ML20066B922
| ML20066B922 | |
| Person / Time | |
|---|---|
| Site: | Zimmer |
| Issue date: | 11/03/1982 |
| From: | Webb D MENTOR, KY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8211090250 | |
| Download: ML20066B922 (24) | |
Text
. 3
~_
A g UNITED STATES OF AMERICA Og{G
. NUCLEAR REGULATORY COMMISSION Before the- Atomic Safety and Licensing Appeal Board.g7 g -8 NO.03 Administrative Judges .. ag, h7-f',fII[.GIYRVCE Alan S. Rosenthal, Chairman ' " "
cRANCH Stephen F. Eilperin Howard A. Wilber In the Matter of The Cincinnati Gas & Electric Docket No. 50-358 Company, g g .
(Wm. H. Zimmer Nuclear Power Station)
REPLY BRIEF OF INTERVENOR CITY OF MENTOR b
, Deborah Faber Webb Attorney for City of Mentor November 3, 1982 7855 Alexandria Pike Alexandria, Kentucky ,41001 l
"B2110902SO ' E521103 i PDR ADDCK 05000358 :
C PDR
~
. D S0 3 _
+
's TABLE OF CONTENTS f.agte Introduction............................................................. 1 S tat em ent o f th e C as e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 S tat ement of Is su es . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 S tat em ent of Fac ts . . . . . . . . . . . . . . . . . . . . . ................................5 A rgument of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 I. THE ATOMIC SAFETY AND LICENSING BOARD FINDING THAT THE STATE OF .
OFFSITE EMERGENCY PREPAREINESS DOES NOT PROVIIE REASONABLE ASSURANCE THAT, ADERUATE PROTECTIVE MEASURES CAN AND WILL BE TAKEN IN THE EVENT OF A' RADIOLOGICAL EMERGENCY IS SUPPORTED BY THE EVIDENCE (EXCEPTIONS 1-8)................................................................7 II. THE BOARD DID NOT ABUSE ITS DISCRETION BY FINDING THAT FURTHER
. PROCEEDINGS ON THE RECORD WERE NECESSARY ON SCHOOL EVACUATION ISSUES (EXCEPTIONS 10 , 11, 15 & 16 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 III. THE BOARD DID NOT ABUSE ITS DISCRETION IN REQUIRING THAT FEMA FINDINGS AS WELL AS THE STAFF SUPPLEMENT TO THE SAFETY EVALUATION REPORT BE FILED AND SERVED AND THAT'THE PARTIES BE GIVEN A REASONABLE TIME TO ASSESS THOSE DOCUMENIS AS THEY RELATE TO THE ADMITTED CON-TENTIONS(EXCEPTIONS 12 , 13 & 14 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 C o n clu s i o n . . . . . . . . . . . . . . . . . . . . . . .'~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 ALAB ISSUANCES CITED s Pacific Cas & Electric Company (Diablo Aenyon Nuclear Power Plant, Units 1 & 2) , ALAB-644, 13 NRC 903 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,18 LICENSING BOARD ISSUANCES CITED
,' Metropolitan Edison Company (Three Mile Island Nuclear Station, l
Unit 1) , LBP-81-59, 14 NRC 1211 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 & 3), LBP-81-36,- 14 NRC 691 (1981) . . . . . . . . . . . . . . . . . . . . . 14 TABLE OF OTHER AUTHORITIES ' CITED 10 CFR Part 2, Appendix A , V(f)( 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 10 CFR Part 2, Appendix A , V(g)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,20 10 CFR Part 2, Appendix A , VI(c )(3)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .' . 14 10 CFR Part 2, Appendix A , VIII(a ) . . . . . . . . . . . . . . . . . . . . . . ; . . . . . . . . . . . . . . . 14 10 C FR E5 0 3 3 ( g ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 10 C PR 0 5 0 . 47 ( a ) ( 1 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 ,16 10 CFR 55 0. 47 ( a ) ( 2 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 ,17 t
10 CFR 8 5 0 . 47 ( b ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 l
l -
e i
~
6 g 45 Fed. Reg. 42341 (June 24, 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 45 Fed. Reg. 55402 (August 19, 1980)................................. 15,19 45 Fed. Reg. 82713 (December 16, 1980)............................... 16 46 Fed. Reg. 28534 (May 27, 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 47 Fed. Reg. 30232 (July 13, 1982) . . . . . . . . . . . . . . .' . . . . . . . . . . . . . . . . . . . . 17 47 Fed. Reg. 30233 (July 13, 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17,18 NUREG-0654, Rev. 1 (November 1980) . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
=
9 e
9 4
e.
e e
e e
e l 9 O
l l
l 11 . _
'o INTRODUCTION
'Ihis is an appeal from the Initial Decision rendered by the Atomic Safety and Licensing Board.
The Honorable John H. Frye, III, Frank F. Hooper and M. Stanley Livingston pre-cided over this case. The Atomic Safety and Licensing Board found 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.
(Initial Decision, hereinafter I.D., p. 96).
Applicants appeal from this portion of the Initial Decision, Intervenor City of Mento is now filing this brief in support of the Initial Decision of the Atomic Safety and Licensing Board entered on June 21, 1982, denying an operating license at power levels in excess of 5% rated power for the Zimmer Euclear Power Station.
m.
k
\
4 l
l l
l l
l
- t STATEMENT OF 'IEE CASE his is an appeal from the Initial Decision rendered by the Atomic Safety and Licensing Board, the Honorable John H. Frye, III, Frank F. Hooper ard M. Stanley Livin6ston presiding.
The Initial Decision dealt with seven distinct contested issues. he portion of the initial decision appealed from concerns emergency preparedness planning.
Evidentiary hearings were held on offsite emergency planning contentions during the weeks of, January 25-29, February 2-5 and March 1-4, 1982.
On June 21, 1982, the Atomic Safety and Licensing Board entered findings of fact and conclusions of law on the application for an operating license filed by Cincinnati Cas and' Electric Company, ..
The Atomic Safety and Licensing Board founds (1) The requirements of .10 CFR Part 51 have been mets-b(2) he requirements of Section 102(2)(A), (C) and (E) of the National Environmental Policy Act have been mett (3) Control rods as manufactured and installed are capable of adequately performing their intended function:
(4) Cable trays as manufactured and installed are capable of adequately ,
parforming their intended function; (5) Cable trays for which additional fire protection is required have been wrapped in a material which was qualified to perform its intended function; (6) 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; (7) Offsite emergency response plans are not invalid by virtue of this in-corporation by reference of Standard Operating Procedures.
With respect to Conclusion of Law number 6 the Board imposed five license conditions.
l
. (I.D.,p.94). In addition the Board found that further proceedings are necessary with respect to evacuation plans for the Clermont and Campbell County Schools.
I i
l i
(I.D. , p. 48). he Board further ordered that the final FEMA findings which relate to the contentions admitted on November 25, 1981, and the Staff's supplement to the Safety Evaluation Report (hereinafter SER) related to said findings be filed and served cn all parties. The parties are then to be given an opportunity to assess those doca-E nts before a full power license would be issued. (I.D.,p.50).
The Board did authorize a license for low power operation at levels not to ex-ceed 5% of rated power. While the Board recognized that 10 CFR E50.47(a)(1) re-
/
quires that no license shall issue in the absence of a finding that there is a reason-able assurance that adequate and protective measures can and will be taken in the cvent of an emergency, the Board did allow the low level license pursuant to 10 CFR E50.47(c)(1).
The Board further found that imposing a. licensing condition yt.th respect to the cchool evacuation issues was not an acceptable approach as there was not a clear course of corrective action in that regard... The Board noted that the problem was a complex one and demanded the involvement of local officials. '
The Board also found that this case had come to hearing in advance of FEMA's final findings so as to accomodate the Applicants. The Initial Decision further re-flects PEMA's inability to address the contentions and confirms the statement by counsel for Applicanis that upon new, significant developments a resumption of the hrarings might be appropriate. After issuance of the Initial Decision Applicants ,
filed a Motion for Clarification and Reconsideration of the Board's Order. - On Au-gust 24, 1982, the Board issued a Memorandum and Order in response to Applicants' motion. That Order denied the relief requested by Applicants and further explains the Board's position with regard to final FEMA findings.
. g STA'IMENT OF ISSUES This case presents three issues for review:
- 1) Whether the Atomic Safety and Licensing Board findin6 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 in supported by tJe evidence. (Exceptions 1-9).
- 2) Whether,the Board abused its discretion by findings that further proceedings on the record were necessary on school evacuation. (Exception 10,11,15&16).
- 3) Whether the Board abusedits discretion by requirin6 final FEMA findings and the Staff's supplement to the SER to be filed and served on the parties and
. giving the parties'an opportunity to assess those documents as they relate to the admitted contentions before authorizing a full power license. (Exceptions 12, 13 & 11+) .
4 s.
o l
e STATEMENT OF PACT 9 The Cincinnati Gas and Electric Company (hereinafter Applicants), a public utility in the state of Ohio, applied for an operating license for the William H.
Zimmer Power Station (hereinafter Zimmer) for itself and as an agent for Columbus and Southern Ohio Electric Company and The Dayton Power and Light Company on Septem-ber 10, 1975, from the NRC. Appellee,IntervenorTheCityofMentor(hereinafter Mentor) [s a small town in Kentucky directly, across the river from the Zimmer site.
Mentor interened in the licensing proceeding on January 29, 1980, by virtue of 10 CFR02715(c). Mentor submitted several contentions regarding the sufficiency of offsite emergency preparedness plans. .All but four'of Mentor's contentions were later consolidated with the Intervenor Zimmer Area Citizens-Zimmer Area Citizens of Kentucky (her'einafter ZAC-ZACK) contentions. i
~
At evidentiary hearings held during the winter of 1982' the intervenors, Appli-cants, FEMA and-NRC staff were all represented' by counsel. Applicants are responsi-ble for submitting offsite emergency plans as a part o'f -their application..
Applicants hired the consulting firm of Stone & Webster who was closely in-volved with the development of the offsite emergency plans. et, Applicants con-sistently took the position that the emergency plans were a creature not in their control.
All'of the parties to the proceedings submitted pre-filed testimony and the hearing was held primarily for the purpose of cross examination rather than intro-duction of direct testimony. The plans, however, were introduced during the hearings, as " interim" plans and sponsored as Board exhibits.
FEMA testified at length regarding their review of the offsite plans. With few exceptions FEMA was unable to state any basis or underlying facts to support their " interim" findings.
Throughout the course of the proceedings many changes were made in the plans
. g in response to problems raised by intervenors. Some of these changes were incor-porated into the Board's Initial Decision as license conditions.
With respect to the school evacuation issue the Board made extensive finMngs 1
of fact which are well documented. (I.D. , pp. 67-76).
l 4
4 1
e e.
a e
9
ARGUMENT OF LAW I. THE ATOMIC SAFETY AND LICENSING BOARD FINDING DIAT THE STATE OF OFFSITE EMERGENCY PREPAREDNESS DOES NOT PROVIDE REASONABLE ASSURANCE THAT ADEQUATE PRO-TETIVE MEASURES CAN AND WILL BE TAKEN IN UG EVENT OF A RADIOLOGICAL EMERGENCY IS SUPPORTED BY DIE EVIDENCE.
1 Exceptions 2 through 8 allege that the Board made various errors in its findings related to the evacuation of schools within the 10-mile EPZ. Much of Applicants' discussion of these exceptions is a rambling and tiresome repetition of background) testimony and arguments that the Board recognized, , heard and duly considered in its Initial Decision and does nothing to support or illuminate the 2
exceptions. 31at which attempts to address the exceptions directly is unconvincing.
It must be emphasized that the record does not show that either the basic emergency
- plans for the schools or any implementing procedures have at any time been approved by Campbell County School officials. Although Applicants derive from Mr. Monroe's testimony that a final review of 'the plans was imminent and there should be ". ..no 3 ,
problem in finalizing school procedures. . ." ; Superintendent Sell, Deputy Super-intendent Reinhardt and Principal Voelker testified that "[wje' are not convinced that the Campbell County Radiological Emergency Plan is capable of implementation as far as our school district is concerned. . ." and ". . .the draft Standard Operating Procedures we have reviewed do not address any of the concerns which we have raised in our testimony". (See Direct testimony of Sell, Reinhardt.& Voelker+ p. 4-5 Tr. .
6371-6372). It must also be emphasized that Applicants' counsel has a proclivity towards interjecting unsworn testimony into the Appeal Brief. For examples see:
" Applicants in fact are working. . ." (p. 26), " Applicants noted. . ." (footnof,e 77,
- p. 36), "The two nearest schools. . . " (p.41), "The Applicants are continuing. . ."
(fo?tnote 86, p.41), " Radio communications could be established.. ." (footnote 87, 1 Applicants' Brief at 24, 25 2 'See, for example, Applicants' Brief at 27-35 and 42-45 3 Applicants' Brief at 35-36, footnote 77 d 1
p.42), "While the planners are making arrangements.. ." (p. 43), " Applicants do not believe..."(p.49). This Board has previously commented on this tendency of Applicants to attempt to introduce evidence ex parte. .(Memorandum and Order, August 24,1982).
I Exceptions 4 and 6 maintain that the Board found that the capability of simul-taneous evacuation of school children and certain two-way communications are required or necessary under NRC regulations and NUREG-0654. The Board did nothing of the sort. The Board noted a number of facts about school locations, populations and bus resources in Clermont and Campbell dounties. (I.D.,pp.72-75). Among these was the fact that "[t}he New Richmond school district does not possess a sufficient number of buses to simultaneously evacuate all students at the New Richmond and Monrcesites".'(I.D.,p.73 seealsoI.D.,p.33). Likewise, the Board noted a number of facts about communications generally and also specifically as related to .the schools of the two counties. (I.D.,pp.67-72), obviously, inrdequacies in b resources or ellocations, communications systems and related planning were large factors in the Board'c decision, but nowhere did the Board find that specific evacu-ation procedures or communications systems are required or necessary under NRC regu-lations and NUREG-0654. On the contrary, the Board refused to be involved in these specifics, saying, "We are charged with making findings with respect to the ade-quacy of plans, not writing plans." (I.D.,p.48). The Boa-d found that there are problems associated with school evacuation and school communications systems and l
that these problems are of sufficient magnitude to declare that the plans are in-adequate and incapable of implementation; it did not give any direction toward ,4
- s'olutions of the problems nor did it declare or suggest any requirements in this i respect under NRC regulations or NUR M -0654 (I.D.,pp.31-33).
In Exception 1. Applicants claim that "[t]he Board erred in finding that 'all .
of the population within 5 miles of the Station is to be notified within 15 minutes l
l i
4 of the declaration of a site emergency' ". They argue that the Board ". . .is 5
totally incorrect in stating that public notification would be required" during asiteemergency(orsiteareaemergency). Appendix 1 of NUR1!G-0654 establishes and defines four classes of emergency action levels, one of which is the site area emergency. Page 1-12 of Appendix 1 gives a general description of the site area emergency, states the purpose of the site area emergency declaration and lists actions to be taken by the licensee and by offsite authorities to fulfill the pur-
/
pose of a gsite area emergency declaration. Part of the stated purpose of the site area emergency is to " provide updates for the public through offsite authorities" (emphasisadded). One of the licensee actions is to "(dledicate an individual for plantstatusupdatestooffsiteauthoritiesandperiodicpressure(sic) briefings (perhapsjointwithoffsiteauthorities)". Actionsbystateand/orlocaloffsite authorities include the following: " Provide public within at least about 10 miles periodic updates on emergency status" and " Provide press briefings, perhaps with licansee" as well as "Recomend placing milk animals within 2 miles on stored feed...." Thus, public notification is clearly an unqualified. requirement during a site area emergency. Applicants also assert that "(t]here are a number of ex-amples of the ' site emergency' classification which involve no imminent or actual 6
release of radioactivit;ryhil:h would require public notification". Applicants understandably do not offer any such examples because none exists the declaration of a site area emergency explicitly requires that the public be informed as to the conditions of the emergency'. ,
In Exception 2, Applicants claim that "[t]he Board erred in finding that ' plans-have not been developed to mobilize school bus drivers and buses and other school
?
personnel if telephone service is curtailed or eliminated' ". Applicants state 4 Applicants' Brief at 24, 37 .
5 Applicants' Brief at 38.
6 Applicants' Brief at 38.
7 Applicants' Brief at 24 9
9
N g that ".. .the primary method of communications to bus drivers will be by telephone 8
from the various school systems" with the Prompt Notification Systems as a backup.
The difficulty here, of course, is that the Prompt Notification System is also a public notification system and public notification will nullify school evacuation procedures, which are predicated on the assumption that school systems will be
~
notified of an emergency (and presumably begin their emergency response) prior to 9
public notification. Also, the possibility that "...public officials could choose-to delay public notification in order to assure the orderly notification of the
.10 schools" would further assure that bus drivers, if they are dependant upon public notification for their notification, would be delayed even longer and probably de-r feated in their emergency response efforts. The possibility that bus drivers may.
not be accessible during non-driving school hours was noted by the Board lout not considered by Applicants. (I.D.,p.72). Thus the Board's finding was ' completely appropriate within the context of.the planning assumptions. ,
b Busing procedures and related communications are also the subject of Exception 3, which states, "The Board erred in finding that plans have not been developed to deal with the problems presented if buses are in the process of transporting stu- s
. 11 i
dents when the decision to evacuate is made." Applicants propose two possible l
j, ways that drivers can learn of an emer6ency if one is declared while buses are en route, by hearing the Prompt Notification sirens or by "...being notified of the 12 situation by a parent or other person en route...." Each of these methods pre-sents essentially the same problema discussed in relation to Exception 2; activa-i tion of the Prompt Notification sirens would not. allow the head start for schools anticipated in the plans and would make impossible the prompt and orderly evacuation of school children and notification ofidrivers by residents along the bus routes presupposes a number of favorable chance factors, among which are the availability l
8 Applicants' Brief at 42.
! 9 Applicants' Brief at 37.
10 Applicants' Brief at 40.
11 Applicants' Brief at 24.
12 Applicants',Brief at 45 i
i
_ N
\
\of usable telephone lines and that residents are at home and able to perform the notification of drivers. In addition, Applicants have ignored the effects of the time involved in completing a large number of telephone calls and the fact that such calls amount to a public notification of an emergency that could result in a telephone overload that would preclude notification of all drivers by this method. In short, the simplism of Applicants' " plans" reduces them to an obvious absurdity and the Board had ample reasons for its finding.
/
Exception 5, in which Applicants claim that "[t]he Board erred in finding that sufficient buses are not available to evacuate all the students in the New 13 Richmond School District within the EPZ ' simultaneous 1y'" is somewhat related to Exception 4, discussed above. Applicants do not say here that the Board in any sense required simultaneous evacuation' of these school children but seem to be saying that it has been shown that both the number of buses available and the cir-cumstances of, their availability are such that neither is a limiting factor if school authorities shoul'd choose simultaneous evacuation as a protective action for school chi.1dren. Applicants do not attempt to dispute the Board's ' finding that all of New Richmond School District's buses ". . .would be able to evacuate less than three-quarters, of the district's students in the EPZ at one time", (I.D.,p.73).
Applicants, instead, prefer to say that the district has sufficient buses to evacu-14 ate one school and that "(t]he school systems requiring additional resources have contacted other school systems to assure the availabflity of additional buses to respond to the schools if needed" (emphasis added). The Board found that " . . .the number of buses and specific arrangements with West Clermont are unclear", that despite Applicants' testimony ". . .that 17 buses are avilable from West Clermonts the New Richmond school officials had no direct knowledge of the number available" and that'"...these buses could not be of assistance during busing periods". (I.D.,
13 Applicants' Brief at 24.
14 Applicants' Brief at 43
- I p.73). Applicants merely discuss the possibility of using outsitie resources to
, 15 effect an evacuation of schools without double runs but neglect a time delay factor which could be inherent in the logistics of bringing buses in from outside the school district and which could preclude the simultaneous evacuation of school children to which this exception alludes. The Board found that there are not enough buses in the New Richmond district to evacuate its school children simultan-eously, not that there are not enough buses somewhere, and, without mentioning simultaneity, notes that time is a factor in an evacuation, that it takes time for buses to travel from other districts to the New Richmond district and that "(w)hile...
at least some consideration has been given to this problem, there is no plan pro-vision or letter of agreement dealing with it". (I.D.,p.73).
In Exceptidn 7 Applicants allege that ".. . [t]he Board erred in finding that two-way communication among school officers and personnel during a Zimmer emergency
. 16 is presently limited to the.use of commercial telephones." Applicants state that "b)heuseofcommercialtelephoneistheprimarycommunicationmethodreliedupon 17
, for implementation of school emergency procedures..." and have nothing substantive to say about alternate communications systems to support their allegation. Al-though Mr. Badger's Secret System was considered and rejected by the Board, Appi-18 l cants drag it out again and insist that it will work. (I.D.,pp.67-68). No i 19 matter, because it is merely something Applicants have proposed : there is no evidence that.the Secret System is installed, in use, and.provides an alternative to the present limitation. SimilarlyApplicants'suggestionsthat"[vjolunteer radio personnel may be available...(and)...[r]adio communications could be estab-20
- lished...by police car..." (emphasis added) are paper proposals. The Board i
questioned the effectiveness of the former. (I.D. , p. 69) . The possibility of I
l the latter, given the load of other assignments of police personnel during an 15 Applicants' Brief at 43 16 Applicants' Brief at 25 17 Applicants' Brief at 37 18 Applicants' Brief at 40-41. '
l 19 Applicants' Brief at 40.
20 Applicants' Brief at 42, footnote 87 I
- l emergency, has never been established.
In Exception 8 Applicantr. state that the Board did not make specific findings to support its conclusion regarding the time factors involved in the evacuation of school . (I.D.: p.32,p.73,p.75). One of the basic concepts in the plan-ning for school evacuation, about which there is no disagreement, is that schools should be notified of an emergency and begin their emergency response before pub-lic notification. The Board found that, although school _ officials, planners and
/
Applicante agree that it might be necessary in an emergency to bring outside buses into the New Richmond district, "...there is no plan provision or letter of agree-ment..." dealing with the logistics problem and that there is no indication in the record that the basic planning concept can be implemented in any meaningful way.
(I.D.,p.73). In Campbell County the Board found ". ..it will take one hour from initial notification to evacuate until the boarding of Jolly students on the buses." (I.D.,p.75). On the basis of these findings and the requirements for public notification discussed in connection with Exceptiori 1, the Board's state- -
ment that "[t]his leaves too little time to accomplish more than initial notifi-cation to the schools prior to public notification. .." is completely justified.
(I.D.,p.32).
9 x
1 II. THE BOARD DID NOT ABUSE ITS DISCRETION BY FINDING 'IHAT FURTHER PRO-CEEDINGS ON THE RECORD WERE NECESSARY ON SCHOOL EVACUATION ISSUES. (EXCEPTIONS
- 10, 11, 15 & 16).
The Atomic Safety and Licensing Board in this case was charged with the duty to make a firiding on whether or not there is a reasonable assurance that adequate protective measures can and will be taken in the event of an emergency. 10 CFR
~
550.47(a)(1). Based on the present record the Board was unable to find that such measures could and would be taken. See generally I.D.
This duty charged to the Board goes beyond a mere checklist determination of whether the plan meets the criteria of 10 CFR a50.47(b)'. Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-81-36,14 NRC 691, 698 (1981). As the Board noted in its Initial Decision at page 47:
~
As a general proposition, issues should be dealt with in the hearings andnotleftoverforlater(andpossiblymoreinformal) resolution....
But the mechanism of post-hearing resolution must not be employed to ob-viate the basic findings prerequisite t,o an operating license--including a reasonable assurance that the facility can be operated without endanger-ing the health and safety of the public....In doubtful cases, the matter b framework prior to issuance of licenses, shouldberesolvedinanadversary(Citesomitted).
reopening hearings if necessary.
10 CFR Part 2, Appendix A entitled STATEMENT OF GENERAL POLICY AND PROCEDURE:
, CONDUCT OF PROCEEDINGS FOR THE ISSUANCE OF.. 0PERATING LICENSES...further expands on the Board's powers and responsibilities. The Board is' charged with the ulti-mate responsibility to:
i Independently consider the final balance among conflicting factors contained l in the record of the proceeding with a view to determining the appropriate l action to be taken. 10 CFR Part, 2, Appendix A, VI (c)(3)(ii). See also 10 1
CFR Part 2, Appendix A, VIII (a).
Further:
If, at the close of the hearing, the Board should have uncertainties with respect to the matters in controversy. . .and. . .the uncertainties arise from I
lack of sufficient information in the record, it is expected that the board would normally require further evidence to be submitted in writing with op-portunity for the other parties to re g further evidence, _as appropriate emphasis (ply or reopen added).the 10 hearing CFR Partfor the taking
- 2, Appendix A,V(g)(1).
l The lack of evidence with respect to the school issues was the lack of any
. N written plan and the serious deficiencies in the Applicants' " implementation con-cepts". (See I.D. , Findings of Fact, pp. 67-76).
The Board's Findings of Fact are exhaustive and well-supported. The relief the Board fashioned for the school evacuation issues was warranted and well within its discretion. The Board in a well-reasoned decision clearly stated why further
~
proceedings were necessary and why a license condition could not be satisfactorily imposed. (I.D.,p.45).
f Applicants contend that, since plans existed and since " concepts" were avail-
\ .
able for the implementation of those plans, nothing more is required. Applicants suggest that staff can review the plans and that a license condition to this effect
~
could take the place of further hearings. What Applicants really suggest-is that these issues be treated as if they were uncontested. See 10 'CFR Part2, Appendix A,V(f)(2).
Such a suggestion is so far '. afield one can only wonder what the Applicants thought was the purpose 'of the hearing . Applicants' proposed solution ignorea ._
the Findings of Fact made by the Board, the duty the Board is. charged with and the concepts of due process. Applicants,despite the regulations, do not under-stand that it bears the burden of proof in licensing hearings 45 Fed. Reg. 55402 August 19,1980).
To be more blunt, what Applicants really argue is that they lost, that some-21 how this is unfair and therefore the Board erred. As at least one Appeal Board has hal.occas$on to note ,
The resolution of issues of fact in favor of one side suggests neither bias nor error on the tribunal's parts without more, the appropriate inference is that the evidence of the prevailing party was more persuasive. Pacific Gas & Electile Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
ALAB-6%,13 NRC 903 (1961).
l l
l .
21 Applicants' Brief at 15 l
-Ab
t III. THE BOARD DID NOT ABUSE ITS DISCRETION IN REQUIRING THAT FEMA FINDINGS AS WELL AS THE STAFF SUPPLEMENT TO THE SAFETY EVALUATION REPORT BE FILED AND SERVED AND THAT THE PARTIES BE GIVEN A REASONABLE TIME TO ASSESS THOSE DOCUMENIS AS THEY RELATE TO THE ADMITTED CONTENTIONS. (EXCEPTIONS 12, 13 & 14).
As previously discussed, the Board is charged with the duty of making a find-ing,of whether there is a reasonable assurance that protective measures -
are adequate and capable of being implemented. 10 CFR f350.47 (a)(1). The Board is in part to base its findings on a review of FEMA's findings as to whether state and local plans are adequate and capable of implementation. 10 CFR 850.47 (a)(2).
Furthermore, FEMA findings merely constitute a rebuttable presumption in NRC pro-ceedings. id.
Applicants challenge the' Board's authority to require final findings of FEMA before it will issue an operating license. The Commission noted in their Policy Statement that "[f3 airness to all involved in NRC's adjudicatory procedures requires that every participant fulfill the obligations imposed by and in accordance with
~
applicable law and Commission egulation." 46 Fed. Reg. , p. 28534.(May 27,1981).
b FEMA, as a participant, is charged with the obligation "for. making findings and determinations as to the adequacy and capability of implementing State and-
. local plans, and to make those findings and determinations available to NRC."
Memorandum of Understanding between NRC and FEMA relating to Radiological Emer-gency Planning and Preparedness, 45 Fed. Reg. , p. 82713 (December 16,1980). NRC, a participant in turn is charged with the obligation of making determinations on the overall state of emergency preparedness for issuance of an operating license.
45 Fed. Reg. , p. 82713 (December 16,1980). Such findings and determinations and, where appropriate, plan approvals are to be stbmittedio the Governors of the af-fected States and to the NRC for use M licensing proceedings of the NRC" (em-phasis added). 45 Fed. Reg. , p. 42341 (June 24,1980).
Since FEMA with few exceptions could not offer expert testimony on the ad-mitted contentions and since FEMA had not made final findings, the Board had 16-
- s, i nothing on which to base its review. As previously discussed, the Atomic Safety l
and Licensing Board is afforded some latitude of discretion and flexibility in li-censing procedures. Obviously this is the legal basis for the Board's decision that final FEMA findings must be filed and served upon the parties.
Applicants again would treat this case as if.it were uncontested and no con-tentions existed. They argue in effect that a licensing board does not'even have 22 the duty to consider FEMA findings. Quite to the contrary, the Licensing Board
/
has a nondelegable duty to do so. See Metropolitan Edison Company (Three Mile IslandNuclearStation,UnitNo.1),.LBP-81-59,14NRC1211,1419(1981). One can-not help but wonder again if Applicants understand what due process means and what Applicants though was the purpose of having FEMA testify. As was asked repeatedly 1
. by Intervenors' ' counsel at the hearings, "Where, other than a hearing before Atomic Safety and Licensing Board may any party be in a position to rebut that presump- ,
tion of adequacy found by FEMA?" (Tr. , p. 7402: see also p.7401, p. 7403, p. 7406).
Applicants' next argument alleges that by virtue of the amended 10 CFR f550,47 (a)(2)effectiveJuly 13, 1982, that NRC may make licensing decisions prior to FEMA findings. Since the effective date of the amended regulations is after the render-ing of the initial decision the commission may choose to ignore Applicants' argument
!, in this regard in its entirety. The change in the regulations merely states that I FEMA is.not required to make findings before issuance of a low power (5% of rated power) license and that emergency preparedness exercises are not required.before authorizing a low power license. 47' Fed. Reg. , p. 30232 (July 13,1982). The Commission in so adopting the final rule was careful to point out
. . .the Commission does not alter the high standards applicable to the review of emergency preparedness at full power.... The substantive emergency planning issues now being litigated in license hearings are largely focused on the 16 planning standards found in 10 CFR 50.47(b).
These planning standards are unchanged by the rule changes and do not, in themselves, require a successful exercise. 47 Fed. Reg. 30232,30233 (1982').
22 Applicants' Brief at 11. -
s t
Moreover, exercises are still required before a full power license is issued. 47 Fed. Reg. , p. 30233 (July 13,1982).
Therefore, this intervenor fails to understand any substantive conflict in these regulations. Pursuant to commission precedent, regulations, like statutes, may neither be read in isolation nor interpreted piecemeal. Pacific Gas & Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-644,13 NRC 903, 904-95(1981). To give a n the regulation's effect and a reasonable interpreta-tion in this gentext is not an insurmountable task as Applicante auggest.
The new regulation does not change the Board's duty or the process in which the Board discharges its duty or the obligation of FEMA to make findings. The new regulation does not change the rebuttable presumption given to FEMA findings. It does not change "the requireraent of an exercise before issuance of a full power li-cense. It merely allows for issuance of a low power license without FEMA findings or an exercise. -
b The rest of Applicants' argument in support of Exceptions 12,13 and 14 again l
l shows a misunderstanding of where the burden of proof lies and the fundamental l
function of the B;ard as a trier of fact. Applicants correctly deduce that FEMA failed utterly in that role. Applicants then characterize their own testimony, that of Staff and that of state and local planners as independently persuasive.
Obviously such testimony was not independently persuasive. Applicants do not mention the testimony of intervenors' witnesses: Gene Sell, Superintendent of Campbell County Schools, Richard McCormick, Eastern Campbell County Volunteer Fire Department Fire Chief, et al. In short, Applicants argue that because FEMA could n6t support its conclusions, the Board imposed an additional burden on the Appli-cants. The Applicants have always had the burden of. showing by a preponderance of evidence'that there was a reasonable assurance that adequate and protective measures can and will be taken in the event of a' radiological emergency. FEMA
__- _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - _ - - _ _ -M-
i.
does not want a licenses the Applicants do. FEMA is not required to submit off-site emergency plans as part of an application, but Applicants are so required. 45 Fed. Reg. 55402 (August 19, 1980): 10 CFR E50.33(g). Applicants simply did not meet their burden of proof.
Applicants next argue in a somewhat strange manner that the Board improperly .
~
eliminP'.., the legal requirements for reopening the record by allowing the parties an opportunity to comment on the final FEMA findings and assess those findings as ,
/ i they relate t,o the admitted contentions. l Since the Applicants were denied an operating license it would be logical that if and when upon some date in the future Applicants have justification to b,elieve that the matter of offsite emergency-preparedness and planning does provide some
, reasonable assurance that the health and safety of the public can be protected, ,
then Applicants can move for a reopening of the record and suggest that they can then demonstrate that the public is protectek. Under that circumstance, then Applicantscandischargekheburdenof,showingthattheirsmotion'istimely,after laving involved the Atomic Safety and Licensing Board and the intervenors in a hearing i.
held to determine the adequacy of offsite plans: demonstrate that the issue involves: <
a significant safety issue, the protec' tion of the public through adequate offsite planning and the further necessity to the Atomic Safety and Licensing Board that a different resul't would have ieen reached initially had the new plans and the new considerations been submitted in the first place and subjected to consideration.
r However, this is not what Applicants suggest. Rather Applicants urge that the the intervenors must seek further hearings under the strict standard applicable to Motions to Reopen. ' The logic of this argument escapes this intervenor as it was Applicants who failed to meet their burden of proof and Applicants who sought an early hearing in order to accomodate their 1'uel load date. (I.D.,p.48).
Moreover, it was counsel for Applicant who emphasized before and during the hearing that if there were significant new developments it'would be proper to e
._ __ .. __ __ _ _ -19 -
reopenthehearings.(Tr.pp. 7050-51).
As has been previously noted, if at the close of the hearing the Board .
feels that the record is deficient because of a lack of information the Board may require further evidence to be submitted in writing allowing all the parties '
an opportunity to reply. The Board my also reopen the hearings. 10 CFR Part 2, AppendixA,V(g)(1). This-is exactly what the Board did when fashioning the relief in this case. The Applicants simply do not like theresult.. For the foregoing reasons the exceptions should be denied.
4 9
e h
e.
9 O
e.
. , . ~
~;
, . G:
./ * , . .*
UNITCD STATES OF AMP.RICA s . . s
' .l1
?' t T O t
NUCLEAR flECULATOM COMMISSION - . .- -}
-g m g.. __
. g- ~,m ; ";qG.C-
.~-
,,.A. -
-) g.,
p t.g e. , s. . . .
c,-
- ,- 3. - . .s
- ii In the Matter of - .
u
'. +.'. ~ -
- j; g .
g;%;gg ,.
32 s9 ,
E Ek
... ^
- . ,h.lg; , CINCINNATI CAS & EIECIRICT L- - *.'.. I%,,,8 %.,. M.DOCIET NO. u- ' 50-358 ., * - =
- ; n' CCHPANY, et a1.
s- ~
s.,..'.,
3-9 C:t C : N. M ..d. . <.?-ilM
.:/ .,j[
L-N "$;';.T.M (William H." Zimmer Nuclear -
M [ 2.'[ M ht.Nkkk .. .
h,57,';
t- ,4 4;- t #"*"
Y..)a.Y1 , +.
'.',. f;T ;
'****.y;
~ f .p'..J -., - -
. CERTIFICATE OF SERVICE J.- '
A,/. ~ n 8 e '- 3.. M c,W' - . Y ' i.y. . c pg L
( pf 4 - ,
I r4 {' QI hereby certify that copies 'of. REPLY.BRIEF 0F-lINTERVENOHrCITY OF, MENT 2R.innenbove- ~
as , y . cap ,' tioned proceeding lass or, 'as indicated .,n have been served on the c.following by. , asterisk. hand delivered :on.
by d,eposit' November /3,,;.1982.7.
in ;theM. Uni
- g4.:.. y
{ ', mail,, - fir,st w p& . w, , ;. gg,_ -
9 . . , , , .m . ,. ..; ;y, .n ,
~y g r
~1 q
'.? ; ; , 30 ard A. Wilber"m' q:.: iw y e.nk',p ;,4
~ -
e#'. Brian Cassidy, E69 % C Stephen ~F. Eilperin.~ .;.t -
,y dt AtomicSafetyand,.',.-h',,qy.
'". y;f!.J.. , y ;
D.W R:gional Counsel N e/s $' h Atomic Safety and " . ..
M' 2'#'7cderal Emergency i
{N,1- Licensing Appeal Board Licensing Appeal',,. Board : 'l p','gdr,y j ,.J
^
. d, Management.Agenc $' Q U.S.'
Nuclear Regulatory K. '
U.S. Nuclear. Regulatory .
f u . / .r.,
~.-!
. Region I
~ .3 Commission c ?. . Commission .;;J. ; r .:
Jchn W. ,McCormick POCH . Washington, D.C. 20555 p Washington,'D.C. 20555_; *
~ ~
Bocton#, MA 02109
~ ' @ /.1-John H. Prye, III, Esq.. .
. Troy N. Conner, Esq. Je ?"- .
Chairman, Atomic Safety & Licensing BoardV b Conner, Moore & Corbet - ef > .
U.S. Nuclear Regulatory Commission g P1747 Pennsylvcnia Aveme, N.V. ' O ,;.'9 Vashington, D. C. 20555 )Vashington,D.C. 20005 yg?~+,:,-
. w Villiam J;.Morsn, Ecq.
'*~M Dr. Frank P. Hohper -
Atomic Safety & Licensing Board - '.3 Ceneral Counsel, Cin'ti, Can & Electric Co. ., ' '~N
- O School of Natural Resources . P.O. Box 960 -
University of Michigan
~'
w Cincinnati, Ohio 45201 .Ta Ann Arbor, Michigan 48109 ,'.. ~ '[ George Jeth 'E's'q. ~
ca'* John D. Voliver, Esq. ! General Counsel Dr. H. Stanley Livingston . :~ iFederal Emergency in.
.',' P 550 .OKilgore . B ox 47. Street Atomic Safety & Licensing Board -l500C. Street,S.W. Management 1005 Calle Largo . ,' Batavia., Ohio . 45103 ;
Sante Pe, New Mexico 87501 L Iwashington, D.C.. 20742 ;;;.g
' *' Ceorge E. Pattison, Esq. ~ ~ ~ -
.- m,---e y 6 Docketing and Service Section ' 4 462 E. Main Street
, 7 ,'
Office of- the Secretary :Batavia Ohio; 45103 ,
- U.S. Nuclear Regulatory Commission , :
'Lynne Bernabei, Esq.
Washington, D. C. 20555 ,
' ) .Government Project /IPS Accountability Charles A.,Barti., Esq. r1901 Q S'reet, t N.W. -
U.S. Nuclear Regulatory Commission Washington, D.C. 20009 ,
Room FNBB 9604 Ihvid K. Martin, Esq. ,. ,
7735 Old Georgetown Road Esthesda, Maryland 20014 ~0ffice of the Attorney General .- . , ,
-e 209 St. Clair Street Atomic Safety & Licensing Appeal Board Frankfort, Kentucky 40501 ,
U.S. Nuclear Regulatory Commission ,
..Vashington, D. C. 20555 ~
- Andrew B. Dennison 200 Main Street Atomic Safety & Licensing Board Panel Batavia, Ohio , 45103 U.S. Nuclear Regulatory Commission Vashington, D.C. 20555 -
Alan S. Rosenthal, Chairmaa Atomic Safety and Licensing. -
Appeal Board -f y U.S. Nuclear Regulatory Commission /. / [ /(/f, 9 g. [ g-
. Washington, D.C. 20555 ,
' -~ --'
Deborah Faber Vebb 7855 Alexandria Pike Alexandria, Kentucky 41001
/MMornen 'for Intervenor City of Mentor ,
i g CONCLUSION For the foregoing reasons, the Board's Initial Decision should be affizzed in its entirety. *
'Nmetsber 3,1982 .2[ft/)(
DEBORAH FABER WEBB Attorney for City of Mentor 7855 Alexandria Pike Alexandria, Kentu~cky '41001 i (606) 635-5753 e.
s.
4
- J 9
6 9
4
~21"