ML20066B927

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Brief Opposing Applicant 820903 Revised Exceptions to ASLB 820621 Initial Decision.Initial Decision Should Be Affirmed in All Respects.Certificate of Svc Encl
ML20066B927
Person / Time
Site: Zimmer
Issue date: 11/03/1982
From: Dennison A
DENNISON, A.B., ZIMMER AREA CITIZENS - ZIMMER AREA CITIZENS OF KY
To:
NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8211090254
Download: ML20066B927 (43)
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t l DC KElE0 l UNITED STATES OF AMERICA.82 K0y -8 N0:47 j NUCLEAR REGULATORY COMMISSION  :

BEFORE THE ATOMIC SAFETY AND LICENSIN'GEdPP A ADMINISTRATIVE JUDGES ALAN S. ROSENTHAL, CHAIRMAN STEPHEN F. EILPERIN HOWARD A. WILBER In.the Matter of  :

CINCINNATI GAS AND ELECTRIC  :

COMPANY, ET AL.  : DOCKET NO. 50-358

' (William H. Zimmer Nuclear  :

Power Station)  :

BRIEF IN OPPOSITION TO APPLICANTS' REVISED EXCEPTIONS RELATING h' AND LICENSING BOARD,TO S JUNETHE 21,ATOMIC SAFETY 1982 INITIAL DECISION SUBMITTED ON BEHALF 0F ZIMMER AREA CITIZENS-ZIMMER AREA CITIZENS OF KENTUCKY INTERVENOR November 3, 1982 Andrew B. Dennison 200 Main Street Batavia, Ohio 45103 Counsel for Intervenor Zimmer Area Citizens-Zimmer Area Citizens of Kentucky

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  • 1 TABLE OF CONTENTS
  • Page Preliminary Statement 1 Statement of Facts 5 Argument Exceptions 1 to 9, inclus.ive 18 Exceptions 10 to 11, l$rto 16, inclusive 24 f Exceptions 12 to 14, inclusive 29 Conclu'sion 38 TABLE OF CASES CITED Armstrong v. Minzo, 380 U.S. 545 (1965) 29 Chicago, M. & St. P. Ry. Co. v. Minnesota, 10 S.Ct.'462 (1890) 29 Morgan v. United States, 298 U.S. 468 (1936) 29 Shields v. Utah Idaho Cent. R. Co., 305 U.S. 177 (1938); 29 Southern Ry. Co. v.' Virginia, 290 U.S. 190 (19'43) 29

.ALAB ISSUANCES CITED Offshore Power Systems (Floating Nuclear Power Plants),

ALAB-489, 9 NRC 194 (1978) 25 LICENSING BOARD ISSUANCES CI'TED Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-81-36, 14 NRC.691 (1981) 21,27 Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-82-39, 15 NRC 1163 (1982 20,21,25,26 35,36 NRC REGULATIONS CITED 10 C.F.R. S2.732 28 10 C.F.R. Part 2, Appendix A 25,28 10 C.F.R. 5 0. 33 (g) 19,28,35 10 C.F.R. 50.47 27,28,30,32 35 i

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t Page 10 C.F'.R. Part 50, Appendix A 20 FEMA REGULATION CITED 4 4 . C . F' . R . Part 350 31 44 C.F.R. S350. 3 (e) 32 MISCELLANEOUS Commission's Statement of ' Policy on Conduct of Licensing Proceedings, 46 Fed. Reg. 28533 - (May 27, 1981) 24 Crieria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in

  • Support of Nuclear Power Plants, NUREG-0654, Rev. 1 (November 1980) 21,22 l

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e UNITED STATES OF AMERICA ~

NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of  :

CINCINNAT GAS AND ELECTRIC  :

COMPANY, ET AL.  :.

(William H. Zimmer Nuclear  : DOCKET NO. 50-358 Power Station)  :

o BRIEF IN OPPOSITION TO APPLICANTS' REVISED EXCEPTIONS RELATING AND LICENSING BOARD,TO THE S' JUNE ATOMIC 21, SAFETY 1982 INITIAL DECISION SUBMITTED ON BEHALF OF ZIMMER AREA CITIZENS-ZIMMER AREA CITIZENS OF KENTUCKY

.INTERVENOR PRELIMINARY STATEMENT The Atomic Safety and Licensing Board issued its initial decision in this case on June 21, 1982, follbwing.a three-week hearing (January 26-29, February 2-5, March 1-4, 1982) on the contested issues raised by the admitted contentions. Parenthetically, previous hearings were conducted on other contentions and the board's initial decision ruled favorably to applicants (herein referred to in the singular) on those issues; thus, this brief will deal only with the offsite emergency planning contentions and which were the subject matter of the January-March, 1982 hearings. Based upon the board's findings of fact supported by reliable, probative and substantial evidence as required by the Administrative Procedure Act and the Commission's Rules of Practice, the board concluded in para-graph 6 of its conclusions of law that the state of offsite emergency preparedness does not provide reasonable assurance that adequate pro-tective measures can and will be taken in the event of a radiological

t emergency. The board, by its order, retains jurisdiction of this matter to conduct any further proceedings which may become necessary as a result of the board's ruling set forth in the course of its initial decision. .

Applicant filed exceptions to the initial decision on July 7, 1982, and moved and was granted a tolling of the scheduling order during the pendency of applicant's motion for reconsideration. On August 24, 1982 the board denied applicant's motion for reconsid-eration reaffirming its initial decision. Applicant filed its revised exceptions to the initial decision on September 3, 1982, giving rise to this appellate review.

This intervenor was designated lead intervenor to litigate the offsite emergency _ issues raised by the admitted contentions.

b As the record reflects, and the findings of fact support, leading to the board's rationale and conclusion of law, the state of the offsite emergency plans simply did not present a reasonable assur-ance that the public would be adequately protected in the event of a radiological emergency at the Zimmer station. To illustrate, the local plans failed to provide for adequate communications with emergency response personnel for the evacuation of school children or adequate means to safely evacuate those children. While volun-teers were assigned significant emergency response roles within the plume exposure pathway of the Emergency Planning Zone, those plans failed to assess the number of personnel available at any I

given time to respond to a radiological emergency, failed to account for those volunteers who would or would not respond, and failed to consider portions of the population which would.not follow directions, 4

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failing to consider.the number of additional response personnel necessary to compensate for that factor. The plans further failed to provide sufficient information as to the capabilities to implement transportation of the, physically handicapped.

This appeal presents a novel challenge to an adverse ruling on afsignificant safety issue: the adequacy of offsite emergency plann'ing. Applicant ignores its nondelegable duty to submit for licensing board review radiological emergency response plans of state and local governmental agencies within the plume exposure pathway of the Emergency Planning Zone which require a finding that the state of offsite emergency preparedness planning provides a reasonable assurance that adequate protective measures can and will be taken in the event of. a radiological emergency as required by 10 C.F.R. SS50.33(g) and 50.47. Applicant' fails to recognize

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the licensing board's duty to consider the Federa1 Emergency Management Agency's (FEMA) review and determination of the adequacy of offsite emergency plans, including FEMA's discharge of that duty, to provide a sound and complete record. Applicant's position on appeals does not consider the citizen-intervenor's right to a fair and full hearing to confront FEMA,and other, witnesses on the adequacy of offsite emergency plans. Applicant disregards the licensing board's findings of fact presenting the firm foundation

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for the board's rationale leading to its conclusion of law and order.

The essence of applicant's appeal is that in its inability to discharge its nondelegable duty of providing offsite emergency plans which present a reasonable assurance that the community can i

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1 and will be protected, that factor is of no concern and further hearings on the issue are not necessary. That position subscribes to an approach that intervenors are entitled to only a token

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evidentiary hearing.

The disturbing aspect of applicant's argument is the total inability to recognize that it failed to prevail in the hearing considering the adequacy of offsite planning, coupled with appli-cant's thrust that no further hearing is required, no opportunity must be presented for this intervenor's confrontation of FEMA, and other, witnesses, and that no fair and thorough hearing leading to a high quality decision by a licensing board is required before authorizing a full power operating license. Applicant advocates t

the foreclosure of 'the hearing process, subscribing to an inadequate h

record for the issuance of a full power operating license, and seeks to deprive this citizen-intervenor of its right to due process of law within the hearing process.

The licensing board has committed no error and support of applicant's arguments requires disregard for rule, regulatory guide and Commission policy.

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STATEMENT OF FACTS The applicant's his'orical t presentation of the licensing process in its Statement of Facts fails to set forth any factual statement of the January-March, 1982 licensing board hearing which is the subject matter of this appeal. The facts supporting the initial decision, as pertinent to this appeal, follow.

TThe facts found concerning the inadequacy of school emergency planning for Ohio and Kentucky schools situated within the plume

, exposure pathway zone are set out as findings of fact numbers 39 through 66 at pages 67 through 76 of the initial decision (here-af ter designated I. D. ) .

School bus drivers are considered emergency response personnel.

(I.D. 27). Two-way communication among school personnel during a radiological emergency is limited to the use of commercial telephone, in which ten percent use by subscribers results in an overload and no calls can be completed. (I.D. 67) . The telephone systems sup-plying communications to the areas of Clermont County, Ohio, and Campbell County, Kentucky, involving schools within the plume exposure pathway zone are subject to overloading during emergencies, in which parents telephone the schools in sufficient volume to overload. (I.D. 67, 69-71). .

The licensing board found applicant's submission of the

. " Badger Secret Sys tem", notification of the schools prior to public notification, providing'the schools with NOAA, and similar one-way, radios, and the amateur radio operators, in part presented during hearing and in part presented by plan, to be inadequate to support school emergency. communications. (I . D. 6 7- 9 ) .

t No involved school has more than four telephone lines, some l 1

have only one or two lines and one school district must rely on  ;

long distance trunk lines for communications with the Emergency.

Operations Center, Emergency Operations Facility and county school superintendent. (I.D. 69).

The plans make no provision for communications with school bus drivers and school personnel in the event that telephones can not be used. (I.D. 68-9, 71). The New Richmond, Bethel-Tate 2

(Clermont County, Ohio) and Campbell County (Kentucky) school 1

1 districts have no reliable means of communications with bus drivers l'

enroute to or from the respective school. (I.D. 71). School buses servicing the aforestated schools are parked during the school day

- 'at drivers' residences.or other non-school sites and communications b

to mobilize the drivers is limited to commercial telephones and broadcast media, in which the drivers during non-driving school hours' are involved in other employment or leisure pursuits and may not be accessible. (I.D. 71-2).

1 The New Richmond school district has schools located at two l

different sites, 5 and 6.8 miles north of the Zimmer station con-sisting of 2052 students, 99 percent of which are transported by school bus. (I.D. 72-3). .This district has 20 school buses with a maximum capacity of 71 passengers each, and each bus travels three l

routes in the morning and again in the evening to transport students.

(I.D. 73). The district does not possess a sufficient number of buses to simultaneously evacuate all students at the exposed school j

sites, in which the use of all buses permits evacuation of less l

! than three-quarters of the students within the EPZ at one time.

(I.D. 73).

y -O Arrangements have been made for the West Clermont School District, approximately 10 to 15 miles distance, to provide additional buses to aid student evacuation, in which 17 buses are available from that district; h,owever, the number of buses and specific arrangements are unclear, New Richmond School officials had no direct knowledge of the number of buses available, and thesel buses would not be available during normal busing periods, j in which the record fails to indicate whether appropriate con-

, sideration has been given to the issue of these West Clermont buses being able to timely evacuate New Richmond School children because of the time required for those buses to reach the New

Richmond school sites and no plan provision or letter of agreement
is present in the , record. (I.D. 73).

j The involved Kentucky schools, the Campbell County School l District, has nine schools with an enrollment of 4347 and situated j

at distances 3.5, 4.5, 9 and 10.5 miles from the Zimmer station.

(I . D. 74). Standard Operating Procedures are con'templated to provide emergency response to these schools, but at the time of the f hearing they. had not been developed, and it is contemplated that the closest schools would be evacuated first. (I.D. 74). 'The Campbell. county School District has 60 buses, 25 of whicha are eight years old or older, and of these buses there were 78 out-of-service days during the 1980-81 scholastic year. (I.D. 74). Five l

to six buses would be required to evacuate the A. J. Jolly (3.5 miles from station) and St. Peter and. Paul (4.5) students, in which the buses would be dispatched from the bus garage, a distance 8

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t of 11-12 miles from the school sites. (I.D. 74). Four qualified bus drivers would be present at the bus garage. (I . D. 74).

Kentucky law requires the school children may be transported +

only by school district buses. (I.D. 72). Teachers can not be

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I i assigned driver responsibility because they must account for the students in their charge. (I . D. 74-5). Under optimum conditions, ,

the time period from initial notification of evacuation until the I boarding of the A. J. Jolly students on buses would be one hour.

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i There is a lack of parental confidence that school officials in the involved Ohio school districts will adequately protect

school children due to an inability by those officials to keep parents advised of the school planning for a Zimmer emergency.

! h (I.D. 75). Parents of New Richmond School District students may proceed to the school in the event of a Zimmer. emergency to trans-port their children although advised not to proceed to the school, which may result in traffic blockage and create congestion, in

' which there are an insufficient number of police officers to direct or control such traffic. (I.D. 75). The New Richmond school site is particularly susceptible to traffic congestion, and the record fails to designate whether the fact that Route 52 in New Richmond, f

an identified evacuation route " bottleneck", would compound the situation at the school site or on Route 52 in New Richmond. (I.D. 75).

Parents in Kentucky may also respond to the schools in the event of

, an emergency, but there is no evidence that this would create traffic ,

l problems to the extent possible at the New Richmond school site.

i (I.D. 76).

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The facts found pertaining to the inadequacy, of volunteer ,

fire and life squad personnel to fulfill assigned emergency response roles and the related' ability of Clermont County residents to follow instructions within emergency planning concepts for Ohio and Kentucky areas within the plume exposure pathway zone are set out a,s Findings of : Fact numbers 67 through 83 at pages 76 through 82 of'the initial decision.

- Clermont County has only volunteer fire squ' abs within the plume exposure zone and only two units within the county, outside of the plume zone, are staffed by full-time personnel. (I.D. 76).

Fire squads' primiry responsibility by plan is firefighting and the secondary response role is to provide door-to-door verification i

of population notification and to support access control, potentially requiring the use of personal vehicles to acco'mp,lish the verification';

  • 5 (I.D. 76). Fire units staffed by full-time personnel are assigned by plan to relocation henters. All but three life squads within Clermont County are composed of volunteers, in which the five life squads assigned the responsibility by pla to respond to the plume area are composed of. volunteers and in which,each of the five units .

has only one emergency vehicle equipped with a radio. (I.D. 76-7) .

The Monroe-life squad and the New Richmond fire and. life squads in Clermont County are two of the closest units to the s Zimmer station. (I . D.s 77).

From the hours off8:00 a.m. to 5:00 p.m. relatively few of the 42 volunteer New! Richmond life and fire squad personnel are available, in which approximately 95% of the life squad personnel

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t and 25% of the fire personnel have ' indicated that they will not respond to the Zimmer sta' tion in the event of a nuclear emergency.

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(I.D. 77). The leader of the New Richmond life squad would first attend to the needs of his family and then determine whether he would undertake his emergency response role and there is evidence that many volunteers would similarly attend to the needs of their families prior to responding and that representations may have been made to them that they would have time to do so. (I . D. 77).

The chief of the Monroe life squad has elected not to participate in any Zimmer emergency and this has resulted in halting the radiological training for this life squad. (I.D. 77).

s To qualify as an emergency medical technician, successful completion of a 70-hour course is_ required, in which less then 30

b minutes is devoted to radiological training. Additional radiological training has been offered, but the extent of that training and the participation of volunteers is unclear. (I.D. 77-8). Twelve members of the 42-member New Richmond fire and life squad personnel have received additional training. (I . D. 78).
Within the Campbell County, Kentucky EPZ, fire and rescue i

units are composed of all volunteers. (I.D. 78). Campbell County i

fire personnel are assigned the role of fire response and assisting

! other emergency response functions, e.g. , assist in protective actions such as confirmation of evacuation and access control.

I (I.D. 78). Standard Operating Procedures for the fire departments are being developed. (I.D. 78).

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The Eastern Campbell County volunteer fire department is located outside Mentor, Kentucky, and services Mentor and an area in the plume exposure zone. (I.D. 79). This department has three to five personnel available during working hours and its members will assist their families before responding to an emergency response role. (I.D. 79).

The Campbell County plan specifies that rescue squads aie to transport contaminated indi'viduals to hospitals; however, such

, personnel are only prepared to provide first aid and hospital transportation and are not trained in the proper transportation procedures for contaminated individuals or to decontaminate themselves or their vehicles. (I . D. 79). Other than monitoring training, no train,ing has been given to these response personnel with respect to injuries resulting from nucledr power plant accidents. (I.D. 80).

Kentucky state and local planners have no knowledge of where volunteer response personnel are employed and no inquiry has been made of fire chiefs to determine if firemen could respond dur'ing daylight hours in the event of a Zimmer emergency. (I.D. 80).

The plan and record fail to indicate that consideration has been given to the number of Campbell County volunteer fire and life squad personnel that could be available at the time of an emergency

. and there is no indication of the number that could adequately perform the responsibilities assigned to them by plan. (I . D . 80).

It is possible that a large number of Monroe Township recidents will not utilize notification symbols and will not follow

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l evacuation or take shelter directions disseminated to them. (I.D. 81).

The estimated period of time for door-to-door verification of Monroe re'sidents would be 3-1/2 to 4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br /> due to the number and nature of roadways and the fact that many residents are serviced by 200-foot and longer driveways. (I . D. 81).

The residents of New Richmond during tornado and flood emergencies have failed to implement protective actions upon notification despite previous distribution of i'nformation concerning protective actions, and these residents often request information from. the police department and often exercise poor judgment, although generally following police instruction. (I . D. 81).

Approximately 50 to 90% of this community may not display notifica-tion symbols and may overreact and panic in the event of a Zimmer b station emergency.

(I . D. 81). A portion of the population involved in the plume exposure zone do not follow directions or respond to written or verbal communications, absent the opportunity to make inquiry concerning the instruction to be followed, and this portion of the population has a severe inability to follow simple directions.

(I.D. 82).

The facts found concerning the inadequacies of the transporta-tion of dependent disabled individuals in Clermont County situated within the plume exposure pathway zone are set out as Findings of Fact numbers 84 through 88 at pages 82 through 84 of the initial I

decision.

Lists of individuals requiring such transportation are to be compiled from postage-paid postcards- designed to identify these individuals and to be distributed with the publication " Circle of Safety" and three Clermont County agencies all have responsibility

for maintaining lists, resulting in confusion as to whom the cards are to be returned. (I.D. 82-3) . The Clermont Association for the Physically Handicapped / Developmental Disabled (CAPH/DD), has primary responsibility for evacuating these-individuals and has identified 306 individuals within the plume exposure zone. (I.D. 83).

Of that number, 20 to 30 are confined to wheelchairs, 4 or 5 of whom Sould not be transported in a supine position, and the expected ~

total number of individuals requiring assistance within the plume ~-

exposure zone is approximately 976 and temporarily disabled individuals may not identify themselves prior to a Zimmer accident.

(I . D. 83). The actual number requiring outside assistance will vary with the time of day and no method of identification has yet been developed. ( ,I . D . 83).

The licensing board, in its discussion under the heading

" General Consideration" found that the applicant's witnesses simply did not have knowledge regarding the details and problems of plan implementation raised by most of the contentions. (I . D. 24-5).

.NRC Staff had very little testimony to contribute. (I . D. 25).

FEMA furnished witnesses who addressed the contentions in prefiled i

testimony, attended all the- hearing sessions and testified 'at length. (I.D. 26).

The FEMA witnesses were no more able to' address the contentions i then were applicant's witnesses and these witnesses lacked the knowledge and involvement with the plans which would enable them to

! address the details and problems of plan implementation raised by the contentions. (I.D. 26). The only reliance placed by the 1

t licensing board upon the FEMA testimony was limited to the school bus drivers being considered emergency response personnel, that volunteers generally tend to respond in emergencies, that people generally tend to follow instructions in emergencies and certain facts regarding water monitoring.- (I.D. 27-8).

The notification of the affected schools and mobilization of buses to be used to evacuate those schools is dependent principally on the commercial telephone system, in which that system, during an emergency, may not be reliable because of extensive use generally in the affected area and heavy parental calling to the schools. (I.D. 31). It is clear from 'the record that once the public is notified of a Zimmer emergency, the telephone systems

. -will be overloaded and simultaneously the volume of calls into the b schools will increase, further complicating the problem. (I.D. 32).

In accord with regulatory guidance, all emergency plans involved in this proceeding require prompt' public notification, in which all of the population within five miles of the station is to be notified within 15 minutes of the declaration of a Zimmer emergency as set forth by each local plan. (I.D. 32, 68, Board ex. 2, SII-D-P, SII-D-2 ; Board ex. 4, 5& 6, Annex C, pp.C-3 & 4).-By plan there is too little time to accomplish more than initial notifica-tion. (I . D. 32).

Where a decision to evacuate is made, school bus drivers must be mobilized and during the period that the drivers are not transporting students, the buses and drivers are at scattered locations during the day, in which the plans have not been developed

to mobilize the drivers and the school buses where telephone service is curtailed or eliminated and there has been n'o plan development to deal with problems presented if buses are in the process of transporting students when the decision to evacuate is made. (I . D. 32). Sufficient buses are available at the bus garage for the Campbell County School District to transport the studehts at A. J. Jolly and St. Peter and Paul Schools; however, the, drivers are not available. (I.D. 32-3). In the New Richmond

, School District, sufficient buses are not available to evacuate the involved students simultaneously. (I.D. 33). Both the Campbell and Clermont County plans are found by the licensing board to be inadequate and incapable of being implemented with respect to evacuation of the affected schools. (I . D. 33).

The plans fail to assess the availability of volunteers during hours of volunteer employment where the work site is outside the EPZ, the plans fail.to consider possible personnel conflicts in the response of volunteers who have families within the EPZ and the plans further fail to give consideration to the possibility that some volunteers who otherwise perform well in non-nuclear disasters may refuse to participate in a nuclear disaster at the Zimmer' station. (I.D. 33-4). The record fails to provide informa-tion as to the availability of volunteer perscnnel, the location of their places of employment and the time required for traveling from work site to emergency unit, a circumstance considered by the licensing board to be a serious plan defect. (I.D. 34).

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\ l The record reveals that testimony from peace officers and Clermont County officials indicated that the public often does not take proper protective action even though instructed to do so and that this sector of the population often uses poor judgment in emergencies. (I.D. 36).

The licensing board discussed, under the heading " Relief",

p. 45, et seq., that the record revealed a number of deficiencies in offsite emergedcy planning. The licensing board held that the deficiencies identified with respect to volunteers, transportation of handicapped individuals, inadequacies in radio communications and in the p'ublication " Circle of Safety" all have clear courses of corrective action and ordered license conditions to deal with those deficiencies. (I . D. 4 7- 8 ) . The board additionally held Ibaat further proceedings are necessary on the issue of school children evacuation. (I.D. 48). The board further held that, based upon the inability of FEMA to respond to the contentions, it is necessary that final FEMA findings relating to the con-ditions and the NRC Staff's supplement to the Safety Evaluation Report relating to those findings must be served upon the parties and that the parties have a reasonable opportunity to assess such findings as to their impact on the admitted contentions and the board's initial decision. (I.D. 48-50).

The board therefore set forth the conditions for full power license, I.D. 94-5; and in its conclusion of law, paragraph six, held that the state of the offsite emergency preparedness fails to provide a reasonable assurance that adequate protective measures s,

can and will be taken in the event of a radiological emergency.

(I . D. 96).

Following receipt of the initial decision, applicants filed their exceptions and thereafter, and following the licensing board's order of August 24, 1982 denying applicant's motion for reconsidera-tion /of its initial decision, filed its revised exceptions and the s ,

matter is now presented to this board for its appellate review.

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ARGUMENT APPLICANT'S EXCEPTIONS TO NUMBERS 1 TO 9, INCLUSIVE,OF THE ATOMIC SAFETY AND LICENSING BOARD'S INITIAL DECISION l THE FINDINGS OF FACT SET FORTH BY THE ATOMIC SAFETY AND LICENSING BOARD IS SUPPORTED BY RELI ABLE, PROBATIVE AND SyBSTANTIAL EVIDENCE WHICH ADEQUATELY SUPPORTS THE BOARD S CONCLUSION OF LAW THAT THE STATE OF 0FFSITE

' EMERGENCY PREPAREDNESS DOES NOT PROVIDE REASONABLE ASSURANCE THAT ADEQUATE PROTECTIVE MEASURES CAN AND WILL BE TAKEN IN THE EVENT OF A RADIOLOGICAL EMERGENCY AT THE ZIMMER NUCLEAR POWER STATION Applicant in its argument, pages 25-7 of its Brief, suggests that the licensing board should have rewritten the emergency response plans or, at least, set out specific guidelines. As the licensing b

board correctly notes, its duty is to determine the issue of the adequacy of plans, not the duty of writing them. I.D. 48. Furthermore, as the licensing board correctly states, it would be wholly inappro-priate for that board to dictate solutions for the problems. I.D. 48.

Applicant admits, page 26 of its Brief, that school emergency response plans and procedures were incomplete and that planners and school officials were not in accord at the time of hearing. Applicant agrues that while failing to discharge its burden that the school plan i

portion of the local emergency plans provided a reasonable assurance that they could and would protect this portion of the involved popul-

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ation, there was no evidence that it could not be accomplished in the future. Appellant's Brief, page 26. The converse equally applies: there was no evidence that it could be accomplished in the future. To accept applicant's reasoning is to require the licensing board, this l

board and the parties to engage in speculation.  ;

Exception 1 claims error in the findings of fact set forth in  ;

all local plans by the plan provision for public notification of ,

that public located within 5 miles of the plant within 15 minutes of the declaration of an emergency,. Those plans, albeit board exhibits, are clearly within the purview of 10 C.F.R. S50. 33 (g) imposing the dutyfupon applicant to submit state and local plans in its application for Sn operating license. Now applicant complains that the licensing

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board finds fact from the plans which applicant had the duty for submission to the board to support its application for license.

Applicant's argument severly damages the sincerity of- its present-ation before this board.

To further illustrate. Exception 2 claims error in the findings-that the local plans fail to. develope mobilization of school bus drivers and other school personnel if telepho'ne service is curtailed or eliminated. The licensing board considered applicant's advancement of its proposition that.one-way NOAA radio communications, and the i

like, and found such proposition wanting in adeqdacy and a failure to provide adequate communications among this emergency response group.

The record supports the finding of the license board; applicant offers nothing to the contrary.

The issue is simple. The applicant has the duty of presenting local plans which provide a reasonable assurance that they can and will l protect the public, in this instance school children. Applicant failed to provide such plans.

The difficulty present during the course of hearing, and again in applicant'.s agrument, is the superficial treatment of the subject A plan must consider all relevant l

by the planner and the applicant.

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t problems and provide reasonable solutions for the protection of the public. The plans here provide for telephone communication within an emergency response group without considering the documented vulnerability of that communication system and the failure to cope with the problem where telephone communication is rendered inoperative.

10 C.F.R. S50. 47 (b) (5) and (6) clearly require that the local plan provide procedures for notification of emergency personnel by all organizations and that provisions must exist for prompt commun-ications among principal response organizations to emergency personnel.

" Emergency plans must meet 16 separate standards set forth in the rule * *

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  • prompt communications among response organizations * * *." Southern California Edison Company' (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-82-39, 15 NRC 1163, 1173 (1982). .

b 10 C.F.R. Part 50, Appendix E, IV. D 3. provides that the applicant shall have the capability to notify state and local govern-mental agencies with 15 minutes after declaring an emergency. Thus the plan must be capable of demonstrating that this provision can be implemented. Next the rule provides that the local officials must have the capability to make a public notification promptly upon being informed, further refined in defining " prompt" as within 15 minutes of the time that local officials are notified to the more likely events where local officials have a substantial amount of time available to make a judgment to activate the public notification system. Here the full superficiality of the applicant and local planners is revealed.

For purposes of planning the plan must demonstrate its capabil-ities to impliment within 15 minutes -- prompt -- notification of the public; albeit the likelihood may be that local officials may have 1

l a substantially. greater amount of time. The plan, however, to be capable of implementation under all circumstances- and within the ,

purview of the rule, it m'ust provide for 15 minute public notification.  ?

If a longer time period is present, then.all the better, for if the plan can be implemented in 15 minutes it certainly can be implemented in a longer period. The converse, as applicant suggests, simply cannot pass rule muster. Plans cannot be based upon " likelihoods" or

" graduated" or " staged" manners. Neither can one within the planning discipline engage in speculations and " chances are" and the like. See applicant's argument pages 39-40 of its Brief.

"A [ Licensing] Board can only judge ' adequacy' with reference to levels of risks, some aspects of which vary from site to site. In addition, Licensing Boards are required to make overall general finding of ' reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency. ' 550.47(a). Such a finding goes beyond a check-list determination whether a plan meets the standards of 10 CFR 50.47(b)." Southern California Edison Company-(San Onofre Nuclear Generating Station, Units 2 and 3), LBP-81-36, 14 NRC 691, 699 (1981).

"Like other Staff regulatory guides, NUREG-0654 is not itself a regulation and therefore does not have the force of law," but none-theless must be given careful consideration as a joint NRC/ FEMA staff techinical expertice and as cited favorably by the Commission at foot-note 1 of 10 C.F.R. S50.47(b). Southern California Edison Company, supra, 15 NRC, at 1191.

NUREG-0654 provides additional support, although a regulatory guide, for the correctness of the licensing board's findings of fact and conclusion of law. Illustrating the communcations planning i

o ,

I requirement for school emergency response personnel and volunte er emergency response' personnel (fire and life squads), the regulatory guide announces: "[t]he plans should make clear what is to be done in an emergency, how it is to be done and by whom." NUREG-0654, p. 29.

As to both stated groups of personnel the record demonstrates in part as to volunteers and wholly as school personnel that it is unclear within the plan as to what is to be done and totally absent is how it is to be done. Furthermore, the subject NUREG provides that the minimum time within which the plan must be capable of being implemented is 30 minutes from the onset of accident to the start of a major release and that that release of radioactive material may be expected to be released for a period of 30 minutes to a few days. NUREG-0654,

p. 13. Table 2, page 17 of NUREG-0654, further provides time and

. distance for travel of radiation releases of from 30 minutes to 2 h hours for a 5-mile area. That table is used in the development of criteria for notification capabilities in Part II of the guide. NUREG-0654, pp. 13-4. Considering both rule and regulatory guide the planner is advised as to time limitation within the planning consid-erations and must develope his plan to conform to the minimum times presented and once complying with those times the plan is well equipped to afford protective action and' emergency response within longer times.

f The site specifics of school evacuation present the circum-stances that the plans fail to address the deficiencies of commun-ications within the school emergency response group and wholly fail l to address the situation of 'an inadequate number of school buses to l

accomodate evacuation or the manner in which buses utilized in three-I trip routing would cope with students on bus and students at school in the event of a public announcement directing evacuation. The record is replete in evidence that no planning consideration has been developed

-??-

to cope with those deficiencies and the licensing board's findings of fact are abundently supported. Nonetheless the applicant argues that the board erred in those findings: exceptions 3 to 5, inclusive.

Applicant misjudges the role of planning in preparedness. T.o be prepared the plan must address itself to the worst conditions and to the minimum time factors to provide a reasonable assurance that the health and safety of the community can and will be protected.

/

The plan to accomodate preparedness can not postulate odds and chances and "might bes" or " likelihoods", but must be framed within the context of minimuns to comply with rule and regulation. If minimum is achieved then maximum is clearly within the purview of preparedness; to the contrary, maximum excludes minimum.

Exceptions 5 to 8, inclusive, have been previously discussed.

Astoexceptios9therecordsupportsthefindingandmostcertainly the licensing boar'd observed and considered as claimed conflict in the witnesses testimony and appropriately judged,.as fact finder, the credibility of this and other witnesses and found as it did.

Totally absent from applicant's argument is. direction to the record where no evidence is present to support a finding of fact and therefore the resulting error. The best that applicant can muster, and in only a few situations, is conflict in the evidence which the licensing board resolved by its fact finding. It is for the licensing board to resolve such conflicts as the trier cf fact

- and having so found the issue is no longer open to dispute.

The applicant has yet'to demonstrate how the school communication works to disseminate information among school response personnel and mobilize bus drivers and summons buses to the schools to evacuate school children with the rest of the population where that communications system is destined for success or failure upbn the presence or absence ~

I of a busy signal or an open line.

4

! APPLICANT'S EXCEPTIONS TO NUMBERS 10 TO l#, h7 to /6 INCLUSIVE,OF THE ATOMIC SAFETY AND LICENSING #

BOARD'S INITIAL DECISION 1

THE STATE OF THE RECORD'IN THE LICENSE PROCEEDING UNDER REVIEW PRESENT SEVERAL AND SIGNIFICANT SAFETY.

FACTORS WITHIN THE EMERGENCY PLANNING WHICH ARE DEFICIENT AND PERMITTING CORRECTIONS OF SUCH DEFECTS TO STAFF RESOLUTION EFFECTIVELY DEPRIVES THIS INTER-VENOR TO AN ON-THE-RECORD HEARING ON THE ADEQUACY OF THE OFFSITE EMERGENCY PLANS SUPPORTING THE LICENSE' WHICH IS REPUGNANT TO DUE PROCESS OF. LAW CONSIDER-ATIONS AND IN VIOLATION OF SECTION 189a OF THE ATOMIC ENERGY ACT AND A TOTAL FAILURE TO OBSERVE 3

THE POLICY OF THE COMMISSIQN AND RULES GOVERNING THE. RESOLVE OF ISSUES The Commission's policy is c..srly stated as requiring that

-Atomic Safety and Licensing Boards should ensure that hearings are b fair and produce a record which leads to high quality decisions that adequately protect the public health and safety, wherein measures l

may be taken in the hearingprocess which do not compromise the

" Commission's fundamental commitment to a fair and thorough hearing l process." Commission's Statement of Policy on Conduct of Licensing Proceedings, 46' Fed. Reg. 28533, 28534 (May 27, 1981). The Commission makes it quite clear that while it supports adjudication before the l end of construction, that adjudication must be cognizant of the t  !

I 1

J standard that it be " conducted in a thorough and fair manner." 46 Fed. Reg., at 28535.

1 The obligation of a licensing board is to be able to be in a position to issue sound and timely decisions "that have the public j

. 1

interest in mind. To this end, the boards have broad and strong l

! discretionary authority to ' conduct their functions with efficiency l -

24-l

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and economy,' However, they.must exercise it with ' fairness to all parties' (10 CFR Part 2, Appendix A) . " Offshore Power Systems (Floating Nuclear Power Plants), ALAB-489, 8 NRC 194,-206 (1978).

The board below, citing the Commission as authority, states that as a general proposition, issues should beedealb with in the hearing and not left for subseq'uent informal resolution, which in certain circumstances . tlua licensing board may make findings on un-

/

resolved matters conditioned on the correction of a minor deficiency; t

and , ' cn1 the other hand, in doubtful cases the matter should be resolved in the adversary framework prior to license issuance..I.D.

46-7.

10 C.F.R. Part 2, Appendix A, V. (g) (1) provides authority to j the licensing board that where -- as here -- uncertainties arise from lack of sufficient information in the record (e . g. , the adequacy 4

of emergency response pertaining to schools, volunteers and trans-portation of the handicapped), "it is expected that the board would normally require further evidence to be submitted in writing with opportuni.ty for the other party to reply or reopen the hearing for the-taking of further evidence, as appropriate." (Emphasis by writer). Based upon the state of the record here the board has reopened the hearing for the taking of further evidence on the school plan issue and provided the opportunity to the parties to assess the impact of the formal FEMA findings and related supplement to the Staff's Safety Evaluation Report as they relate to the . admitted contentions and the board's' initial decision.

Certainly, as discussed by the licensing board in Southern California Edison Company (San Onofre Nuclear Generating Station, l '

! Units 2 and.3), LBP-82-39, 15 NRC 1163, 1216 (1982), that a board is to find a reasonable assurance that there are no barriers to i -

i ,

. t emergency planning implementation and on1'y where the consideration can be adequately accounted for by predictive findings can the matter proceed for resolution without the necessity for further evidentiary hearing. Matters of a minor nature can be solved without i

further' hearing. "But there are limits on the approach of leaving an open matter for Staff resolu' tion. To postulate the extreme example, a board might find after an on-the-record hearing that an emergency plan was deficient in virtually all respects, and then leave correction of the defects to Staff resolution, without further hearing. Such an approach would effectively deprive an intervenor of an on-the-record I hearing on the adequacy of the emergency plans supporting the license, -

in violation of Section 189a of the Atomic Energy Act." Southern California Edison Company, supra, 15 NRC, at 1217. There, as here, a significant issue -- medical services for the public -- was in-b volved, which in many' respects is similar in significance to the issues present in the instant case for which further review is required. Id., at 1217. The board there procedd much in the same nature as the board here, and the following is germane to the issue argued in this series of exceptions:

There is one planning defect in the present case on which an opportunity for further hearing is required

-- the adequacy of the arrangements for me' dical services for the public in the plume EPZ. Questions of adequacy on a subject of this complexity involve large elements of judgment and expertise. These are the kinds of questions for which cross-examination is required --

in the words of the Administrative Procedure Act --

. "for a full and true disclosure of the facts." We are retaining jurisdiction to review the adequacy of the Applicants' further arrangements for medical services, and, if duly requested, to hold a further hearing thereon.

Id., at 1217.

The licensing board, based upon the record, made findings of fact which compelled it'sconclusion of law that the state of the

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I of the offsite emergency response plans failed to present a reasonable i

assurance that they were adequate and could be implemented for the protection of the health and safety of the public.

"Except for the specific 10 mile EPZ, the rule speaks in general terms, such as ' adequate' emergency facilities, equipment, methods, systems. S50.47(8), (9). A Board can only!. judge ' adequacy' with reference to levels of risk, some aspects of which vary from site to

/

siteq In addition, Licensing Boards are required to make an overall general finding of ' reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.'

S50.47(a). Such a finding goes beyond a check-list determination whether a plan meets the standards of 10 CFR 50.47 (b) ." Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-81-36, 14 NRC 691, 699 (1981). -

Applicant, planner, and FEMA, as the record depicts, applied a check-list determination as to the plans' compliance with 10 C.F.R.

S50.47(b). The licensing board went beyond that scope and in its overall consideration of the record as supplied by its findings of fact correctly concluded that the plans failed to provide the i reasonable assurance required by rule. The licensing board did so from the backdrop that the levels df risk attendant to defective school emergency response plans and the inability to ascertain what, if any, and how many, volunteers would respond to their assigned emergency response role judged the plans to be inadequate.

Appellant argues that 'there is no evidence that the plans

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can not be successfully completed in the future. Appellant's Brief, page 46. Applicant fails to observe that the burden of proof in the licensing proceeding seeking the issuance .of the operating l- .

l  !

l license is place'd upon the applicant. 10 C.F.R. 52.732 and Part 2, Appendix A, V. (d) '(1) . In addition, 10 C.F.R. S5 0. 33 (g) imposes the duty upon applicant to submit state and local emergency response plans and 10 C.-F.R. S50.47 requires that those plans comply with several factors and be determined to provide a reasonable assurance that they can and will provide ' measures for the protection of the public. Applicant fME'ed on all scores in the licensing proceeding, resulting in the record for which it now seeks review by this board.

Applicant who sought the licensing hearing at the known stage of plan development for it is applicant that bears the duty pursuant to 10 C.F.R. S50. 33 (g) for the submission of offsite plans) and brought the issue of the adequacy of those plans to the adiersary hearing and failed to support the adequacy of those plans. Having b so failed, applicant now desires'to detour further hearing on that issue and to proceed under Staff and FEMA review without again subjecting those plans to the h aring. process. In doing so applicant seeks to deprive this intervenot of the right to confront witnesses and the right to inquire within the adversary process of the suffic-iency of the plans and the judgment of those finding the plans adequate.

It is important to note that applicant, state and local planners and FEMA all found the plans adequate; the licensing board found them defective. NRC Staff endorsed the adequacy of the plans by submitting proposed findings of fact, conclusions of law and order proclaiming that the plans were adequats and that the operating license must issue. This intervenor has good cause on this record not to trust such a process and to demand further hearing before the licensing board.

Not only is this intervenor entitled to further hearing as

- ' set forth in the authorities previously discussed, but is furthsr 4

entitled to due process constitutional considerations within the 4 administrative process.

Ent21ement to heari'ng, confrontation, inquiry'into questions of reasonableness e and the fundamental requirement of the opportunity I to be heard at a meaningful time and in a meaningful manner all 1

fall within constitutional concepts of due process applicable to the administrative process and to which this intervenor is entitled.

Chic 2go, M. & St. P. Ry. Co. v. Minnesota, 10 S. Ct. 462,467 (1890);

p Southern Ry. Co. v. Virginia, 290 U.S. 190, 195, 199 (1933); Shields

,v. Utah Idaho Cent. R. Co.,.,305 U.S. 177, 182 (1938); Morgan v- United .

States, 298 U.S. 468, 480 (1936); and Armstrong v. Minzo, 380 U.S. 545, 522 (1965).

Applicant sets forth no reason and no authority in its argument pertaining to the,. exceptions set forth under this issue. Applicant's position is totally without merit.

i APPLICANT'S EXCEPTIONS TO NUMBERS 12 TO 14,  ;

INCLUSIVE, OF THE ATOMIC SAFETY AND LICENSING BOARD'S INITIAL DECISION BASED UPON THE STATE OF THE RECORD IN THE LICENSE-PROCEEDING UNDER REVIEW THIS INTERVENOR IS ENTITLED TO ASSESS THE IMPACT OF THE FORMAL FINAL FEMA FINDINGS AND NRC STAFF SUPPLEMENT TO THE SAFETY EVALUATION REPORT WHICH RELATES TO THE ADMITTED CONTENTIONS AND THE INITIAL DECISION AND AS APPROPRIATE SEEK FURTHER HEARING ON THE BASIS THAT FEMA HAS YET TO RESPOND IN THE LICENSING

- PROCEEDINGS TO FULFILL THE DUTY IMPOSED BY RULE The licensing board, as stated at page 4 of the Order ruling upon applicant's Motion for Reconsideration, that its ruling with respect to the FEMA findings as set forth in the_ initial decision was intented to apply only.to the facts of the instant case. As the

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t board bslow explains, it was bastd upon thras factors. First, counsel for applicant's statement (I . D . 50) that he had repeatedly emphasized that if there are significant new developments that they would have to be brought'to the attention of the board and the parties and that the intervenors would be given the opportunity to make appropriate motions with regard to hearing resumption as those significant changes might affect the contentions admitted in the proceedings. Second, the nature of FEMA's testimony during the hearing process and the total inability of FEMA to discharge its obligations, which is discussed in detail by the licensing board both in its initial decision and in its order on applicant's motion for reconsideration. Third, that the issues came to hearing on plans yet subject to revision and FEMA approval after the close of the record. Page 4, Order of August 24, 1982.

Without regard t.o the issue of " rebuttable presumption" contained b

in 10 C.F.R. S50. 47 (a) (2) , the licensing board is obligated to base its conclusions regarding the adequacy of offsite preparedness as related to admitted contentions upon a FEMA review of the adequacy of offsite plans and by FEMA testimony. Id., at 5.

Applicant argues that the board misconcieved its role on the l basis of " interim" as opposed to " final" FEMA findings. No quarrel is necessary on that issue simply because whether the findings were interim or final and irrespective of whether the offsite plans were interim or final, the fact remains the licensing board had no pro-ductive testimony from FEMA on the state of the offsite plans. It is not a question of the state of plan or FEMA review, it is the absence of FEMA contrabution to the hearing process and the opportunity of this intervenor to confront FEMA witnesses and to inquire into the factors upon which the FEMA determination rests. To follow the s

hearings process here and applicant's argument, utilities could simply circumvent the hearing process by presenting inadequate plans and FEMA could escape its, obligation by presenting positions of the kind discussed by the board below; intervenors could prevail on the

+

issue of plan adequacy, and thereafter the applicant could simply obtain review and plan approvaf on the ex parte basis without the necessity of intervenors posing probing questions directed to the

(

sufficiency of the offsite preparedness and without licensing board 1

consideration. A neat package if it works.

FEMA is not without responsibility in this matter. As,the licensing board discusses in its August 24th Order, FEMA should not have agreed to proceed to hearing, but it did and based upon its witnesses' performance the board discounted their testimony leaving to the board no other avenue than "to conclude that we would not.

issue an operating license until its final findings related to the contentions had been filed and reviewed." Page 7 of the Order.

The board below correctly states the state of affairs of this record: the board has no reliable and probative evidence of the government's answer to the problems raised by the contentions." Id. ,

at 7. The bottom line, as put by the licensing board: .the record in this matter is inadequate and it can not judge the government's reactions to the contentions. Id., at 7. The board further observes that to take any course other than its position would be to deprive the parties and the board of any opportunity to cross-examine FEMA witnesses as to the basis for its position and conclusions. Id., at 8.

It must be noted that while 44 C.F.R. Part 350 is a proposed rule, it was utilized by the FEMA witnesses in the licensing process under review as the written prefiled testimony by those witnesses

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demonstrates, and as FEMA utilizes th'e rule'in offsite plan review.

44 C.F.R. 5350.3(e) provides that " FEMA will support its findings in the NRC licensing process and related court proceedings." 10 C.F.R.

S50.47 (a) (2) provides that the NRC will base its/ finding on FEMA review, findings and determination of the adequacy of offsite plans

~

within the standard of the adequacy of the plan of being capable of being implemented. The. rule further provides that in a licensing proceeding a FEMA finding will constitute a rebuttable presumption on the question of adequacy. First, 44 C.F.R. S350.3(e) and 10 C.F.R. 550. 47 (a) (2) recognize FE:iA's involvement in the licensing proceeding.

Second, whether the question of rebuttable presumption ariseg depends upon FEMA's ability to create the presumption in the first instance, and if so, then one proceeds 'to the rebutting stance. Here FEMA established nothing, thus the rebuttable aspect never came into b existence.

Applicant's statement, page 11 of its Brief, that nothing ig contained in the rules indicating that formal FEMA finding are to be addressed in the licensing process simply misses the mark ,

pertinent to the issue raised in this case. Applicant's position is immaterial. The point present in this case is that- FEMA provided nothing in the licensing process, interim or final, and thus the situation is created that no hearing of merit was held requiring FEMA findings in a final stage before hearing can be resumed and I license issuance entertained. l Applicant continues to miss the issue in its agrument that the FEMA rule and revised NRC rule are at odds on the issue of

}

exercise drills. Perhaps they are, but one does not have to reconcile l

I the two rules within the circumstances of this case. The point which i-f

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escapes applicant is the failure of FEMA.to provide information in the licensing process, to discharge. its duty to evaluate the offsite plans, and to provide the opportunity for board and party to cross-examine FEMA witnesses on their cronclusions so that the government has provided an important factor to the licensing process.

FEMA having failed to reach the' level necessary for productivity in the licensing process renders that. process a nulity and requires

/

the return of FEMA witnesses once final review is completed so that

~

board and party can make appropriate inquiry; otherwise, the record of the proceeding is and remains for all time inadequate notwith-standing non-adversary review.

Applicant further argues that it has no knowledge of a contested proceedings in which a licensing board has delayed or withheld issuance of a licensce because the final FEMA findings had not been made.' By the same token, nothing is known of a case in which FEMA wholly failed to discharge its responsibility, albeit FFMA is claimed by applicant to be in a more advanced stage in this proceeding than in others on the basis that it had conducted a November 1981 exercise prior to hearings.

Applicant he an apparent attempt to grasp some straw argues that no interrogatories were directed to FEMA, it filed substantial written testimony, " portions of which went unchallenged," but applicant fails to perceive the totality of FEMA testimony being discredited and once down little was to be gained in continuing to kick the l fallen witnesses. Applicant's Brief, page 14. That argument by applicant simply misses the inadequacy of FEMA testimony and one remains unconvinced by the volume of testimony prefiled, the absence of interrogatory, or otherwise. .

Applicant suggests that in some manner. the FEMA testimony was

.,o

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elevated to greater importance than other expert witnesses offered by a participant in the licensing process. FEMA is not another expert

, witness, it is the government agency charged with the responsibility to p' ass upon the sufficiency of offsite plans for the safety of the public and the agenegr. which in rendering its conclusions of the state of offsite plans in a contested matter must be produced so that the parties and the board may inquire into the manner in which it~ addressed the plans and the basis for its conclusions. That hasn't happened yet.

Again applicant fails to perceive the situation as it states that the " poor presentation" by FEMA is no basis for the licensing board to disregard, in effect, the evidence. presented by applicant, Staff and planners. Applicant's Brief, page 15. First, applicant undermines the importance .of a ? FEMA participation in the licensihg-l g process. Second, it disregards the licensing board's position. soundly founded on tdun record, that the applicant's witnesses relied upon-others in its knowledge of the plans and problems related thereto and could not speak with authority as to the problems present and approaches seeking solutions; Staff has limited participation on the offsite planning issue from the standpoint of witness production although Staff counsel was aggressive as noted by the board, and the planners came into conflict with competing. testimony and the licensing board found the evidence o'ffered by intervenors to be the more i

compelling and thus presented the findings of fact which support the conclusion of law and did so upon reliable, probative and sub-stantial evidence.

Applicant urges that even though the licensing board could not f rely on any FEMA testimony that it could nonetheless based its findings i

upon "other testimony." Applicant's Brief, page 16. Applicant fails

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to observe the record, the findings of fact and the reasons presented by the licensing board for its decision.

"An applicant for an operating license is required to submit emergency plans for the State in which the facility is located and for local governmental units located wholly or partially in the plume EPZ. (10 CFR 50.33(g))." Southern California Edison. Company (San Onofre Nuclear Generating Station, Units 2 and 3) , LBP-82-39,

/

15 NRC 1163, 1211 (1982). Whatever the problems may be with FEMA findings, interim or otherwise, but as addressed by the licensing board in San Onofre, the issue of predictive findings rest with minor ascepts and those matters, exampled by the four-wheel vehicle illustration, don' t require further hearing and reasonable assuance can be found by the licensing board; the appli' cable standard is that reasonable assurance can be found provided there are no

" barriers" to plan implementation. Southern California Edison Company, supra, 1216. Here "barriet$ were found by the board. The issue of the adequacy of . medical arrangements for the public was such a

" barrier" in San Onofre which required further hearing. Id., at 1217.

Applicant f ailed to present evidence which supports a license issuance as authorized by 10 C.F.R.S50.33 (g) and.S 50.47. The record simply does not support a reasonable assurance that the offsite plans are either adequate or capable of being implemented in the face of the deficiencies found by the board.

The applicant further aggues that the record here is closed and to provide further proceedings an intervenor must move for reopening of the record accompanied by the strigent requirements present in such a procedure.

If the applicant is serious about the record being closed, then

. =

4 I

the burden falls upon the applicant at a future. date to seek the reopening of the record to establish within the' hearing process. [

thatothere has been a substantial change to cause the withdrawal:

of the conclusion of law that the state of offsite plans is that they are inadequate.

~

Little difference is viewed in the manner in which this licensing board set forth the matter from that in San Onofre where the board announced that it was continuing its juridiction to

! determine the issue .of the adequacy of medical services to the i

public. Southern California Edison Company, supra, 15 NRC, at 1273.

Perhaps it would be better to treat the instant matter from the standpoint that the licensing board retains jurisdiction to consider the future attempts to correct the planning deficiencies.

Applicant further contends that once having confronted FEMA' b witnesses and although applicant's failed to obtain the issuance of an operating license at full power, that all parties have been accorded all rights existing under the Atomic Energy Act of 1954 and the Administrative Procedure Act, including the right to cross-examine witnesses. Applicant would be absolutely correct if l

l the record was frozen as it is and that the decision of the board h

would be fully applicable forever, which is;of course, the nature of ~ most litigation. Applicant wants it'scake and to eat it too. This intervenor will waive its rights to confront witnesses and to return i >

. to hearings if applicant will also waive its right to pursue the operating license and to seek further review by FEMA and the decision

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now made will remain binding. Of course, if applicant desires to

[

have further FEMA review of the offsite plans and seeks to acquire the operating license for full power, then this intervenor desire to ask those witnesses from FEMA and other witnesses a few questions just

-- 3 6 - . _ .

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that reviewing process and to see if the manner of approach has changed or not. ,

As pointed out by the authorities discussed in the preceeding argument, this interverio'r has some outstanding rights of cross-examination and istentitledto due process provision' by constitution

~

and rule. It is applicant that has stopped the proceedings dead in its tracks for it is applicant'that must provide a3 reasonable ,.

/ s (;q ' '

assurpnce that the operation of i'ts plant, as to offsite plans, will not harm the public. Once applicant starts the process up again then this intervenor and othezs will return to hearing and pose the questions and avail themselves of their right to a licensing hearing on the

.i admitted contentions which have yet to berdiscredited.

Applicant states at page 23.of its Briefi "[t]he Licensing -

1 ,

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

That statement leave the future of this licensing. process in no better position than it now stand's and as such not only ought the record remain closed but the plant shut down'as.,well for a reason-l able assurance that the plans are adeiguate and capable of being s >

4 1,

implemented ~for the protection of the1 health and safety of the public is certainly not forthcoming.- ,

Anytime that applicant can submit'offsite plans arguably divorced i from the found deficiencies, then hearings can, restime: to review the

. claim that the plans have corrected the problems' found.' If, applicant wishes to pursue the operating license from a closed record and to l seek to reopen it this intervenor has-no objection. This intervenor

- . s does object, however, to applicant's attempt to thrust upon it the h

burden of reopening the record where it is the applicant'that failed  ?

4 to prevail in the licensing hearing. -

. a. -

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3

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  • CONCLUSION For the reasons advanced in this Brief the applicant's exceptions should be denie'd and the initial decision of the licensing board affirmed in all respects.

Respectfully submitt November 3, 1982 )

%NDREW b. DENti SON

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200 Main Str t Batavia, Ohi 45103 Telephone (513) 732-6800 Counsel for Intervenor Zimmer Area Citizens-Zimmer Area Citizens of Kentucky i

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KETED 00i.

u w UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'82 NOV -8 N0:47 In the Matter of )

) OF EELRt IAW The Cincinnati Gas & Electric ) GFF"'CING DOCI & SERVICE Company, et al. ) Docket No. 50-358 BRANCH

.)

(Wm. H. Zimmer Nuclear Power )

Station) )

/ CERTIFICATE OF SERVICE I I hereby certify that copies of "Brief in Opposition to Applicants' Revised Exceptions Relating to the Atomic Safety and' Licensing Board's June 21, 1982 Initial Decision Submitted on Behalf of Zimmer Area Citizens-Zimmer Area Citizens of Kentucky

, Intervenor" dated November 3, 1982 in the captioned matter, have been served upon the following by deposit in the United States mail this 3rd day of November, 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 Universitysof Michigan Ann Arbor, MI 48104 Stephen F. Eilperin Atomic Safety and 'Dr. M. Stanley Livingston Licensing Appeal Board Administrative Judge l

U.S. Nuclear Regulatory 1005 Calle Largo Commission Santa Fe, NM 87501 Washington, D.C. 20555 Chairman, Atomic Safety Howard A. Wilber and Licensing Appeal Board Panel l .

U.S. Nuclear Regulatory Atomic Safety and Licensing Appeal Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Chairman, Atomic Safety and Licensing Board Tanel Judge John H. Frye, III U.S. Nuclear Regulatory Chairman, Atomic Safety Commissi~on and Licensing Board Washington, D.C. 20555 l U.S. Nuclear Regulatory

! Commission

! Washington, D.C. 20555 I

e e . .-

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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 Troy N. Conner, Esq. 462 Main Street 1747. Pennsylvania Ave., N.W. Batavia, Ohio 45103 Washington, D.C. 20006 William J. Moran, Esq.

Lynne Bernabei, Esq. Vice President.and General Counsel t Government Accountability The Cincinnati Gas & Electric Project /IPS 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 b Box 181 Regulatory Commission Batavia, Ohio 45103 Washington, D.C. 20555 Brian Cassidy, Esq.

Regional Counsel Federal Emergency Management Agency Region I John W. McCormick POCH Boston, MA 02109 l

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ANDREW B. DENN p N Counsel for Zimmer Area Citizens-Zimmer Area Citizens of Kentucky W

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