

)

The question of the timing of public notification of an emergency at the Zimmer Station is intertwined with the question of the adequacy of communications necessary to implement protective actions for the schools.

Because the use of commercial telephone is the primary communication method relied upon for implementation of school emergency procedures, public notification could subsequently cause lines to the schools to be busy or could overload the telephone switching circuits.

Applicants submit that a misunderstanding of the requirements for a

Prompt Notification System led the Board to find that "[a]11 of the population within five miles of the station is to be notif within 15 minutes of the declaration of a site 81/

emergency."

This error then affected the Board's 80/

Appl.

Exh.

15 at 80; Board Exh.

2 at II-E-5 and III-C-1, 3 and 5; Board Exhs.

4, 5 and 6 at Appendix B-1.

H/

Initial Decision at 32.

findings regarding the use of the telephone as a means for school notification.

The intent of the Licensing Board in using the term t

l

" site emergency" is totally unclear.

If the Board used it to denote one of the four emergency classifications at the l

Zimmer Station,b!

it is totally incorrect in stating that public notification would be required.

There are a number of examples of the " site emergency" classificationE! which involve no imminent or actual release of radioactivity which would require immediate public notification.

In turn, this error resulted in a second erroneous finding that "this leaves too little time to accomplish more than initial notification to the schools prior to public notification, even assuming that no

' unusual event' or

' alert' had earlier occurred which could lead to extensive telephone use by the public."E With regard to the Board's latter

finding, if an Unusual Event or Alert had been declared in accordance with the Emergency Plan for the 4

Station,85/ the procedures to alert the schools would have been initiated and sufficient resources

would, in all J

probability, have been marshaled at the schools to effect a prompt evacuation should the situation have reached a higher 82/

See, for example, Board Exh. 2 at II-C-1 to 2.

83/

This category corresponds to a Site Area Emergency as discussed in NUREG-0654, Appendix 1.

8_4_/

Initial Decision at 32.

85/

Applicants' Exh. 13, Section 4.

i

..~ _, -_

classification.

For these two lower classes of emergencies, immediate public notification would usually not be required.

Thus, for the specific situation postulated by the Board, completion of the notification procedures for the schools would not be a problem.

Section D3, Appendix E

to 10 C.F.R. Part 50,

" Notification Procedures,"

governs notification of responsible officials who in turn have the responsibility to notify the public.

That section states in pertinent part:

l

[

3.

A licensee shall have the l

capability to notify responsible State and local governmental agencies within 15 minutes after declaring an emergency.

The licensee shall demonstrate that the State / local officials have the capability to make a public notification decision promptly on being informed by the licensee of an emergency condition.

l The design objective of the prompt public notification system shall be to have the capability to essentially complete the initial notification of the public within the plume exposure pathway EPZ within about 15 minutes.

The use of this notification capability will range from immediate notification of the public (within 15 minutes of the time that State and local officials are notified that a

situation exists requiring urgent action) to the more likely events where there is substantial time available for the State and local governmental officials to make a

judgment whether or not to activate the public notification system.

Where there is a

decision to activate the notification system, the State and local officials will determine whether to activate the entire notification system, simultaneously or in a

graduated or staged manner.

The responsibility for

activating such a public notification system shall remain with the appropriate governmental authorities.

In all likelihood, there will be substantial time for the responsible governmental officials to make a judgment as to whether or not to activate the Prompt Notification System.

Secondly, the responsibility for activating this system lies with governmental authorities, who may if necessary choose to activate the system in a " graduated" or j

l

" staged" manner.

Thus, public officials could choose to delay public notification in order to assure the orderly notification of the schools.

Even in the situation where the public would be notified at the same time or slightly after the notification of affected school systems, there is reasonable assurance that the notification function can be implemented by utilizing a special system for assuring the availability of I

an incoming and outgoing telephone line or through alternate channels.

The Applicants have proposed providing a system as part of the telephone system which would free an existing line at each school and at other key locations in the event of a Zimmer Station emergency for the use of school employees.

This will permit incoming and outgoing emergency calls despite attempts by parents to call in which would otherwise overload the circuits.

While this system would still be susceptible to an overload of the telephone exchange, it

does give further assurance that communications will be possible.

Furthermore, all schools within the EPZ will be equipped with institutional quality NOAA tone-alert radios as part of the Prompt Notification System.

Notification via these radios could start the implementation of procedures with regard to protective actions.

In addition, the schools within the plume EPZ in Campbell County will be equipped with a monitor radio which is capable of receiving voice messages from the county Emergency Operations Center

("EOC").

The Applicants have stated they will install a two-way radio capable of comn:unicating with the Zimmer Station in the Superintendent's office of the New Richmond School System.

The two nearest schools to the Zimmer Station located in Campbell County will also be provided with two-way radio capability to contact the EOC.N!

86/

The Applicants are continuing their discussion with officials from the school systems and emergency planning organizations with regard to the augmentation of the present communications system to school officials, school buses and school bus drivers.

One of the school districts has already announced its intention to provide two-way radios in the schools and buses and provide pagers to a number of bus drivers.

l If additional communication capability were provided to i

the affected school districts,

most, if not

all, deficiencies regarding school evacuation planning found by the Licensing Board in its Initial Decision as Applicants understand it could be eliminated.

The need to pursue the related exceptions would thereby be obviated.

Applicants will keep the Appeal Board apprised of significant developments in this area, l

i i

i The receipt of information from any of these sources would begin the implementation of the emergency procedures for each school.87/

If the situation warranted, the protective action of sheltering would be immediately implemented.

Depending on the situation, only the protective action of sheltering in schools by itself may be warranted or it may be utilized until evacuation is accomplished.

Should evacuation of the schools be called for, buses and drivers must be provided.

Again, the primary method of communications to bus drivers will be by telephone from the various school systems.8_8_/

As a backup, the Prompt Notification System, which includes sirens and NOAA weather radios, can be used 'o alert those drivers within the EPZ of an emergency situation at the Zimmer Station at which time they can proceed directly to schools or other predesignated locations for further instruction or action in accordance with developed procedures.

The EBS stations can perform a similar function both inside and outside of the EPZ. N

-87/

Alternate methods of communications also exist.

Volunteer radio personnel may be available to provide and operate amateur radios at schools.

Radio communications could be established by dispatching a police car or other radio-equipped vehicle to a school should the need arise.

-88/

The majority of bus drivers for school districts within the EPZ have no other employment.

Appl. Exh. 15 at 98-99; Tr. 5647-48, 5661-62, 5694.

Moreover, the buses are parked at the schools, at another central location or at the drivers' homes.

M/

Appl. Exh. 15 at 98..

1 1

i 1

Again, it should be emphasized that there are only three schools within 5 miles of the Zimmer Station, the next closest schools being approximately 7 miles away.

Thus, there is ar. increased time period for action in schools which are farther away from the Zimmer Station.

With regard to the three closest schools, the two closest, A.J.

Jolly Elementary School and St. Peter & Paul Elementary School, only require a maximum of six buses to evacuate the school children and all others at those schools.EI Obviously, this would be the priority as school bus drivers reported to l

their assigned location for dispatching.

In comparison to 1

the 60 buses available to the Campbell County school system i

initially, these resources are more than sufficient to handle this task.91/

The same situation holds true in Clermont County in that the New Richmond School System has sufficient buses to evacuate the Monroe Elementary School, the closest in Clermont County.

The school systems requiring additional resources have contacted other school systems to assure the availability of additional buses to respond to the schools if needed.

While the planners are making arrangements to evacuate all school children without any double runs of buses by utilizing resources from outside the affected districts, Applicants submit that there is no NRC or FEMA requirement which would 9_0/

Tr. 6077, 6187.

M/

Tr. 6187.

prohibit evacuating a portion of the EPZ and utilizing these buses and drivers to evacuate the remainder.

Certainly the Licensing Board has pointed to no NRC or FEMA requirement that all pupils be evacuated simultaneously.

Nor has the Board pointed to any basic deficiency in the plans of the l

school districts within Clermont County to use buses from outside the district.

No deficiency in the planning i

concepts have been found by the Board, nor is there any specific reason why such planning concepts may not be implemented.

Were infinite resources available, fleets of buses and drivers could be stationed at each school during~ the school l

day.

However, Applicants' research has yielded no i

indication that such a requirement was contemplated when the Commission's emergency planning regulations or guidance were l

promulgated.

Even so, such an arrangement could potentially reduce doses for only a small part of the spectrum of situations.92/

Applicants are aware of possible emergency no emergency plan or Commission decision that has made such arrangements mandatory in order to meet NRC/ FEMA requirements or guidance.

One variant of evacuation planning for schools is the possibility that' evacuation may be required.while the buses

-92/

Even were the buses at the school, it would take some time to mobilize the students for evacuation.

Moreover, even in many situations where buses were standing by, sheltering rather than evacuation would be indicated as the proper protective action.

- O are en route in the morning or afternoon.

The concepts involved are really no different than for any other school evacuation situation.

There would, however, be no problem in obtaining drivers or getting them to their buses.

In the

morning, upon hearing the Prompt Notification sirens or being notified of the situation by a parent or other person en route, existing procedures would call for the buses to complete their runs and report to the schools to transport students to relocation centers, as necessary.

Similarly, in the afternoon, the drivers would discontinue discharging their passengers and take the children remaining on their buses to schools outside the EPZ and then later to relocation centers, as necessary.

Those children who had been discharged prior to the drivers' notification would evacuate with a parent or guardian or be evacuated from home along with others not having their own transportation in accordance with other provisions of the emergency plans.

Applicants therefore perceive no inherent deficiency in the existing plans or the " problems presented" for this,

situation to which the Board alluded, inter alia, on page 32 of its Initial Decision.

Exceptions 10, 11, 15, 16 10.

The Board erred in finding that the correction of deficiencies it found related to evacuation of Campbell and Clermont County schools within the EPZ are not amenable to final resolution by

verification by the NRC Staff (I.D.

at 48; Memorandum and Crder on Reconsideration at 11-12).

11.

The Board erred in holding that the present record is not adequate and further proceedings are necessary with regard to the evacuation of the Clermont and Campbell County schools before it I

would authorize operation at power levels of greater than 5% rated (I.D. at 48; Memorandum and Order on Reconsideration at 11-12).

15.

The Board erred in its conclusion of law that the state of offsite emergency preparedness does not provide reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency (I.D. at 96).

16.

The Board erred in not authorizing an operating license at power levels of up to 100% of rated power based upon its consideration of all issues to date.

As discussed above, emergency planning had not been completed at the time of the hearing, which is certainly not unusual in NRC licensing proceedings.

Nonetheless, the emergency plans and the concepts for their implementation were available in sufficient depth to permit the conclusion that the emergency plans meet Commission requirements and are capable of being implemented.

Applicants submit that there was no obstacle-demonstrated to successful completion of the procedures for schools within the plume E2Z.

The review of detailed implementation of the emergency plans is a matter which is properly left for the Staff to review.

Such a procedure certainly does not shortcut any requirement that the affected planners or implementation personnel

. l approve the final procedures and fully accords with prior l

NRC practice permitting the Staff to assure implementation l

of conditions as established by the presiding licensing board.

Inasmuch as the plans and procedures described at the hearing are in accordance with all Commission requirements and guidance, there is no reason why this course of action should not be followed.

Even should the Appeal Board determine that certain additional steps need be made to assure compliance with Commission requirements, given the state of this record on emergency planning, it can give sufficient guidance -in any condition it might impose to permit the Staff to review the detailed implementation of any of its requirements.

In either case, Applicants submit that no further proceedings before an Atomic Safety and Licensing Board are needed prior to authorization of a full power license.

Exception 9 9.

The Board erred in finding that school officers in the Ohio districts of the plume exposure area of the EPZ have not kept parents advised of their planning for a Zimmer emergency or that there is NRC or NUREG-0654 requirement 7

to do so (I.D. at 75).

De This exception involves a tangential matter which did not apparently affect the ultimate decision.

While under the Appeal Board's precedents it is therefore technically inappropriate for exceptions,El Applicants do not believe it is proper to let Board Finding 64 stand.

The Board found that school officials in the Ohio districts of the plume EPZ have not kept parents informed of their planning for a Zimmer emergency.

The sole basis of this is the testimony of Margaret Erbe, a founding member of ZAC, the principal proponent of the emergency plan contentions.94/

A perusal of Mrs. Erbe's testimony on the stand would indicate that she considered most, if not all planning officials " ignorant, apathetic and insincere."

An example of her stubbornness in the face of the facts and her inability to present a fair account of emergency planning at Zimmer is illustrated by the contradictions between her written testimony and oral statement.

While she admittedly knew of the existence of written school procedures in draft form when she prepared her testimony, she still stated that "I

am presently unaware of the existence of any written school evacuation plans" and "I have only heard preliminary

-93/

Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-252, 8 AEC 1175, 1177 (1975), aff'd, CLI-75-1, 1 NRC 1 (1975).

l 94/

Tr. 5535.

e W

ideas occasionally thrown out orally.

. "EI Applicants do not believe her testimony is indicative of the attempts that officials made to communicate with the parents of students during the development of the emergency plans.96/

Conclusion For the above stated

reasons, the Applicants' exceptions should be granted and the full power operating license authorized.

Respectfully submitted, CONNER & WETTERHAHN W% -j !1, 4)4 Troy B.

Conner, Jr.

Mark J. Wetterhahn Robert M.

Rader 174' Pennsylvania Avenue, N.W.

Suite 1050 Washington, D.C.

20006 202/833-3500 October 4, 1982

-95/

Direct Testimony of Margaret Erbe Addressing the Zimmer j

Area Citizens-Zimmer Area Citizens of Kentucky Contentions 21 (b) (2) ;

21 (c) (1) ;

21 (d) (1),

(2),

(3),

(4);

21 (c) (3) ;

21 (e) (1),

(2),

(3);

23 (1) ;

24 (5) ;

20 (b) (5) ; 20 (b) (5) (iii),

(iv) and 20 (c) (6), following Tr. 5534 at 2; Tr. 5538-39.

l

-96/

When the Zimmer Station begins operation, the procedures call for formal communications from schools to parents on at least an annual basis.

l

,,. e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of

)

)

The Cincinnati Gas & Electric )

Docket No. 50-358 Company, et al.

)

)

(Wm. H. Zimmer Nuclear Power

)

Station)

)

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Brief in Support of its Revised Exceptions Relating to the Atomic Safety and Licensing Board's June 21, 1902 Initial Decision" dated October 4, 1982 in the captioned matter, have been served upon the following by deposit in the United States mail this 4th day of October, 1982:

Alan S. Rosenthal, Chairman Dr. Frank F. Hooper Atomic Safety and Licensing Chairman of Resource Appeal Board Ecology Program U.S. Nuclear Regulatory School of Natural Commission Resources Washington, D.C.

20555 University of Michigan Ann Arbor, MI 48104 Stephen F. Eilperin Atomic Safety and Dr. M.

Stanley Livingston Licensing Appeal Board Administrative Judge U.S. Nuclear Regulatory 1005 Calle Largo Commission Sante Fe, NM 87501 Washington, D.,C.

20555 Chairman, Atomic Safety Howard A. Wilber and Licensing Appeal Atomic Safety and Board Pane _

Licensing Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.

20555 Washington, D.C.

20555 Chairman, Atomic Safety Judge John H. Frye, III and Licensing Board Chairman, Atomic Safety and Panel Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.

20555 Washington, D.C.

20555

Charles A.

Barth, Esq.

David K. Martin, Esq.

Counsel for the NRC Staff Assistant Attorney General Office of the Executive Acting Director Legal Director Division of U.S. Nuclear Regulatory Environmental Law Commission Office of Attorney General Washington, D.C.

20555 209 St. Clair Street Frankfort, Kentucky 40601 Deborah Faber Webb, Esq.

7967 Alexandria Pike George E. Pattison, Esq.

Alexandria, Kentucky 41001 Prosecuting Attorney of Clermont County, Ohio Andrew B. Dennison, Esq.

462 Main Street Attorney at Law Batavia, Ohio 45103 200 Main Street Batavia, Ohio 45103 William J. Moran, Esq.

Vice President and Lynne Bernabei, Esq.

General Counsel Government Accountability The Cincinnati Gas &

Project /IPS Electric Company 1901 Q Street, N.W.

P.O. Box 960 Washington, D.C.

20009 Cincinnati, Ohio 45201 John D. Woliver, Esq.

Docketing and Service Clermont County Branch Office of the Community Council Secretary U.S. Nuclear Box 181 Regulatory Batavia, Ohio 45103 Commission Washington, D.C.

20555 Brian Cassidy, Esq.

Regional Counsel Federal Emergency Management Agency Region I John W. McCormick POCH Boston, MA 02109 Lb]b AJ 0Tl /k n

Ro5ert MF. Rade'r cc:

Robert F. Warnick Director, Enforcement and Investigation NRC Region III 799 Roosevelt Road Glen Ellyn, Illinois 60137 I

..